In the Matter of the Petition by T. V. REPORTER, INC., Division Street, Derby, Connecticut for second-class entry of "New York Journal American Crosswords Magazine". P.O.D. Docket No. 1/229 December 15, 1961 Jesse B. Messitte Hearing Examiner POST OFFICE DEPARTMENT, WASHINGTON 25, D. C. APPEARANCES: Stanley M. Estrow, Esq. 60 East 42nd Street 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
The petitioner, T. V. Reporter, Inc., is the publisher of the New York Journal American Crosswords Magazine ("the publication"). The respondent is an official in the Bureau of Operations, Post Office Department. (His functions are described in Section 824.124 of the Postal Manual).
This proceeding comes before me on timely appeal by the petitioner from a ruling of the respondent which would in the absence of such appeal, deny a second-class mail permit for the publication.
The issue, broadly stated, is whether for this publication, consisting mainly of crossword puzzles, petitioner is entitled to second-class mail privileges and thus to the relatively low or subsidy-like postage rate for the carriage of mail of the second-class.
Pending final resolution of the issue petitioner is mailing the publication at the much higher postage rate for mail of the third or fourth class. If petitioner establishes that the publication should be carried as second-class mail, a refund of the excess payments may be appropriate. See 39 U.S.C. 300.
I find as an ultimate fact that petitioner's publication is not a periodical. The publication, as a matter of law, is not a periodical within the requirement of 39 U.S.C. 224. Petitioner is, therefore, not entitled to second-class mail privileges for the publication. As more fully set forth below, the evidential facts in view of the law (including the policy of the Postmaster General) now applicable compel the foregoing finding of ultimate fact and the foregoing conclusion of law.
The law (including the policy of the Postmaster General) now applicable is derived essentially and most recently from (1) the decision and opinion of the United States District Court for the District of Columbia (per J. Holtzoff) on October 12, 1961 in Civil Action 2502-60 - Dell Publishing Co. v. Postmaster General and (2) the final decision of the Post Office Department (per Judicial Officer Bosone) on June 23, 1961 in P.O.D. Docket No. 1/273.
A more detailed presentation of (1) the history of this proceeding (2) other evidential or ultimate facts and (3) applicable law is now appropriate.
I
A. Before the Hearing
1. The petitioner on October 30, 1959 filed an application with the postmaster at Derby, Connecticut, for second-class mail privileges. The application included the following allegations: the publication was to be issued bimonthly; the annual subscription price - $1.50; the first issue was dated February 1960; 125,000 copies were printed of which 124,705 were being consigned to news agents for sale with return privileges.
2. The application of October 30, 1959 was apparently forwarded by the postmaster at Derby, Connecticut, to the Bureau of Operations, Post Office Department, Washington, D. C., and thus to the respondent.
3. On December 9, 1959 the respondent wrote a letter to the petitioner purporting to deny finally a second-class permit for the publication unless the ruling was appealed within a stated period of time.
4. The reasons the respondent gave, in his letter of December 9, 1959 for his conclusion of denial may be summarized (citations generally omitted) as follows: (a) the copy of the publication (February 1960 issue Vol. 1, No. 1) submitted with the application is not a periodical but is rather a book (b) the copy is "neither originated and published for the dissemination of information of a public character, nor is it devoted to literature, the sciences, arts or some special industry ***" (the "Fourth" condition of 39 U.S.C. 226) (c) the copy consists primarily of novelty pages and (d) circulation requirements are not met - none of the 125,000 printed copies of the February 1960 issue of the publication were sold to individual subscribers who paid the publisher (petitioner) the full advertised price and of the 124,705 copies sent to news agents for sale with return privileges, the returns from such agents are not available.
5. The petitioner disagreed with the respondent's ruling of December 9, 1959. Accordingly, on February 15, 1960 the petitioner filed, as it was entitled to do, a petition seeking second-class mail privileges for the publication.
6. On March 1, 1960 the respondent filed an answer to the petition and, in substance, repeated the grounds set forth in respondent's letter of December 9, 1959 as the bases for respondent's conclusion that second-class mail privileges should be denied to petitioner's publication.
7. Prior to the hearing the parties made various motions in writing.
a. On February 29, 1960 petitioner requested the hearing be held at New York City rather than Washington, D. C. This hearing examiner granted petitioner's request.
b. On March 1, 1960 respondent by motion requested (1) that the hearing examiner render an oral initial decision in favor of respondent because another hearing examiner had rendered initial decisions favorable to respondent in other proceedings concerning crossword puzzle publications "indistinguishable in nature" from petitioner's publication in the instant proceeding and (2) that petitioner's claim for second-class mail privileges for the publication be dismissed because petitioner failed to show in its application of October 30, 1959 that it had met the circulation requirements of 39 U.S.C. 226 and related postal regulations. This hearing examiner denied respondent's motions of March 1, 1960.
c. On March 17, 1960 petitioner filed a "Notice" for taking the deposition of the respondent concerning all matters in issue in this proceeding including "the course of conduct by the *** Postmaster General" (Summerfield) "and his predecessors in office, in the processing and granting of second-class entry to crossword puzzle magazines ***" similar to petitioner's publication and also including "any statutory changes, amendments, modifications, departmental rules, regulations, decisions or orders, or judicial determinations during the past years which in any way bear upon the present decision of the Postmaster General" and the proposed witness - the respondent - to deny or seek the revocation "of entries to second-class matter for crossword puzzle magazines." Petitioner's notice was opposed by respondent on the ground that it was not timely and in other respects did not conform to the applicable rules. Respondent's objections appear to have been sound. In any event the deposition of the respondent was not taken. Respondent did not testify at the hearing but one of Post Office Department employees (Mr. Fioravanti) in the Postal Services Division (of which Respondent was the Director) did testify. That testimony is referred to below.
d. On March 25, 1960 petitioner filed a "Notice to Produce ***" in order to require respondent to produce records with respect to the granting of second-class entry to eleven specified crossword puzzle publications. The witness Fioravanti appeared at the hearing with photocopies of records of the Post Office Department concerning the specified publications to the extent that such records could be found after diligent search by him.
B. At the Hearing .
1. A hearing was held before this hearing examiner on March 29 and 30, 1960 at New York City. Petitioner was represented by Stanley M. Estrow, Esq., of New York City. Respondent was represented by Jack T. DiLorenzo, Esq. and Eugene P. White, Esq., employees in the Office of the General Counsel of the Post Office Department, Washington, D. C.
2. The petitioner presented seven witnesses (Levey, Bacon, Durkin, Garrison, Abate, Heckelman and Estrow). The testimony of one witness (Lippert) in another proceeding (P.O.D. Docket No. 1/148) was, by stipulation, incorporated into the record of the instant proceeding. The respondent presented one witness (Fioravanti). About 55 exhibits were received in evidence of which about 37 were petitioner's exhibits (designated P1 through P37) about 11 were respondent's exhibits (designated R1 through R11) and about 7 were, pursuant to stipulation, joint exhibits of the parties (designated J1 through J7). A resume of testimony and exhibits is set forth below. Some findings of evidential fact are interspersed in or made part of the resume.
3. One joint exhibit (J5) is the copy of the publication which petitioner submitted with its application of October 30, 1959 for second-class mail privileges. This is the copy of the publication which the respondent on December 9, 1959 considered (a) not to be a periodical (b) not to meet the "Fourth" condition of 39 U.S.C. 226 9c) to have too many novelty pages and (d) for these reasons, among others, not to be entitled to second-class mail privileges under applicable statute and regulation.
The exhibit (J5) is a copy of the first bimonthly New York Journal American Crosswords Magazine, February 1960, Vol. 1, No. 1. This paper bound publication, including front and rear covers, consists of 68 printed pages. In size, it is approximately 10 inches long and 7 inches wide. There are: 46 pages composed of sixty crossword puzzle diagrams (containing blank spaces for inserting the solution to the puzzle) with word listings related to the diagrams; 5 pages of answers to the crossword puzzles; 4 pages of advertising; 7 pages made up of almost entirely narrative matter in six different articles under such general captions as "Strange Facts" and "Historiette"; 4 pages of miscellaneous puzzles with answers; 1 page for the table of contents and 1 page for the outside front cover.
The later issues (J6, J7) of the publication are substantially the same in size, format and content as the first issue (J5). Such variations as there are would not affect the disposition of the controversy between the parties, as recommended in this initial decision.
4. There is expert testimony in the record concerning the meaning in the publishing trade of the words "periodical" and "book".
All of such testimony was given by Charles N. Heckelman, an impressive witness. Mr. Heckelman, who was graduated with high honors in journalism from Notre Dame University, for more than 20 years has been actively engaged as editor, production manager or high level executive in the book publishing and magazine publishing trades. On the basis of my study of his testimony, I find that in the publishing trade in the United States there is generally a well understood distinction between a book and a magazine or periodical publication as follows: (a) a magazine or periodical usually has a variety of content, such as, short stories, perhaps an installment of a serial, a picture feature, some editorials, some cartoons, and perhaps some articles about the home - and ordinarily the content will be supplied by a number of different authors; and a book, however, is usually one item such as a novel or autobiography and usually has one author - although there are exceptions such as anthologies; (b) a magazine or periodical is usually ephemeral rather than timeless or for all time (of course some periodicals, such as the Harvard Business Review, because of great intrinsic worth and scholarship are likely to have long time reference value); a book, in contrast, usually has a much more lasting or timeless quality (needless to say some books are so lacking in appeal that they never sell); (c) a magazine or periodical usually comes out, serves its purpose and is thrown away or forgotten by the time the next issue comes out but a book is more likely to be retained and thus some books pass from generation to generation and may become collector's items; (d) apart from the foregoing distinctions between a periodical and a book based on content, there are some distinctions growing out of general material, merchandising and advertising practices of the publishing trade such as (1) cheap paper and cheap binding are much more likely to be found in a periodical than in a book, (2) the merchandising of a magazine or periodical (whether weekly, monthly, bimonthly or quarterly) is generally through distributors who send them out to newsstands and the magazine or periodical is called off the newsstands by the time the next issue comes out, (3) a book is more likely to be sold by the publisher to a commission sales organization which distributes the publication to book stores and reorders are usually accepted by the publisher over a long period of time - generally a year or more, and (4) general advertising is not carried in a book (but it is common knowledge that such advertising is contained in magazines or periodicals).
Mr. Heckelman testified further and I find that within the meaning of the trade (publishing in United States) the petitioner's publication (evidenced by J5, J6 and J7) would definitely be considered a magazine (or periodical) and not a book because (a) it has a variety of content and authorship (b) it has a continuing pattern of puzzles and special features (c) it carries general advertising (d) it is a bimonthly on sale thus for 60 days and off sale automatically thereafter (e) it has the cheap paper, binding and cover more characteristic of a magazine (or periodical) than a book; the 25 cent price is more characteristic of a magazine (or periodical) than a book; the number of pages (68) is more nearly characteristic of a magazine (or periodical) than a book.
Mr. Heckelman also testified and I find: There are "books" (within the meaning of that term in the publishing trade) composed of crossword puzzles; usually they have one author and lack the variety of content in petitioner's publication (J5, J6 and J7); usually they have relatively high quality paper binding and cover; they will, generally, remain available for purchase much longer than petitioner's publication; indeed they may go into several printings at various time intervals; (price wise) such publications of crossword puzzles are usually priced much higher (for example, $1.95) than petitioner's publication (25 cents); and, in the publishing trade such publications composed of crossword puzzles are considered and accepted as books.
However, on cross-examination Mr. Heckelman testified, in effect, and I therefore find: That the individual crossword puzzles contained in petitioner's publication (J5, J6 and J7) do not readily become outdated. In that sense I find that those crossword puzzles have a relatively timeless quality or, in other words, periodicity is not an essential element of such crossword puzzle material in petitioner's publication. Language changes with new words, new slang expressions, new idiomatic changes and some discarding of the old is a relatively slow process and it would probably take many years before a crossword puzzle would become so outdated as to have no current interest as a crossword puzzle.
5. In respect to the educational or literary significance, if any, of petitioner's publication (J5, J6 and J7) the record contains testimony of petitioner's witnesses - experts in the field of education or educational publications - Dr. Durkin, Mr. Abate, Mr. Garrison and Mr. Lippert. Their testimony, to the extent here possibly pertinent, establishes and I find: (a) there is likely to be value in crossword puzzles (1) in improving a person's attitude toward the "job" of reading (2) in vocabulary development and (3) in a contribution to what may be called the language arts which include reading, spelling and grammar; (b) so also the crossword puzzles in petitioner's publication (J5, J6 and J7) might well be valuable in improving an individual's attitude toward reading, in developing his vocabulary and contributing to the language arts such as his reading, spelling and grammar; (c) by supplying the answers to the crossword puzzles in the publication (J5, J6 and J7) petitioner enables the individual to engage in self-diagnosis - that is to become aware of his ability or lack of ability in the language arts and this is a significant factor in the learning process; (d) the crossword puzzle often teaches the individual new words, or new meanings for words already known to have other meanings; (e) very often new information results from the compilation of old information and new knowledge for the individual is often a combination of old knowledge in a new way - and in this sense the crossword puzzle may supply new knowledge of words, meanings and facts to the individual; (f) the crossword puzzle is one form to enable the individual to use his information and add to it and this may make a significant contribution to the individual's learning process; (g) petitioner's publication (J5, J6 and J7) has some educational value and may contribute in a rudimentary way to the individual's learning and thinking processes; (h) crossword puzzle material, substantially similar in content to that contained in petitioner's publication (J5, J6 and J7) is contained in various publications (books and periodicals) used in many elementary and high schools in the United States and is considered a useful device in teaching the language arts and such material has educational value for the reader or doer; and (i) crossword puzzle material may help an individual learn some facts and some things about words, their meaning and their spelling, while at the same time the material may be a source of fun, enjoyment or entertainment for the individual.
6. Some evidence concerning the nature of the publication, how it is put together, the persons it is designed to interest and the method of circulation was supplied by two employees of petitioner.
a. Jane Bacon is employed by petitioner as editor-in-chief of the publication. She has worked for the petitioner about 6 years and for others about 4 years - in editing various publications composed mainly of crossword puzzles. For petitioner's publication (J5, J6 and J7): she receives puzzles from contributors and she selects and arranges the order of presentation of puzzles; she generally puts the simpler puzzles at the front part of the publication; she put some articles in the first issue (J5) and somewhat related articles were placed in succeeding issues (J6 and J7). The crossword puzzles are designed for persons about 15 years old or of relatively limited education - perhaps with 7th grade education or the equivalent - but with reasonable additional information and experience derived from reading newspapers and listening to the radio. Contributors are instructed in detail by petitioner concerning acceptable crossword puzzles (P8). Among other things, contributors are told not to "use unpleasant or shady words" and that all "words should appear in Merriam-Webster Unabridged or otherwise identified". Contributors are paid for their puzzles, when and if published, between $3.00 and $4.25 per puzzle. In each issue of the publication (J5, J6 and J7) petitioner follows a pattern of articles including a type of human interest story, a history story, a science article and one or more articles about words. Crossword puzzles in the publication generally convey messages to the reader concerning the existence of words having described meanings.. Those messages are corroborated by the answers in the back of each publication. To the extent the reader is unable to respond correctly to the message given and the inquiry made by each segment of the puzzle - from his memory and associations, or by reason of his education, experience or use of a dictionary and other reference sources - he is likely to learn directly from the printed answers contained in the back of the publication.
b. Burton N. Levey is Treasurer of the petitioner. He was President of the petitioner for a time. The policy of the publication is to present that which would appeal to people at the educational level of about a 15 year old person. The February 1960 issue of the bimonthly publication (J5) was published at the end of October 1959 and went on sale at the end of November 1959. So also the April 1960 issue (J6) was published at the end of December and the June 1960 issue (J7) was published at the end of February 1960. Each of those issues (J6 and J7) went on sale 25 or 30 days after it was published. Of approximately 124,000 copies of the first issue (J5) which were distributed about 98,450 were shipped by means other than the Post Office and the balance (more than 25,000) went through the Post Office (P1). At the time the petitioner on October 30, 1959 filed its application with the postmaster at Derby, Connecticut, for second-class mail privileges it did not have and could not have definitive information concerning sales of the February 1960 issue of the publication (J5). Petitioner distributes the publication through a national distributor ("Capital"). Capital ships the publication to wholesalers which in turn distribute to retail outlets in a given area. Generally the wholesaler delivers the publication to retail outlets by truck. Some retail outlets, particularly in rural areas, are not supplied by truck and generally to such areas the mail is used for carriage of the publication. Consignments of the publication delivered by truck, as between retailer and wholesaler, are on a fully returnable basis if not sold. The same is true as between the wholesaler and national distributor and again as between the national distributor and the publisher. There is no way of determining, under existing established trade practices, who are the purchasers of the publication from the retail newsstands. By the end of January when the April 1960 issue of the publication (J6) went on sale the February 1960 issue (J5) was called off sale. Retailers generally have 90 days after the off sale date within which to return unsold copies of a bimonthly publication. At the earliest, the first "realistic sales figures" on the February 1960 issue (J5) would be available during March 1960.
Although some employees of the petitioner on March 29, 1960 knew the actual sales figures of the February 1960 issue of the publication, Mr. Levey did not have them on that day. He was not asked by Respondent's counsel to present them on March 30, 1960 or within a reasonable period thereafter. He did not offer to do so. Some copies were sold. How many the record does not disclose.
Petitioner receives 14 cents from Capital for each copy of the publication sold through Capital. This 14 cents on a 25 cent publication is generally just about what all publishers receive from national distributors of magazines through wholesalers and retail outlets.
Petitioner also has a few direct subscribers to the publication (J5, J6 and J7). There is a list of such subscribers (P6). Some of the persons on the list have paid the subscription price and a few have not. Direct subscriptions for petitioner's publication (J5) produce inconsequential receipts and the important receipts come from distribution through the national distributor, the wholesalers and the retail outlets and thus to the purchasers at the newsstands or other retail outlets.
7. There were two other witnesses. Their testimony concerns mainly the date when the Post Office Department first granted second-class mail privileges to a publication containing mostly crossword puzzles. Their testimony also concerns other limited aspects of the history and practice of the Post Office Department in respect to such publications.
a. One witness, for the petitioner, was Stanley Estrow, Esq., the petitioner's attorney. He testified, from memory of his own early work experience in the publishing trade and without documentation of any kind, that as early as 1928 or 1929 a number of publications (perhaps 7 or 8) containing mostly crossword puzzles had been granted second-class entry by the Post Office Department. I assume the foregoing fact to be as Mr. Estrow testified in the absence of any persuasive contrary evidence from respondent. (Respondent's counsel conceded that such publications were granted second-class entry as early as 1935).
b. The respondent's only witness was Fulvio R. Fioravanti. As of March 30, 1960 (the hearing date), and for at least 10 years prior thereto, he was an employee of the Post Office Department. It was his job as a "specialist" in the Mail Classification Branch, Postal Services Division of that Department to review applications for second-class mail privileges.
It is usual for such applications to be presented to the respondent or to the person who is Chief of the Mail Classification Branch. Then it is assigned to the individual "specialist" to determine if the publication complies with existing rules and regulations. Petitioner's application was assigned to Mr. Fioravanti "for handling". He examined it and because "it was substantially the same as the previous crossword publication" he handled and the Director (the respondent) had told him it was the "policy" to deny second-class mail privileges to these puzzle publications he "prepared and recommended denial ***". If the publication (J5) were otherwise qualified for second-class mail privileges, the respondent in accordance with established practice would have allowed the petitioner (publisher) a reasonable time to show the facts concerning sales through the newsstands and related circulation information. Because the respondent considered petitioner's publication to be a book and not a periodical he noted, in effect, that there was lacking information sufficient to form a belief as to whether petitioner had met or would meet the circulation requirements under the law.
Since late September or early October 1958 no publication consisting mostly of crossword puzzles has been granted second-class mail privileges. After October 1958 all such publications previously granted second-class mailing privileges were notified by respondent of his proposal to proceed to revoke those privileges. For the ten years or more, preceding March 30, 1960, Mr. Fioravanti processed second-class mail applications at the Post Office Department and no publication prior to September 1958 was denied second-class entry on the ground that it consisted primarily of crossword puzzles. But when in September 1958 he (Fioravanti) recommended for approval second-class entry for such publications (consistent with the previous long established policy and practice of the Post Office Department) the Director (the respondent Edwin A. Riley) said he did not believe crossword puzzle publications were entitled to second-class entry. He (respondent) said he felt a mistake had been made in previously granting second-class entry to such publications. The respondent said he thought the publications were books and not entitled to the second-class rate of postage. (Respondent's counsel objected strenuously to any testimony from Mr. Fioravanti, as an expert or otherwise, in respect to whether he considered the publication (J5) a periodical or a book. Respondent's counsel stated, in effect, that the policy of the respondent was to consider the publication a book and Mr. Fioravanti, as a "subordinate" of the respondent must follow that policy).
Second-class entry had been approved for publications like petitioner's publication for some years prior to 1950 and this policy continued until September or October 1958. From 1950 until September or October 1958 Mr. Fioravanti, and, presumably, the respondent were familiar with 39 U.S.C. 224 and 226. Also from December 1, 1954 when the "Novelty Pages" regulation (Postal Manual 132.483) was issued until September or October 1958 Mr. Fioravanti, and, presumably, the respondent were familiar with that regulation. But I infer that neither 39 U.S.C. 224 and 226 nor the "Novelty Pages" regulation was considered by the respondent (or his predecessor in office) to preclude granting second-class mail privileges to publications, containing primarily crossword puzzles, prior to September or October 1958. Therefore, such publications were actually approved for second-class entry during a long period preceding December 1, 1954 and also from December 1, 1954 to September or October 1958.
8. Exhibits. Many exhibits, too many, were used in the efforts to clarify or develop the testimony of witnesses.
Some key exhibits have already been described in detail (for example, J5 the copy of petitioner's publication which was submitted with its October 30, 1959 application for second-class mail privileges).
Other exhibits include: publications composed of crossword puzzles and conceded by petitioner to be books (for example, P35, P36, P37); other publications conceded by petitioner to be books (for example, P32, P33); old publications containing mostly crossword puzzles which for a time had second-class mailing privileges as periodical publications (for example, P5); publications, with some crossword puzzle content, used in schools (for example, P9, P10, P25 and P26); photocopies of some Post Office Department records showing second-class entry dates for various crossword puzzle publications (for example, R10).
C. After the Hearing
For many reasons, the issuance of this initial decision has been long delayed. Some of the reasons are indicated by post-hearing occurrences, described below.
1. Corrections of Transcript
Grossly incompetent reporting service resulted in hundreds of errors in the transcript of the hearing. More than two hundred of such errors were corrected by order of this hearing examiner dated September 19, 1960 after much study by counsel for each party and by the hearing examiner. (The contract between the Post Office Department and the reporter was terminated because of alleged misfeasance by the reporter. Because of the termination the erroneous pages of the transcript have not been replaced, as is the usual practice. Consequently, the transcript is relatively difficult to work with because of the need for continual reference to the order of September 19, 1960 correcting the transcript).
2. Briefs - proposed findings of fact and conclusions of law.
The parties filed their briefs etc. on or about October 24, 1960.
3. Other Proceedings Concerning Crossword Puzzle Publications and Second-Class Mailing Privileges.
At least fifteen separate administrative proceedings concerning at least 45 different crossword puzzle publications were instituted. In one a compromise agreement was entered into by the publisher and respondent and thus the administrative proceeding was closed (In re New York Herald Tribune, Inc., P.O.D. Docket No. 1/269). The present petitioner was the publisher in at least two of the other proceedings (P.O.D. Docket Nos. 1/142 and 1/273). Each of those proceedings concerned four crossword puzzle publications of the petitioner. A number of the fifteen proceedings were in 1960 the subject matter of court tests in the United States District Court for the District of Columbia. (For example P.O.D. Docket Nos. 1/141, 1/147). Because the main issues in all these many proceedings were quite like the main issues in the instant proceeding, this hearing examiner considered it appropriate to wait a reasonable period for an authoritative court decision before issuing his initial decision. He also encouraged the parties to stipulate in the present case to abide the event of an early court decision in a closely related proceeding (P.O.D. Docket No. 1/273) involving the same parties, the same main issues and an evidential record which appeared to be not significantly different from the record here. Petitioner's counsel was agreeable to a form of stipulation, drafted by and acceptable to this hearing examiner. Petitioner's counsel so indicated in writing on or about September 13, 1961. Respondent's counsel, however, was opposed to such a stipulation.
During the period of delay and protracted study (October 24, 1960 to the present time) petitioner was paying fourth class rates, generally, on his mailing of the publication so the Post Office Department revenues were not adversely affected by any time lag.
The Judicial Officer issued the Departmental Decision (June 23, 1961) against the publisher (the present petitioner) revoking second-class mail privileges for four of its publications (P.O.D. Docket No. 1/273). In addition Postmaster General Day, had through the United States Attorney for the District of Columbia, expressed his views to the United States District Court for the District of Columbia (August 24, 1961) and the Court had rendered an opinion (October 12, 1961) -- all concerning crossword puzzle publications and second-class mail privileges. ( Dell Publishing Co., Inc. v. Postmaster General , Civil Action No. 2502-60 United States District Court for the District of Columbia). It may be well to comment now concerning these relatively recent post-hearing events and certain closely related matters.
4. The Departmental Decision of June 23, 1961 in P.O.D. Docket No. 1/273 and the supplemental briefs filed October 19, 1961 by the parties in the present proceeding .
a. P.O.D. Docket No. 1/273 ("1/273"). Issues quite like those here were considered by the Judicial Officer of the Post Office Department in 1/273. The parties were the same as in the present proceeding. The four publications in 1/273, like the one here, consisted mostly of crossword puzzles. The Judicial Officer in a decision issued June 23, 1961 appears to have found and concluded (either expressly, or, I assume, 1/ by agreement with and thus implicit adoption of the initial decision of the Chief Hearing Examiner issued February 17, 1961): (1) the publications in 1/273 were not periodical publications but were books; (2) the publications in 1/273 were not "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry"; (3) the publications in 1/273 consist primarily of "novelty pages" within the meaning of Section 132.483 of the Postal Manual;
and (4) as a consequence of the foregoing the publisher did not meet the requirements for, and was not entitled to, second-class mailing privileges for the publications involved in 1/273.
b. Supplemental briefs, etc. in the present proceeding. Because the parties were identical, and because the issues and the evidential subject matter appeared so similar in the present proceeding and in 1/273, this hearing examiner on several occasions urged the parties to stipulate so that the result here would abide the result of early court test of the decision of the Judicial Officer in 1/273. When the parties failed to agree upon the content of such a stipulation, this hearing examiner afforded the parties an opportunity (1) to present each evidential or ultimate fact in the present proceeding considered to be significantly different from or a significant addition to the evidential and ultimate facts in 1/273 and (2) to present their views on certain other matters concerning the relationship between the decision of June 23, 1961 of the Judicial Officer in 1/273 and the initial decision of the hearing examiner in the instant proceeding. Accordingly, the parties on October 19, 1961 filed their supplemental briefs or responses to the hearing examiner's order of August 23, 1961. Those responses disclose no significant variation in the evidential or ultimate facts in the two proceedings.
5. The Court Proceeding (Dell Publishing Co. v. Postmaster General) .
The respondent in his supplemental brief filed October 19, 1961 "advised" this hearing examiner: "In passing *** on October 12, 1961 the District Court granted the Government's Motion for Summary Judgment in Dell Publishing Co. v. Day , U.S.D.C. Civil Action No. 2502-60, a case involving crossword puzzle publications which had been the subject of hearings in P.O.D. Docket Nos. 1/141, 147, 155 and 156".
Thereafter this hearing examiner learned that an opinion had been handed down on October 12, 1961 by Judge Holtzoff in the Dell case. Thereafter, he also learned that Postmaster General Day, by the United States Attorney who represented him in that case, had filed on August 24, 1961 a memorandum setting forth his views.
I consider the result in the present proceeding to be controlled by the decision of the Judicial Officer issued June 23, 1961 in P.O.D. Docket No. 1/273 as affected by or construed in the light of certain events in the Dell court case (particularly the Postmaster General's memorandum of August 24, 1961 and Judge Holtzoff's opinion of October 12, 1961).
II
The publication is not a periodical within the meaning of 39 U.S.C. 224 and the language in pertinent court decisions. Therefore, petitioner is not entitled to second-class mail privileges for the publication.
Section 224 of Title 39 of the United States Code provides:
"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
*****."
The word "periodical" is not defined in the statute.
The Supreme Court, in connection with the language of this statute, long ago (and before the advent of crossword puzzle publications) had occasion to consider what is a periodical and, by way of contrast, what is a book.
In Houghton v. Payne , 194 U.S. 88, 97, 98 (1904) Mr. Justice Brown stated:
"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original 2/ 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."
* * * * * * * *
"A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) * * * Books are not often issued periodically, and, if so, their periodicity is not an element of their character."
In Houghton the Court held the Postmaster General was justified in denying second-class privileges to the publications there involved (Riverside Literature Series). In describing those publications Mr. Justice Brown stated at page 95:
"The publications are small books, 4 1/2 by 7 inches, in paper covers, and are issued from the office of publication either monthly or quarterly, and numbered consecutively. Each number contains a single novel or story, or a collection of short stories or poems by the same author, and most, if not all of them, are reprints of standard works by Thackeray, Whittier, Lowell, Emerson, Irving, or other well known writers, and from a literary point of view are of very high class. Each number is complete in itself and entirely disconnected with every other number."
And at page 98 of the Houghton opinion Mr. Justice Brown noted that except for the issuance at stated intervals, under a collective name, and the consecutive number of the issues "***no one would imagine for a moment that these publications were periodicals and not books".
And again at page 100 Mr. Justice Brown emphasized:
"We regard publications of the Riverside Literature Series as too clearly within the denomination of books to justify us in approving a classification of them as periodicals, * * *".
In Smith v. Hitchcock , 226 U.S. 53 (1912), Mr. Justice Holmes stated at page 59:
"The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion, if not a promise of matter on a variety of topics, 3/ and certainly implies that no single number is contemplated as forming a book by itself." * * * * "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, 4/ and, perhaps, have an appreciable size. 5/ There may be exceptions as there are other instances of books."
The publications in Smith were typical dime novels, such as the Frank Merriwell Series, issued at stated intervals, consecutively numbered, with each issue containing a single complete story but with the same character (for example Frank Merriwell) being carried through other issues in the series. The Supreme Court upheld the decision of the Postmaster General that the publications were books and not periodicals because each issue was "large enough" and contained a single completed story.
If the Postmaster General acts "within the legal definitions laid down by the Supreme Court and within the bounds of reason" his action in determining a publication is not a periodical and thus not entitled to second-class mailing privileges will not be set aside by a court. Thus the ruling of the Postmaster General that publications that are paper bound pamphlets containing crossword puzzles with blanks for their solutions, and very little else, are not periodicals even though they are issued bimonthly, has been recently upheld. ( Dell Publishing Co. v. Postmaster General - U.S. District Court for the District of Columbia - Civil Action No. 2502-60 - opinion of Judge Holtzoff issued October 12, 1961).
That court decision (although a notice of appeal to a higher court has been filed by the publisher) compels me to find and conclude that the publication (J5) in the present proceeding is not a periodical and therefore the petitioner is not entitled to second-class mailing privileges for that publication.
I have previously made findings concerning the physical make-up of the publication. I have also made the finding that within the publishing trade in the United States the publication would be considered to be a periodical or magazine. However, I am inclined to believe the Postmaster General has decided, as a matter of policy, perhaps, and no because he is required so to do as a matter of law that such a publication is not a periodical. If that determination is binding on the Court it is even more binding upon me as a hearing examiner. In the instant proceeding the evidential and ultimate facts to support a legal or combined legal and policy determination that the publication is not a periodical are present. Thus the crossword puzzle material makes up the great bulk of the content. That material is complete in itself, almost entirely disconnected with later issues, and periodicity is not an essential factor in the character of the publication. Periodicity is only superficially indicated by the fact of bimonthly publication and is not required or even reasonably suggested by any of the main content of the
It is not necessary for me to decide, and I do not decide, that prior to September 1958 for perhaps as long as thirty years - the Postmaster Generals acted contrary to law (39 U.S.C. 224) in treating publications, with mostly crossword puzzle content, as periodicals, and so, when other requirements were met, entitled to second-class mailing privileges. It may well be that only the policy of the Postmaster General in September 1958 or soon thereafter changed from what the policy had been for many years. That change in policy, if change of policy it was, became fully crystallized by (1) the actions of respondent in respect to denial or revocation of second-class entry for 45 or more crossword puzzle publications issued by various publishers, (2) the confirmation of several of those actions by the publishers' withdrawal of petitions of protest and appeal thus making respondent's actions final, (3) the confirmation of those actions in numerous administrative proceedings, rich in repetition, with culmination in Departmental Decisions of the former Judicial Officer (Judge Kelly) and the present Judicial Officer (Judge Bosone), (4) the views stated, on behalf of the Postmaster General in the August 24, 1961 memorandum to Judge Holtzoff in the Dell court case, supra, and (5) the opinion of October 12, 1961 of Judge Holtzoff in the Dell case, supra. Where, as perhaps in this type of situation, the Postmaster General has the discretion to decide lawfully either (1) that a publication is a periodical or (2) that it is not a periodical - his decision may be considered a policy decision.
In view of the foregoing, it is not necessary for me to decide other questions raised by the parties. But I do have a few comments concerning the other issues which may prove of interest, if and when, either party or, as is more likely, both parties appeal this initial decision.
III
39 U.S.C. 226 requires that a publication comply with, the following condition (part of what is sometimes referred to as the "Fourth" condition) to be entitled to second-class mailing privileges:
"***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
***."
I have already made some findings of evidential facts concerning the informational value and educational significance of crossword puzzles including that contained in petitioner's publication. Those findings are supported by what I consider to be relevant testimony from competent witnesses presented by petitioner. Respondent presented no substantial contrary evidence. However, I do not consider it necessary to make ultimate findings of fact or conclusions of law concerning the "Fourth" condition of 39 U.S.C. 226.
A publisher, like petitioner, originates and publishes a crossword puzzle publication for the purpose of making a profit. He can only do so if he interests enough people to buy the publication. People - who are interested in crossword puzzles - are likely to be interested for many reasons. Some may wish to escape from inactivity, boredom, loneliness, or what not, and at the same time engage in respectable, wholesome and occasionally educational activity. Some may choose, at times, to work a crossword puzzle rather than go to a movie, watch television or listen to the radio because there is a communication of ideas plus a challenge - one from which a person occasionally may learn something - a new word, a new meaning for a word already known, a correct spelling of a word, etc. I doubt whether it would be appropriate to conclude from anything in the record before me that doing crossword puzzles is much more for entertainment than for learning and therefore that the "Fourth" condition of 39 U.S.C. 226 is not met. Moreover, such a conclusion might involve that which would be too much like an effort to appraise quality, worth or value and thus be contrary to much of the language and spirit of Hannegan v. Esquire , 327 U.S. 146 (1946).
IV
Comments Concerning the "Novelty Pages" Regulation
The "Novelty Pages" regulation, Section 132.483 of the Postal Manual provides:
"* * *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."
The regulation I assume, without deciding, to be within the authority conferred by 5 U.S.C. 22 which authorizes the Postmaster General, as head of the Post Office Department "to prescribe regulations, not inconsistent with law, for *** the distribution and performance of its business ***."
At best, the regulation is somewhat ambiguous in respect to applicability to and effect upon publications composed mainly of crossword puzzles.
How the respondent and other employees, under his supervision, have applied the regulation in actual practice, after its issuance in December 1954, is not shown by testimony of the respondent or other evidence. From December 1954 to September 1958 neither the respondent nor any other person in the Post Office Department, with authority to interpret and apply such a regulation, seems to have considered this regulation as being applicable to publications containing mostly crossword puzzles so as to preclude second-class mailing privileges. That contemporaneous construction of the regulation may not, in my opinion, be lightly disregarded. Particularly is this so where the respondent has failed to supply any explanation whatever for the four years or more of such contemporaneous construction contrary to the contention in 1960 in this proceeding by respondent's counsel.
The Postmaster General, in a memorandum filed on his behalf by a United States Attorney, stated on August 24, 1961 concerning this regulation:
"This regulation is an interpretation of the governing statute. By its very terms it only identifies certain types of material which may give a publication the characteristics of a book, etc. It suggests that if there are too many novelty pages, a publication may not meet the requirements of the statute." * * * "This regulation does not amend or alter the law. It merely helps to identify which publications meet the standards set by the statute. It discusses the novelty pages as a 'characteristic' of certain types of publications. It does not make a specified number of novelty pages an absolute criteria for second-class privileges and therefore is not a 'super added' requirement." (Pages 12 and 13 of Memorandum *** of Defendant - August 24, 1961 in Dell Publishing Co., Plaintiff v. Day, Postmaster General, Defendant - Civil Action No. 2502-60 United States District Court for the District of Columbia).
I have previously had occasion to issue a decision concerning the question of second-class entry for a pamphlet having many blank spaces for coloring or drawing. I had no difficulty, there, in taking that fact into account, with all other pertinent facts, in determining whether the publication was a periodical within the meaning of 39 U.S.C. 224. (T. V. Funfare, P.O.D. Docket No. 1/284, Initial Decision of May 10, 1961 which became the Departmental Decision). I perceived little, if any, significant value then, persuasively or otherwise, in the "Novelty Pages" regulation. If that regulation helps the respondent and those who work under him, why was there no testimony or other evidence to show how in practice the regulation works and is helpful "to the various employees of the Post Office Department who classify the large bulk of the mail which is never brought to the attention of the Judicial Officer", 6/ in identifying some publications as periodicals and others as books.
I do not for a moment believe that if Time Magazine, for example, added an inch to the right hand margin of each page specifically and expressly for notes to be written in by the reader that Time Magazine would thereby be converted into a book, etc. - merely because according to the interpretation of the regulation sometimes, perhaps, intimated by respondent's counsel in this proceeding all the pages would have some blank space for writing and so would be novelty pages. At most, the existence and amount of blank spaces for writing or marking in a publication is one pertinent fact which may be taken into account with all other
I do not wish to imply that a regulation can not be written, by or on behalf of the Postmaster General, which would say and mean that "the amount of blank spaces for writing or marking or coloring in a publication may tend to show failure to meet certain statutory requirements for second-class entry, and so for example, such blank spaces will be considered, with all other pertinent facts, in determining whether or not the publication is a periodical under 39 U.S.C. 224." I do say, however, that my long study of the matter has not yet persuaded me that the present "Novelty Pages" regulation is such a regulation.
I doubt very much that the "Novelty Pages" regulation makes a persuasive or otherwise significant contribution to the resolution of the broad issue here of whether petitioner is entitled to second-class mail privileges.
Without regard to the "Novelty Pages" regulation I have found and concluded that the publication is not a periodical. I, therefore, see no need to consider further that regulation in respect to the present proceeding.
V
Comments Concerning Circulation Requirements
The respondent knew that petitioner did not have and could not have necessary information concerning final sales through newsstands as of December 9, 1959. It was premature at that time, and, perhaps, less than reasonably informative to petitioner, to purport to use the failure to furnish such information as a ground for respondent's denial letter of December 9, 1951. The letter, in my opinion, more properly might have plainly stated that petitioner would, in the event of appeal, be requested to furnish the necessary sales information within a reasonable period to be determined by the hearing examiner upon application by the respondent. If all other requirements for second-class entry were met I surely would not recommend denial for failure of petitioner to supply the necessary circulation information. I would be inclined by order to specify a period within which the data should be supplied. Thereafter, I would, of course, permit the respondent to comment on the data submitted. I would then decide whether the requirement, under applicable law, for circulation information had been met. The applicable rules of practice may perhaps be construed to require the petitioner to make a full showing of facts in respect to meeting circulation requirements merely because the item was listed in respondent's denial letter of December 9, 1959. However, the situation is sufficiently confusing so that, on the basis of the evidence in this record, I would not consider it reasonable or fair under present rules of practice to deny petitioner second-class mail privileges on the ground (a) that his application of October 30, 1959 was incomplete in respect to (obviously then unknown) sales to subscribers and sales through newsstands or (b) that such information was not supplied by the petitioner at the time of the hearing in this proceeding.
- 0 - 0 - 0 -
Petitioner is not entitled to second-class mail privileges for the publication because it is not a periodical within the meaning of 39 U.S.C. 224.
Proposed findings of fact and conclusions of law, submitted by the parties, have been adopted to the extent embodied in this initial decision. All other proposed findings and conclusions are rejected because they are deemed either not relevant or not material or not necessary to the resolution of the sole issue of whether petitioner is entitled to second-class mail privileges for its publication.
1/ If I am in error in this assumption, the Judicial Officer no doubt will have an opportunity to correct me when this Initial Decision is appealed by either or both parties.
2/ That the Post Office Department has not followed, with anything like literal devotion, these comments of the Supreme Court concerning what is a "periodical" is perhaps indicated by its recognition of Reader's Digest as a periodical (entitled to second-class mail privileges) although most of its articles probably were not " original " but were reprints or condensed versions of articles or material from other newspapers, periodicals or books. So also, "variety" may be lacking in various "non-descript publications, such as railway guides" admitted to second-class entry. See: Houghton v. Payne , 194 U.S. 88, 96, 97 (1904) and Decision of Hearing Examiner (June 29, 1960) in P.O.D. Docket No. 1/231 (In re: One-Spot Publishers).
3/ and 4/ Here again, the absence of literal obedience of the Post Office Department to Supreme Court comment may be indicated by second-class entry of various publications (such as perhaps the Hitchcock's mystery magazine or Ellery Queen's mystery magazine) composed almost exclusively of a few mystery stories which study may show "betray no need of continuation". (See, however, page 7 of Brief of The Magazine Publishers Association, as amicus curiae, in the Dell court case - U.S. District Court for D.C. Civil Action No. 2502-60).
5/ The December 1961 issue of Reader's Digest (which has second-class entry) has "appreciable size" (272 pages).
6/ See page 13 of the Postmaster General's memorandum of August 24, 1961 - in the Dell court case, supra.