In the Matter of the Petition by ) August 24, 1973
)
CREDIT BUREAU OF ALBUQUERQUE, )
NEW MEXICO, INC. )
P. O. Box 715 )
Albuquerque, New Mexico 87103 )
) P.S. Docket No. 1/218
)
Denial of Application for Second- )
Class Mail Privileges for )
"BUSINESSMAN'S DAILY RECORDER" ) Wenchel, Adam G.
APPEARANCES:
Chapin S. Carnes, Publisher
609 Gold Avenue, S.W.
Albuquerque, New Mexico 87101
and
Arthur L. Herold, Esq.
Webster & Kilcullen
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
for the Petitioner
Arthur S. Cahn, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for the Respondent
Petitioner is seeking to overturn the proposed denial of a second class permit for its publication "Businessman's Daily Recorder" (hereinafter "Recorder"). The parties agreed to submit the matter on the written record without oral testimony. On the basis of the record presented to him, the Chief Administrative Law Judge upheld the denial of the permit holding that the Recorder does not have the elements of periodicity set out in Houghton v. Payne, 194 U.S. 88, and that it is primarily designed for advertising purposes. Petitioner appeals.
Respondent relies on the second paragraph of the following excerpt from Houghton to support the conclusion that the Recorder is not a periodical within the meaning of the applicable law: 1/
"While it may be difficult to draw an exact line of demarkation between periodicals and books, within which latter class the Riverside Literature Series falls, if not a periodical, it is usually, though not always, easy to determine within which category it falls, if the character of a particular publication be put in issue.
"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. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects." (Houghton v. Payne, 194 U.S. 88 at 97).
The weakness in reliance on Houghton to determine the Recorder's right to a second class mail permit is not that the criteria of Houghton are obsolete. That decision is still the basic judicial teaching in this field. The difficulty is that Respondent would use it in a situation in which it has no application. As the first paragraph of the excerpt quoted shows, the Houghton court was concerned with distinguishing books from periodicals. Here, on the other hand, the question presented is P.O.D. Docket No. 3/59, whether the Recorder is a newspaper or miscellaneous printed matter. 2/ It would be necessary, therefore, to look to other authority for guidance in reaching a decision on the question involved here. However, since the result of this proceeding turns on another point it is unnecessary to resolve the question of whether the Recorder is a newspaper within the meaning of the applicable regulations.
Petitioner, Credit Bureau of Albuquerque, New Mexico, Inc., has three divisions: namely, consumer credit reporting, consumer collections, and publication of the Recorder. 3/ While Petitioner contends these are totally independent of each other, the record shows, as the Initial Decision states (page 8), that "Petitioner operates three totally interdependent and intertwined divisions, each lending assistance to and depending - at least in part - on the others." The subscription agreement used by Petitioner is in fact a service contract by which the customer not only subscribes to the Recorder but also to Petitioner's other services. In addition the customer receives "Membership in the INTERNATIONAL CONSUMER CREDIT ASSOCIATION and its local chapter, ALBUQUERQUE CONSUMER CREDIT ASSOCIATION, including the CREDIT WORLD, use of insignia, official supplies, and all other benefits."
By Petitioner's account two-thirds of the subscribers potentially use Petitioner's Credit and Collection Services. 4/ In view of the foregoing I must conclude that the Chief Administrative Law Judge was correct in holding that "Businessman's Daily Recorder" is conducted as an auxiliary to and essentially for the advancement of the business of the Credit Bureau of Albuquerque 5/ and as such is designed primarily for advertising purposes.
For the foregoing reasons the Decision of the Manager, Mail Classification Division, denying Petitioner's application is affirmed.
_____________________
1/ As contemplated by the Postal Reorganization Act, the applicable law is now the postal regulation codified in title 39 C.F.R. Part 132. See 39 C.F.R. 211.1 as amended effective June 28, 1973, 38 F.R. 20402. Although those regulations are now the legal authority for determining the qualifications for second class permits, their elevation to that status did not change the second class criteria. Accordingly, the authority of prior judicial and quasi-judicial decisions and administrative rulings was not changed. For a review of the effect of the Postal Reorganization Act, see the Postal Service Decision in Petition of Phyllis Johnson (August 20, 1971).
2/ The Initial Decision did not consider whether the publication ought to be considered a newspaper because that issue was thought not to be raised by Petitioner. However, a review of the correspondence of record here indicates that Petitioner was urging, as he does now, that the publication is devoted to the presentation of news of interest to a segment of the business community. Although Petitioner did not specifically allege the "Businessman's Daily Recorder" is a newspaper, the thrust of his argument is and has been to that effect.
3/ Letter of November 21, 1972, from Petitioner to Albuquerque Post Office.
4/ Letter of December 11, 1972, from Petitioner to Respondent's attorney.