In the Matter of the Petition by THE MUSIC TRADES, 111 West 57th Street, New York 19, New York appealing ruling by Director of Postal Services Division denying second-class mailing privileges for the directory issue of The Music Trades magazine. P.O.D. Docket No. 1/192 May 19, 1960 William A. Duvall Chief Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON, D. C. APPEARANCES: Lawrence H. Reilly, Jr., Esq. 415 Madison Avenue New York 17, New York for the Petitioner Dean M. A. Murville, Esq. Eugene P. White, Esq. Office of the General Counsel Post Office Department for the Respondent
This proceeding originally involved two applications relating to second-class mailing privileges filed by The Music Trades, 111 West 57th Street, New York 19, New York, the Petitioner. In the first application, filed July 1, 1959, second-class entry was sought for the publication "The Music Trades" at East Stroudsburg, Pennsylvania, covering thirteen issues per year, one in each month except in June when two issues are published. The second application, filed July 14, 1959, was similar to the first one except that it was filed with the postmaster at New York City. The application for re-entry at East Stroudsburg, Pennsylvania, was withdrawn by the Petitioner on March 10, 1960.
A second-class mail permit covering twelve issues per year has been in effect with regard to The Music Trades for a number of years and no previous application had been made for thirteen issues of the publication nor for the thirteenth issue alone, although thirteen issues have been published for approximately thirty years.
The Director, Postal Services Division, Bureau of Operations, Post Office Department, on August 26, 1959, denied both applications on the basis, in substance, that the so-called thirteenth issue of the publication, that is, one of the two issues published in June of each year and known as the Directory Issue, does not conform to the requirements of the statutes and postal regulations relating to second-class mail matter.
The Petitioner appealed and the case came on for hearing before me on January 15, 1960, at which hearing both parties were represented by counsel who participated in the examination and cross-examination of the witness. Counsel for both parties filed proposed findings of fact and conclusions of law, together with supporting reasons, on March 11, 1960.
Because of the withdrawal of the application of July 1, 1959, filed at East Stroudsburg, Pennsylvania, there remain only two issues in this proceeding, as follows:
1. Is the Directory Issue of "The Music Trades" a periodical publication as required by Section 226 of Title 39, United States Code, or is it a book; and
2. Is the Directory Issue of "The Music Trades" distinguished from the regular issues by bearing designations which indicate it is an annual, directory, catalog, yearbook, or other type of separate publication, as proscribed by Section 132.42(c) of the Postal Manual (39 C.F.R. 22.4(b)(3)).
At the hearing all of the issues of the publication for the year 1959 were received in evidence. The twelve regular monthly issues of "The Music Trades" are approximately nine by twelve inches in size and vary in numbers of pages from 74 to 160, including front and back covers. These issues are made up of various material, including letters to the editor, editorials, articles concerning various manufacturers of different musical instruments, business trends, stories about retailers and retail stores, reports of trade conferences and conventions, news items of interest to persons in retail music stores, obituaries and advertising. In addition to the title and an advertisement, some covers of the regular issues highlight certain features, such as "Complete Atlanta Regional Report" and "NAMM Convention and Trade Show Issue." The Directory Issue of "The Music Trades" is approximately six and three-quarters by ten inches in size and has 356 pages including front and back covers. The contents consist of lists of concerns in the following fields of the music business:
Piano Manufacturers
Used and Rebuilt Piano Wholesalers
Organ and Chime Manufacturers
Piano, Organ and Tuner-Technician Supplies
Piano Tuning Schools
Musical Merchandise Manufacturers and Wholesalers
Trade Marks of Musical Merchandise Industry
Store-Studio Aids and Educational Devices
National Music Trade Associations
Publishers and Wholesalers of Sheet Music
Music Engravers and Printers
Television, Radio, Phonographs, Stereo, High
Fidelity Tape and Wire Recording Equipment,
Records and Needles
Directory of Retail Music Stores
In connection with some of these categories, there are brief histories of the businesses listed.
In addition to the foregoing lists, the Directory Issue contains advertisements and a list of advertisers. The front cover of this issue bears, at the top, the legend "1959 Directory Issue," below which is the title "The Music Trades," followed by the words "The Purchaser's Guide to the Music Industries." At the bottom of the front cover is the table of contents.
Mr. John F. Majeski, Jr., the Editor of "The Music Trades" was the only witness in this proceeding. Mr. Majeski stated that the publication serves the music industry, which he described as being composed of people and firms who specialize in the sale of musical instruments. The function of the publication, Mr. Majeski said, is to provide a channel of communication between members of the industry for their good and welfare.
Mr. Majeski described the Directory Issue and its usefulness as follows:
"No, [it does not contain feature stories as the regular issues do] it contains only I would say permanent reference material which is in the nature of - it would be fruitless to publish it more than it is done annually; in the same way our convention issue comes out only once per year." (Tr. 14)
"Well, the Directory issue as it states is a directory of the entire music industry, and as such anyone who wanted to find out something about any firm in the music industry could satisfy his curiosity therein.***" (Tr. 21)
"A person recalls a reading notice where there is a paragraph or more than one paragraph telling about this firm as compared to the trademark listing, which is nothing but a name and number which gives you the name of the owner of the company which enables you to go back to the appropriate section to find out more about it and the listing of all the stores which only has for its purpose inter-industry communication. A fellow meets one fellow at a convention, and he would like to write him a letter because there are so many mutual problems. How is he going to find the address? He takes out the book, and there is the address." (Tr. 27-28)
"I wouldn't say it is a complete reference for anyone interested in the industry because you have sources of addresses from the public library, but I would say it is a complete source of reference to someone who is engaged in the music industry in the field in which we specifically serve. There are many other aspects, so-called, of the music business each with their own publications but these fields are completely unknown one to the other." (Tr. 41)
A "book" has been described as follows:
"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." ( Smith v. Hitchcock , 226 U. S. 53)
From the descriptions heretofore given of the Directory Issue of "The Music Trades" and from the testimony of the Editor as to the purposes and uses of it, it seems clear that the Directory Issue is not to be considered as an issue of "The Music Trades", but that it stands alone and is, in fact, a separate publication which is issued once a year. It is not, therefore, a "periodical" publication as that term is used in Sections 221 and 224, and as that term is implied in Section 226 of Title 39, United States Code. I find that the Directory Issue of "The Music Trades" is a book issued annually by the Petitioner.
Similarly, the front cover of the Directory Issue clearly indicates that it constitutes the directory for the music industry for the year 1959. I find that the Directory Issue of "The Music Trades" is a separate publication issued by the Petitioner and that it is an annual, directory or yearbook as those terms are used in Section 132.42(c) of the Postal Manual (39 C.F.R. 22.4(b)(3)).
Upon the basis of the entire record in this case, and in view of the foregoing findings of fact, I conclude that as a matter of law, the Directory Issue of the publication "The Music Trades" does not meet the requirements of Sections 224 and 226 of Title 39, United States Code, and that it contravenes the provisions of Section 132.42(c) of the Postal Manual.
The ruling of the Respondent denying the Petitioner's application for re-entry into the mails as second-class matter of the publication "The Music Trades" because of change of frequency of issue is affirmed.
The basic second-class permit held by the Petitioner remains in full effect.
Proposed findings of fact and conclusions of law submitted by the parties have been fully considered and they are adopted to the extent herein indicated. Otherwise, such proposed findings of fact and conclusions of law are denied for reasons herein stated or because of their immateriality.