In the Matter of the Petition by ) October 7, 1960 ) QUINN PUBLISHING COMPANY, INCORPORATED ) 17 Pearl Street ) P.O.D. Docket No. 1/274 Kingston, New York ) ) a hearing on the annulment of ) second-class mailing privileges of ) "FAVORITE CROSSWORD PUZZLES." ) APPEARANCES: Howard C. St. John, Esq. 280 Wall Street Kingston, New York for the Petitioner Adam G. Wenchel, Esq. and Jack T. DiLorenzo, Esq. Office of the General Counsel, Post Office Depart- ment, for the Respondent Kelly, Raymond J. POST OFFICE DEPARTMENT Washington 25, D. C.
This matter comes before the Judicial Officer by virtue of a stipulation between the parties to this proceeding wherein the Petitioner waives his right to a hearing before and to an Initial Decision by the Hearing Examiner and the parties agree that the matter be submitted directly to the Judicial Officer for a Departmental Decision.
The stipulation further provides that no brief or proposed findings of fact would be submitted to the Judicial Officer and that the issues to be determined in this proceeding are:
a. Is the publication, FAVORITE CROSSWORD PUZZLES, a periodical within the meaning of Sections 4351 and 4354 of Title 39, U.S. Code (formerly codified as Sections 224
and 226 of Title 39, U. S. Code) 1/ or is it rather a series of separate books published under a collective title, each book of which consists primarily of puzzle material?
b. Is the publication, FAVORITE CROSSWORD PUZZLES, originated and published for the dissemination of information of a public character, or is it devoted to literature, the arts, sciences, or some special industry?
c. Does the publication, FAVORITE CROSSWORD PUZZLES, primarily consist of novelty pages within the meaning of Section 132.483 2/ of the Postal Manual which also appears as Section 22.4(h)(3) of Title 39, Code of Federal Regulations?
The stipulation further sets out that the following documentary materials were to be submitted to and considered by the Judicial Officer:
a. The letter from the Respondent to the Petitioner dated December 8, 1959, relating to FAVORITE CROSSWORD PUZZLES designates as Joint Exhibit A.
b. The letter from the Respondent to the Petitioner dated June 29, 1960, relating to the FAVORITE CROSSWORD PUZZLES designated as Joint Exhibit B.
c. The May, 1960 (Vol. 8, No. 4); the July 1960 (Vol. 8, No. 5); and the September 1960 (Vol. 8, No. 6) issues of FAVORITE CROSSWORD PUZZLES, which are respectively designated as Joint Exhibits C, D, and E.
The record herein reveals that on December 8, 1959, the Respondent herein, The Director, Postal Services Division, Bureau of Operations, wrote to the Petitioner herein setting forth that a review of the second-class entry of FAVORITE CROSSWORD PUZZLES showed that the issues of said publication do not meet the conditions of entry prescribed by law and regulations for the reason that they are books and not periodical publications and further that they are neither originated and published for the dissemination of information of a public character nor are they devoted to literature, the sciences, arts or some special industry and that the copies consist primarily of novelty pages. In this letter the Respondent granted the request of the Petitioner that he be allowed the opportunity to submit the first issue of the publication printed after February 1, 1960 for examination. The first and second issues of the publication printed after February 1, 1960, being the May and June 1960 issues were submitted and examined by the Respondent and the Petitioner was advised by letter dated June 29, 1960 (Joint Exhibit B) that subject to Petitioner's right to file an appeal the existing second-class mailing privileges of FAVORITE CROSSWORD PUZZLES had been annulled. The reasons therefor were the same as set forth in the letter of December 8, 1959 (Joint Exhibit A).
Three copies of this publication are in evidence - the May, July and September issues which are Joint Exhibits C, D and E respectively. The format of each of these magazines are to all intents and purposes identical. They consist of a total of 100 pages including the cover pages. The inside of the front and the back cover of the May issue, (Joint Exhibit C) contains a glossary of 100 names which are described as being on the "seamy side of the fence that do sometimes crop up in puzzles." Page one is devoted to the Table of Contents, page 10 is devoted to a one-page article by Joyce Crowder entitled "A Touch of Beauty." Pages 28 and 29 contain material entitled "Your Favorite Quiz" which is made up of 24 questions to which the reader is supposed to either supply the answer himself or in some cases select the answer from among several suggested answers following the question. Pages 72 and 73 are occupied by material entitled "Fun With Words" comprising twenty-one questions which the reader must answer from the material which immediately follows each question. Page 84 contains the prize winning letter of the month which is alleged to have been selected from typical letters submitted containing the writer's opinion of the publication. There are seventy-seven pages of crossword puzzles and so-called variety puzzles and twelve pages devoted to the answers of such puzzles - considerably more than fifty percent of the pages contain diagrams or puzzle squares or similar figures on which the solver must write words to complete the puzzle.
The issue of this publication for July 1960, (Joint Exhibit D) and the issue for September 1960 (Joint Exhibit E) are with slight variations identical with the May 1960 issue (Joint Exhibit C) and for the purpose of this Departmental Decision will be so considered.
Since the parties to this matter have by their stipulation defined the issues as set forth above, this Departmental Decision will dispose of these issues in the order they are presented in the stipulation.
The first issue to be determined is whether or not the publication FAVORITE CROSSWORD PUZZLES is a periodical under the statute above cited or whether or not it is a series of separate books published under a collective title, each book of which consists primarily of puzzle material. I find that the publication represented by the Joint Exhibits C, D, and E above described is a series of separate books - none of which come within the statutory requirements for a periodical. The publication FAVORITE CROSSWORD PUZZLES does not possess the characteristics required to bring it within the definition of a periodical. It does not contain a variety of original articles by different authors as articles are generally understood. The crossword puzzles and the other puzzles contained therein certainly are not articles as contemplated by the postal laws and regulations. The few pages of other material above described contained in each issue of this publication could not by any stretch of the imagination be construed as "a variety of articles" and certainly cannot be said to have such an impact upon the character of the publication so as to give it literary continuity, connection between the different numbers, incompleteness within itself or any other characteristic which would warrant a finding that this was a periodical.
There is no indicated relationship with prior or subsequent numbers of the publication and each issue of this publication stands complete within itself. There is no continuity of literary character from one issue to another and no connection between the different issues which would bring the publication under the classification of a periodical.
On the other hand each issue of this publication is definitely a book and presents all the characteristics of a book. The contents are complete within themselves and they deal with a single subject - namely, puzzles. There is no indicated need for continuation between the various issues.
This publication is not a "periodical publication" within the meaning of the statutes or as defined by the court decisions - Houghton v. Payne, 194 U.S. 88 (97), Smith v. Hitchcock, 226 U.S. 53.
The second issue is whether this publication is originated or published for the dissemination of information of a public character or is devoted to literature, the arts, sciences or some special industry. I find that on its face it is not originated or published for the dissemination of information of a public character nor is it devoted to literature, the arts, sciences or some special industry. Crossword puzzles are a form of entertainment or enjoyment for the solver who may find satisfaction in the accomplishment of a completed solution. They are frequently utilized as a time killer to wile away empty hours. While occasionally the solver may find a new word or a new meaning for a word, there is no literary advantage as such gained in the solution. Certainly these publications are purchased for the crossword puzzles they contain. The few pages (5 to 7) devoted to so called "features" are incidental and, except that they are for the most part in keeping with the tenor of the publication and require solutions from the reader, they are merely minor insertions and are not the reason the purchaser bought the publication. No one would procure the issues here involved except to work the puzzles.
From the record as to the third issue set forth above it is clearly evident that each issue of the publication here involved consists primarily and almost entirely of novelty pages within the
meaning of Section 132.483 of the Postal Manual (supra). There is no doubt but that each of these issues (Joint Exhibits C, D, and E) are comprised almost entirely of printed pages which are used for purposes other than reading. They contain blank spaces on the pages which are used to work the puzzles. These blank spaces must be written upon by the solver in order to fill in and complete the puzzle. It is clearly evident therefore that this publication consists almost wholly of novelty pages as defined in the regulations and that the novelty pages comprise far more than "a minor portion" of the total pages and since the regulations provide that the number of novelty pages in a publication may constitute only a minor portion of the total pages this publication cannot qualify for second-class entry into the mails.
I therefore determine the issues here presented as follows:
a. The publication here involved FAVORITE CROSSWORD PUZZLES is not a periodical within the meaning of Sections 4351 and 4354 of Title 39 U.S. Code (formerly codified as Section 224 and 226 of Title 39 U.S. Code) but that it is a series of separate books published under a collective title, each book of which consists primarily of puzzle material.
b. That the publication FAVORITE CROSSWORD PUZZLES is not originated and published for the dissemination of information of a public character nor is it devoted to literature, the arts, sciences or some special industry.
c. That the publication FAVORITE CROSSWORD PUZZLES consists primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual (Section 22.4(h)(3) of Title 39, Code of Federal Regulations).
The Respondent's actions in revoking the second-class mailing privilege for the publication FAVORITE CROSSWORD PUZZLES and their further action in denying the application for re-entry filed on account of the change in the office of publication are affirmed.
1/ § 4351. Definition - Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title. ?4354. Conditions for entry of publications - (a) Generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it--
(1) is regularly issued at stated intervals as frequently as four times a year and bears a date of issue and is numbered consecutively;
(2) is issued from a known office of publication;
(3) is formed of printed sheets;
(4) is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; and
(5) has a legitimate list of subscribers.
(b) For the purpose of this section, the word "printed" does not include reproduction by the stencil, mimeograph or hectograph processes or reproduction in imitation of typewriting.
(c) A periodical publication designed primarily for advertising purposes or for free circulation or for circulation at nominal rates is not entitled to be admitted as second class mail under this section.
2/ § 132.483. 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 third or 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.