In the Matter of the Petition by GILBERTON WORLD-WIDE PUBLICATIONS, INC., 101 Fifth Avenue, New York 3, New York for a hearing upon its application on for second-class entry of "THE WORLD AROUND US." P.O.D. Docket No. 1/158 November 2, 1959 William A. Duvall Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON, D.C.
Gilberton World-Wide Publications, Inc., 101 Fifth Avenue, New York 3, New York, the Petitioner, filed application on September 29, 1958, for second-class mail privileges for the publication "The World Around Us" on the appropriate Departmental form. (Resp. Exhibit 2)
On January 8, 1959, the Director, Postal Services Division, Bureau of Operations, Post Office Department, the Respondent, advised the Petitioner that he proposed to deny the application, and he indicated that the grounds for the proposed denial were as follows (Resp. Exhibit 3):
1. The publication is a book rather than a periodical publication within the meaning of Sections 221, 224 and 226 of Title 39, U. S. Code; Section 132.211, Postal Manual.
2. The application does not comply with the provisions of Section 132.3 of the Postal Manual in that it is incomplete.
3. The publisher has failed to establish that the circulation requirements have been met as required under the provisions of Sections 132.225 and 132.227, Postal Manual.
4. The copies submitted do not comply with the requirement of Section 132.25a, Postal Manual, that "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."
The Petitioner later furnished a supplemental application which served to supply certain information which had been omitted from the original application, and there were also furnished certain data with respect to the circulation of the publication. (Resp. Exhibits 1-a through 1-d)
In conformity with the applicable Rules of Practice, a copy of which had been furnished with the notice of proposed denial, the Petitioner, on July 9, 1959, filed a petition for review of the proposed denial of second-class mail privileges. Answer was filed by the Respondent, and the case came on for hearing before me on August 4, 1959. Both parties were represented by counsel who participated in the examination and cross-examination of witnesses, and counsel for both parties submitted proposed findings of fact, conclusions of law and supporting briefs on September 11, 1959.
In his answer, the Respondent withdrew the second and third grounds stated in his notice of January 8, 1959, as forming part of the basis for his proposed denial. There remained two issues to be tried, namely:
1. Is the publication a periodical publication within the meaning of the applicable postal laws and regulations?
2. Is the name of the publication 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 and other items on the front?
Mr. William E. Kanter, President of the Petitioner, testified on behalf of the Petitioner. In addition to his duties as President of the corporation, Mr. Kanter is in charge of the editorial make-up of the publication as well as the coordinating of all activities of the artists and writers and the production and sales. 1/
Mr. Kanter first addressed himself to the question of the outside front cover of the publication and particularly to the placement of the name of the publication. He stated that the title is placed in a strip reading from top to bottom on the left-hand margin of the cover for the reason that it is this location which will best permit the name of the publication to be seen by prospective purchasers. Publications enjoying the greatest sales are given preferential placement on newsstands, whereas publications having the general format of The World Around Us are assigned what is known as "free-board" space, that is, such space as may be left over after the best-sellers have been placed on the stands. The result, according to Mr. Kanter, is that the secondary publications do not usually get a full cover display, but are overlapped so that only the left-hand, or bound, side of the cover is exposed.
The single copy sale of publications, as opposed to subscription sale method, is highly competitive today, with many publications being available to the buying public. Mr. Kanter said that as a result of this fact publishers have adopted the "hard sell" for their cover material. The technique is to adopt the design which has the greatest eye-catching and interest-arousing appeal to make the publication attractive to the greatest number of people. In illustrating this point, Mr. Kanter referred to Petitioner's Exhibits 14 through 18, showing that in each instance the title of the publication now appears in the upper left-hand corner of the outside front cover, with the remainder of the cover being devoted to an illustration of some timely theme, an illustration related to the contents of the publication, the name of outstanding articles in the publication or a combination of these devices.
Mr. Kanter's testimony next was directed to reasons why he believes his publication to be a periodical publication within the meaning of the postal laws and regulations. 2/ In this connection, Petitioner's Exhibit No. 31 which had been prepared by Mr. Kanter was received in evidence. This exhibit is a rectangular table with the categories History, Science, Human Interest, Humor, How-To, Quiz, War Stories, Features, and Story Legend and Song appearing in that order from the top to the bottom of the left-hand column. Across the top of the table are columns bearing the months of the issues of the publication beginning with September, 1958, on the left and extending through August, 1959, on the right. Under each month, the name of an article in the publication is placed in line with the particular category into which Mr. Kanter feels the article falls. It is the Petitioner's position that this chart demonstrates the existence of literary continuity in the various issues of its publication. For example, one or more articles in every issue have been placed opposite the category "History"; "War Stories" appear in all but one of the issues; and "Features" appear in all but two of the issues.
On cross-examination, Mr. Kanter stated that, while the contents of all of the issues of the publication could be placed in some square on the chart, in the first through the tenth issues, i.e., the September, 1958, through the June, 1959, issues, each one is devoted to a single underlying theme, such as Dogs, Indians, Horses, and Railroads. Beginning with the July, 1959, issue there are in each issue four articles on topics other than the theme which underlies the remainder of the publication. Each of these four articles consumes a separate page, so that in the July, August, and September, 1959, issues there are in each one 76 pages devoted to the main theme (Marines, Coast Guard, and Air Force, respectively) and four pages consumed by articles on four separate and unrelated subjects. There is no advertising in the publication except advertising for the Petitioner's publications, and these advertisements appear on the inside of the front cover and on both sides of the back cover. The extraneous articles were included in the later issues upon the advice of Departmental officials who told the publisher that the publication would be viewed more as a magazine if it contained articles on titles that were foreign to the main subject. The publisher was not told, however, that four pages of such articles in a publication containing eighty pages would be sufficient, nor, so far as the record shows, was any particular number of pages recommended to the publisher.
Section 221 of Title 39, United States Code, establishes the four classes of mail matter and provides that "periodical publications" comprise mail matter of the second-class.
Section 224 of Title 39, United States Code, provides that:
"Mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year and are within the conditions named in sections 225 and 226 of this title."
Section 225 authorizes the examination of second-class mail and Section 226 establishes certain requirements, not at issue in this case, which publications must meet in order to be admitted to the mails as second-class matter.
The foregoing provisions of law are paraphrased and to some extent explained in Sections 132.21 and 132.22 of the Postal Manual.
Concerning the issue as to whether The World Around Us is a periodical publication within the meaning of the postal laws and regulations, both parties relied generally on Houghton v. Payne, 194 U. S. 88; Smith v. Payne, 194 U. S. 104; Bates and Guild Co. v. Payne, 194 U. S. 106; and Smith v. Hitchcock, 226 U. S. 53.
In Houghton, it was said:
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 even this 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.
In Smith , the Court said:
The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion if not a promise of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. But we can approach the question more profitably from the other end, and shall have gone as far as we need when we decide whether the numbers exhibited constitute so many books. The word book also, of course, has its ambiguities, and may have different meanings according to the connection in which it is used. For purposes of copyright the common monthly magazines may be books, yet they are not so under the present 17. As books are not turned into periodicals by number and sequence, the magazines are not brought into the third class by having a considerable number of pages stitched together. Without attempting a definition we may say that generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation, and, perhaps, have an appreciable size. There may be exceptions, as there are other instances of books. It hardly would be an exception if, where the object is information and the subject-matter is a changing one, a publication periodically issued giving information for the time should be held to fall into the second class. From this point of view the Tip Top Weekly and Work and Win are books. They are large enough to raise no doubt on that score; each volume is complete in itself and betrays no inward need of more, notwithstanding that, as in the highwayman stories of an earlier generation, further adventures to follow are promised at the end.
Some indication already has been given as to the make-up of the publication under consideration. It is approximately 6 1/2 inches by 10 1/4 inches in size, and each issue contains 80 pages. The title appears on the left-hand margin of the front cover and the remainder of the front cover consists of one or more pictorial representations related to the underlying theme of the particular issue. The remaining portions of the cover pages contain advertisements of and offers of sale of other publications of the Petitioner. The various issues of the publication are devoted, respectively, to the illustrated stories of Dogs, Indians, Horses, Railroads, Space, the F.B.I., Pirates, Flight, Army, Navy, Marines, Coast Guard, and Air Force. The manner of presentation of the material is what is known as the comic strip technique, that is, colored drawings, with explanatory remarks or comments by the characters being lettered in. It should be pointed out that no charge has been made concerning the quality of the contents of the publication. I have read a good portion of the various issues, and I find the material to be informative, interesting, entertaining, and of high caliber. These characteristics, however, are not at issue.
As regards the first ten issues it was agreed by the publisher that everything in each issue related to the particular theme of that issue. There is nothing in any issue which relates to a prior or to a subsequent issue and there is nothing to suggest any such relation to a reader or subscriber.
In view of the language quoted above from the Houghton and Smith cases, it seems to be clear beyond question that the first ten issues of The World Around Us are books, and I so find.
The publisher says that he changed the make-up of the last three issues, by adding to each one four one-page articles on subjects not related to the underlying theme, upon the advice of Departmental officials. These officials said that the inclusion of these articles would result in the publication's being viewed more as a magazine entitled to second-class mail privileges. These officials, however, did not indicate any certain number or percentage of such pages of different articles that would be necessary to enable the publisher to achieve the desired result. Even if a number or percentage of such pages had been recommended to and included by the publisher, this fact, alone, would not be controlling because there are many characteristics, both of form and of substance, to be considered in determining whether a publication is a "periodical publication.'
These four articles in each of the last three issues of the publication do not, in my opinion, so change the character of the publication as to make it a periodical publication rather than a series of books. The fact that some articles in all of them may be categorized as "History," "How-To," "Features," etc., is no more significant than the fact that all of the items in the "Masters in Music" series involved in Bates & Guild Co., supra , could be categorized under the heading of music. I find that the July, August and September, 1959, issues of the publication are books in the light of the cases cited.
The last issue involves an alleged infraction of Section 132.25a of the Postal Manual which requires that "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." In the case of this publication, its name is not the largest nor the most prominent feature of the front cover, but it is clearly distinguishable from the remainder of the items appearing on the cover. It may be that the regulation is intended to mean that the name must be identifiable as such, but it does not so state. This issue is resolved in favor of the Petitioner.
The Petitioner insists that the rule of contemporaneous construction requires that second-class mail privileges be granted for The World Around Us. He cites, among others, the cases of United States v. American Trucking Association , 310 U. S. 534; Fleming v. Mohawk Wrecking and Lumber Co. , 331 U. S. 111; and N.L.R.B. v. Denver Building and Trades Council , 341 U. S. 675. All of these cases are to the effect that a construction placed on a statute by an executive agency is entitled to great weight. If this case is appealed and sustained, and if it reaches the courts, it will be the interpretation and construction herein placed on the statutes and the application herein made of the statutes to the publication that the Courts have held will be entitled to weight, for by that time this decision will represent the Postmaster General's views. The rule of contemporaneous construction is not to be used as a chain eternally to bind an executive department to opinions once entertained however erroneous they might be. (See Houghton , supra , at pages 98, 99; Bates & Guild Co. , supra , at pages 107-110). What the Petitioner really is insisting upon is the application of the rule of stare decisis . The substance of the argument is that because certain publications which in the Petitioner's view are similar to the present one have in the past been granted second-class mail privileges, the Department has no authority to deny the present application. This argument overlooks two facts: first, the Department contemporaneously, now , is reviewing some of its past rulings with the result that some existing permits are being revoked because it is now believed that they were erroneously granted; and, second, blind adherence to the rule would require that once such privileges have been granted the Department would be powerless to revoke them regardless of how great an inadvertence or mistake may have been made in the original grant. This, obviously, is not the law. For positive holdings that the rule of stare decisis is not binding upon administrative agencies see, in addition to Houghton, Bates & Guild Co. , and Smith, above, State Airlines v. Civil Aeronautics Board , 174 F.(2d) 510, reversed on other grounds at 338 U. S. 572 and Evans v. Watson , C.A.D.C., July 16, 1959, 28 L.W. 2037.
Upon the basis of the foregoing findings of fact I conclude as a matter of law that the publication The World Around Us is not a periodical publication within the meaning of Sections 221 and 224 of Title 39, United States Code, and the applicable regulations of the Post Office Department.
The application of Gilberton World-Wide Publications, Inc. for entry into the mails as mail matter of the second-class of the publication The World Around Us is denied.
1/ Petitioner's Exhibits introduced in connection with Mr. Kanter's testimony are listed in Appendix A.
2/ Petitioner's Exhibits 19 through 30 were offered in evidence and received to show the Department's contemporaneous construction of the laws and regulations. It is Petitioner's view that these publications which have second-class mail privileges have no more literary continuity than has Petitioner's publication.