In the Matter of the Petition by STAR BIBLE PUBLICATIONS, INC., 7120 Burns Street, Forth Worth, Texas 76118 Denial of Application for Second-Class Mail Privileges for "BETWEEN SUNDAYS" P.S. Docket No. 1/178February 27, 1973
David J. Knight Administrative Law Judge
B. Michael Cummings, Esq., Mehl, Williams, Cummings & Truman, Ft. Worth, Texas, for the petitioner. D. Scott Railsback, Esq., U.S. Postal Service, Washington, D. C., for the Respondent.
On January 2, 1972, Star Bible Publications, Inc., applied to the postmaster at Forth Worth, Texas, to have its weekly publica- tion, Between Sundays , entered as second-class mail. The applica- tion wasdenied by letter dated September 12, 1972, from the Manager of the Postal Service's Mail Classification Division in Washington, D. C. Two reasons were specified in this denial announcement:
First, that the publication, Between Sundays , was not a "periodical" within the meaning of sections 4351 and 4354 of Title 39 of the U.S. Code; and second, that the publisher failed to show that it was a "church organization" within the meaning of section 4355(a)(9) of Title 39.
The procedure for appealing that denial was set forth in the same letter and a petition for such a review was filed on September 29, 1972, by the publisher. The petition argues that the publica- tion is a periodical and that, because of the organizational limita- tions attendant to the Church of Christ, the publisher--although a separate corporation--is a religious organization qualifying it as a church organization and the second-class license. The Postal Service responded to the petition repeating the grounds for denial and asked that the decision of the Mail Classification Division be affirmed. A hearing was held at Dallas, Texas, on November 20, 1972, the petitioner's motion for a change in the place of the hearing having been granted by order dated November 10, 1972.
A periodical published by a church organization is exempted from two statutory provisions which otherwise must be fulfilled if second- class entry is to be achieved. These are found in section 4354(a)(4) and (5) dealing with the contents and requiring a legitimate list of subscribers.
The issues, as framed by the pleadings and detailed by evidence, are:
(1) Whether the publication Between Sundays is classifiable as a book rather than a periodical and, therefore, does not qualify for entry into second class mail under 39 U.S. Code 4351 and 4354(a);1/ and
(2) Whether the publisher, Star Bible Publications, Inc., in performing a church function, may be considered as a "church organization" within the meaning of 39 U.S. Code 4355(a)(9).2/
The petitioner was incorporated in 1963 in Vermont and was licensed to do business in Texas in 1969 as a non-profit corporation. Its basic purpose is to publish, in various forms, the Gospel for the Church of Christ. Its officers and directors must be faithful members of that Church. As a religious corporation, it was exempted from federal income taxes by a ruling of the Internal Revenue Service in 1964.
4354: "(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;..." . . .
(9) published by a church of church organization; or . . ."
A single witness was presented, examined and cross-examined. Alvin R. Jennings is the president and editor of the petitioner, Star Bible Publications, Inc. He testified that the petitioner publishes Between Sundays each week and these are mailed to 6,000 families, 95 percent of whom are members of a Church of Christ. Publication began with volume 1, number 1 on January 2, 1972 (Exhibit P-1) the date of petitioner's application for second- class entry. It is a 15-page booklet measuring 3 1/2" x 6 1/2" and cites the title and author for the coming year's issues and the biblical portions from Genesis 1 through Malachi (the Old Testament) and Matthew 1 through Revelations (the New Testament) to be read each day throughout the year. This issue lists the portions from each Testament to be read so that by the end of the year, both Testaments would be covered. Thereafter, each weekly issue is of the same size and approximate page amount and is a written sermon on various topics affecting religious life such as "Is the Bible the Inspired Revelation of God," "Prayer," "The Meaning of Church Attendance," etc. No advertising is carried.
The stated purpose of the publication is to fill the religious gap between Sundays by providing the reader with a weekly sermon and a guide for daily bible reading. The sermons could be prepared either by a single author ("Is the Bible the Inspired Revelation of God," Exhibit P-2) or a compilation of studies submitted by many ("Prayer," vol. 1, no. 26, attached to petition). Normally, though, each issue represents the work of a single author and ministers are asked to prepare these. Each sermon cites a biblical passage as the authority of any stated proposition. witness Jennings was a minister in the Church of Christ for 20 years and, for the past 15, he has specialized in publications for that Church; first in Vermont and later in Tarrant County, Texas. He is a printer by trade and owns his own shop, the home of the petitioner.
In addition to Between Sundays , the petitioner also publishes a quarterly, Star Magazine which is described to church leaders in the Star Reporter . Both Star publications are aimed at attracting and increasing membership in the Church and are addressed to "residents" in various areas, mailed at the third-class rate. It maintains a list of all known congregations or local assemblies, the leaders of which are sent copies of the publications. They, in turn, decide whether a particular congregation will subscribe to Between Sundays .
According to this witness, there are about two million members of the Church of Christ who comprise 11,000 individual Churches. Each Church is autonomous, recognizing no higher earthly authority, and is governed by the Elders of the local assembly. Except in rare instances, there is no connection or organization among these Churches or their leaders save a common religious belief. There is no diocese, synod, assembly or convention binding the local Church in any structure; and no Church belongs to any national organization of churches for religious or other purposes.
Of the total membership within the Church of Christ, about 5,700 receive Between Sundays . The names of the members of a particular congregation are given to the petitioner and a mailing list constructed. The congregation is then billed according to the number of copies. The Elders budget the cost and pay it from the Sunday collections. The witness is both the printer and representative of the petitioning publisher. As the printer, he issues to the petitioner a bill for the expenses of the printing. He receives all the money from the local congregations and issues a credit to the petitioner for the amount of his bill whether he received that much or not; but each was originally figured to be equal. In the expense of furnishing Between Sundays is an amount for the mailing at the cheaper second-class rate. Since this has not been obtained, a weekly deficit is incurred.
Through this witness, other religious publications were received in evidence, all having a second-class license. Gospel Minutes (exhibit P-4) is a four-page pamphlet published weekly of articles on religious topics. The Upper Room (Exhibit P-5) published bimonthly is an 80-page booklet containing true stories with morals as daily devotional readings contributed by people from all over the world. And Open Windows (Exhibit P-6) published quarterly is similar to The Upper Room with daily readings covering the weeks from October 1 through December 31, 1972, with each week's readings written by different authors. The witness sees these publications in the same light as Between Sundays and hopes that the publication would be kept by the recipient as a reference or given to friends.
Based on the record as a whole, the evidence, and the witness through whom it was presented, I find and conclude as follows:
First, is Between Sundays a periodical publication within the meaning of sections 4351 and 4354(a)?
On this issue, the respondent relies on the stated definition of "periodical" in Houghton v. Payne , 194 U.S. 88 at 97:
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 or 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. . .
Respondent argues that the elements within this definition cannot be found in the facts of this case. It sees an issue of Between Sundays as a reference book meant to be kept by the recipient; each complete in itself having no relationship to any other issue; authored by a single person; and not being original since a minister of the Church may be asked to compose the weekly sermon that is to appear in the publication.3/
Since the purpose of the Church is to disseminate the teachings of the bible as it interprets them, there is the necessary continuity of interest in the successive issues of Between Sundays . Man's relationship to God is developed, enlarged and reinforced throughout the bible, brought forward, connected and interpreted in Between Sundays.
This continuity is a necessary aspect of a periodical. The Supreme Court in Houghton v. Payne , supra , discusses this continuity of literary character and states of a publication:
If, for instance, one number were devoted to law, another to medicine, another to religion, ... etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity....
But other elements of a "periodical" are lacking. I find from the evidence that Between Sundays is composed by a single author to cover a single topic each week and each issue, therefore, does not contain any variety of topics by different authors. In fact, parts of a single topic may be covered in successive weeks. The Ten Commandments are reviewed over a three week period by the same author. And the proposed titles and authors for the year's issues show that no single issue would cover more than one topic or involve more than one author (Exhibit P-1). Thus, within the general subject of biblical teachings, only one topic is normally covered each week. There is contained in all of the petitioner's exhibits of similar publications more than one article on various topic within the bible with more than one contributor.
No authority can be found to indicate that any one of the elements of a periodical is to be given more weight than any other or that any one be considered as controlling. All are required.
Thus, I must conclude that Between Sundays --although having a continuity among issues--is not a periodical within the meaning of sections 4351 and 4354(a) of Title 39. See Houghton v. Payne , supra ; Smith v. Hitchcock , 226 U.S. 53 at 59, and Dell Publishing Co., v. Summerfield, 198 F. Supp. 843. Strangely enough, if Between Sundays were published bi-weekly, combining two of the present weekly publications, it would qualify as a periodical.
Second, is the petitioner, Star Bible Publications, Inc., a "church or church organization" within the meaning of section 4355(a)(9)?
The petitioner is a non-profit corporation licensed to operate in Texas for the purpose of publishing the Gospel of Christ. It may sell its publications but is prohibited from taking any financial gain or profit from the sales and any revenues in excess of costs must be devoted to publishing religious materials. Its remaining assets on dissolution must be distributed for charitable, religious or educational purposes. Its officers and directors must be faithful members of the Church of Christ and no member of any other faith or denomination could serve.
The Church of Christ consists of some 11,000 individual congregations having no ties except religious beliefs. There is no legal or practical structure binding these congregations together since each congregation recognizes no higher earthly authority than the congregation itself. Various ministers have formed a committee recognized by the Army to assist in having a minister qualify as a military chaplain. But, otherwise, there is no connection between the local congregations. The Church comprises a body of believers holding the same creed, acknowledging the same ecclesiastical authority as the only true representative. Thus, the Church of Christ is a "church" within the meaning of section 4355(a)(9) of Title 39. See Berean Bible Society , P.O.D. Docket No. 2/250 and Mission to Mexico , P.O.D. Docket No. 2/129. No claim is made that the petitioner is such a church.
Petitioner argues that it is a "church organization"4/ within the meaning of the statute because of the restriction prohibiting the formation of an organization among the local congregations. It contends that it fulfills the same purpose that such an organization would if it could come into being; Between Sundays being published for all members of the Church of Christ and expounds on that Church's doctrine. And that the officers and directors of the petitioner must be faithful members of that Church.
The respondent argues that Congress did not intend that all groups whose members belong to a church should have the benefit of the statutory exemption and that there is no prohibition against any local congregation (as opposed to a group or organization of these) from simply taking the place of the petitioner thereby achieving the result sought here.
The decisive question is whether a group of church members who bind themselves corporately to perform a church function may be considered as a statutory "church organization." I think not.
The words of the statute state that the exempted publication must be issued by a church or organization within the church. The exemption is given to the publication because of the nature of the publisher. Here, the publisher is admittedly not a church nor an organization within a church. It stands outside the church. Thus, if the publisher and the publication are viewed as a body in this case, the head is missing and merely to perform a church function is not sufficient to qualify for the exemption.
This rationale is bolstered by the albeit meager legislative history of the exemption when this section was added to Title 39 on July 26, 1955, by the 84th Congress. House Report No. 714, later adopted by the Senate, states that inclusion of "a church or church organization" within the exemption of section 4355(a) would benefit the local churches or church organizations by relieving them of the requirement of maintaining subscription lists. These lists at the local level were viewed as a smoke-screen and as a nuisance. Churches should be treated the same as institutions of learning, trade unions, lodges, and other benevolent societies, all of which had--by 1955--attained the exemption. See House Reports, 84th Congress, 1st Session, to accompany H.R. 4585.
Thus, the exemption was aimed directly at the church or an organization within it and to direct it at an organization functioning outside of a church and not subject to a church's direct control violates the statute.
This is the policy of the Postal Service. In Interreligious Foundation for Community Organization, Inc. , P.S. Docket No. 1/10, the Director of the Office of Mail Classification denied the application of an interdenominational coordinating organization holding that the "term 'church or church organization' ... embraces churches on the organizational level of an individual congregation and organizational units of an individual congregation." This view was upheld in the Postal Service Decision on April 6, 1972.
I conclude then that the petitioner is not a "church organization" within the meaning of section 4355(a)(9).
Finally, both the petition and petitioner's proposed findings and conclusions claim the elements indicating that Between Sundays should be entered as second-class mail according to the standard procedures and without regard to the exemption running to churches.
This position is untenable. First, because the publication must be a periodical which it is not. And under the standard procedures, an applicant must show--among other things--that it has a legitimate list of subscribers, 39 U.S. Code 4354(a)(5). That has not been proven here as shown by the following colloquy between respondent and witness Jennings:
Q. Would it be against the teachings of the
Church of Christ for individual congregations to supply funds for a publication such as Between Sundays--from the members of the congregation, for example?
A. From their contributions?
Q. Right.
A. I'm assuming that that's the way they do pay for it from their Sunday collections, that the elders will budget or allocate or authorize the payment of a certain amount of money for sending this publication to each of their families each week.
Thus, it would appear that an individual congregation is the subscriber in behalf of its membership while the membership would pay for it through their contributions. But there is no proof that all who receive it pay for it. If the church is considered the subscriber, since contributions become the property of the church, then copies to members are gifts which are not legitimate subscriptions, Myrick v. United States , 219 Fed. 1. It is just such problems as these that forced the exemption onto the statute. proposed findings and conclusions of the parties to the extent embodied in this decision are adopted; otherwise they are rejected as being unsupported by the evidence, irrelevant or immaterial.
To summarize--I conclude that Between Sundays is not a periodical publication within the meaning of 39 U.S. Code 4351 and 4354(a); that Star Bible Publications, Inc., is not a church or church organization within the meaning of 39 U.S. Code 4355(a)(9); that Between Sundays does not have a legitimate list of subscribers as required by 39 U.S. Code 4354(a)(5); and that the denial of the application by the Mail Classification Division should be affirmed.
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1/ 4351: "Second class mail embraces
newspapers and other
periodical publications when
entered and mailed in
accordance with sections 4352-4357
of this title." .
2/ 4355: "(a) Mailable periodical
publications meeting the first
three conditions of section
4354(a) of this title are
entitled to be entered and mailed
as second class mail
when they do not contain
advertising other than that of
the publisher and if they are--