In the Matter of ) June 6, 1960 ) Dell Publishing Co., Inc., ) P.O.D. Docket No. 1/116 ) Application for Second Class Entry ) for Publication "DELL SPORTS." ) APPEARANCES: William I. Denning, Esq. and Ernest H. Land, Esq. Denning & Wohlstetter 1518 K Street, N.W. Washington 5, D. C. Matthias Mahorner, Esq. and Adam G. Wenchel, Esq. Office of the General Counsel, Post Office Department Kelly, Raymond J. POST OFFICE DEPARTMENT Washington 25, D.C.
By petition filed February 13, 1959, the Petitioner herein requested a review of the proposed denial by the Director, Postal Services Division, Post Office Department of Petitioner's application for second-class entry at the Post Office at Dunellen, New Jersey for its publication DELL SPORTS.
In this petition it is set forth that the publication here involved is issued at stated intervals more than four times a year, bears the date of issue and is numbered consecutively; that it is issued from a known office of publication; is formed of printed sheets; is originated and published for the dissemination of information of a public character or is otherwise devoted to literature, the sciences, arts or some special industry and has a legitimate list of subscribers; that it is not designed primarily for advertising purposes, or free circulation or for circulation at nominal rates, and that it otherwise conforms with the requirements for admission set forth in Sections 224 and 226, Title 39 of the United States Code. 1/
A hearing was held in this matter on March 16, 1959, and the Initial Decision of the Hearing Examiner was entered on May 14, 1959. On June 26, 1959, exceptions of Petitioner to the Examiner's Initial Decision and brief in connection therewith were filed and on the same day the Respondent's exceptions to the Hearing Examiner's Initial Decision and appeal brief were also filed. Both parties filed reply briefs and on September 8, 1959, the Petitioner filed a petition to reopen the record and on September 24, 1959, the Judicial Officer entered an order granting the petition and ordering the reopening of the hearing before the Hearing Examiner. A further hearing was held on October 14, 1959, and both Respondent and Petitioner filed supplemental briefs in connection with this reopened hearing.
The Hearing Examiner entered a Supplemental Initial Decision on April 4, 1960 and on April 19th, Respondent filed exceptions to the Hearing Examiner's Supplemental Initial Decision and on April 20, 1960, the Petitioner also filed exceptions to the Hearing Examiner's Supplemental Decision and a brief in support of these exceptions. On May 12, both parties filed reply briefs herein.
This cause now on appeal to the Judicial Officer involves a review of the ruling by the Respondent's Director that the Petitioner is not entitled to second-class mail privileges for DELL SPORTS, the publication of the Petitioner for which they sought second-class mail privileges.
In the Initial Decision which involves eight issues of the Publication DELL SPORTS (Petitioner's Exhibit 1 through 8) the Hearing Examiner held that these were not publications issued as frequently as four times a year and therefore that they were not periodicals and the publication DELL SPORTS is not a periodical within the meaning and intent of the Postal Statutes and is therefore not entitled to second-class mail privileges and the application therefor was denied.
In the Supplemental Initial Decision after full hearing the Hearing Examiner held that the four additional issues of the publication, the name which had been changed to DELL SPORTS MAGAZINE (Petitioner's Exhibits Nos. 25, 26, 27 and 28, which were considered in the reopened hearing) likewise did not meet the requirements of the statute and were not entitled to second-class mail privileges under the law and again denied the application of the Petitioner.
However, in this appeal the original issues of the publication DELL SPORTS as well as the four issues considered in the reopened hearing of DELL SPORTS MAGAZINE will all be considered in this final Departmental Decision.
Petitioner contends that the record has established that each of the issues of DELL SPORTS and DELL SPORTS MAGAZINE is a periodical publication within the meaning of Section 224 and 226 of Title 39, United States Code.
In connection with the first eight issues of DELL SPORTS the Petitioner points out in his exceptions to the Hearing Examiner's Initial Decision and in his brief in connection therewith filed June 26, 1959, that the record and the findings of the Hearing Examiner establishes that this publication is published five times a year and that each issue is devoted to a variety of original articles by different authors on the major sports. He contends that there is such a connection as to subject matter and literary continuity between the several issues of this publication which establishes the same as a periodical. He protests as error the finding of the Hearing Examiner that the issues were not all devoted to the same special class of subjects and points out that this publication and each issue thereof is devoted to sports and is confined to the three major popular sports of nationwide interest - baseball, football and basketball and that it is common knowledge that the season for baseball is the spring and summer - the season for football is the fall and the season for basketball is the winter and complains that the Examiner ignored the inter-relationship between the sport featured in a particular issue and the time or season of its publication.
The Respondent herein also filed exception to the Hearing Officer's Initial Decision contending that the Hearing Examiner
erred in failing to make separate findings of fact and conclusions of law on all issues involved in the proceedings; namely, that:
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."
3. "The claimed title is not shown in the manner required by section 132.25a, Postal Manual." (P. 5 and 6 of the Initial Decision)
Respondent contends that the evidence clearly shows that the Petitioner is attempting to sell publications in the form of magazines dealing with separate sports such as basketball, baseball or football and contends that the evidence also clearly shows through the registration by the Petitioner of such titles under the Trade Mark Act that these were annual publications in each separate sport and points out in support of this contention that the Petitioner has listed among DELL SPORTS MAGAZINES an additional publication entitled PRO FOOTBALL ANNUAL. Also, that on May 18, 1954, Petitioner registered in the United States Patent Office the trade mark titled DELL BASKETBALL ANNUAL and that in registering the other names Petitioner set forth that these were magazines "published annually" and contends that the evidence clearly shows that the publisher is publishing a series of books relating to different sports independent of each other under the Title of the specific sport to which the particular issue is related.
Respondent further contends that the claimed title DELL SPORTS is not shown in the manner required by 39 C.F.R. 22.2(d)(1) (Section 132.25a of the Postal Manual). That regulation 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."
In the Initial Decision involving the first eight issues of DELL SPORTS the Hearing Examiner found as a matter of fact from the record that there are five of the Petitioner's publications 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
The Hearing Examiner further found that each of these publications is identical in size about 8 1/2 x 11 inches and that each contains 96 numbered pages - that these five publications cover major sports - three of them devoted to major league baseball - one to football and one to basketball and that each magazine contains a variety of original articles by different authors. That each of the issues features the current sport during the particular time of the year the particular issue of the publication is brought out and that at the top of each issue in large lettering appears the named subject of each publication giving as an example 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 left hand corner of each issue. He further found that each issue 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 league and the like. 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 baseball number entitled WHO'S WHO IN THE BIG LEAGUES is mainly devoted to information about the individual players of big leagues.
The Hearing Examiner narrowed the issues after analyzing the proposed findings and conclusions submitted by the parties and held that the question to be decided was in effect whether or not the publications being considered was a periodical within the meaning of the statute. He also pointed out that 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 that there appears to be no connection between the BASKETBALL issue and any of the BASEBALL issues and that 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. He therefore found that there is lacking the necessary relation between each and every issue published during the year which would imply continuity of literary character or connection between the publications in question. With these findings of the Hearing Examiner, I agree.
The Hearing Examiner further held that the question of whether the three BASEBALL issues are so related to each other that they have the required continuity or connection is not relevant because in order to be considered a periodical under the statute there must be at least four issues of the publication each year. I cannot agree that the question of the relation of the three BASEBALL issues to each other is not relevant. True, they are issued but three times a year and therefore do not comply with the requirement of the statute but they likewise do not comply because each issue is complete in itself and deals with a special phase of
the sport of baseball and they too lack the continuity of literary character or connection between the issues required. 2/ The small amount of unrelated matter inserted in each issue is too meager to have any effect on the character of the publications - I find they are books and not periodicals.
Although the appeal involves the eight issues considered in the Initial Decision as well as the four additional issues covered by the Supplemental Initial Decision it is significant that the Petitioner while this cause was pending changed the name of the publication to DELL SPORTS MAGAZINE and altered the format by adding some new material in each issue thereof.
In the Supplemental Initial Decision filed by the Hearing Examiner on April 4, 1960, the four new issues of the Petitioner's publication entitled DELL SPORTS MAGAZINE (Exhibits 25, 26, 27 and 28) and involved in July-September issue of WHO'S WHO IN THE BIG LEAGUES, the November 1959 issue of PRO FOOTBALL - the December 1959 issue of STANLEY WOODWARD'S FOOTBALL and the February 1960 issue of BASKETBALL as described in the Initial Decision - these captions appear in large print across the top of these publications with DELL SPORTS MAGAZINE in a small block in the upper left hand corner in much smaller letters.
The Hearing Examiner determined that the sole issue involved in the supplemental or reopened hearing was whether or not these four issues were periodicals under the law which would permit second-class entry. He pointed out that the issue is whether the four subsequent publications herein, (Exhibits 25, 26, 27 and 28) which were being considered in the reopened hearing have been so changed so that they now constitute periodicals within the meaning and intent of the pertinent statutes.
The Hearing Examiner adopted the findings of fact which he had stated in his Initial Decision so far as they were pertinent but made the following changes and additions, that a sixth magazine is now issued in August called "PRO FOOTBALL", that the words "DELL SPORTS" as described in the Initial Decision on page 5 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. He further adopted the Petitioner's Proposed Finding number 7 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)."
He further found as a matter of fact that the four publications in question in this reopened hearing have not been so changed from the previous eight issues that these issues can now be said to constitute a periodical within the meaning and intent of the pertinent statutes - that they are in fact substantially of the same nature and character as the previous eight publications.
He found that the two new regular features that appear in each issue do not make the necessary impact upon the publication so that there would be the implied continuity of literary character or connection between each of the publications; that they are submerged in the subject matter in each publication which is a particular major sport and constitute a very minor part of the publication and therefore do not of themselves supply the necessary continuity between each and every issue of the magazine.
In this appeal it is of course necessary for the Judicial Officer to consider all twelve issues as exceptions have been taken by both parties from the Hearing Examiner's Initial Decision and his Supplemental Initial Decision. In view of the fact that appeals have been taken from both Initial Decision and the Supplemental Initial Decision the entire matter is before the Judicial Officer for final Departmental determination. I shall therefore consider all questions pertinent to this cause and involving the question whether or not the twelve publications here involved are entitled to second-class entry.
It is apparent and the Respondent appears to agree in his exceptions to the Supplemental Initial Decision filed April 19 that the main issue is whether or not these publications are periodicals or books and if it is determined that they are not periodicals within the meaning of the pertinent statutes and are therefore not entitled to second-class mail privileges it is not necessary to determine the other questions which the Respondent raised in their supplemental answer.
In both the Hearing Examiner's Initial Decision and the Supplemental Initial Decision the facts set forth in support of the determination of the Hearing Examiner are borne out by the record and his findings that the first eight publications considered in the Initial Decision and the four additional publications considered in the Supplemental Initial Decision are not entitled to second-class entry into the mails are supported fully by the record and are justified by the evidence in this cause.
In making some changes in an attempt to conform with the law and regulations, the Petitioner impliedly admits that the first eight issues did not properly comply with the requirements of the statutes and regulations.
The inclusion of the word "annually" in connection with the registration of the Trade Mark titles in the U. S. Patent Office indicates strongly that these are regarded as annual issues in each of the major sports and even in BASEBALL although the three issues are devoted to some particular phase of baseball itself they are still annual issues as far as that phase is concerned and in any event there are only three such issues during the year and could not possibly qualify as periodicals having four issues each year. The use of the designation "DELL SPORTS GROUP" in Exhibits No. 2 and No. 3 supports the finding that the publishers themselves regarded each of these issues as separate and distinct and from the record it is clear that these publications are a series of books relating to different sports independent of each other under the title of the specific sport to which each issue is exclusively related and is not a periodical publication under the law. The Supplemental Initial Decision is therefore affirmed in this regard.
I find all eight issues of the publication DELL SPORTS as well as the four issues of DELL SPORTS MAGAZINE are books and not entitled to second-class mail privileges under the postal laws and regulations. Pertinent findings of fact and conclusions of law submitted by Respondent are adopted and those of Petitioner are rejected - others of both parties, the subject matter of which was not considered or discussed herein, are not deemed material to the issues determined herein.
1/ § 224. Second-class matter. 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.
§ 226. Same; conditions admitting publication to. Except as otherwise provided by law, 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.
2/ "****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.****the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical.****" Houghton v. Payne, 194 U.S., 88.