In the Matter of the Petition by DELL PUBLISHING CO., INC. for a hearing prior to the final decision upon its application for admission to second-class mail privilege of its publication "DELL SPORTS." P.O.D. Docket No. 1/116 May 14, 1959 Edward Carlick Hearing Officer
The Dell Publishing Co., Inc. having been served with notice by a communication dated January 30, 1959, from the Director, Postal Services Division, hereinafter referred to as the Respondent, that he proposed to recommend denial of its application for admission to the second-class privileges of its publication "Dell Sports," instituted this proceeding by filing within the required time, specifically on February 13, 1959, an appropriate petition requesting as provided by the pertinent section of the then appropriate Procedures, 1/ an order that the said postal official be required to show cause why said proposed denial shall not be reversed and the application be granted; that a hearing be held on the issues presented by the petition and the answer to be filed by the said official. Petitioner also requested that "the hearing be held before an examiner duly appointed and qualified pursuant to the Administrative Procedure Act, 5 U.S.C. Section 1010."
Following the filing of the petition and on the same date, the Judicial Officer by written order designated a certain examiner duly appointed and qualified as a Hearing Examiner pursuant to the Administrative Procedure Act, as the Hearing Officer (the designation given in the Procedures to the presiding official) in this proceeding. In this order designated "Order to Show Cause," the Judicial Officer fixed February 24, 1959, as the expiration date for the filing of answer by the Respondent and also scheduled the hearing for March 2, 1959, in Washington, D. C.
Respondent duly filed answer. On motion of the Dell Publishing Co., Inc., hereinafter referred to as the Petitioner, to which Respondent interposed no objection, and for good cause shown, order was entered by the assigned Hearing Officer postponing the hearing to March 16, 1959. By order dated March 12, 1959, the Judicial Officer designated the undersigned as the Hearing Officer since the previously designated presiding officer was required "to remain outside the District of Columbia on official business through March 18, 1959 ...."
The hearing was duly held before me, a Hearing Examiner duly appointed and qualified pursuant to the Administrative Procedure Act, on the aforesaid date. The Petitioner was represented by designated counsel, William I. Denning and Ernest H. Land, Esqs., and the Respondent by Adam G. Wenchel, Esq., Assistant General Counsel, Post Office Department, and Matthias Mahorner, Esq., Office of the General Counsel, Post Office Department.
At the conclusion of the hearing and on request of the Petitioner opportunity to file proposed findings of fact and conclusions of law as provided by the procedures, was granted and on specific request of the Petitioner April 22, 1959, was fixed as the filing date of said documents. By written motion filed by the Respondent, unopposed by the Petitioner, the date for the filing of these documents was extended to April 28, 1959, on which date the parties filed same. Thereupon, this proceeding was completed for this report.
The pertinent part of the governing statute is as follows: 39 U.S.C. 224:
"Mailable matter of the second class shall embrace . . . periodical publications which are issued . . . as frequently as four times a year ...."
Section 132.25a of the Postal Manual provides:
Name of publication. The name of the publication must be shown on the front in a position and in a style and size of type that will make it clearly distinguishable from the name of the publisher or other items on the front.
Since the filing of the application on September 11, 1957 (Respondent's Exhibit 1), and the institution of this proceeding, Petitioner published eight issues of the magazines in question (Tr. 8, Petitioner's Exhibits 1 thru 8). As shown by the magazines in evidence, including the statement in each magazine of information concerning the staff, the offices, subscription price, etc., hereinafter referred to as the indicia (for example, see page 2 of Petitioner's Exhibit 1), and also the testimony presented on behalf of the Petitioner, I make these findings: That there are five magazines issued each year as follows:
"Baseball," issued in January
"Baseball Stars," issued in February
"Who's Who in the Big Leagues," issued in May
"Stanley Woodward's Football," issued in August
"Basketball," issued in October
That each is identical in size about 8 1/2 x 11 inches and that each contains ninety-six numbered pages; that the five issues cover major sports with three of the issues devoted to major league baseball; that each magazine contains a variety of original articles by different authors; that a particular issue features the current sport at the time of publication; that at the top in large lettering spread almost across the entire width of the cover of each appears the named subject of each publication such as B A S E B A L L for the one issued in January, with the words "Dell Sports" appearing in clear but much smaller print in the upper lefthand corner of each issue; that each is devoted exclusively to a major sport with the football and basketball issues having a general coverage of each of these sports including professional and college teams and leagues etc., whereas the three baseball issues are more specialized, that is, the one designated "Baseball" is mainly devoted to team topics of the major leagues, the issue bearing the name "Baseball Stars" is mainly devoted to information about the outstanding major league baseball players and the third "Who's Who in the Big Leagues" is mainly devoted to information about the individual players of the big leagues.
These have been narrowed from the seven objections enumerated on page 1 of Respondent's answer to three objections 2/ as follows:
1. The publisher is not publishing a periodical publication under the name for which application was made.
2. The copies submitted are not separate issues of a periodical publication.
* * * * *
7. The claimed title is not shown in the manner required by section 132.25a, Postal Manual.
It seems from a careful analysis of Respondent's proposed findings and conclusions (pp. 3-11), that all three objections are intended to lead to one single basic and determinative assertion or proposed issue, viz., that "Dell Sports" is in fact a series of separate and distinct publications and, therefore, not a periodical within the meaning of the pertinent statute. 3/
On the other hand the Petitioner in substance contends that there is a continuity or connection of literary character between each of the issues and since there are five issues a year "Dell Sports" is a periodical within the meaning of the statute.
Each party not only cites Houghton v. Payne , 194 U.S. 88 (1904) in support of their respective positions but also quotes the same portion of the opinion with Respondent quoting an additional paragraph all as follows:
"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.
"A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although event his is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. * * * It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines."
Although Respondent asserts as previously mentioned, that each is an annual magazine he also asserts that each is a complete book (Resp. proposed findings, pp. 5, 9-10). Although the ultimate question as to whether certain publications constitute a periodical within the meaning and intent of the statute may be better or "more profitably" resolved by approaching it from such end (whether they are books) as did the Supreme Court in the Smith v. Hitchcock , 226 U. S. 53, case, p. 59, it would seem that in this instance it would be more profitable not to make such an approach.
The arguments of the Respondent and his citation of certain proof in support, that it is the intention or belief of the publisher to attempt to combine annual publications relating to different sports under the title "Dell Sports" are, of no materiality on this issue (proposed findings, p. 4). Whatever may be the intent or belief of the publisher cannot change the actual existing facts. However, of aid but not controlling or determinative is the fact that prior to the filing of its application the Petitioner registered three of the five titles in question with the Patent Office as Trade Mark titles each to be published annually (Resp. Exhibits 7, 8 and 9) and that Petitioner had in fact previously published these publications annually (Tr. 71).
The Petitioner's assertion "that readers of DELL SPORTS, who are independent jurors in their own right, recognize and expect such continuity in content and request and pay for a year's subscription to Dell Sports (Pet. Exhibits 9-21) requesting the publication by the name Dell Sports, rather than by the current sport ...", I give little weight. (Proposed findings, p. 11). The proof cited in support of such assertion consists of a number of letters, approximately 100, to the Petitioner for subscriptions of the five magazines. Since it appears that these persons so subscribed because of the information contained in the indicia (Tr. 26-27, 45-46) they, therefore knew that they were subscribing for the five different described magazines and, accordingly, did not subscribe for the five issues because of the nature or subject of a particular issue. For the same reason the citation of this same proof to show that the subscribers consider "Dell Sports" to be the name of the publications I deem to be of little weight. According to the indicia a person desiring to subscribe to the five described issues addressed his subscription to the designated name. Thus, it was not the subscriber's choice of such designated name.
Also Petitioner's argument that the "entire production process for this publication is that of a continuing magazine rather than that of a book ..." I deem to be of little weight. (Proposed findings, p. 12). This may tend to indicate that the publications in question are not books, a question not necessary for determination as previously stated, but this proof does not necessarily tend to show that the publications in question meet the necessary requirements, viz., that it is a periodical issued at least four times a year. Similarly considered, and for the same reason, are other facts in the record proposed by the Petitioner which may tend to show that the publications are not books, viz., use of freelance writers, sale of the publications on newsstands along with other periodicals, the development of the contents of each publication, etc. (Proposed findings, pp. 12-13).
The citation of the Petitioner of a publication having second-class entry which is substantially similar to the five magazines in question insofar as the issue herein is concerned, entitled "Sports Review" (Pet. Exhibits 22, 23, 24) to substantiate Petitioner's justification in believing initially that it should receive similar treatment (Proposed findings, pp. 16, 17), is of no consequence for the reasons stated previously that belief and intent is no materiality. Also, Petitioner's argument stated in connection therewith that a denial in this instance of second-class entry "would be highly inequitable" (Proposed findings, p. 17) I deem to be of no merit. A bare showing that one publication received a different treatment does not of itself constitute such a claimed result. 4/
Applying Houghton v. Payne , supra , Smith v. Hitchcock , supra, also cited by both parties, and Bates & Guild Co. v. Payne , 194 U. S. 106, it appears that the issue is whether each of the publications issued during the year indicates of themselves (the subject matter and its treatment) such a relation with each other that there is an implied continuity of literary character or connection between each one and, thus, a single periodical issued five times a year.
It cannot be said that the mere fact that various issues of a publication because they concern the same general field and in this instance, major sports, necessarily means that there is such a relation with each other as to imply the required continuity of literary character. 5/
Petitioner's assertion that the test "is the relationship between succeeding issues with respect to their subject matter and its treatment" (Proposed findings, p. 10) may be better stated that it is the relationship "between the different numbers of the series ...." ( Houghton v. Payne , supra ). In other words, it is not whether the required relationship is shown between an issue and its succeeding issue but whether all of the issues published during the year have the required relationship each between the other as determined by their subject matter and its treatment. The Petitioner argues that "Dell Sports" meets the test of literary continuity "through a variety of articles devoted to a special class of subjects." However, the variety of original articles written by different writers appearing in the five issues, are not all devoted to the same special class of subjects and certainly there seems to be no connection between the basketball issue and any of the baseball issues, one of which is the succeeding issue. Also assuming arguendo, that it is relevant what a reader of a particular issue may expect in the next issue, 6/ readers of the football issue cannot reasonably expect from its topics devoted exclusively to such sport that the next issue will be devoted exclusively to basketball matters. Similarly, readers of the last baseball issue cannot reasonably expect that the next issue will be devoted to football. Insofar as a reader is concerned the football and basketball issues are each complete and no other issue on either sport is to be expected during the year.
Therefore, it would certainly appear and I so find, that there is lacking the necessary relation between each and every issue published during the year which would imply a continuity of literary character or connection between the publications in question. Clearly, the football and basketball issues, each being a comprehensive and exclusive coverage of the particular named sport, as previously found, are complete in themselves and neither relates to the other except for the very general connection of each pertaining to a major sport. Similarly, each of these two issues is thus complete and neither has any relation to the baseball issues. The following statement in Smith v. Hitchcock , supra , p. 60, is pertinent to these two issues: "each volume is complete in itself and betrays no inward need of more, notwithstanding that, ... further adventures to follow are promised at the end." The question of whether the three baseball issues are so related to themselves that they have such a required continuity or connection is not relevant. To be a periodical within the meaning of the statute there must be at least four issues a year. But, of significance is the fact that constituting the claimed periodical are not only these baseball issues but the other described unrelated and unconnected issues.
Proposed findings of fact not herein specifically found have been considered and are regarded as being immaterial or unjustified.
Although this question is academic inasmuch as the Petitioner and the Respondent each went forward with proof of their assertions, nevertheless each pursued same in their proposed findings and conclusions for ruling herein for the purpose of clarification in future proceedings. However, clarification is now unnecessary as the Procedures under which this proceeding was instituted "are rescinded" (24 F.R. 3592, May 5, 1959) and new Rules of Practice have been promulgated and published (24 F.R. 3592-3594).
In view of the foregoing findings of fact I conclude that "Dell Sports" is not a periodical publication issued as frequently as four times a year, and, therefore, is not a periodical within the meaning and intent of the cited postal statute. Accordingly, this publication is not entitled to second-class mail privileges and its application therefor is denied.7/
1/ Procedures Governing Administrative Hearings Relative to the Denial,
Suspension or Annulment of Second-Class Mail Privileges. Section 201.40, Paragraphs (a) through (ee).
2/ At the hearing Respondent withdrew three objections (Tr. 4-6) and in his proposed
findings and conclusions withdrew a fourth (Resp. proposed findings, p. 3), which are as follows:
3. The publisher's application is incomplete in that it does not show (a) the copies sold and returned by news agents or (b) details required by item 32.
4. The application does not establish that there is a legitimate list of subscribers as required by law and
section 132.225, Postal Manual.
5. The application does not establish that the publication is not primarily for free circulation.
6. The publications do not bear dates of issue as required by law and by section 132.25b, Postal Manual.
3/ Thus it is argued as to the first objection that each issue is in fact an
annual publication (proposed findings, p. 4), the name for each being the title shown in the large letters;
that as to the second ground it is argued that each deals "with one particular sport and is complete within
itself." (Resp. proposed findings, p. 6). (However, if implication be taken that Respondent means that each
issue deals with a separate sport, this would not be accurate as previously stated, since three of the issues
deal with baseball). As to the third objection Respondent in substance asserts that because of the manner in
which the titles appear the publisher intended to sell the particular issue as such and not as "Dell Sports."
(Resp. proposed findings, p. 10).
4/ Respondent made no mention of this proof in his proposed findings and conclusions.
5/ See Bates & Guild Co. case, supra ,
in which the Supreme Court upheld the ruling of the Postmaster General that monthly publications each of which was
devoted to certain "Masters in Music" such as one issue devoted to Mozart, another to Chopin, etc. do not constitute
a periodical within the meaning of the statute.