In the Matter of the Petition of 	) May 19, 1958
 					)
 CONOVER-MAST PUBLICATIONS, INC., 	) H.E. Docket No. 5/173
 					)
 for a review of proposed denial of 	)
 second-class mailing privileges. 	)

 Ablard, Charles D.  

 POST OFFICE DEPARTMENT WASHINGTON, D. C.

The Conover-Mast Publications, Inc. petitioned for a review of a proposed denial by the Director of Postal Services of second-class mailing privileges to their publication "Mill & Factory". A hearing was held before a Hearing Officer who issued a Report and Recommendation finding that: (1) the publication has a legitimate list of subscribers, (2) the publication is designed primarily for free circulation, and (3) the publication is designed primarily for advertising purposes. The Hearing Officer concluded that the publication does not meet the requirements of 39 U.S. Code 226 for entry as second-class matter and recommended that the application be denied.

The Petitioner did not except to the findings of the Examiner but the Director of Postal Services excepted to the finding that the publication had a legitimate list of subscribers.

The contention of the Respondent is that a "legitimate list of subscribers" and "free circulation" are mutually exclusive terms and the presence of one rules out the existence of the other. The Respondent contends that the Hearing Officer erred in finding that the publication had the one but not the other. The Respondent quotes various sections of the Postal Manual and cites the very excellent resume of legislative history prepared by the Hearing Officer in reaching this conclusion.

Although the Respondent has a reasonable legal argument, the logic of his position in the light of Post Office Department Regulations is not appealing. Section 132.22 of the Postal Manual prescribes the basic qualifications for second-class entry. Under this section the Post Office Department has attempted to describe in detail the qualifications generally set out in 39 U.S.C. 226. Sub-Section 132.225 provides:

Publications must have a list of persons who have subscribed by paying or promising to pay for copies to be received during a stated time. When news agents purchase copies for resale or receive copies on consignment for sale, only the persons who buy copies from the news agents may be included in the subscription list.

Thus the Post Office Department has not attempted to define what is "legitimate." The Respondent apparently contends that since the magazine is primarily for advertising and free circulation it cannot have a "legitimate" list of subscribers. When the Department promulgates no rule defining "legitimate" when such rule can be available only for the publishing, it appears that the Government should be precluded from denying the legitimacy of a list of subscribers unless, as the Hearing Officer points out, certain matters are affirmatively proved by the Government. To do so would place the Petitioner at a distinct disadvantage. If the Director of Postal Services deems this action appropriate he can, of course, issue such a regulation. The legislative history and language of the courts would seem to authorize such a regulation.

The findings and recommendation of the Hearing Officer are adopted and accepted and the application for entry is denied.

It is noted that the Conover-Mast Publications did not except to the findings of the Hearing Officer. Since the conclusion of this proceeding the founder and president of Conover-Mast Publications was lost at sea. This was a tragic loss for the publishing industry and it is hoped that his many valuable publications will continue.