In the Matter of the Petition by

 SILVER BURDETT COMPANY

 for a second-class mail permit for the publication "WORLD EVENTS."

 P.O.D. Docket No. 2/133

 February 18, 1964

 William A. Duvall Chief Hearing Examiner

 POST OFFICE DEPARTMENT, WASHINGTON, D.C. 20260, 

 APPEARANCES:
 Victor M. Earle, III, Esq. 
 Cravath, Swaine & Moore
 1 Chase Manhattan Plaza
 New York, New York, for the Petitioner

 Dean M. A. Murville, Esq. 
 Office of the General Counsel
 Post Office Department, for the Respondent

On September 21, 1962, application was made by Silver Burdett Company, the publisher and Petitioner herein, for second-class mailing privileges for the publication known as "World Events." Silver Burdett Company is a wholly owned subsidiary of Time, Incorporated. On the application it is indicated that the publication would be issued weekly during the school year.

On August 9, 1963, the Director, Classification and Special Services Division, Bureau of Operations, Post Office Department, the Respondent herein, advised the publisher that the application was denied subject to the decision in a proceeding of this type. The language of the notice of denial, in pertinent part, reads:

"The reasons for denial are as follows: The law (39 United States Code 4351 and 4354; Postal Manual, sections 132.211 and 132.223) provides, among other things, that only newspapers and other periodical publications, formed of printed sheets, may qualify for second-class mailing privileges.

"Each copy of the issues of 'World Events' submitted in connection with this application, that is, those numbered 5, 8, 9 and 10, dated September 24, October 15, 22 and 29, 1962, respectively, consists of a large display chart, printed only on one side, and supplemented by a Teacher's Guide.

"This wall chart or poster is not a newspaper and other periodical publication within the meaning of the law and furthermore, it is not formed of printed sheets."

All subsequent procedural steps were timely taken, and the matter came on for hearing before the undersigned Hearing Examiner on December 4, 1963. The parties were represented by counsel, as indicated above, who participated in the examination and cross-examination of witnesses and the introduction of evidence and who have filed proposed findings of fact and conclusions of law in behalf of the respective parties.

The publication "World Events" is designed for use at the elementary and high school grade levels and consists of two parts. One part is addressed to teachers and the other part is to be displayed for reading by students. "World Events," as the name suggests, is a resume of the major news events of the week preceding each issue during the school year.

Let us look first at the section which is primarily designed for student consumption. It is printed on one side of a large sheet of paper which is approximately 3 feet by 4 feet in size. The upper left hand corner of this sheet bears the title of the publication in large black type. Underneath this caption is a representation of a world map. Certain locations are identified on this map by a number, together with the name of the location. The remainder of the student section consists of paragraphs bearing headlines related to some newsworthy event. Each paragraph is numbered to correspond with a number that appears on the world map. A more or less thumbnail sketch of the news event occurring at the identified place is given, together with some picture or illustration related to the occurrence.

The other portion of this publication, formerly referred to as "Teacher's Guide" and now called "Teacher's Section," is printed on 8 1/4 x 11 1/4 inch paper, and there is one sheet of paper so folded as to present 4 pages of printed and illustrative matter. The information in the teacher's section is related to the matter appearing on the student section by having the same number assigned to the same topic wherever it appears in either section. The text of the teacher's section goes into greater detail and greater depth than does the material set forth in the student's section.

Together, the publication is designed to give the student a quick review of the events of the preceding week, and, at the same time, to equip the teacher to answer broader or more penetrating questions that may be asked by the students. While each section is primarily designed to be read by the audience to which it is specifically addressed, it is true that in a number of schools the teacher's section is placed in the stacks in the school libraries where it is available for perusal by any person having access to the library, including the students.

The question in this proceeding is, of course, whether "World Events" is a newspaper or such other periodical publication as is entitled to be carried in the mails at the favorable second-class rates. The controlling statutes are Sections 4351 and 4354 of Title 39 of the United States Code, which sections read as follows:

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.

In the order denying the application, the Respondent stated that the student section is a wall chart or a poster; that it is not a newspaper or other periodical publication within the meaning of the provisions of law quoted above; and that it is not formed of printed sheets. Let us now weigh "World Events" as a periodical publication.

At the hearing it was conceded by counsel for the Director that the publication meets every prerequisite specified by Section 4354 of Title 39 except item number 3, that is to say, that the publication is in all respects eligible for entry as second-class matter except that it is not formed of printed sheets.

As I read the Respondent's notice of denial, the remarks are directed primarily at what the Respondent calls the "wall chart or poster," as if this section of the publication were the only one for which second-class mailing privileges were requested. The objection to this part of the publication rests on the fact that it is printed on only one side. The application, however, relates to the publication as a whole consisting of both the teacher's and the student's sections. Certainly, it cannot be said of the "Teacher's Guide," which accompanied the application, that it is not formed of printed sheets. It is also clear that one may become informed as to many newsworthy events by reading only the teacher's portion of this publication. It, therefore, would appear that an entry might be granted to this portion of the publication, and the fact that the student's section accompanies it simply adds one more printed sheet to the publication in its entirety. In any event, when the publication is viewed as a whole, in the manner in which its entry into the mails was sought, it seems clear that it is composed and formed of printed sheets. There is nowhere to be found in the governing statutes any requirement as to the size or number of "printed sheets."

The fact that one portion of the publication is designed to be read by students and the other portion is designed to be read by teachers does not establish an irrevocable rule or erect an insurmountable obstacle which would prevent or preclude the reading of each section by a group other than that for which it is primarily designed. Because of the illustrations contained in the student's section it would be almost irresistible to the teacher to study, or at least examine, this section as he is reading the material designed for him. By the same token, it would seem to be quite likely that the interested or curious student would seek in the library, or obtain from his teacher, the teacher's section in order that he may gain a wider knowledge of the events portrayed and presented in the student's section.

There is another interesting question in connection with the meaning of the language in Section 4354 of Title 39 which may have a bearing upon this case. The language of this provision of law has been quoted above but attention is now focused upon one word not contained in the predecessor statute which was codified in former Section 226 of Title 39. That word is "Generally" which appears as the first word of the section. There has not been discovered in the legislative history of the recodification of this section any indication as to the purpose behind the use of this word. It is conceivable that the statute could have at least two meanings depending upon the interpretation of this language. One meaning could be that if a publication meets all of the requirements listed in the remainder of subsection (a) it generally , though not always, is entitled to be entered and mailed as second-class mail. This interpretation would take care of instances in which publications have the required periodicity, and the like, but which for other reasons -- such as their content or character -- do not qualify to be entered and mailed as second-class matter.

Another possible interpretation which may arise out of the language of the statute is that the general or usual requirements that a publication must meet in order to be eligible to be entered and mailed as second-class matter are those requirements set forth in the remainder of subsection (a) of this section. Under this interpretation it might be possible for the Department to grant second-class mailing privileges to a publication which did not strictly conform to the specific requirements, but which by its content and character was otherwise qualified and entitled to the privileges. It is unlikely that this meaning was intended or could be supported since, under it, different treatment could be given to substantially similar publications.

It will not be attempted in this initial decision to make a finding as to which, if either, of these possible interpretations is the one intended by the revisers. The undersigned does state that under either interpretation it would appear that the publication which is the subject of this case should be entitled to second-class entry. The reasons for the foregoing statement are:

1. Under the first of the foregoing suggested interpretations, if the application, is regarded as covering the publication as a whole and including both sections, as was intended by the publisher, it is clear that the publication is formed of printed sheets, although, admittedly one of those sheets is much larger than the remainder of the printed sheets and although it is printed on only one side.

2. Under the second of the above suggested interpretations, if, as is regarded as being unlikely, the Department may relax the rules in certain instances and be less strict in its enforcement of the requirements of the statute, it would seem that this course would be entirely appropriate in regard to this publication in view of the design, purpose, and content of "World Events."

As previously indicated, what has been said thus far relates to the question of the entry into the mails of the subject publication as a "periodical publication." From the language of the governing provisions of law quoted herein, it is seen that "periodical publications" are given special treatment in Section 4354, whereas "newspapers" are broadly treated in Section 4351. This distinction has a long history in the legislation relating to mail matter. In an opinion dated June 11, 1851, the Attorney General made the following comments in an opinion to the Postmaster General:

"It is quite plain, I think, from the whole purpose and language of the aforesaid 2d section, that it was intended to distinguish between 'newspapers' and 'periodicals;' hence, after making separate and special regulations for certain 'newspapers,' the section proceeds as above stated; 'and there shall be charged upon every other newspaper, and each circular, periodical ,' &c.--showing thereby that these words, 'newspapers' and 'periodicals,' were used in different senses as terms of distinction.

"It seems to me, therefore, that the word 'periodicals ,' as used in the particular provision referred to in your question, ought not, and cannot, consistently with the act of Congress be understood or construed to comprehend newspapers." (5 Op. A.G. 371)

The next question insofar as the consideration of this case is concerned is whether "World Events" may fairly and reasonably be considered to be a newspaper. This inquiry raises the question "What is a newspaper"? Nowhere in the laws governing second-class matter is there a definition of "newspapers," and there is no definition of this term set forth in the Postal Manual or the Code of Federal Regulations. This statement being true, one must then be guided by the meaning that this word has as it occurs in everyday usage and as it is generally understood.

In Webster's New International Dictionary, Third Edition, Unabridged, 1961, the word "newspaper" is defined as follows:

"A paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials), features, advertising, or other material regarded as of current interest."

Another early opinion of the Attorney General to the Postmaster General sheds light on the question of what is a newspaper and, also, more helpfully, suggests a criterion by which a judgment may be made as to whether a publication is a newspaper, as follows:

"I conclude, therefore, that neither the dimensions nor the manner of putting up determines the character of the publication. What, then, is the criterion? The definition given in the law affords a satisfactory answer: it must be a publication communicating to the public intelligence of passing events . And it is to the contents, rather than to the form, that you must refer to determine the question. To entitle such a publication to the privileges of a newspaper, its main object and purpose must be to disseminate intelligence of passing events; and the employment of a portion of its columns in publishing essays or compositions of a moral, political, or literary character, is not inconsistent with this leading and general object. Under the act, to make a publication a newspaper, entitled to free circulation, it must be, 1st, printed; 2d, issued in numbers, consisting of not more than two sheets, whose superficies do not exceed 1,900 inches; 3d, published at short stated intervals of not more than one month; and, 4th, conveying intelligence of passing events. It must be devoted, as its primary object, to this purpose of collecting and disseminating news, or of conveying intelligence of passing events. I should be disposed to regard the 'Living Age' as a magazine; and the application of the rule which I have endeavored to give will enable you to decide on such others as may be presented." (4 Op. A.G. 408, 410)

A more recent definition appears in In Re Sterling Cleaners & Dyers, Inc. , 81 F.(2d) 596, 597, CCA 7, 1936, as follows:

"Various definitions have been given by the courts of the term 'newspaper' in connection with the construction of statutes requiring publication of various kinds of legal notices, but when the term has been used without qualifying language it is pretty generally agreed that it means a medium for the dissemination of news of passing events printed and distributed at short but regular intervals."

Applying the foregoing definitions, and following the suggested guide lines for making a determination, the Hearing Examiner concludes that the publication "World Events" is entitled to be entered into the mails as second-class matter by reason of its being a newspaper. It is noted that various words have been used from time to time by the publisher to describe the two component parts, both in advertising literature and on the publication itself; it has also been noted that on one of the portions of the publication places have been marked to indicate where holes may be punched in the event it is desired to preserve the individual copies, and in some cases the holes have been punched by the publisher. These matters, however, are not controlling when recognition is given to the perfectly obvious purpose of the publication, which is to disseminate news of passing events at short and regular intervals. The Hearing Examiner is of the opinion that this purpose and the content of the publication should be controlling rather than any matters of form.

Proposed findings of fact submitted by the Respondent are adopted as follows:

1. The publication "World Events" consists of a display or wall chart for use by students and a supplement for use by teachers. (The adoption of this finding of fact is not to be construed as an indication that the different sections are or may be used solely by the group for which they are primarily designed. It is also recognized that other matter appearing in newspapers -- for example, recipes or maps, may be posted on a wall.)

2. The display or wall chart is one sheet of paper printed only on one side .

The conclusions of law submitted by the Respondent are denied for the reasons previously indicated in this decision.

Proposed findings of fact submitted by the Petitioner are adopted as follows (proposals numbered as in Petitioner's brief):

P 1. "World Events" satisfies all of the requirements for entry as second-class mail as set forth in Section 132.2 of the Postal Manual and 39 U. S. Code, 4354.

P 2. Petitioner's Exhibits 1 and 2 are representative issues of "world Events."

P 4. "World Events" is a news publication.

P 6. "World Events" is comprised of printed sheets.

Conclusions of law submitted by the Petitioner are adopted as follows (proposals numbered as in Petitioner's brief):

1. "World Events" is a newspaper or other periodical publication for the dissemination of information of a public character within the contemplation of 39 U. S. Code, 4351, 4354.

3. "World Events" is composed of printed sheets as required by 39 U. S. Code, 4354(a)(3).

Proposed findings of fact and conclusions of law submitted by the parties which have not been specifically adopted or rejected are denied because of their immateriality insofar as the resolution of the issues in this case is concerned.

It is concluded as a matter of law that the publication "World Events" is a newspaper or other periodical publication within the meaning of 4351 and 4354 of Title 39, United States Code, and it is entitled, either as a newspaper or as a periodical publication, to be entered and mailed as second-class matter.

It is recommended that this matter be remanded to the Respondent for the issuance of a second-class mail permit for the publication "World Events" in accordance with this Initial Decision.