In the Matter of the Petitions by ) April 5, 1960 ) CROSSWORD PLEASURE, INC., ) TODAY'S CROSSWORDS, INC., ) DONAJIL PUBLICATIONS, INC., and ) CROSSWORD TREAT, INC., ) ) at ) P.O.D. Docket No. 1/148 ) 60 East 42nd Street, ) New York, New York, ) ) for a hearing upon their respective ) applications for second-class entry ) of "CROSSWORD PLEASURE"; "TODAY'S ) CROSSWORDS"; "CROSSWORD TIME", and ) "CROSSWORD TREAT." ) APPEARANCES: Jacob Weidenbaum, Esq. 39 Broadway New York, New York for the Petitioner Jack T. DiLorenzo, Esq. Eugene P. White, Esq. Office of the General Counsel Post Office Department for the Respondent Kelly, Raymond J. POST OFFICE DEPARTMENT Washington 25, D. C.
Four publications are involved in this proceeding - two of them have been heretofore granted second-class entry - Crossword Time as of August 27, 1952, and Today's Crosswords as of June 29, 1954. Additional entry was sought at Holyoke, Massachusetts for Crossword Time on January 22, 1959, and for Today's Crosswords on January 7, 1959. On July 1, 1958 application for original second-class entry was filed for Crossword Pleasure and on January 22 for Crossword Treat. These four publications are each published by separate corporations, all of which have their offices at 60 East 42nd Street, New York City. Mr. Jesse Jacobs is the President of each of these corporations.
The Director, Division of Postal Services, Bureau of Operations, Post Office Department by letters dated April 9, 1959, and April 30, 1959, advised the publishers that these applications were all being denied. The Petitioner herein filed timely petitions appealing from the ruling of the Director and the case was heard before a Hearing Examiner on October 6 and 7, 1959. A complete record of the case was made and briefs were filed before the Hearing Examiner, who entered his Initial Decision on January 20, 1960, in which he held that these publications did not comply with the statutes and regulations governing second-class mail and the applications for original entry and re-entry were denied and the existing second-class permits revoked.
Timely appeal was taken by the Petitioner who submitted five exceptions to the findings and conclusions of the Hearing Examiner.
Reply brief was filed February 23, 1960, by the Respondent who asks therein that the Judicial Officer consider the brief filed by the Respondent before the Hearing Examiner, dated November 17, 1959, as his brief on appeal.
There are three issues involved herein:
1. Are the publications "periodical publications" within the meaning of Sections 224 and 226 of Title 39, United States Code.
2. Are the publications originated and published for the dissemination of public information.
3. Do the publications consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual.
The Hearing Examiner in his decision has adequately and properly described the format of the publications here involved as shown by the record and the exhibits of the case. The Petitioner contends that from the time his first two publications had enjoyed second-class mail privileges until the time of the receipt of the ruling of the Director, he had no indication from the Post Office Department that these publications did not conform to the requirements of second-class entry under the statutes and postal regulations. All of the publications are regularly published bi-monthly.
I will take up the issues in order. The Hearing Examiner found these publications were not "periodical publications" within the meaning of Sections 224 and 226 of Title 39, United States Code. 1/ I agree with the finding of the Hearing Examiner in this regard. A periodical is a publication which appears at stated intervals containing a variety of original articles by different authors devoted to general literature or some special branch of learning or to a special class of subjects. Each issue of a periodical is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series. Houghton v. Payne, 194 U.S. 88:
"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. Smith v. Hitchcock, 226 U.S. 53.
From the record, these publications vary very little in format or contents. Copies of these magazines disclose that they are approximately the same size, they contain from 84 to 100 pages and that from 65 pages (in the smaller publications) to 81 pages (in the larger) contain various puzzles and there are from eleven and a half to thirteen pages of answers depending upon the number of pages in the publication itself. In some of the smaller ones there is one page of story material, two pages of advertising, three and one-half pages of miscellaneous material and one cover page. In the larger ones there are two pages of story material which have no connection with crossword puzzles, one page of advertising and two pages of miscellaneous matter and one cover page. The contents of each of these magazines consists of fill-in crossword puzzles of the regular type also fill-in puzzles, diacrostics, overlap words, diagrams, puzzles, cryptograms and the like. One who uses these publications would be required to make marks or write in words or letters on the pages containing the puzzle. All of the answers to the puzzles are contained within the publication. None of the publications is substantially or essentially devoted to current affairs. Solutions to the puzzles in some cases require decoding the solutions of the puzzle which calls for knowledge possessed by the solver.
There is no "literary continuity" present in these publications - each one could stand separate and distinct. Each issue of each publication is entirely complete within itself and is almost entirely devoted to puzzles and their answers, and I agree with the Hearing Examiner that these publications are books as the term is understood and interpreted.
The second issue here involved is set forth as follows:
"Are the publications originated and published for the dissemination of public information, or devoted to literature, the sciences, arts or some special industry?"
The Petitioner contends that these publications are of educational value and that the purpose of these publications was to dispense public information. The solver of the puzzle fills in the blank spaces provided with entirely unrelated words having no connection with each other or no sequence of thought and certainly do not contribute to what is ordinarily understood as the "spread of public information." They are not used in the schools as teaching devices and actually constitute a sort of a game, a time filler or a mode of entertainment. Likewise I find nothing in the record that would indicate that these publications are devoted to literature, the sciences, the arts or some special industry.
The last issue here involved is stated as follows:
"Do the publications consist primarily of 'novelty pages' as that term is defined in Section 132.483 of the Postal Manual." 2/ Section 132.483 of the Postal Manual clearly defines "novelty pages" and under the definition therein contained it is crystal clear that all the publications involved in this proceeding are composed primarily and almost wholly of "novelty pages" and certainly under the law and the decisions could not qualify for second-class entry. The pages devoted to the puzzles comprising as they do such a great percentage of the total pages there is absolutely no question but that far more than a "minor portion" of the total pages are "novelty pages".
From the record in the case I find that the conclusion of the Hearing Examiner as a matter of law that publications Crossword Pleasure, Today's Crosswords, Crossword Treat and Crossword Time do not comply with the statutes and regulations governing second-class mail is correct. His conclusion that the applications for original entry and re-entry of these publications into the mails as second-class matter should be denied as entirely proper and the revocation of the existing second-class permits is sustained. The exceptions of the Petitioner are disallowed. The recommendations of the Hearing Examiner are adopted. use of novelty pages may give a publication the characteristics, both as to format and purpose, of books, catalogs, or other thirdor fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:
a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.
b. Pages having printed pictures for cutting out.
c. Printed pages having blank spaces for writing or marking.
d. Pages having printed illustrations pasted to them.
e. Pages with coupons or application or order forms occupying not more than one-half of the page.
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 publications 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/ .483 Novelty Pages. Novelty pages are printed sheets that may be used for purposes other than reading, or printed sheets with novel characteristics. Novelty pages must be prepared specifically for and intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. The total number of novelty pages in the copies may constitute only a minor portion of the total pages. An excessive use of novelty pages may give a publication the characteristics, both as to format and purpose, of books, catalogs, or other thirdor fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:
a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.
b. Pages having printed pictures for cutting out.
c. Printed pages having blank spaces for writing or marking.
d. Pages having printed illustrations pasted to them.
e. Pages with coupons or application or order forms occupying not more than one-half of the page.