In the Matter of the Petition by DELL PUBLISHING CO., INC. for a hearing on the revocation of second-class mailing privileges for its publication "DELL CROSSWORD PUZZLES." P.O.D. Docket No. 1/256 July 22, 1960 William A. Duvall Chief Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON, D.C. APPEARANCES: William I. Denning, Esq. Ernest H. Land, Esq. 1518 K Street, N.W. Washington 5, D.C. for the Petitioners Jack T. DiLorenzo, Esq. Office of the General Counsel Post Office Department for the Respondent
Dell Crossword Puzzles (then Dell Crosswords) was granted entry into the mails as second-class matter at New York, New York, effective February 7, 1939. Since that time, it has been granted re-entry one or more times because of change of name or change of frequency.
By letter dated May 9, 1960, the Director, Postal Services Division, Bureau of Operations, Post Office Department (the Respondent) advised the Dell Publishing Company, Inc. (the Petitioner) that, subject to Petitioner's right to appeal, the second-class mail permit would be annulled. The publisher appealed within the time allowed and the Respondent filed answer to the appeal petition.
The case came on for hearing before me on June 16, 1960, at which hearing both parties were represented by counsel. Counsel for both parties have filed proposed findings of fact, conclusions of law and reasons in support thereof.
This is the second proceeding involving second-class mail privileges of crossword publications issued by this Petitioner, the earlier case being a consolidated proceeding identified as Post Office Department Docket Nos. 1/141, 147, 155 and 156. At the hearing in the instant proceeding, Respondent's counsel asked that official notice be taken of Petitioner's Exhibits 17 and 23 received in evidence in the prior case in order to establish the similarity of the publications involved in the two proceedings. The exhibits of which official notice was requested to be taken are, respectively, the June-July, 1958, issue of "Official Crossword Puzzles" and the July-August, 1958, issue of "Pocket Crossword Puzzles." Respondent's request was granted, whereupon counsel for the Petitioner requested that official notice be taken of the testimony of Petitioner's witnesses in the prior case and that such testimony be regarded as "being applicable to the similar revocation in this case."
A comparison has been made of Petitioner's Exhibits 17 and 23 in the earlier proceeding and Respondent's Exhibits 5, 6, 7 and 8 in the instant case. The three publications differ from each other in size, but "Pocket Crossword Puzzles" and "Dell Crossword Puzzles" have 100 pages, each, while "Official Crossword Puzzles" is composed of 68 pages, including, in each instance, the outside front and back covers. Otherwise, the publications are so similar in content that the testimony in the earlier case would apply with equal force to the issues in the present case, the same issues being involved in both cases. I adopt the descriptions of the various publications set forth in Petitioner's proposed basic finding of fact numbered 4 and Respondent's proposed findings of fact numbered 6, 7, 8, 9 and 10.
In view of the similarity of the publications involved in the earlier case and in the instant proceeding; in view of the identity of the parties in both proceedings; in view of the identity of the issues in both proceedings, and in view of the fact that the testimony of the Petitioner's witnesses in the former case is regarded as being applicable to this case, the Initial Decision of January 12, 1960, in the former case is adopted as the Initial Decision herein and a copy of that Initial Decision is attached hereto and incorporated herein by reference.
With one or two exceptions, the statements heretofore made, taken in conjunction with the findings and conclusions made in the earlier case, dispose of the proposed findings of fact and conclusions of law submitted in this proceeding.
First, in the first proposed finding of basic fact and ultimate fact submitted by the Petitioner (pp. 4 and 16 of Petitioner's brief) the Petitioner requests findings that the Department has previously found that the publication now under consideration qualifies for entry into the mails as second-class matter. It is true that the second-class mail privileges have been granted for this publication, but there is nothing in this record that indicates the existence of a formal finding to this effect. There is, therefore, as much reason to believe that the permits in effect at the inception of this proceeding were issued cursorily or perfunctorily as there is that there was any type of a proceeding resulting in the finding which the Petitioner suggests was made.
In the second sentence of each of these two proposed findings of fact the Petitioner requests a finding that the Respondent introduced no evidence to show that the earlier grants of second-class mail privileges for "Dell Crossword Puzzles" resulted from error, mistake or inadvertence or that no showing was made of any changed circumstances which would justify a revocation of the privileges. The evidence in this case consisted of certain correspondence had between the Petitioner and the Respondent and four issues of the publication under consideration. It was testified at the earlier proceeding that the format of the publication has been substantially the same that was adopted at the inception of publication. It is indicated in the attached Initial Decision in the earlier case, and it is concluded herein, that the several publications are not entitled to be carried in the mail at the second-class postage rates. These facts are sufficient to show that the initial grant of second-class mail privileges in this case was the result of error, mistake or inadvertence.
The first conclusion of law submitted by the Petitioner, i.e., that the burden of proof to establish that an existing entry should be revoked is on the Respondent Director, is adopted.
The fifth proposed conclusion of law submitted by the Petitioner, that the Director has failed to sustain this burden of proof, is denied for the reason, among those stated elsewhere, that the evidence in this case, namely, the four issues of the publication in question which were introduced by the Respondent, shows on its face that the publication is not entitled to entry into the mails as second-class matter. Thus, the Respondent sustained the burden of proof.
Finally, there appears to linger in the mind of the Petitioner some idea that there is involved in this proceeding a judgment as to the merit or lack of merit of the contents of the publication. It was believed that the comments made on the last page of the Initial Decision of the earlier case would be sufficient to put this notion to rest. Among other things that make it appear that that idea still is in the mind of the Petitioner is his repeated emphasis on the Esquire case, in which it was the position of the Post Office Department that the publication did not make a positive contribution to the public good. Further, the Petitioner re-emphasizes the beneficial use to which this publication is put by Dr. Maleska, in the education field, and by Miss Reissenweber, in the rehabilitation of patients with certain debilities resulting from mental disease. Certainly no fault is found with these uses to which the publication is being put. On the contrary, it is gratifying to find any tool or device which would serve these admirable ends. That these publications are so used, however, is not material in a proceeding to determine in what class of postal matter the material is properly classifiable. Knitting needles are tools which also are used in rehabilitation of patients who have been the victims of certain mental conditions, and hammers and nails are used in institutions in which vocational training is taught. These facts, however, do not render any of the items mentioned eligible for entry into the mails as second-class matter. In short, and in conclusion, this proceeding involves classification - not condonation nor condemnation - of the material under consideration.
The remainder of the proposed findings of fact and conclusions of law submitted by the parties are sufficiently treated in the attached Initial Decision in the earlier proceeding.
For all of the reasons indicated, the second-class mail permit now in effect with respect to the publication "Dell Crossword Puzzles" is hereby revoked.