Appeal of P.S. Docket No. 1/167 -- FLORISTS' TRANSWORLD DELIVERY ASSOCIATION

 In the Matter of the Petition by 	) September 17, 1974
 					)
 FLORISTS' TRANSWORLD DELIVERY 		)
 ASSOCIATION 				)
 900 West Lafayette			)
 Detroit, Michigan 48226 		)
					)
 Proposed Revocation of Second-Class 	)
 Mail Privileges for "FTD NEWS" 	) P.S. Docket No. 1/167

 APPEARANCES: 	      For Petitioner: For Respondent:
		      Norman Diamond, Esq. Arthur S. Cahn, Esq.
		      Michael N. Sohn, Esq. U.S. Postal Service
		      Arnold & Porter Washington, D.C.
		      Washington, D.C.
		      For Intervenor, Teleflora Delivery Service, Inc.
		      Timothy J. May, Esq.
		      Patton, Boggs, Blow, Verrill, Brand & May
		      Washington, D.C.
		      For Intervenor, Florafax International, Inc.
		      Robert F. Biolchini, Esq.
		      doerner, Stuart, Saunders, Daniel & Langenkamp
		      Tulsa, Oklahoma
		      For Intervenor, National Auto Research Publications, Inc.
		      Marion E. Harrison, Esq.
		      Harrison, Lucey, Sagle & Solter
		      Washington, D.C.


 Duvall, William A.

AMENDED POSTAL SERVICE DECISION

History of the Proceeding

On June 13, 1972, the Manager, Mail Classification Division, United States Postal Service (Respondent) sent to Florists' Transworld Delivery Association (Petitioner) a notice of proposed revocation of second-class mail privileges theretofore held by Petitioner for FTD News (hereinafter sometimes called "the publication"). The proposed revocation action was based on the grounds of the alleged failure of the publication to comply with the provisions of former sections 4351 and 4354 of Title 39, United States Code, which sections are either embodied in, or form the basis of, current postal regulations (Postal Service Manual 132.22).

The specific reasons given for the proposed action were (1) that FTD News ¹/ is designed primarily for advertising purposes and (2) that the publication is
not a periodical publication within the meaning of applicable statutory and regulatory provisions. ²/ The proposed denial was to be effective within 15 days from its receipt by Petitioner, subject to the latter's right (1) to file a written statement showing compliance, or the means by which Petitioner intended to comply, with the cited laws and regulations, or (2) to contest the ruling by filing a petition on appeal was filed on September 7, 1972, and the matter was heard on different dates between October 6 and November 1, 1972.

Petitioner ³/ appealed the Initial Decision to the Judicial Officer who, in a Postal Service Decision dated May 24, 1974, held that the publication is:

(1) designed primarily for advertising purposes and that it is, therefore, ineligible to retain the second-class mail permit previously issued for it, but that it is --

(2) a "periodical publication" within the meaning of governing requirements.

It is this decision in regard to which Respondent, on July 1, 1974, pursuant to the provisions of the Rules of Practice and will leave granted, filed the present Motion for Reconsideration. The former Judicial Officer retired from the Postal Service effective June 30, 1974. ⁴/ The case became ready for ruling on the Motion for Reconsideration on August 15, 1974.

Since the conclusions in both the Initial Decision and the Postal Service Decision are unanimous that the publication is designed primarily for advertising purposes, and since reconsideration of that facet of the case has not been requested, this decision will be confined to the reconsideration of the question of whether the conclusion that the publication is a "periodical publication" is correct and should stand. For reasons hereinafter stated, it is concluded that FTD News is not a "periodical publication."

The aspects of this case on which this decision is based are the following: the description of the publication; statutory, regulatory and decisional guidelines, with a discussion of their application in this case, and with lengthy quotations in order to avoid taking language out of context and in order to get the full significance of the language; consideration of the Amicus Curiae Brief; and some additional considerations.

THE PETITIONER AND THE PUBLICATION

Petitioner is an organization of retail florists. The publication serves the purpose, among others, of furnishing monthly alphabetical lists of names and addresses of member florists by states and cities to facilitate the ordering of flowers by a member florist in one place from a member florist in another place. More lengthy statements concerning Petitioner and the publication are set forth at pages 18-23 of the Initial Decision, which pages are incorporated into the Postal Service Decision as Appendix A. Because these statements are informative, portions of them are quoted herein.

In considering the instant Motion, it is well to take a closer and more detailed look at the publication. In a case such as this and, particularly, in view of the present posture of this proceeding, it is important to portray a word picture of the item under consideration that is as accurate as possible so that the bases of the conclusions reached will be made clear and plain. With this objective in mind there follows a detailed description of the May 1972 issue of the publication, which is the only issue of the publication received in evidence (Ex. R-2).

FTD News is approximately 8 1/4" x 11 1/8" x 7/8" in size and it is comprised of 626 pages divided into three sections. It weighs approximately one pound, twelve ounces.

The first section contains 82 pages, as follows:

Page Number and Portion

Item of Page(s) Used Masthead, Table of Contents and

miscellaneous data including

2second-class indicia 3 - all List and Pictures of Board of

Directors, List of Standing

Committees and miscellany 4 - 1/2 plus Calendar of Coming Events 6 - all Headquarters Corner 8 - 1/2 plus President's Message 21 - all Story on Regional Directors

Meetings 32-34(incl.) - 1/2 plus,

each

"District Meetings Offer

Business Knowledge" 35 - 1/2 plus Story: "'Stamps' Deliver

Hospital Flowers" 36-37(incl.) - 1/2 plus,

each

"FTD Catalog of Services Features

Permanent Binder" 38-39(incl.) - all Story: "Season's Greeter Candles

Found Along East Coast" 40-41(incl.) - all

"Public Design Shows Increase

Floral Appreciation" 42-43(incl.) - all

"Lou Shae: FTD Commentator Reach-

ing the Newcomers" 44-45(incl.) - all

"July 1 Deadline Set For '72

Design Entries" 46-47(incl.) - all

"Members Proposed 69 Ideas in

First FTD Packaging Contest" 52-53(incl.) - all

"District 3-C Meeting Features

Eastern Spring Design School" 56 - all

"Inside FTD" - new notes about FTD 64 - 1/2 plus; 66 - 1/4;

68 - 1/2 plus; 70 - 1/3

plus

"People and Events" 72 - 1/2 plus; 74 - 1/4;

78 - 1/4; 80 - 1/2

"Advertisers Index" 82 - 1/2 plus

Total 33 pages ⁵/

The remaining 49 pages of the first section of the publication are composed of such items as a list of places where members may report a claim or a loss (2 pages); registration forms and other information about the then upcoming convention (4 pages); a list of advance registrations received for the convention (1 1/2 pages); and advertisements (41 1/2 pages).

The second section of the publication consists of 368 pages and it is perhaps best described in the Petitioner's language as follows:

"FTD

MEMBERSHIP LIST*

MAY, 1972

Your complete, up-to-date guide to addresses,

telephone numbers, and codification

of all FTD Members in the United States, Canada,

Philippines, Puerto Rico, the Virgin Islands,

Latin America, the Caribbean, and Far East.

Your Interflora Membership List is your guide to all other areas

*The easy-to-read ... easy-to-find florist directory"

This listing of names, addresses, etc., consumes 364 pages. The last 4 pages of the second section contain such items as INTERFLORA MEMBERSHIP LIST CHANGES; AIR MAIL AND CABLE RATES; AIR MAIL & CABLE RATES FOR INTERFLORA ORDERS; list of toll-free numbers for over-limit credit card purchases; a form to be used by a member who desires an additional listing; delivery directory changes; a depiction of the time zones in the United States; a page of which one part is for notes and the other part is a form for use by members who desire to have a listing shown for their shop in non-membership towns; and a list of "THIS MONTHS' NEW FTD MEMBERS."

Quoting from the Initial Decision --

"FTD News is sent out monthly to insure the availability of current information to members: new or restored members are added and those no longer in the Association or suspended are dropped; changes in names, ownership, location or telephone numbers are noted; new codes indicating the goods or services offered are added and the prices therefor are shown and, at present, there are 11 such codes; and, if a member changes his price for a particular service or adds or deletes a particular code, this, too, is given (Tr. 297 and 378-379). The Association's publication division has eight employees devoting about 150 manhours a week in posting this changing flow of data and in keeping FTD News current (Tr. 381). There are approximately 1500 changes in the membership list comprised of 13,000 members and the changes have been increasing steadily from month to month (Tr. 403 and 414).

"The names of the member florists within any city are rotated each month so that the one at the top of the list will be changed in the next issue. This is to equalize the distribution of orders for there is a tendency by the sending florist to use the top name on the list (Tr. 331-332). The public does not see the FTD News (Tr. 299) nor would it have any reason to do so." (I.D., pp. 22-23)

The third, and last, section of the publication consists of 176 pages and it is described by Petitioner as follows:

"FTD

CARD ADVERTISING

FTD NEWS card ads are your supplement to

the Membership List. Member ads give

additional information, such as special services

and location relative to hospitals, hotels, and

mortuaries, which help you select the FTD

member who can best fill your order."

The front cover of the publication contains the title and date of publication, a list of some of the contents and a picture of the then President of the Petitioner, shown as if he is addressing a distinct meeting. The inside of the front cover and both sides of the back cover contain advertisements.

Relevant percentages of various portions of the publication to other portions are: ⁶/

1. pages containing "articles" to remainder

of section 1 37.8%

2. section 1 to entire publication 13 %

3. pages containing "articles" to entire

publication 4.9%

An overall assessment of the physical composition of the publication leads to the conclusion that, assuming arguendo only, for it is certainly contrary to fact, that all narrative material appearing on the 33 pages listed above could be called "a variety of original articles by different authors ***" as set forth in Houghton v. Payne, 194 U.S. 88 (1904), this small number of "articles" is insufficient, of itself, to bring the entire bulk of FTD News into the category of "periodical publication". ⁷/

Statutory, Regulatory and Decisional Guidelines

A. 39 United States Code 4351 and 4354 ⁸/

Regulations

Sections 4351 and 4354 provide in pertinent part, respectively, as follows:

"?4351. Definition

Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title."

* * * *

"?4354. Conditions for entry of publications

(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;

(4) is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; and

(5) has a legitimate list of subscribers.

(b) For the purpose of this section, the word 'printed' does not include reproduction by the stencil, mimeograph or hectograph processes or reproduction in imitation of typewriting.

(c) A periodical publication designed primarily for advertising purposes or for free circulation or for circulation at nominal rates is not entitled to be admitted as second class mail under this section."

The Postal Service Regulations on the instant subject (Postal Service Manual 132.22; 39 C.F.R. 132.2) paraphrase, explain and define the statutory provisions quoted above.

B. Some Judicial and Administrative Decisions and

Their Interrogatories as Presented in This Case

There is general agreement, as indicated in the decision reconsideration of which has been sought (p. 18) that Houghton v. Payne, supra, is the leading case on second class mail. In that case, the Supreme Court reviewed lower court decisions relating to the application by the Postmaster General of the provisions of, among others, section 10 (the predecessor of, and very similar to, 39 U.S. Code 4351) and section 14 (the predecessor of, and very similar to, 39 U.S. Code 4354) of the Post Office Appropriation Act of March 3,

1879 (20 State. 355, 358). The Postmaster General had applied those sections of the Act, and postal regulations issued in conformity therewith, to certain publications known as the Riverside Literature Series. The Postmaster General concluded that these publications, which were small books, in paper covers, issued monthly or quarterly, numbered consecutively, each number of which contained a single novel or short story or a collection of short stories or poems by the same author, and most, if not all of them contained reprints of standard works of well known authors, and each number of which was complete in itself and entirely disconnected with every other number, were not entitled to be carried in the mail as second class mail matter.

In oft-quoted language the Supreme Court held:

"But while section 14 lays down certain conditions requisite to the admission of a publication as to mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites. Under section 10 the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term. A periodical is defined by Webster as 'a magazine or other publication which appears at stated or regular intervals,' and by the Century Dictionary as 'a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself.' By section 10 newspapers are included within the class of periodical publications, although they are not so regarded in common speech. By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.' A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals and entitled to the privileges of second class mail matter. Payne v. Railway Pub. Co., 20 D.C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class.

"While it may be difficult to draw an exact lie 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.

"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,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. The reason why books of the Riverside Literature Series are issued periodically is too palpable to require comment or explanation. It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines."

Another case cited by both parties is Bates & Guild Co. v. Payne, 194 U.S. 106 (1904) which dealt with a publication known as "Masters in Music." Each monthly issue was to be devoted to one of the world's great musicians, giving thirty-two pages of engraved piano music, with editorial notes suggesting the proper interpretation, a portrait, biography and critical assessments of the musician's achievements. This case stands principally for the proposition that in applying the laws and regulations governing second class mail entry, the decision of the Postmaster General, rendered in the exercise of a reasonable discretion, even when the decision is not free from doubt, should be accepted as final by the courts because it is the Postmaster General who is vested by Congress with the power to exercise his judgment and discretion in the matter. (Id. p. 110)

The Court did say, however, that the principle had been established in Houghton v. Payne, supra, and in Smith v. Payne, 194 U.S. 104 (1904) "that books published at stated intervals and in consecutive numbers do not thereby become periodicals, even though in other respects they conform to" the second class entry requirements. the Court indicated that there would be borderline cases in which the decision of the Postmaster General, if reached in the exercise of reasonable discretion, ought not to be disturbed unless the courts are clearly of the opinion that the decision is wrong. (Id. 107-108)

Also cited by both parties was the case of Smith v. Hitchcock, 226 U.S. 53 (1912). The issue in that case was whether certain books containing stories about the central hero, Frank Merriwell, were eligible for entry as second class mail matter. The Postmaster General had determined that the books were not so eligible and the Court sustained that determination. In so doing, the Court said:

"It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law, even if it satisfies the conditions for admission to the second class set forth in § 14. Houghton v. Payne, 194 U.S. 88, 96. It is established by the same authorities, that books, that are expressly embraced in mail matter of the third class by § 17 and so made liable to a higher rate of postage, cannot be removed from that class and brought into the second by the simple device of publishing them in a series at regular intervals of time. It was suggested to be sure that the distinction was between reprints of well-known works and new matter, but we can see nothing in that; neither do we find much weight in the identity of authorship, the retention of the name of the hero through successive tales, or the ever renewed promise of further wonders in the next. All these might co-exist and yet each number might be a book, and if so it goes into the third class. 'Mail matter of the third class shall embrace books.' § 17.

"The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion if not a promise of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. But we can approach the question more profitably fro the other end, and shall have gone as far as we need when we decide whether the numbers exhibited constitute so many books. The word book also, of course, has its ambiguities, and may have different meanings according to the connection in which it is used. For purposes of copyright the common monthly magazines may be books, yet they are not so under the present § 17. As books are not turned into periodicals by number and sequence, the magazines are not brought into the third class by having a considerable number of pages stitched together. 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. It hardly would be an exception if, where the object is information and the subject-matter is a changing one, a publication periodically issued giving information for the time should be held to fall into the second class. From this point of view the Top Top Weekly and Work and Win are books. They are large enough o raise no doubt on that score; each volume is complete in itself and betrays no inward need of more, notwithstanding that, as in the highwayman stories of an earlier generation, further adventures to follow are promised at the end."

Also referred to by both parties was the decision in Payne v. Railway Co., 20 App. D.C. 581 (1903) in which it was held that the transportation guide was "information of a public character most useful not only to those immediately connected with the railroad and steamboat transportation of the country, but likewise to the traveling public." (Id. 598-599) On this bassi and for this reason, an exclusionary regulation by the Postmaster General, now no longer in effect, was held to be ultra vires and the guide was ordered to be granted second class mail entry.

In regard to the Houghton case and others, ⁹/ it is stated in the decision under reconsideration that --

"***As a whole they reached the conclusion that the word 'periodical' in the mail classification statutes required further definition and with the sole exception of the National Railway case involving the Railway Guide, the decisions have upheld the Postmaster General in his application of a narrow definition of 'periodical'. This was done despite prior administrative constructions to the contrary. Language in Houghton and the other cases should be looked at not so much in the light of the courts giving a universal definition of 'periodical' but as stating why the court believed it reasonable for the Postmaster General to conclude that the publications in question were not periodicals." (Id. 16-17)

As to whether the definition of "periodical" applied by the Postmaster General is "narrow", there is indication in the Initial Decision (p. 7) that there are "some 33,000 publications currently admitted into second-class (Tr. 13)." The magnitude of this figure suggests that there must be some flexibility and latitude exercised in the application of the requirements for second class mail eligibility.

On the question of whether the Court was undertaking to give a definition of "periodical" or simply stating why it was reasonable for the Postmaster General to conclude that the publications in question were not periodicals, the language from Houghton quoted above strongly suggests that the former objective, i.e., the formulation of a working definition of "periodical," was what the Court had in mind. The quotation begins by noting the absence of such a definition in the statute; next, dictionary definitions are given; certain illustrations, and the one exception ("railway guides"), are given; and then the Court proceeds to say --

"A periodical, as ordinarily understood, is ***." When the Supreme Court of the United States uses that kind of language, one must assume that the Court means what it says, and that it is stating what is in its view the ordinary understanding, or the definition, of the term "periodical." If the Court had some other purpose in mind, the Court had the capacity and the opportunity to so state, but it did not. Aside from the foregoing consideration, there cannot be the slightest scintilla of a doubt that in the years since Houghton was decided, it has been the purpose, desire and intent of Postmasters General, and their delegees charged with administering the pertinent postal laws and regulations, to apply the criteria announced in Houghton in determining the eligibility of publications for second class mail entry. (See footnote 12, p. 35, post.)

On page 18 of the decision being reconsidered, there is the following discussion:

"It is also, of course, profitable to look more closely at some of the cases. In Houghton, which is considered the leading case on second class mail, the court was attempting to articulate a difference between a literary periodical and a series of books containing fiction. While the opinion's primary thrust is specific to that precise subject, some of its language obviously is useful in other applications. The following language from that decision 194 U.S. 88 at 97 discussing what a periodical is, is of obvious interest here:

"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."

Conspicuous because of its omission is the first sentence of the paragraph from which the above quotation was taken, and which, as shown earlier, immediately preceded the above quotation. The missing sentence is, of course --

The fact that the Court stated these requirements in the very first sentence of its definition is an indication of the order of the importance the Court placed upon the enumerated factors in weighing the question of the eligibility of a publication to obtain or retain, as in the case of the Riverside Literature Series and FTD News, its second class mail status. Because of the omission of the sentence in question from the Postal Service Decision and because of the lack of discussion in that Decision of the factors stated in the omitted sentence, one must conclude that in arriving at the decision being reconsidered, no weight was given to those factors contained in the omitted sentence. Thus, a substantial and a very important portion of the long-standing, long-adhered-to definition of the term "periodical" was not applied to the publication under consideration in this case.

The only place in the Postal Service Decision at which allusion is made to "non-advertising matter" (presumably "articles") is found at pages 15-16, where it is stated:

"The Administrative Law Judge determined Initial Decision, p. 31 that the purpose of FTD News is to serve as a vehicle for for the membership list and that other non-advertising matter comprising no more than 5.3 per cent of the total publication is incidental only and does not affect the character of the publication. If we accept that determination, and I do, we are free to focus on the fact that we are confronted with a publication that is a directory of substantial size, reprinted and updated each month."

By this statement the Judicial Officer concurs with the Administrative Law Judge's finding that "The existence of the few articles appearing in the first section of FTD News cannot qualify it as a periodical." By so concurring, the Judicial Officer removed any basis for a finding that FTD News is a "periodical publication" because the publication fails to meet what the Supreme Court has held to be the first, and, presumably, the most important test.

It is, also, significant that FTD News is categorized in the decision under reconsideration as a "catalogue". In a discussion of the advertising character of the publication and the use to which the publication is put by Petitioner, there is the statement that--

"the conclusion is inevitable that in sending the list to its members FTDA is advertising in much the same way as a seller does in sending his catalogue listings to his clientele." (Postal Service Decision, p. 12)

Insofar as pertinent to the present proceeding, the words "catalogue" and "directory" have been defined as follows in Webster's Third New International Dictionary (unabridged), copyright 1961 by G. & C. Merriam Co.:

"catalog or catalogue. *** 1a: a detailed enumeration list: LIST, REGISTER. *** b: a group of similar or related things often standing or succeeding in order: SERIES. *** 2a: a complete enumeration of items (as of books for sale or courses of instruction in a college) arranged systematically in a pamphlet or a book often alphabetically and with descriptive details (as of price or content) accompanying each item -- see CARD CATALOG. b: a pamphlet or book that contains such a list often with other related matter ***."

"directory. 1. ***: a compilation, index, or treatise serving to direct or guide: *** d: an alphabetical or classified list containing the names and addresses of the inhabitants or organizations of a locality or the names, location, and identifying data of persons or organizations connected with a particular profession or occupation or that are subscribers of a particular service ***."

I agree that FTD News is a catalogue or a directory, but having said that, it must be pointed out that such publications are properly classified as third or fourth class mail. (See 39 C.F.R. 134.1(b)(1) and 39 C.F.R. 135.1(b))

It is clear that FTD News does not come within the definition of "periodical publication" as that term is used in postal laws and regulations or as that term is defined in what is recognized as the leading court case on the subject.

THE BRIEF OF "TELEFLORA"

The posture of this proceeding is unusual in more than one respect. The Petitioner filed a one sentence statement of opposition to the Motion for Reconsideration and Petitioner included within the sentence a request that the stay order put into effect on June 7, 1974, remain in force pending the disposition of the instant Motion.

A lengthy brief in support of its opposition to the Motion for Reconsideration has been filed, however, on behalf of Teleflora Delivery Service, Inc. (Teleflora). From a purely technical standpoint, the standing of Teleflora to participate in this stage of the proceeding is dubious, at best, since, so far as I have been able to determine from a review of the voluminous file, Teleflora and Florafax Delivery, Inc. (Florafax), in a Motion filed January 4, 1973, sought an "opportunity to argue the issue of periodicity as a question of law before the Administrative Law Judge renders his decision on that issue in the instant proceeding ***." (Underscoring supplied)

In an Order dated January 11, 1973, Administrative Law Judge David J. Knight, before whom the matter was tried, granted Teleflora's and Florafax's Motion "to intervene in this proceeding for the limited purpose of filing a memorandum of law or brief on the question of whether FTD News is a periodical publication within the meaning of 39 U.S.C. ??4351 and 4354, and for no other purpose ***." (Underscoring supplied)

Teleflora filed a Brief on March 16, 1973, and that Brief begins as follows:

"Teleflora Delivery Service, Inc. has intervened in this proceeding, in accordance with the order of the Administrative Law Judge dated January 11, 1973, for the limited purpose of filing this brief on the issue of whether FTD News is a 'periodical' ***." (Underscoring supplied)

Although Teleflora did not request leave to file a Brief before the Judicial Officer after the issuance of the Initial Decision, it is noted that in footnote 2, page 3, of the decision under reconsideration, there is the comment that Teleflora's brief to the Judicial Officer "has been very helpful in the consideration of the periodical issue." No further requests for leave to participate have been received from Teleflora.

Having thus participated to a far greater extent than was permitted or contemplated by the original grant of intervention, Teleflora's standing, if it exists at all, is subject to most grave doubt, and its present Brief could be either stricken or ignored for that reason. Out of an abundance of leniency, however, and in order to permit the widest expression of views, the filing by Teleflora, as Amicus Curiae, of a Brief in Opposition to the Motion for Reconsideration is hereby approved, the Brief is accepted and it has been considered.

Without dwelling at too great length on the Brief of Teleflora, it is predicated, in substance, on the following points:

1. FTD News is a periodical publication within the meaning of ??4351 and 4354 of Title 39, United States Code;

2. If FTD News is not a periodical publication as that term is used in pertinent postal laws and regulations, it is a "nondescript publication" as that term is used in Houghton;

3. If it is neither of the items mentioned in 1 and 2 above, the definition of "nondescript publication" should be expanded so as to include FTD News.

Teleflora urges the first of the foregoing points at, among other places, pages 7, 9 and 19 of its Brief.

It is readily apparent that FTD News is not "a periodical, as ordinarily understood" because:

1. It is not a magazine-type publication;

2. It does not contain a variety of original articles by different authors in sufficient quantity to qualify it as a "periodical";

3. The statement in footnote 15 of the decision being reconsidered to the contrary notwithstanding, there is cumulation present in FTD News in the form of the retention from issue to issue of qualified members, the addition of new members and their retention so long as they are qualified, and the addition of new services or new listings for prior existing members.

4. It has the qualities and characteristics of both a catalogue and a directory, neither of which is a "periodical".

5. It consists of frequently reprinted directory/catalogue books "***expressly embraced in mail matter of the third or fourth class and so made liable to a higher rate of postage" and which "cannot be removed from that class and brought into the second by the simple device of publishing them in a series at regular intervals of time." Smith v. Hitchcock, supra. "Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books." (Houghton, supra, at p. 98)

6. Teleflora says that all that is necessary for a publication to be a "periodical" is that it disseminate information of a public character and contain other elements

(presumably periodicity, not an excess of advertising, etc.) of a periodical. It is difficult to conceive of anything produced by any printing process which does not convey "information of a public character" (except that in the case of FTD News the "public" may not subscribe). If a Sears & Roebuck Catalogue and the Metropolitan Washington telephone directory were combined into one publication (which, broadly speaking, would be comparable to FTD News) there could be no question that an abundance of information of a public character would be found between the covers of such a publication; if it were published quarterly; and if it did not exceed the maximum allowable percentage of advertising; and if it met other technical requirements, no one would seriously insist that such a publication is a "periodical, as ordinarily understood." Crossword puzzles disseminate "information of a public character," but publications composed of crossword puzzles have been held not to qualify for second-class entry despite the fac that they complied with the other requirements concerning circulation, frequency of publication, lists of subscribers and advertising content. (Dell Pub. Co. v. Summerfield, supra). When, as with FTD News, a publication is otherwise not eligible for second class mail entry as a periodical publication, the addition of the ingredient that it disseminates information of a public character and is devoted to a special industry does not confer status as a periodical publication on that publication thereby making it eligible for second class mail entry. (Conover-Mast Publications, Inc., H.E. Docket No. 5/173 (1958))

7. Teleflora would change the Supreme Court's definition of periodical by substituting the word "information" for the word "articles." (Brief, p. 19) Whatever worth that suggestion may have, the fact of the matter is that the Supreme Court of the United States used the word "articles." In organized societies having due regard for the rule of law, it is not acceptable to change the rules to meet the needs of the moment in a particular situation.

8. Each issue of FTD News is complete unto itself. As authority for this statement, reference is made to the word of the publishers themselves as it appears at the beginning of the second section of the publication. (See p. 9, infra) If each issue of the publication is not complete within itself, then the FTDA members are receiving less than they have been promised by their Association. Monthly publication is comparable to the quarterly issuance of the postulated publication comprised of the Sears & Roebuck Catalogue and the Metropolitan Washington telephone directory (item 6, above).

9. There are other reasons why Teleflora's insistence that FTD News is not a periodical publication cannot be upheld, but the foregoing will suffice.

Turning now to the question of whether FTD News is a "nondescript publication" entitled to second class mail entry as announced in Houghton, suffice it now to say that transportation guides are the only publications ever to be so designated. There are two points to be made in connection with this portion of Teleflora's position.

1. On page 20 of its Brief, Teleflora states that the Houghton Court gave two examples of periodicals: "Periodicals devoted to 'essays upon subjects pertaining to general literature' and 'railway guides'."

I can not agree with the foregoing statement. It is clear that the Houghton court did not declare railway guides to be "periodicals". To the contrary, the Court specifically held only that railway guides "have been treated as periodicals and entitled to the privilege of second class mail matter." (emphasis supplied) In Houghton, the Court, in careful and precise language, drew a distinction between those publications previously defined as "periodicals" on the one hand, and the railway guides on the other hand, which latter publications clearly do not conform with the Court's definition, but which, despite their nonconformity, are "treated" as periodicals and granted second class mail entry. The Court's language is the direct antithesis of including railway guides within the definition of "periodical."

2. Teleflora quotes a dictum from the decision of the Hearing Examiner in National Publishing Company, Inc., P.O.D. Docket No. 3/5 (1969) to the effect that "Congress apparently accepted, as established, that transportation guides would qualify as 'periodicals'." The quotation is accurate, but, aside from the fact that it is dictum and, perhaps, does not reflect the considered opinion of its able author, I do not agree, in part for reasons given above, that Congress accepted transportation guides as periodicals. Legislative recognition has been given to the fac that transportation guides may be accepted for mailing at second class mail rates simply because they are transportation guides. (39 U.S. Code 4352(c)) Congress has provided that the Postmaster General shall enter as second class mail transportation guides despite the fact that they are not "periodicals."

Finally, there is the position of Teleflora that if FTD News is not a "periodical" or a "nondescript publication", the definition of the latter should be expanded to include publications like FTD News.

Among several things which the laws relating to second class mail entry do not need, Teleflora, by this suggestion, has identified one of them with precision. The definition, and illustrations, of "nondescript publications" must not be enlarged. The laws and regulations already in existence are difficult enough to administer. Further enlargement of the class of nondescript publications would render the application of such laws and regulations even more difficult. In the event of such enlargement, everything published periodically, and not for advertising or free circulation purposes, would be eligible for second class entry. that such a result was not, and is not, intended by Congress is obvious. (For further comment on this point see p. 34-35, post.)

Some Additional Considerations

As has been heretofore indicted, what is really involved in this proceeding is the effort to achieve the correct interpretation and application of the decisions of the courts, including the Supreme

Court of the United States, of which the leading case is Houghton v. Payne, 194 U.S. 88 (1904).

Broadly speaking, in Houghton v. Payne, the Court held that there are two categories of publications which may be carried in the mails at second class postage rates. Those categories of publications are (1) the magazine type of publication, coming within the ordinary understanding of the term "periodical," and (2) "nondescript publications," the only illustration of which cited was "railway guides." ¹⁰/

The descriptions of FTD News heretofore given, its character and the purpose for which it is designed and to which it is devoted make it clear, and I so conclude, that FTD News is not a magazine-type publication as that term is used in Houghton v. Payne.

As to whether FTD News is a "nondescript publication," it is a fact that throughout the seventy-year period since the Houghton decision, neither the Postmasters General, nor the courts, nor the Congress have sought to enlarge the definition of "nondescript publications" for the purpose of enabling other types of publications to be mailed at second class postage rates. That definition has been confined to transportation guides. It has been said before, ¹¹/ but it bears repeating, that there is a sound public policy reason for granting preferred status to a publication containing transportation information which is wanted and needed by not only the transportation industry, but also by a wide segment of the public. Not only is there no need for the general dissemination of the information in FTD News, but, also, the general public may not subscribe to FTD News, since subscriptions are sold only to Petitioner's members.

Accordingly, I conclude that FTD News is not, and ought not to be regarded as, a "nondescript publication" entitled to second class mail entry within the meaning of Houghton v. Payne, supra.

There is a final and equally persuasive reason for holding that FTD News is not eligible for second class mail entry. As indicated earlier in this decision, the Postal Service and its predecessor have attempted to adhere to the Houghton definition of "periodical." This fact is evidenced by a long list of cases extending over a period of many years ¹²/ and in regard to a wide variety of publications, some of which are not altogether unlike FTD News. Some matters relating to second-class mail qualifications are difficult to deal with because of the absence of a precise definition. That the term "periodical publication" is one of those problem areas is attested to by the decisions of th courts and the administrative bodies.

When, however, there is, as here, such a long-standing policy and such a long, unbroken line of cases applying one definition in a particular way, a variance from that application of the definition should occur only if supported by the strongest and most cogent reasons. The publication involved in this case does not provide a reasonable foundation on which to base such a variance. It has been said that "foolish consistency is the hobgoblin of little minds." ¹³/ In the present situation, however, the consistency which is required is not "foolish" because of the larger truth that "*** consistency of administrative rulings is essential, for to adopt different standards for similar situations is to act arbitrarily." ¹⁴/ To permit Petitioner to retain its second-class mail entry for FTD News after having revoked or denied such privileges in the case of so many others similarly situated, would be to act arbitrarily.

CONCLUSIONS OF LAW

1. Proper legal cause therefor being shown, the Motion for Reconsideration is granted.

2. Upon the basis of (a) the entire record in this proceeding,

(b) the language of the pertinent statutes and regulations, and (c) the court and administrative decisions on the subject, I conclude as a matter of law that FTD News is not composed of a variety of original articles by different authors and, for this and other reasons stated herein, it is not a periodical publication within the meaning of 39 U.S. Code 4351 and 4354 and postal regulations issued pursuant thereto.

3. FTD News is not entitled to retain its second class mail entry.

4. It is further determined that the Initial Decision of the Administrative Law Judge on the issue of whether FTD News is a "periodical publication" within the meaning of applicable laws and regulations was correct.

5. I find that the proposed revocation by Respondent of second-class mail privileges for the publication FTD News on the ground that it is not a "periodical publication" within the meaning of 39 U.S. Code 4351 and 4354 and section 132.22 of the Postal Service Manual (39 C.F.R. 132.2(b)) was correct and the said proposed revocation is hereby affirmed.

6. For the reasons stated herein, the Postal Service Decision dated May 24, 1974, must be, and it is hereby, vacated and set aside.

___________________

1/ Although the publication is sometimes referred to as "FTD News," the actual name appearing on the front cover is "FTD News & Membership List."

2/ A more complete statement of the reasons for the proposed revocation is set forth in the notice as follows:

The law (sections 4351 and 4354 of Title 39, United States Code; section 132.22, Postal Service Manual) provides that only "newspapers and other periodical publications" constitute mailable matter of the second-class.

In an Initial Decision dated October 3, 1973, the presiding Administrative Law Judge held that the publication does not meet the necessary statutory and regulatory requirements for second-class mail eligibility because it is designed primarily for advertising purposes and because it is not a "periodical publication" within the meaning of applicable laws and regulations.

"FTD News" does not constitute a periodical publication within the meaning of the above law. It is a directory with incidental articles of specialized business interest.

(Section 132.226, Postal Service Manual) Section 4354(c) of Title 39, United States Code, provides that publications designed primarily for advertising purposes may not qualify for second-class mail privileges. They include: (b) Those owned or controlled by individuals or business concerns and conducted as an auxiliary to and essentially for the advancement of the main business or calling of those who own or control them. The "FTD News" is owned and controlled by the Florists' Transworld Delivery Association and is operated essentially for the advancement of the main business of the Association. The subject publication is, therefore, designed primarily for advertising purposes.

The provisions of Title 39, United States Code, which are cited above have been carried forward by section 3 of the Postal Reorganization Act, Public Law 91-375, as implemented by Postal Service Orders 71-9 and 71-10, June 21, 1971.

3/ Teleflora Delivery Service, Inc. Florafax International, Inc., and National Auto Research Publications, Inc., have been permitted at various stages of the proceeding to file briefs as Amici Curiae, but, while Petitioner filed a formal opposition to the Motion for Reconsideration, a Brief in Opposition to the Motion, and setting forth arguments on the issues and merits of the case, was filed only by Teleflora Delivery Service, Inc.

4/ A successor Judicial Officer may reconsider his predecessor's decision to the same extent as the latter may have done had he remained in office. National Association of Trailer Owners v. Day, C.A.D.C., 1962, 299 F.2d 137 (footnote 5, Order of June 7, 1974, herein; see, also, Order of August 6, 1974, herein.)

5/ The total number of pages shown reflects no deductions for those pages only part of which contain narrative material or those pages comprised, in whole or in part, of photographs.