In the Matter of the Petition by ) October 21, 1968 ) PUBLISHERS DEVELOPMENT CORPORATION ) 8150 North Central Park Avenue ) Skokie, Illinois 60076 ) P.O.D. Docket No. 2/247 ) for a second-class mail permit for ) the publication FIGURE ) ) Rosenblatt, Peter R. ) APPEARANCES: For the Petitioner: Charles Rowan, Esq. Messrs. Rowan, Hagan & Bach 324 East Wisconsin Avenue Milwaukee, Wisconsin 53202 Marion E. Harrison, Esq. Messrs. Reeves, Harrison, Sams & Revercomb 1750 Pennsylvania Avenue, N.W. Washington, D. C. 20006 For the Respondent: Jack T. DiLorenzo, Esq. Office of the General Counsel Post Office Department Washington, D. C. 20260
On October 9, 1967, the then incumbent Judicial Officer filed a Departmental Decision herein. It affirmed the Initial Decision of a hearing examiner which had upheld the determination of the Respondent Bureau of Operations denying the Petitioner's application for second-class mail entry of its publication,
Some time thereafter the Petitioner brought an action in the United States District Court for the District of Columbia, now captioned Publishers Development Corporation v. W. Marvin Watson, Docket No. CA 211-68. Upon oral motion of the Government on October 4, 1968 the Court entered an October 7, 1968 order remanding the case to this Department for further consideration; such consideration to be completed by October 21, 1968. It is apparent from the proceedings in Court that the Court's order was based upon the present Judicial Officer's subsequent Departmental Decision of July 2, 1968 in American Art Agency, Inc., Docket No. 2/269 (hereinafter "American Art").
Accordingly, on October 4, 1968 the Petitioner requested that the Judicial Officer reopen the case and further consider its application for second-class entry of Figure. By order filed October 7, 1968, the Judicial Officer reopened the case and required the parties to submit such written argument as they might wish.
On October 9, 1968 counsel for the Petitioner, submitted a three page letter of "background facts", while declaring that "We do not wish to present any written arguments but prefer that you consider the matter entirely on the basis of the Departmental Decisions in the Publishers Development Corporation and American Art Agency, Inc. ... cases and the issues of the publications on which the Decisions were based...."
On October 14, 1968 counsel for the Respondent filed a memorandum arguing that the Departmental Decision in American Art was "incorrectly decided" and that the Judicial Officer should therefore "affirm the decision of his predecessor concerning 'Figure' and should indicate to the court that upon further consideration he believes 'Tip Top'1/ was improperly decided".
On October 18, 1968 counsel for the Respondent submitted a further memorandum which attempted to justify the earlier memorandum's preoccupation with the details of the American Art decision, explaining that it merely argues "for the overruling of an adverse precedent".
At the outset, I must regretfully deplore Department Counsel's ill-advised and injudicious choice of tactics, obdurately maintained. Counsel evidently seeks to utilize this motion as a forum for a one-sided relitigation of the specific issues in American Art, thereby achieving an affirmance of the Departmental Decision herein. This betrays a fundamental misunderstanding of the basic distinction between reargument of a specific appeal2/ and a legitimate attempt to address the fundamental legal concepts that underlie an earlier decision. It is quite clear that the legal issue in the Tip Top and Figure cases is the same and that arguments may be directed to it, though it is grossly improper to attempt a renewed litigation of the facts in American Art in a different action and against a different party.
On the other hand, counsel for the Petitioner's airy rejection of the proferred opportunity to present written argument reflects an unwarranted denigration of the serious factual distinctions between these cases.
Each issue of Figure includes a page of letters to the editor and answers thereto, an "editorial", one or more pages of excerpts from the next issue and other miscellany. The bulk of each issue is devoted to comments from and about one or more figure photographers -- some of them quite well known (Transcript, p. 49) -- and examples of their work. These examples are divided into sections with captions such as (see Exhibit 1): "Studies in Contrasts and Textures", "Painting With Light -- The Figure in High and Low Key" and "Imaginative Touch of Props". There is uncontroverted testimony to the effect that the publication is useful to photographers and models as a source of ideas about equipment, posing, lighting, scenes, film, exposure and so forth (Transcript, pp. 25-6, 30-2, 37, 47-51). As previously mentioned, there was evidence of feedback from the readership (Exhibits 1-4; Transcript, p. 25).
The Respondent denied second-class entry to both publication for precisely the same reason, namely that each is "essentially a book of pictures" and therefore does not qualify as a periodical. However the pictures appearing in Figure play a different role in that publication than do those in Tip Top. The Figure photographs are obstensibly designed to be of value to photographers as a source of technical, artistic or commercial ideas and insights. The emphasis of both the photographs and text in Figure, in other words, is supposed to be on the photography rather than the model.
While the authors of both the Initial and Departmental Decisions herein clearly implied that they had reservations about the genuineness of Figure's expressed purposes, that has not been raised as an issue in this proceeding and must therefore be excluded from consideration. The question at issue is quite simply whether, in light of the American Art decision, Figure can be denied second-class entry on the same technical rationale raised unsuccessfully against Tip Top.
Despite the differences between the two publications, which cause this case to present a closer question than American Art, I think not.
While there is not quite as much continuity from issue to issue in Figure as there is in Tip Top, I believe that the dialogue with the readership, the regular analysis and depiction of the varying styles and techniques of "photographers from all over the world" (Exhibit 1, p. 3), and the running commentary (in words and pictures) on the progress of figure photography into an art form ("--and we even like to think that we might have had a little something to do with it." - Exhibit 1, p. 5) suffice to supply the necessary continuity in this case. Each issue of Figure certainly "indicates a relation with prior or subsequent numbers of the same series" Houghton v. Payne (1903) 194 U.S. 88, 97 . The question is not whether each issue can be termed an entity, complete in itself, for it would be entirely possible to view almost any issue of almost any acknowledged periodical in that light. The question is whether it reasonably must be so seen. I do not believe, in the context within which I stated my beliefs in American Art, that it can be said that the separate issues of Figure betray "no need of continuation" Smith v. Hitchcock (1912) 226 U.S. 53, 59 .
I see little evidence that Figure yields much to Tip Top in the factor of currentness (see American Art, pp. 14-16), which the Respondent chooses to call "timelessness" -- a factor which is often a good indicator of a publication's standing as a periodical, but which is by no means a sine qua non. If fashions in the visual treatment of the female leg can be regarded as an indication of contemporaneousness, there can be no reason to doubt that techniques in photographing the rest of the body are, just as in painting and literature, equally subject to the dictates of fashion. Certainly the styles of the well-known photographers who are represented in Figure, their technical comments and examples
of their work, represent the very quintessence of currentness to artistic, commercial or amateur photographers of the human body, clothed or unclothed (see Transcript, pp. 47-8).
Whether or not each issue of Figure maintains its value over a period of time strikes me as a highly dubious measure of the publication's status as a periodical. By Respondent's standard of "timelessness", the common practice of lawyers and physicians of keeping for years and even binding back issues of professional journals would constitute prima facie evidence of their disqualification for second-class entry. Likewise, the practice of many readers with a literary bent of keeping and collecting old issues of The New Yorker or other literary publications would disqualify such publications, and anyone who has thumbed through three-year old issues of National Geographic at the dentist's knows that that publication is considered to have a virtually timeless appeal. Surely the fact that a publication containing materials of current interest may also have more than merely transient interest ought not to disqualify it as a periodical. The equation of contemporaneousness with a lack of enduring value hardly does justice to the efforts of contemporary mankind.
Counsel for the Respondent's memorandum raises a couple of less weighty points which, though directed specifically at the American Art decision, deserve comment here to the extent that they raise issues of more general significance.
"The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions,..."
The memorandum also contains a vague reference to a purported misunderstanding in American Art with respect to the dictionary definition of "discursive". The point, I gather, is that the decision improperly "read out" of previous Initial and Departmental decisions the alleged requirement for "discursive" text material as a necessary element of "articles" appearing in periodicals. Webster's Dictionary defines "discursive" as "rambling", "desultory" or "digressive", qualities which do, regrettably, mar the contents of many periodicals, but for which no official requirement has ever been established. Even assuming counsel intended some other word such as "expository", the point he seeks to make remains obscure. Let it be stated her and now that neither American Art nor this decision conspire to the
mandatory elimination of the written word in periodicals, though I "see no reason to suppose that a publication which is heavy on photographs and light on text must therefore be deemed a book, complete in itself (though, of course, it could be)" (American Art, p. 14).
It is only with the greatest of hesitation that I venture to overturn a previous Departmental Decision. However it is obvious from the foregoing and from my decision in American Art that my view of this case is totally incompatible with that expressed in the Departmental Decision here under review. I find the weight of previous binding precedent weighing against that decision and, since it has been specifically remanded to the Department for further consideration, I see no logical reason to perpetuate its effect upon this Petitioner or upon the administration of second-class matters in general.
I therefore find that the subject publication, Figure, is a periodical ithin the meaning of the applicable statutes and regulations. The Departmental Decision of October 9, 1967 herein is reversed and the Petitioner's application for second-class entry of Figure is remanded to the Respondent for action consistent herewith.
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