In the Matter of the Petition by ) November 4, 1975 ) NATIONAL AUTOMOBILE DEALERS USED ) CAR GUIDE COMPANY ) 2000 K Street, N.W. ) Washington, D. C. 20006 ) P.S. Docket No. 2/183 ) Proposed Revocation of Second-Class ) Mail Privileges for "NADA THE OFFICIAL ) USED CAR GUIDE" ) APPEARANCES: John M. Burzio, Esq. James H. Heller, Esq. Hydeman, Mason & Goodell 1225 - 19th Street, N.W. Washington, D.C. 20036 for Petitioner Grayson M. Poats, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Respondent Lussier, Edward F.
This case is before the undersigned on appeal by the Petitioner herein, National Automobile Dealers Used Car Guide Company, from an Initial Decision upholding the proposed revocation of second class mail privileges for the Petitioner's publication "NADA Official Used Car Guide". The Initial Decision concluded that the publication was not a periodical within the definition set forth in Houghton v. Payne, 194 U.S. 88, or a nondescript publication entitled to be treated as a periodical such as the railway guides. It also ventured that the publication was not a newspaper. Petitioner thereafter moved for a reopening of the record on the newspaper issue on the basis that it was raised as an issue for the first time in the decision. This motion was denied by the Administrative Law Judge as beyond his authority under the applicable Rules of Practice in such proceedings, 39 Code of Federal Regulations, Part 954. 1/
Petitioner then moved that the Judicial Officer direct a reopening of the hearing, or, in the event of denial of that motion, extend the time for filing the appeal brief. Petitioner was granted the extension of time in which to file its brief on appeal and its motion for reopening was held in abeyance to be considered at the same time the appeal was considered.
The issue of whether the publication is a newspaper was never pleaded, tried or argued by the parties. I consider the motion for remand to retry the case on this issue controlled by the Postal Service Decision in National Auto Research Publications, Inc., P.S. Docket No. 2/131(Oct. 29, 1975). Petitioner could have defended against the proposed revocation of its second-class privileges for its publication on the basis that it considered its publication to be a newspaper if that was its belief. As Petitioner's motion indicates, its approach to the trial and argument would have been different in that event. Presumably so would the Respondent's. This might be said in any case where the decision is premised on an issue not raised in the proceedings. For the reasons stated in National Auto Research Publications, Inc., supra, the newspaper issue is untimely and the motion for remand is denied.
Petitioner has taken exception to various findings of fact in the Initial Decision as well as to the failure to make other findings of fact proposed by Petitioner. Many of these exceptions relate to the newspaper issue and are thus immaterial to the decision on appeal. Petitioner takes exception to all of the conclusions of law in the Initial Decision.
Petitioner's first exception is to the failure to find the facts set forth in its proposed Findings of Fact paragraphs 6-9. These relate to a more detailed explanation of the background summarized in Finding of Fact 6 of the Initial Decision regarding the use of the Official Used Car Guide as an instrument of Federal regulation and price control over the years. The summary is sufficient for purposes of the decision and the exception is disallowed.
Petitioner's second exception relates to Findings of Fact 11 and 13 for which Petitioner would substitute the detailed findings in its proposed Findings of Fact 23 through 31 as an accurate description of the methods and sources used in preparing the Official Used Car Guide. Petitioner blames the failure to describe in greater detail the manner in which the Official Used Car Guide is prepared for the ultimate conclusion in Finding of Fact 14 distinguishing the Official Used Car Guide from Black Book which was involved in National Auto Research Publications, Inc. The validity of the distinction becomes immaterial in view of the Postal Service Decision, supra, reversing the Initial Decision in the Black Book case. This exception is disallowed as is
Petitioner's next exception which is to the second sentence of Finding of Fact 14 distinguishing Black Book from its publication.
Petitioner takes exception to Finding of Fact 15 insofar as it treats as editorial content only the article appearing in the first eight pages of the Official Used Car Guide. It contends that much of the matter is "editorial content" in that it consists of edited factual data regardless of its printed format being one of symbols and prices rather than narrative prose. Finding of Fact 15 is clearly related to the absence of written articles by different authors and as such as fully supportable. The exception is disallowed.
Petitioner's last exception to the Findings of Fact is to the failure to include its proposed Findings 21 and 22 and 40-43. Proposed Findings 21 and 22 relate to the practical reasons for printing the Official Used Car Guide in the listing format rather than narrative format. Although the record supports the proposed findings, they are immaterial to the result reached. Its proposed Findings 40-43 which relate to the opinion testimony of the mail classification specialist are overbroad and also immaterial. This exception is accordingly disallowed.
Petitioner's exceptions to the Conclusions of Law insofar as they relate to the "periodical" issue are premised upon a rejection of past administrative decisions strictly construing Houghton v. Payne, 194 U.S. 88 (1904), such as the Amended Postal Service Decision in Florists' Transworld Delivery Association, P.S. Docket No. 1/167, cited in the Initial Decision, which has since been upheld on judicial review (See Teleflora Incorporated v. United States Postal Service, Civil Action No. 75-228, U.S.D.C., D.C., Order June 25, 1975). After reviewing the arguments made in Petitioner's appeal brief I find myself in agreement with the conclusion reached by the Administrative Law Judge that the Official Used Car Guide is not a periodical within the Houghton v. Payne definition. Nor do I see a sound basis for extending to the publication here in issue the unique history of treatment of transportation guides as nondescript publications entitled to second class mail privileges. Petitioner's exceptions to the conclusions of law are accordingly disallowed and the conclusion that Petitioner is not entitled to second class mail privileges is upheld.
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