In the Matter of the Petition by AMERICAN ART AGENCY, INC., 7311 Fulton Avenue, North Hollywood, California 91605 for a second class mail permit for the publication "TIP TOP." P.O.D. Docket No. 2/269 February 23, 1968 Jesse B. Messitte Hearing Examiner POST OFFICE DEPARTMENT, DIVISION OF HEARING EXAMINERS, WASHINGTON, D.C. 20260,
The above-entitled cause came on for hearing before Jesse B. Messitte, Hearing Examiner, at Los Angeles, California. Stanley Fleishman, Esq., of Los Angeles appeared on behalf of Petitioner. Clinton I. Newman, Esq., Office of the General Counsel, Post Office Department, Washington, D. C., appeared for Respondent.
The Hearing Examiner, having studied the whole record, decides that Petitioner is not entitled to a second class mail permit for the publication Tip Top.
The only issue is whether the publication Tip Top is a periodical. The parties have stipulated that the publication meets all other requirements for a second class mail permit. 1/
Jurisdiction of the Hearing Examiner rests upon the applicable rules of practice, statutory provisions there recited and the Administrative Procedure Act. 2/
More particularly, it appears that Petitioner by application dated February 15, 1967, requested second class mail privileges for the publication Tip Top at the North Hollywood, California, Post Office. An authorized official of the Bureau of Operations, Post Office Department (herein called the Respondent), by letter dated August 17, 1967, denied the application specifying for the reason that "Tip Top" is "essentially a book of pictures" and therefore "does not have the requisite characteristics * * * of a periodical publication."
Petitioner duly filed a petition challenging Respondent's denial of the second class mail permit. Thereafter, Respondent filed an answer to the petition and the proceeding, on October 23, 1967, was assigned to this Hearing Examiner for hearing and decision. Immediately following a brief pre-hearing conference, this Hearing Examiner heard the matter on November 6, 1967.
The evidence consists of the testimony of two witnesses presented by Petitioner and 69 exhibits. Petitioner's two witnesses are employees of the Petitioner. They described their education and their experience in publication work. They told how Tip Top is put together and expressed opinions on why from the point of view of trade practice that publication would be considered a periodical rather than a book. Four of the 69 exhibits were joint exhibits consisting of the four issues of Tip Top upon which Petitioner and Respondent both rely to support their conflicting positions. The fifth joint exhibit is a copy of Petitioner's application dated February 15, 1967, seeking second class mail privileges for Tip Top. More than fifty of Petitioner's exhibits are publications - with second class mail permits - and these include one called "Broadside" published six times a year by the Petitioner, American Art Agency, Inc.
The denial ruling dated August 17, 1967, by Respondent is not evidence but together with the petition and appeal herein serves to confer jurisdiction upon this Hearing Examiner.
No witness testified on behalf of the Respondent.
At the outset of the oral hearing, Petitioner's counsel contended that under applicable provisions of the Administrative Procedure Act Respondent had the burden of proof.
Petitioner is here seeking an order of entitlement to a second class mail permit for Tip Top which has not previously enjoyed a permit. Therefore, Petitioner is the proponent of an order for second class mail privileges and the burden of proof, in the sense of going forward, is properly upon Petitioner under the Administrative Procedure Act. 3/ The Hearing Examiner so ruled at the hearing and that ruling is hereby confirmed.
This Hearing Examiner finds the following facts:
1. American Art Agency, Inc., a corporation with offices at 7311 Fulton Avenue, North Hollywood, California, publishes "Tip Top" and "Broadside."
2. Tip Top is issued quarterly. The publication was distributed for more than five years before an application for a second class mail permit was first filed in February 1967. Petitioner did not make any previous application because counsel advised Petitioner not to do so.
3. The annual subscription price for Tip Top: was $12.00 per year including first class mail; 4/ very recently became $9.00 per year including first class mail. 5/
The single price per copy at newsstands is $2.00. 6/
4. The approximate number of the November 1966 issue of Tip Top printed was 28,760. 28,560 of those copies were sold by news agents who paid Petitioner 88 cents a copy. 200 copies were returned by news agents to the Petitioner which disposed of some of them by "Direct Mail Order Sale." All unsold copies "were eventually re-distributed by Petitioner to foreign news agents for resale without return privileges." The foregoing printing and distribution is indicative of the recent and current distribution pattern for Tip Top. 7/
5. The four sample copies of Tip Top 8/ contain: (a) a picture of a female model on the front and back covers; (b) 80 or 88 pages, of which 50 or more pages are pictures of female models; (c) an occasional article on how to take pictures of female models; (d) a few items under the designation "Facts and Fillers" which include some references to hosiery, sneakers and garter belts, and (e) some so-called letters to the editor or others mostly about pictures of female models.
6. Each of the four samples of Petitioner's publication Tip Top has a heavy glossy paper covering and the pages of the publication are of a glossy texture and peculiarly suitable for pin-up or other purposes of the collector of provocative photographic poses of the female figure. 9/
7. The publication Tip Top is 8 1/2 by 11 in size. In some instances a picture of a female model occupies two full pages. Many single pages contain nothing but one or more pictures of a female model.
8. Periodicity is not an element of the character of the publication Tip Top. One issue is so much like another that the time of a particular issue is almost totally irrelevant to the buyer.
9. Each issue of Tip Top is substantially complete in itself and discloses no genuine need for future continuity of content.
10. There is nothing genuinely resembling literary continuity in the four sample issues of Tip Top.
11. The publication Tip Top deals with a single subject - photos of the female figure - predominantly - and the balance of the publication is quite trivial and inconsequential. 10/
And see Ex. J-27, p. 58 where an ad by Petitioner, in its magazine Broadside, to stimulate sales of Tip Top states: "Tip Top uncovers women from the tips of the toes to the tops of the hose - with side trips to outlying territories]"
12. Space and content pertaining to female fashions, hosiery styles, etc. are trivial and inconsequential when compared to space and content devoted to pictures of female models. 11/
13. Other publications with second class mail privileges are not so nearly identical with Tip Top that the denial of second class mail privileges to Tip Top is an unreasonable exercise of judgment or arbitrary or capricious. A comparison of Petitioner's Tip Top (herein denied the second class permit) and, for example, Petitioner's Broadside (which has the second class permit) reveals that the inclusion of exposed aspects of the female figure does not (by reason of any Post Office Department consistent practice or interpretation) of itself deprive a publication of second class mail privileges. 12/ There are more than a dozen other publications like Broadside, all with second class mail permits (see for example, Exhibits P-28 through P-39).
14. Over a long period of time, the Post Office Department has granted second class mailing privileges to a wide variety of magazines. Among such magazines are so-called "girlie" magazines some parts of which may resemble Petitioner's Tip Top in cover, binding, general appearance and disclosure of the female figure. But such magazines generally are substantially different than Tip Top, in the combination of considerable genuine reading content with girlie pictures, or in other significant respects (as in the case of certain publications concerning nudist colony life - Exhibits P-40, P-41 and P-42).
15. The "girlie" magazines afforded second class mailing privileges by the Post Office Department over a prolonged period of time have not been shown to be so closely related to Tip Top in content and otherwise as to confer an unfair competitive advantage upon the other girlie magazines as against Tip Top.
16. Each of the four sample issues of Tip Top is a number in a series of picture booklets or brochures and is not a periodical. Petitioner in selling Tip Top, in essence, is selling a package or collection of unrelated pictures, bound together, with some inconsequential reading matter added.
17. The general procedure (a) by which material is gathered for Tip Top and (b) for publishing and distributing that publication resembles general procedure in the publishing trade for periodicals more than the general procedure for publishing books. 13/
18. The respective issues of Tip Top do not become virtually worthless as soon as the latest issue is distributed. On the contrary, they continue to maintain substantial value to collectors of photographs of female models or for redistribution to foreign buyers.
1. By stipulation of the parties, Petitioner's publication Tip Top meets all the statutory requirements for a second class mail permit, except the one presented to this Hearing Examiner for decision, namely whether the publication is a periodical. As a matter of law it is not a periodical. 14/
2. The denial of the petition for a second class mail permit is based on a reasonable classification of the publication Tip Top and is not arbitrary, discriminatory or capricious.
3. Petitioner is not entitled to second class entry for Tip Top.
4. The petition for second class entry for Tip Top should be, and hereby is, denied, subject to such review as the law allows.
1. This decision substantially follows the 1967 Departmental Decision in P.O.D. Docket No. 2/247 (Publishers Development Corporation). That decision also concerns a "girlie" type publication made up predominantly of pictures of the female figure with the balance consisting of inconsequential reading matter.
2. Other formal decisions in contested cases at the Post Office Department have denied or granted a second class mail permit depending, to a substantial extent, upon whether periodicity or timeliness of content was essential or significant to the character of the publication.
Thus, the 1960 decision in P.O.D. Docket No. 1/231 (One-Spot Publishers) concerns publications which were predominantly made up of old reference material and only to a very small extent of current information, all concerning phonograph records. After review of various criteria outlined by the U. S. Supreme Court, for determining when a publication is or is not a periodical, this Hearing Examiner concluded that the publications were predominantly reference books and not entitled to second class mail permits. (Both parties accepted, without appeal, the Hearing Examiner's decision which thus became the Departmental Decision.)
On the other hand, in P.O.D. Docket No. 2/86 (Little, Brown and Company) this Hearing Examiner's 1962 decision concluded that the Petitioner had made a very persuasive showing of the character of periodicity in each issue of the publication which, in a variety of articles, set forth current clinical developments in the field of ophthalmology. This emphasis on periodicity was also relied upon in the Departmental Decision.
3. There is no applicable mathematical rule to substitute for judgment, based on all pertinent factors, for determining whether a publication is a periodical or something other than a periodical, such as a book. Criteria for such a determination were, however, long ago announced in a series of decisions of the U. S. Supreme Court. A few brief excerpts from some of those decisions may be helpful.
In Smith v. Hitchcock , 226 U.S. 53, 59 (1912) the language of the Court (per Mr. Justice Holmes) includes the following words concerning a book as distinguished from a periodical.
"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 ***."
And in the earlier decision of Houghton v. Payne , 194 U.S. 88, 97, 98 (1904) the following language is included:
"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original 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."
See also: Fifield v. American Automobile Assn. , 262 F. Supp. 253, 255, 256 (U.S.D.C. Mont. 1967).
4. The inclusion by Petitioner in Tip Top of inconsequential matter with what is predominantly a package of pictures does not change the publication from what it is into a periodical. See: Bates & Guild Co. v. Payne , 194 U.S. 106, 107 (1904); and Smith v. Hitchcock , 226 U.S. 53, 57, 58 (1912). 15/
5. The Initial Decision of this Hearing Examiner in P.O.D. Docket No. 2/86 (Little, Brown and Company) concluded that the publication International Ophthalmology Clinics was a periodical and in support of that conclusion referred to the fact that the Respondent had not come forward with evidence to explain his difference in the treatment of that publication from a number of others having substantially the same content and form. It was the essential sameness of the publications which had been granted second class mail permits with the one before the Hearing Examiner, which Respondent had attempted to deny, which gave additional support to this Hearing Examiner's conclusion that the Little, Brown and Company publication was entitled to the second class permit. In the instant case, there has been shown no such identity between Petitioner's Tip Top publication and any publication having the second class permit. Indeed important differences are attested to by the comparative contents of two of Petitioner's publications. Thus, Petitioner's Broadside has been granted the permit and Petitioner's Tip Top is being denied the permit by this decision.
6. The findings of fact and conclusions of law proposed by the parties are adopted to the extent embodied in this decision. Otherwise they are rejected as either irrelevant, not supported by persuasive evidence or otherwise inapplicable.
1/ Mailability is therefore not an issue. Petitioner may mail publications (such as Exs. J-1, J-2, J-3 and J-4) but not at the mail rate for publications entitled to second class mail privileges.
2/ 39 CFR Part 954 and 5 U.S.C. 556.
3/ 5 U.S.C. 556(d).
4/ See inside front covers Ex. J-1 and Ex. J-2.
5/ See inside front covers Ex. J-3 and Ex. J-4.
6/ See front covers Exs. J-1, J-2, J-3 and J-4.
7/ Ex. J-5.
8/ Exs. J-1, J-2, J-3 and J-4.
9/ See Ex. J-3, p. 43 where an ad for a cumulative " giant volume " of Tip Top material states: "There are over 1000 photos - many in dazzling full color - all specially selected for rare beauty and clarity and reproduced with high fidelity on high quality paper to add extra dimension and luster."
10/ For examples of matters trivial and inconsequential, see:
J-1, p. 67 containing an alleged letter, under the caption "Lady's Line," which states in part: "My husband is a subscriber, or should I say collector? At any rate our household boasts a total file of Tip Top.***"
J-2, p. 3 includes an alleged letter titled "Back to Backs" which says in part: "***The two young beauties featured in Tip Top Vol. 5, No. 4 are hiding what I think to be the most beautiful and feminine part of a woman's body, the derriere. *** I guess you could call me a derriere fancier. Anyhow how about more bottoms?"
11/ Two-thirds or more of the pages of Tip Top contain pictures of female models. Picture content is the sole marketable item. The rest is space filler..
12/ See J-27 "Broadside" where about one-third of the pages consist of pictures of female models. Such pictures appear at pp. 4, 5, 6, 7, 17, 32, 33, 34, 35, 36, 37, 54, 55, 56, 57, 68, 69 and 70. But that publication also contains a substantial quantity of genuine reading material including: a story by Somerset Maugham, pp. 13-15, 64-65; a sports item about football star, Mike Garrett, pp. 22-25, 67; an item about the Air Force, pp. 26-29, 50, 51; an item about the Hippies, pp. 30, 31, 44-47 and an article about Teddy Roosevelt, Jr., pp. 40-43, 48, 49.
13/ Such facts have been considered by this Hearing Examiner but they are not conclusive on whether the publication is a periodical under applicable postal law.
14/ Basic statutory provisions are contained in: 39 U.S.C. 4351 and 4354. Although a publication may meet all specific conditions of 39 U.S.C. 4354, denial of second class entry is proper if the publication is neither a newspaper or periodical under 39 U.S.C. 4351. Houghton v. Payne , 194 U.S. 88 (1904); Bates & Guild Co. v. Payne , 194 U.S. 106 (1904); Smith v. Hitchcock , 226 U.S. 53 (1912). See also: Hannegan v. Esquire , 327 U.S. 146, 158 (1946). In the instant case, it is obvious Tip Top is not a newspaper. Neither the governing statute, nor applicable regulations, define "periodical" so as to cast any light on the sole issue presented here. The classification of various publications (except newspapers and periodicals) as "mail matter of the third class" is set forth in 39 U.S.C. 4451. Postal regulations concerning second class mail and third class mail are set forth in 39 CFR Parts 132 and 134, respectively.
15/ In Smith v. Hitchcock the publication "Tip Top Weekly" (similarity of name to Petitioner's publication here presumably is purely coincidental) was held not to be a periodical within the meaning of the postal statute. Each issue of Tip Top Weekly consisted mostly of a story about a Frank Merriwell adventure. The Court ruled that the predominant nature of each issue of the weekly publication, was that of a book. The publication did not change and become a periodical because of the publisher's inclusion of "laudatory letters with insignificant comments, and a page or two of inquiries as to physical culture purporting to come from readers, with short replies ***." (Quote is from the opinion of the Court per Mr. Justice Holmes in Smith v. Hitchcock .)