In the Matter of ) August 26, 1957 ) "MAN'S DARING ADVENTURES" ) ) (Star Edition, Inc. ) 545 Fifth Avenue ) New York 17, New York. ) Successor to Star ) H.E. Docket No. 4/278 Publications, Inc.) ) ) and its application for entry ) as second-class matter at New ) York, New York. ) Goff, Abe McGregor POST OFFICE DEPARTMENT WASHINGTON, D. C.
On January 2, 1957, in accordance with 39 C.F.R. Part 201.40(h), the publisher, hereinafter called the petitioner, in the above matter filed a petition for review of a proposed denial of second-class entry by the Director of the Division of Mail Classification of the Post Office Department. In accordance with the Department's Rules of Practice, the Director, as respondent herein, was required to show cause why the proposed denial should not be reversed.
The respondent's answer to the petition denies that the publications in question were regularly issued at stated intervals and avers that the magazines are dominated by pictures and text of an obscene character which makes them nonmailable under the provisions of Section 1461, Title 18, U.S.C.
At the hearing before the Hearing Officer, the testimony discloses that the application for second-class mail privileges was filed on September 2, 1955. The application stated that the publications would be issued bi-monthly. The first issue of the magazine was for November, 1955, and the second issue was for February, 1956. Between the dates of publication of the first two issues the publisher died. The third and fourth issues were for the months of August and October, 1956.
The Hearing Officer found that none of the four issues of the publication were in violation of Section 1461 but held that the publication should not be accorded second-class privileges because
it did not meet the requirements of regularity of publication set forth in 39 C.F.R. 22.2(b); (132.221, Postal Manual) and did not comply with the regulations of the Department with respect to change of frequency as required by 39 C.F.R. 22.3(d); (132.34, Postal Manual).
The respondent has filed exceptions to the Hearing Officer's recommendations that the publications were not in violation of Section 1461, Title 18, U.S.C.
The publications are conglomerations of grisly sensationalism, sordid sex interest and "adventure" articles. There is nothing in them of real literary merit or educational value. However I cannot find that the dominant effect is obscenity in violation of the criminal obscenity statute and the various judicial constructions that have been placed on that statute. The Examiner's conclusion on this score will not be disturbed.
The petitioner also filed exceptions to the Examiner's finding that the publication was not issued at stated intervals.
Although obviously the four issues of the publication in question have not been published regularly, it appears from respondent's Exhibits 6 and 7 that the petitioner notified the postmaster at New York City of the reason for delay. These notifications are contained in letters and not in forms prescribed by the Department. From these exhibits it appears that this change in frequency was not intended to be permanent but was only occasioned by the death of the publisher and the resultant delays.
Although there was a lapse of more than two months between the second and third publications, this was not permanent as evidenced by the publication of the fourth issue two months from the date of the third and should not be held as grounds for denial of the permit.
The Director of the Division of Mail Classification should grant petitioner's application for second-class privileges. It is recommended that he make an administrative determination as to the amount of excess money deposited by the petitioner, to be refunded.
Dated this ________ day of August, 1957.