In the Matter of the Petition by ZULCH AND ZULCH, North Hollywood, California, for a second-class mail permit. POST OFFICE DEPARTMENT, DIVISION OF HEARING EXAMINERS, WASHINGTON, D.C. 20260, P.O.D. Docket No. 3/46 November 2, 1970 Jesse B. Messitte Hearing Examiner APPEARANCES: Robert Zulch, President Zulch and Zulch, Inc. North Hollywood, California for Petitioner Arthur S. Cahn, Esq. Office of the General Counsel Post Office Department for Respondent
Petitioner, a California corporation, seeks a second class mail permit for the publication "Frames." The permit should not be granted because the publication is not a periodical or newspaper within the meaning of applicable law, regulations and pertinent decisions.
The only issues are:
(1) Is the publication "Frames" a periodical or newspaper, and
(2) Is "Frames" published primarily for advertising purposes.
Petitioner's publication meets all other requirements for second class mailing privileges.
Pursuant to applicable statute (39 USC 4354), Part 132.211 of the Postal Manual [39 CFR 132.2(a)(1)] says in part:
"Only newspapers and other periodical publications may be mailed at the second-class rates. ***"
39 U. S. Code 4354(c) provides that:
"A periodical publication designed primarily for advertising purposes . . . . . is not entitled to be admitted as second class mail under this section."
No definition of "periodical" appears in the statute. Courts, in an era long since gone, have indicated descriptions of the nature of a "periodical." The cases are discussed in detail in the matter of One Spot Publishers, Inc. (P.O.D. 1/231, Initial Decision of July 29, 1960).1/ The facts in One-Spot are analogous, in essential respects, to those in the instant proceeding. The decision and reasoning in One-Spot were carefully followed in a later Initial Decision dated June 24, 1963 ( R. R. Bowker , P.O.D. 2/97, aff'd. by P.O.D. Judicial Officer January 31, 1964). Cases, discussed in One-Spot , with their descriptions of "periodical" or the sometime component elements thereof include: Houghton v. Payne , 194 U.S. 88, 97, 98 (1904); Bates & Guild Co. v. Payne , 194 U.S. 106 (1904); Smith v. Hitchcock , 226 U.S. 53, 59 (1912).
This Hearing Examiner refrains: from quoting extensively from comments made by the Supreme Court in the foregoing cases about the nature of a "periodical"; or setting forth in detail the facts in those cases. Reference is made to the Initial Decision in One-Spot for such quotations and details. Let it suffice here to note the following items:
The high court stated in the landmark case of Houghton v. Payne , supra :
"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."
The language of the court (per Holmes, J.), in Smith v. Hitchcock , supra , includes the following:
"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 perhaps, have an appreciable size. There may be exceptions, as there are other instances of books."
The record consists of pleadings, testimony of Robert Zulch, president of the Petitioner corporation, and various exhibits including copies of several issues of the publication "Frames" and one issue of the monthly publication known as " business publication rates and data " published by Standard Rate & Data Service, Inc., and post hearing briefs filed by the parties.
On the whole record, this Hearing Examiner sets forth below findings of fact, conclusions of law and comments.
1. On December 15, 1969, Petitioner, as publisher of "Frames," filed at the post office, North Hollywood, California, an application for second-class mail privileges in respect to a quarterly publication titled "Frames." A postal employee, now Respondent, (Director, Classification and Special Services Division, Bureau of Finance and Administration) at Washington, D. C., denied the application subject to timely appeal. Grounds of denial stated by Respondent: (a) Publication is a catalogue, not a newspaper or periodical and (b) Publication is designed primarily for advertising purposes. Petitioner duly appealed and thus brought the question of second-class permit entitlement to this Hearing Examiner for Initial Decision, which in the absence of timely appeal therefrom, becomes the Departmental Decision (Rule 954.19(b), 39 CFR - Part 954).
2. With the possible exception of items encompassed by opposing contentions of the parties concerning the grounds for denial of the December 15, 1969, application, Petitioner and the publication "Frames" meet all requirements for the second-class mail permit.
3. "Frames," a quarterly publication, has been published regularly once each three months beginning March 1968.
4. The publication "Frames" has a paper binding and consists of pictures, specifications, and wholesale prices of eyeglass frames currently available. Names, addresses and telephone numbers of the manufacturer of each pictured set of frames are stated.
5. Each issue of "Frames," is appreciable in size, about 10 1/2 inches by 8 inches, and contains over 300 pages.
6. Petitioner in publishing and distributing the publication "Frames" offers nothing but the publication for sale. The products described in the publication are not owned or controlled by the Petitioner. Petitioner is not agent, distributor or affiliated with the manufacturers who sell such products. Petitioner is not paid anything, directly or indirectly, by the manufacturer or any agent of manufacturer for the service and content provided by the publication "Frames." The publication has value for its current informational content to those concerned with providing suitable eyeglass frames for patients or customers. Ophthalmologists, optometrists, and opticians are the special professional or commercial group concerned with this publication which they find useful and subscribe to at the rate of about $25 per year. 2/ Other subscribers include optical laboratories, optical wholesalers, and manufacturers of ophthalmic frames. In all the publication now has about 8,000 subscribers. During the first year of the publication's life, subscribers totalled only about 1200.
7. In many instances, subscribers to "Frames" are likely to purchase eyeglass frames from manufacturers whose products are described in the publication.
8. The repetition of content in the publication "Frames" from one issue to the next issue amounts to 80 to 90 per cent of total content. In other words, new material in any given issue would consist of 10 to 20 per cent of what was contained in the immediately preceding issue. Each issue of the publication "Frames" is complete in itself picking up as it does 80 to 90 per cent of the preceding issue and adding 10 to 20 per cent for changes because of items becoming obsolete or because of new items on the market.
9. The publication "Frames" does not contain any editorial comment, literature, stories, or narrative articles.
10. Petitioner is also engaged in business as an advertising agency, but its function as such appears quite independent and unrelated to the publication "Frames." Petitioner's advertising business does not affect or alter, in any significant manner, the character of the publication "Frames" in respect to eligibility for a second-class mail permit.
11. The publication "Frames" is not designed primarily for advertising purposes.
12. The publication "Frames" is not a periodical or newspaper.
1. The publication "Frames" is not a periodical or newspaper within the meaning of 39 U. S. Code 4354(a) and 132.2 of the Postal Manual.
2. Although Petitioner's publication "Frames" meets all other requirements for a second-class mail permit, it is not now entitled to such privileges.
1. Other publications, enjoying the second-class permit, such as "business publication rates and data," (permit since 1963 at least) if subject to the same deficiency as Petitioner's "Frames"--i.e., not a newspaper or periodical--should probably be included in a proper early second-class mail permit revocation proceeding.
2. The new Postal Rate Commission appointed by the President, pursuant to recent Act of Congress, (Public Law 91-375, signed August 12, 1970) is likely in due course to be concerned with claims of unjust discrimination in matters of this kind, to the end that in the process of sound classification substantially the same treatment is accorded to all publications equally situated.
3. Equal treatment for all publications equally situated is the only legally justifiable course. Long persisting variation in treatment of those equally situated, in respect to eligibility for permits, may well cause serious concern about possible faulty procedures. This Hearing Examiner suggests that careful study may well be appropriate by those charged with ultimate postal responsibility in establishing fair policy and procedure for the grant of second-class permits. Such study might consider and perhaps help resolve soon the question of why some postal employees deny Petitioner's "Frames" the permit but grant it for various cumulative publications, regularly issued quarterly or more often, such as railway, bus or airline time tables and rate schedules, listings of stock and bond quotations, and indices to legal journals or citations.
4. Permissible freedom from the rule of stare decisis in matters of administrative law, including proper changes from time to time in the substantive rules for granting the second-class mail permits, does not justify persistent discriminatory treatment between substantially equivalent publications. If the discrimination and distinction between publications be made by postal employees with allegedly good cause that good cause should somewhere be clearly articulated for all concerned.
5. Informed employees under Respondent's supervision usually fail to appear at the oral hearing as witnesses, in cases such as this. Such failure tends to cast a substantial shadow upon procedures which perhaps result too often in allowing some but denying others the second-class mail permit, under facts not essentially different.
1/ The Initial Decision became the Departmental Decision when Petitioner-Publisher took no appeal from the Hearing Examiner's Initial Decision.
2/Actual rate $24.95.