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 April 4, 1960 Edward Carlick Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON, D.C.
The undersigned on May 14, 1959, issued an initial decision in accordance with the appropriate Rules of Practice, in which it was concluded that the eight issues of the publication "Dell Sports" submitted at the hearing (being five separate publications issued a year: "Baseball", "Baseball Stars", "Who's Who in the Big Leagues", "Stanley Woodward's Football", and "Basketball"), do not constitute a periodical publication within the meaning and intent of the pertinent postal statute, 39 U. S. Code 224, and, accordingly, such publication was not entitled to second-class mail privileges and the application of the publisher therefor was denied. 1/ Thereafter, in accordance with the Rules of Practice, 39 C.F.R. Part 204, 24 F.R. 3592, both parties, that is, the Publisher, hereinafter referred to as the Petitioner, and the Director, Postal Services Division, hereinafter referred to as the Respondent, filed exceptions and briefs before the Judicial Officer for final Departmental Decision. 2/ However, prior to such final decision on these exceptions the Petitioner, by petition filed September 8, 1959, before the Judicial Officer, "requested that the record be reopened for the receipt in evidence of Issue Nos. 9, 10 and 11 of DELL SPORTS and any other issues published by the date of such reopening." (Page 3 of "Petition to Reopen the Record") The Respondent opposed such request by filing on September 15, 1959, a "REPLY TO PETITION TO RE-OPEN THE RECORD."
By order dated September 24, 1959, issued the following day, hereinafter referred to as the Departmental Order, the Judicial Officer granted said request and further ordered that the hearing be reopened for that purpose by the assigned Hearing Examiner at a date to be set by him. 3/ Thereafter, the Respondent voluntarily filed, no requirement having been so made by the Rules of Practice or by any order of the Judicial Officer or the assigned Hearing Examiner, a Supplemental Answer in which Respondent reiterates his objection to the reopening of the hearing and also avers that the Petitioner is not entitled to the requested mail privileges for the eight previous issues of "Dell Sports" or the new issues of "Dell Sports Magazine." Seven claimed reasons or grounds are given without distinction as to the eight previous issues or the new issues to be received in evidence. (Pages 2 and 3 and being subparagraphs C. through G. of paragraph 5). It is noted that all but one reason, or grounds, viz., that the new publications do not constitute a periodical, were apparently denied by the Departmental Order for this particular hearing. 4/
No objection or reply was made to said answer by the Petitioner but at the reopened hearing conducted by the undersigned with each party represented by counsel, reference was made by counsel for Respondent to this answer as being the ruling
of the Respondent in regard to the subsequent publications (Tr. commencing line 25, page 16) in compliance with the Departmental Order as interpreted by the undersigned and so ruled at the hearing (Tr. 14-16).
In accordance with the Departmental Order the Petitioner offered and there were received in evidence four publications all of which were issued subsequent to the initial decision and all of which were admittedly within the scope of this order (Tr. commencing line 24, page 21). These consisted of Vol. 1, No. 9; Vol. 1, No. 10; Vol. 1, No. 11 and Vol. 1, No. 12. In the order named these bear captions in large print in the manner described in the initial decision (pages 4-5), as follows: The July-September issue of "Who's Who in the Big Leagues"; the November issue of "Pro Football"; the December, 1959 issue of "Stanley Woodward's Football" and the February, 1960 issue of "Basketball."
Subsequent to the hearing each party filed, as expressly provided by the Rules, their proposed findings of fact and conclusions of law, each entitling them "Supplemental Brief." Thereupon, this proceeding became ready for a Supplemental Initial Decision as termed in the Departmental Order. Because of the recent illness of the undersigned this decision was necessarily delayed.
The sole issue for this decision was made clear in the Departmental Order and the pronouncement therein (last paragraph, page 3), and to which counsel for the Petitioner agreed at the hearing (Tr. 13-14, 27, 32), as well as in his Supplemental Brief, page 3, viz., "whether the publication is a periodical." (Page 3, order of Judicial Officer) Therefore, more specifically, the issue is whether the four subsequent publications above identified, represented by Petitioner's Exhibits 25 thru 28, have been so changed that they now constitute a periodical within the meaning and intent of the pertinent statute. 5/ In reaching this determination reference is made to the cases and definitions stated in the initial decision commencing on page 11, and to which counsel for Petitioner agrees. (Page 4, Supplemental Brief)
It is pertinent to comment at this time that in accordance with the rulings made at the hearing, this decision is not a
reconsideration of my prior initial decision covering the previous eight issues 6/ as would perhaps be indicated by the Petitioner's Supplemental Brief filed for this decision (page 3 thereof) wherein Petitioner makes this statement:
"The Petitioner's position and argument that Issues 1-8 of DELL SPORTS (Petitioner's Exhibits 1-8) established that it is a periodical publication were presented in Dell's initial Brief to the Examiner, dated April 28, 1959, and is incorporated by reference herein."
Furthermore, matters previously raised for the initial decision and again reinstated in the Supplemental Briefs of the parties for this decision, other than the one stated issue, are deemed not to be within the province of this decision. (For instance counsel for the Petitioner in his Supplemental Brief restates that it was error for the Director to refuse to testify. Accordingly, such point designated III requires no further comment). Also other issues attempted to be made and rulings made thereto at the hearing and restated in the Supplemental Briefs are deemed not necessary or desirable for restatement herein. (For instance, page 4 of Respondent's Supplemental Brief wherein it is claimed that the Petitioner has a different name for the publication, viz., "Dell Sports Magazine" and new application should be made therefor. Ruling was made at the hearing that this particular question was apparently raised before the Judicial Officer and had been in effect, denied, Tr. commencing page 11; furthermore, if it was believed that the Judicial Officer did not have such a question in full before him, opportunity was given to counsel at the start of the hearing, for the Respondent to make appropriate request, Tr. 12). Therefore, the rulings previously made in the record are not reiterated here but are referred to and are hereby reaffirmed and, therefore, may be taken up on exceptions for Departmental ruling. The sole issue before me therefore, is that as above stated and to which the undersigned clearly stated at the hearing (Tr. commencing page 31, line 22). It seems pertinent to comment that the undersigned hopes by making the above comments clarification has been made.
Having carefully read and examined the record, including, of course, the four publications now in question, I adopt the findings of fact stated in my initial decision commencing on page 4 with the following changes or additions: That a sixth magazine is now issued in August called "Pro Football"; that the words "Dell Sports" as described on page 5 thereof have been changed to "Dell Sports Magazine"; and that the magazine "Who's Who in the Big Leagues" is issued in June instead of May as previously found. 7/
I further find and adopt Petitioner's proposed finding numbered 7, page 15 of the Supplemental Brief, as follows:
7. Beginning with Issue 9 each issue contains two features which deal almost entirely with sports other than the featured sport: "Keeping Score", a regular column, and "Photo Finish", a two-page pictorial section devoted to sports other than the featured sport. (Petitioner's Exhibits 9-12; Supplemental Brief, supra , p. 10; Appendix pp. 15-18).
Applying the tests and definitions stated in the initial decision together with the stated reasons, pages 11-14, I find that the four publications in question have not been so changed from the previous eight issues in adjudication that they can now be said to constitute a periodical within the meaning and intent of the pertinent statute. They are in fact, substantially of the same nature and character as the previous eight publications.
In making the above determination I have accordingly deemed that the two new regular features which appear in each issue as above found, do not make the necessary impact on each publication so that there would be the implied continuity of literary character or connection between each of the publications. In other words, these two regular items are submerged in the subject matter of each publication, viz., a particular major sport; they constitute a very minor part of each publication and, therefore, do not of themselves supply the necessary continuity between each and every magazine.
In reaching the above determination I have also considered the additional argument now made by counsel for the Petitioner (page 4, commencing at the last paragraph, Supplemental Brief) which argument though available previously must now be considered since it is applicable to the publications in question. This argument is that the "continuity of literary character or connection between issues is the natural, inevitable result of the interrelationship between the sport featured in a particular issue and the time or season of its publication." However, the Petitioner apparently recognizes that any validity of this argument is dependent on the establishment of the fact that the featured sport of a particular magazine is the most popular of
the major sports at the time of publication. In this connection, the Petitioner has, therefore, requested in the Supplemental Brief, that the Hearing Examiner take official notice that the three different sports covered by the publications are "the three most popular major national sports." (Page 5, Supplemental Brief) This required premise is denied for several reasons. 8/ The Petitioner has not submitted any authority whatsoever in support of said request and the Hearing Examiner knows of no authority. Clearly in a matter of this kind which appears to be novel, that is the taking of official notice of the particular fact in question, it is incumbent upon the party making such a request to show appropriate authority in support thereof. Obviously, it is further clear that the Hearing Examiner may note that these three sports, viz., major league baseball, college and "Pro" basketball and college and professional football, are major national sports (initial decision, page 5) but also it is a matter of common knowledge that there are many other major sports of a nationwide interest during the various seasons. For example, during the summer season, as well as other seasons, there are to mention a few, swimming, polo, fishing, golf, bowling and tennis. According to the cited cases it is the subject matter of the magazines themselves and their treatment which gives the indication of whether there is a relation with each other that there is an implied continuity of literary character or connection between each one.
It is, therefore, deemed that each publication is complete in itself there being no implication of a continuity of literary character or connection between each and every one of the publications in question.
In view of the foregoing findings of fact the ruling of the Respondent as represented by the Supplemental Answer restricted to the issue of the question of whether the publications constitute a periodical, is affirmed and the publications which now bear the caption "Dell Sports Magazine," are therefore deemed not entitled to second-class mail privileges as provided by the pertinent postal statute. The application of the Petitioner therefor is again denied.
Proposed findings of fact and conclusions of law not herein specifically found or concluded have been considered and are regarded as being immaterial or unjustified.
1/ For ready reference a copy of this decision is attached hereto as Appendix A.
2/ Included in Petitioner's exceptions was a request that the Judicial Officer consider a newly published issue being Vol. 1, No. 9, "Dell Sports Magazine" because it was asserted substantial changes had been made from the previous eight issues of "Dell Sports." A copy of this issue was attached to these exceptions. It seems that the exceptions of the Respondent related to the claimed failure of the Hearing Examiner to rule on certain other asserted grounds that the publication is not entitled to the mail privileges in question.
3/ For ready reference a copy of the order is attached hereto as Appendix B.
4/ It is observed that two of the six claimed reasons are presently before the Judicial Officer on exceptions to my initial decision, viz., subparagraphs A. and D., wherein it is claimed that the Petitioner is not publishing a periodical under the name in which application is made for nor is the claimed title ("Dell Sports") shown in the required manner; that two reasons, viz., subparagraphs F. and G. being to the effect that the publications do not bear the dates of issue or frequency as required and that a legitimate list of subscribers has not been shown, were withdrawn prior to the initial decision as to "Dell Sports" (footnote 2 thereof); and that the remaining two grounds, viz., subparagraphs C. and E. are to the effect that the Petitioner has not filed an application for "Dell Sports Magazine" and that they have not been issued as frequently as required.
5/ In the Departmental Order it is apparent that the new publications are to be considered as a continuation of the prior publications with no new applications needed to be made and that the Respondent is not deprived of his authority by this order to grant the application for the requested mail privileges if he believed the new publications qualified for same.
6/ As noted in the introductory statement herein, the initial decision covering these issues is before the Judicial Officer on exceptions and according to said order will be taken up in due course.
7/ Reference is made to the indicia on page 1 of each of the four publications.
8/ Although there is no restriction that a party can not make such a request, viz., the taking of official notice of a particular fact, in such a document and there has been no restriction on such request by any appropriate official in this proceeding, it is required by the Administrative Procedure Act, 5 U.S.C. 1006(d) that where an agency decision rests on official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary. This provision may be applicable to this decision since it could resolve into the final Departmental decision (Rule 18(b)). It may be that Rule 17(b) prohibits the inclusion of such a request but such a determination is not necessary for this decision, particularly since it has not been raised. However, it is apparent that it is more desirable in this instance, viz., where the proceeding is before a Hearing Examiner, that such a request be made either at the hearing so that the other party may be afforded an opportunity at such time to show the contrary or that the party requesting such additional evidence in the record apply that the hearing be reopened as permitted by the Rules (Rule 13(b)(8)). However, the request as made is not of itself a reason to deny the request but these comments seem appropriate for this decision.