In the Matter of the Application of

 HIGH FIDELITY BROADCASTING CORP. 

 for entry of the publication known as WFMR Program Guide as
 second-class matter.  

 P.O.D. Docket No. 1/8

 September 25, 1958

 Edward Carlick Hearing Examiner.  

 POST OFFICE DEPARTMENT, WASHINGTON, D.C.

This proceeding was instituted by the High Fidelity Broadcasting Corp. upon the filing of a petition pursuant to the appropriate Departmental Procedures, ¹/ following the receipt of a communication signed by the Director, Postal Services Division, Bureau of Operations, wherein the petitioner was advised that said officer proposed to recommend denial of its application for admission to second-class mail privileges of the publication "WFMR Program Guide." Pursuant to the issuance of an Order to Show Cause the said Director, hereinafter referred to as the respondent, through the General Counsel for the Department, filed answer setting forth the grounds for his proposed denial. Hearing was duly held before the designated Hearing Officer, James C. Haynes. Thereafter, as provided by the Procedures and pursuant to the orders of the Hearing Officer dated July 18 and July 22, 1958, the petitioner and respondent simultaneously filed their proposed findings of fact and conclusions of law and supporting reasons. Thereupon, the record was completed for this report. However, due to the unavailability of said Hearing Officer this matter was assigned on September 6, 1958, to the undersigned for the rendering of this report. The entire official record, including the transcript of proceedings, pleadings, exhibits, proposed findings and conclusions, etc., has been considered by me in rendering this report.

The respondent asserts that the publication in question is not entitled to second-class entry because it is "designed primarily for advertising purposes," as prohibited by 39 U. S. Code 226. ²/ Respondent also cited in his said communication of proposed denial (copy in evidence as respondent's Exhibit 3) the pertinent regulation promulgated for the enforcement of the invoked statute which is as follows: "Advertising Publications. Publications designed primarily for advertising purposes may not qualify for second-class privileges. They include: b. Those owned or controlled by individuals or business concerns and conducted as an auxiliary to and essentially for the advancement of the main business or calling of those who own or control them." (Sec. 132.226 of the Postal Manual)

Petitioner proposes that it be found that the publication in question meets with the four conditions specified in the statute as supported by the application for the petitioner (in evidence as respondent's Exhibit 1) and the publication (copies of the May and June issues in evidence as respondent's Exhibits 2 and 4, respectively). Since, as pointed out by the petitioner, the respondent does not question such a proposed finding (Tr. 9, 10) I find that the publication satisfies the four enumerated requirements of the invoked statute.

The only issue is, therefore, whether the publication "WFMR Program Guide" was "designed primarily for advertising purposes."

Neither party has cited any Departmental proceeding or judicial decision which involves a similar type of publication. Petitioner states, "as far as litigated cases are concerned it is believed that this is the first time that this precise issue has come up" (proposed findings, p. 13). Respondent states, "There is little in the decided cases to guide one in interpreting this phase of the statute and in applying it to a particular case" (proposed findings, p. 5). However, respondent refers to as a guide, a certain opinion of the Assistant Attorney General for the Post Office Department, dated March 7, 1877, This cited decision and the one of the Attorney General cited by petitioner (proposed findings, p. 14) were covered by the Hearing Officer in what may be described as a resume of legislative and administrative history given with his report and referred to in the Departmental Decision by the Judicial Officer in the proceeding entitled in the matter of Conover-Mast Publications, Inc., H.E. Docket No. 5/173, reference to which is made for this report. In short it may be stated that the word "primarily" as used in the statute means chiefly or principally and "designed" meaning purpose or intent.

The question is, therefore, whether the publication was principally or primarily intended to serve as an advertising medium. Therefore, if the publication does advertise this does not necessarily mean that it comes within the meaning of the prohibition of the invoked statute. See also Lewis Pub. Co. v. Wyman , 182 Fed. 13, 16.

The magazine is approximately 5 1/2 x 8 1/2 inches in size. One issue consists of 30 pages and the other of 32 pages. Each commences with what may be called an introductory page listing the staff, the general programing of the station, namely, that "In addition to broadcasting serious music this station also presents a limited schedule of fine arts," the daily features and what is called "miscellaneous" consisting of "high fidelity recordings," "world literature," "opera," etc. At the front of each issue there are also several pages devoted to a discussion of classical records described under the heading "Noteworthy Releases" for the month and a page devoted to items of particular interest to be presented on the station regarding certain classical works. The June issue also has about 1 and 1/4 pages, commencing on page 2, in the form of a letter from the station's Assistant Manager to the subscriber which generally sets out the background of the station and its broadcasting policy. Included are statements to the effect that the station shall expand its coverage "over local events embracing culture as well as music," that the station "has secured permanency ...," that the station has "a list of impressive and very wonderful sponsors" and that plans are being made to apply for a power increase which will make it "one of the most powerful FM stations in the Middle West]" There is then presented in the publication except for the last page, the programing of the station in detail, comprising approximately 19 pages. However, interspersed are several advertisements: In the May issue there are 9 full page advertisements. In the June issue there are 4 advertisements each being of a full page. The advertisers include radio and television stores, a public utilities company and an "investment securities" company. Several of these name the particular program sponsored by it on the station. Half of the last page of each issue lists the sponsors, about 16 in number. In one of the issues the remaining half is a blank form to be used for obtaining a subscription of the publication. The other issue (June) devotes the remaining half page to a statement concerning to the effect that the sponsors represent a major source of revenue for the station and that they are carefully screened by the station and requesting in effect, that they be patronized. The reader is told that by such cooperation there can only result "more continued sponsor support of the station in a more secure future for lovers of fine music in good taste."

The Respondent argues that the several promotional statements made in the publication as above indicated, constitute the intent and design of the publisher when the "over-all purpose and impact of the publication be considered" and that this determination is not to be made "by means of a quantitative evaluation." In other words, respondent asserts that the intent and design of the publisher is "to increase the listening audience for the station, and thereby advance the financial interests of the corporation, by bringing to the subscribers listings of its programs, laudatory comments concerning the quality of the programs, the importance of the station in the community, and urgings upon the readers to support its commercial sponsors." Respondent urges that, "In this context, even the program listings themselves further the advertising purposes of the station owner-publisher" (proposed findings, pp. 6, 7). However, in making this determination not only are the contents and the presentation thereof, that is, its format, style, arrangement, etc., of importance, but also of importance are the various aspects of its circulation. As stated in the Wyman case, "Obviously the number of copies distributed gratuitously has a direct bearing upon the primary or chief design of the publication, whether really for subscribers at a substantial or compensatory price, or, on the other hand, at a nominal price and for advertising purposes." Reference is also made to two Departmental Decisions processed under these Procedures wherein the circulation and its various aspects were considered relevant to this issue in question. (Channel Northwest, Inc., H.E. Docket No. 5/178 and the aforesaid Conover-Mast case). The record made in this proceeding shows that the circulation of the magazine consists only of subscribers who pay a substantial price for it, namely, $6.00 per year or approximately 50[ per issue, plus surplus copies relatively few in number, distributed to various public libraries, hospitals, "or other educational and charitable institutions," when available. (Dept. Exhibit 1, the petitioner's application, and petitioner's Exhibit 5, the affidavit of the president).

Considering the publication in its entirety as aforesaid mentioned, together with its circulation it is difficult to conceive that the publication (consisting mainly of detailed programing) was principally designed "to increase the listening audience for the station, and thereby advance the financial interests ...," by requesting support of the commercial sponsors. It seems clear that the publication is furnished to or read by those who apparently constitute a "listening audience." Therefore, if there be an increase in the audience it would result indirectly and, therefore, more indirectly the further result of attempting to have the interested listeners patronize the sponsors. As conceded by counsel for petitioner (proposed findings, p. 9), if the publication was distributed without charge to prospective listeners, its advertising purpose would have been established, that is, to increase the listening audience so as to obtain the financial benefit as described. However, even considering the overall impact of the publication on those to whom it is mainly directed, namely, those already interested in the station, the emphasis of the publication is on the programs of the station and not for support of its commercial sponsors. In this connection it is to be noted and it is of significance that the programing lacks any promotional language. Obviously, it is true, from the several promotional statements made in the publication, that there is as described by the Complainant, "an economic circle" in that "The reader patronizes the sponsors and the sponsors patronize the radio station, as a result of which the station is able to present the programs listed for the enjoyment of the readers. So if the circle is broken by failure of the readers to take their trade to the sponsors, the fine programs will no longer be available to the readers-listeners, and the station will fail." However, to reiterate, the question is whether this commercial or promotional aspect is so stressed in the light of the circulation, that it can reasonably be said that such is the primary purpose. Under the circumstances of the circulation and considering the publication in connection therewith, this purpose seems and I so find, incidental.

In view of the foregoing I find that the record fails to establish that the publication WFMR Program Guide is designed primarily for advertising purposes.

Since the respondent's assertion that the publication comes within the meaning of the cited regulation, is premised on the claim that "stress is laid on the commercial sponsors of programs broadcast by the station" ³/ (proposed findings, p. 4), I conclude, in view of the foregoing findings that the WFMR Program Guide does not come within the meaning of Sec. 132.226b. of the Postal Manual. ⁴/ I, therefore, also conclude that the publication does satisfy the requirements of 39 U. S. Code 226 for entry into the mails as second-class matter. It is, therefore, recommended that the application of High Fidelity Broadcasting Corp. pertaining thereto be granted.

1/ Section 201.40(h) of the Procedures Governing Administrative Hearings Relative to the Denial, Suspension or Annulment of Second-Class Mail Privileges.

2/ The pertinent portion of this statute is as follows:

"... the conditions upon which a publication shall be admitted to the second class are as follows: First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively. Second. It must be issued from a known office of publication. Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications. Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."

3/ Respondent's proposed findings in connection therewith to the effect that the publication is owned or controlled by the radio station, WFMR, are granted.

4/ It is undoubtedly true, in the sense that other commercial publications have as their ultimate purpose the advancement of their sales that the ultimate purpose of the Guide is for the advancement of the station. However, the principal specific purpose is the controlling issue here.