In the Matter of the Petition by

 EROS MAGAZINE, INC.,
 110 West 40th Street,
 New York, New York 10018

 for a hearing upon the denial of its second-class mail permit for "EROS".  

 P.O.D. Docket No. 2/244

 January 24, 1967

 William A. Duvall Chief Hearing Examiner

 POST OFFICE DEPARTMENT, DIVISION OF HEARING EXAMINERS,
 WASHINGTON, D.C.  20260,

 APPEARANCES:
 Robert W. Maris, Esq.
 Dilworth, Paxson, Kalish, Kohn & Levy
 2600 Fidelity-Philadelphia Trust Building
 Philadelphia, Pennsylvania

 for the Petitioner William F. Lawrence, Esq.
 Associate General Counsel Saul J. Mindel, Esq.
 former Assistant General Counsel Jules W. Lindau, Esq.
 Attorney, Office of General Counsel
 Post Office Department for the Respondent

This case involves an application for second-class mail privileges for the publication "EROS". Briefs have been submitted to the Hearing Examiner concerning the question of whether, in view of certain undisputed facts, an oral hearing to receive evidence is necessary and appropriate.

The publisher, EROS Magazine, Inc., originally applied on July 12, 1962, to the Post Office Department for second-class mailing privileges for "EROS". No immediate action was taken on the application by the Respondent, the Director of the Classification and Special Services Division of the Post Office Department (herein sometimes referred to as "the Director" or "the Respondent"). The Director stated, on one occasion, that no final action could be taken until four consecutive issues had been published and distributed. On another occasion, the Director stated that action on the application would be deferred until there had been opportunity to examine further issues of "EROS" (publisher's brief, p. 2).

Between the times when the foregoing reasons for deferring action upon the application were stated by the Director, the editor and publisher had been indicted by the Federal Grand Jury in Philadelphia, Pennsylvania. The indictment charged the publisher with violation of the Federal obscenity statute, 18 U. S. Code, 1461. Subsequently, the publisher was convicted upon all twenty-eight counts of this indictment, 224 F. Supp. 129. The Court of Appeals for the Third Circuit affirmed, 338 F.2d 12. The Supreme Court of the United States granted certiorari, 380 U. S. 961, and affirmed the conviction, Ginzburg v. United States , 383 U.S. 463 (March 21, 1966). One of the publications for the mailing of which the publisher was tried and convicted was "EROS" (Vol. 1, No. 4).

On July 13, 1966, the Respondent notified the publisher that the application for second-class mail privileges for "EROS" had been denied because the publication had been discontinued. The publisher appealed from the ruling of the Respondent on October 4, 1966. On October 28, 1966, an amended notice of the denial of the application was sent to the publisher in which Respondent stated, among other things, that the application was being denied for the reason that the several issues of the publication contained obscene matter (citing Ginzburg , above). The publisher was granted an additional 15 day period within which to appeal the amended ruling of the Respondent. The publisher did appeal and the matter of what further proceedings are necessary or appropriate is now before this Hearing Examiner.

4354 of Title 39, U. S. Code provides in pertinent part as follows:

" 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 ***". (emphasis supplied)

Also pertinent is the following provision of 4001 of Title 39, U. S. Code:

"Matter, the deposit of which in the mails is punishable under sections *** 1461 *** of title 18, is nonmailable".

It is undisputed that four, and only four, issues of this publication were published. For each of the four issues of the publication that were disseminated, postage at the fourth-class rate had been paid for the mailing of the publication to some 150,000 subscribers as required by 132.32 of the regulations set forth in the Postal Manual (publisher's brief, p. 3).

The Federal obscenity statute, 18 U. S. Code, 1461, provides in pertinent part:

"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; *** Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. ***"

Thus, it is established beyond question that:

(1) Only four issues of "EROS" were published;

(2) 4354 of Title 39, U. S. Code, requires, among other things, as conditions for entry of publications as second-class matter that they be "mailable" and that they be "regularly issued at stated intervals as frequently as four times a year.";

(3) It is provided by 4001 of Title 39, U. S. Code, that matter, the mailing of which is punishable under 1461 of Title 18, U. S. Code, is nonmailable;

(4) That the fourth and last issue of the publication "EROS" has been found by the Supreme Court of the United States to be obscene and nonmailable within the meaning of 1461 of Title 18, U. S. Code; and

(5) The obscenity question which would have to be gone into if a hearing were to be held in the instant proceeding already has been decided adversely to the publisher by the courts of the land.

In view of the foregoing facts, conclusions of law on the questions briefed by counsel and which are determinative of this case are reached as follows:

1. It would be first, a useless exercise, and, secondly, highly inappropriate to proceed to hearing in this matter when the dispositive factual question has already been decided by the applicable courts and affirmed by the United States Supreme Court.

2. As a matter of law, on the undisputed facts, the publisher has failed to meet the requirements for a second-class mail permit in that he has not shown and cannot show "mailable" publications regularly issued at stated intervals as frequently as four times a year.

3. The fact that the publisher chose, in accordance with the requirements of the postal regulations, to proceed with the mailing of his publication upon payment of other than second-class postage rates is immaterial insofar as this proceeding is concerned. The regulation requiring the payment of third- or fourth-class postage rates during the pendency of an application appears to be uniformly applicable to all publishers similarly situated. Matter duly found to be obscene and nonmailable under applicable statutes does not become less so because mailing was unlawfully achieved by the publisher.

4. When the notice of denial of the application was amended, the publisher was given the full benefit of the rules in regard to notice. He was fully advised as to the new basis for the proposed action of denial of his application; he was given ample opportunity to prepare; and he was accorded full procedural due process. (See In re The Diners' Club, Inc., P.O.D. Docket No. 1/225, and the cases therein cited.)

5. Based on all of the foregoing findings of fact and conclusions of law it is the decision of this Hearing Examiner that the publisher is not entitled to second-class mailing privileges for the publication "EROS" and the Respondent was correct in so ruling.

The Respondent submitted with his brief a number of exhibits. The publisher moved that the said exhibits be stricken and disregarded by the Examiner. In this connection, the Examiner states that he saw only one of such exhibits as were submitted by the Respondent and that the Examiner has completely disregarded this one exhibit (Eros, Vol. 1, No. 1) in reaching the conclusions herein set forth.

Other collateral matters were raised or suggested by counsel in their briefs but they are immaterial insofar as the controlling issues of this case are concerned.