In the Matter of the Petition by DIRECT MAILING AND PRINTING COMPANY 520 Fourth AVenue, S.E., Cedar Rapids, Iowa 52401 Denial of Application for Second-Class Mail Privileges for "THE BEST OF THE OPEN LINE" P.S. Docket No. 3/128 June 24, 1975 William A. Duvall Chief Administrative Law Judge Ben Otten, 520 Fourth Avenue, S.E., Cedar Rapids, Iowa, for Petitioner Grayson M. Poats, Esq., Law Department, U.S. Postal Service, Washington, D. C., for Respondent
On August 21, 1974, an application for second-class mailing privileges was filed on behalf of the publication known as "The Best of the Open Line". This application was signed by Benny J. Otten over the place where it is indicated that the publisher's signature should appear and, in addition, Mr. Otten's title is shown as general manager. In the course of time, this application and the publications which were filed with it came to the attention of the Director of the Division of Mail Classification in the Bureau of Finance of the United States Postal Service, who is the Respondent in this case. On January 2, 1975, the Respondent advised Mr. Otten and other interested persons that it was proposed to deny the application for second-class mailing privileges for the subject publication. In fact, the letter of January 2, 1975, is addressed as follows: "The Open Line, WMT Radio, Paramount Theatre Building, Cedar Rapids, Iowa 52406".
Henceforth, WMT Radio will be referred to as the Petitioner in this case for reasons which will be stated later. The ground for the proposed denial as stated in the letter of January 2, 1975, was that the publication was not, in the view of the Respondent, a periodical publication within the meaning of the postal laws and regulations governing eligibility for second-class mailing privileges.
On January 4, 1975, a letter was written to Mr. Benny J. Otten, Manager, Direct Mailing and Printing Company, 520 Fourth Avenue, S.E., Cedar Rapids, Iowa 52401, responding to a letter dated December 18, 1974, which Mr. Otten had written with respect to the publication "The Best of the Open Line". In this letter, Mr. Otten was advised that in the view of the Respondent, the publication is designed primarily for advertising purposes. And for this reason, additionally, the publication is not eligible for entry into the mail as second-class matter.
There was further correspondence between the parties and then on March 23, 1975, a third letter was written by the Respondent, this time addressed to Mr. Louis Van Nostrand, Executive Vice-President - General Manager, Paramount Theatre Building, Cedar Rapids, Iowa 52405. In this letter the Respondent stated the position that the publication, "The Best of the Open Line", appears to Respondent to serve as an auxiliary to and essentially for the advancement of the main business of the publisher, which in this case is the operation of a radio station, WMT, in Cedar Rapids.
There has been, obviously, confusion as to the identity of the publisher in this case, and this confusion results from statements appearing on the application for second-class mailing privileges, and from the sources of correspondence which have been received by the Respondent from persons interested in obtaining second-class mailing privileges for this publication. Mr. Otten states that the application was filled out in accordance with instructions given to him by personnel of the post office in Cedar Rapids, but he did agree that in turn he, Mr. Otten, had given to the personnel of the post office in Cedar Rapids information on which postal personnel based their advice to Mr. Otten.
There is in existence and there has been received in evidence as Respondent's Exhibit No. 9 an agreement dated September 1, 1974, between WMT, Inc. and Direct Mailing and Printing Company, referred to in the agreement as "DMP". Under this agreement, DMP is to take over the functions of printing, issuing and mailing the different issues of the publication under consideration today. In return for this function and in consideration of this agreement, all of the subscription fees that are received in connection with this publication are to be the property of DMP.
Testifying as a witness for the Petitioner in this case was Mr. James Ward, Jr., who is in charge or promotions and who is the advertising manager of WMT. He has been associated with that station for a period of 14 years. He was associated with the radio program, "The Open Line", in the period of its inception in 1963. Mr. Ward stated that the publication, "The Best of the Open Line", began at about the same time that the broadcast of the program of "The Open Line" began and that as a publishing venture itself, the issuance of the publication was not a financial success. However, as an adjunct to the program and in terms of the promotion of good will for the program, it was believed that the continued issuance of the publication was worthwhile. In an effort to reduce its costs, the radio station then entered into this agreement of September 1, 1974, under which, in effect, DMP simply became the printing agent and the mailing agent for the radio station. The consideration going to DMP was the entire ownership of the fees that were collected for the publication. The benefit flowing to the radio station was the continued generation of good will for the program, "The Open Line", and, generally, for the radio station itself.
It was the witness's testimony that if it were not believed that the issuance of this publication produced good will, which many times may be translated into real income, then the radio station would no longer have any desire or motivation to continue seeing to it that the publication is issued.
This is a situation that has been encountered by the Postal Service over a long period of years and, as a matter of fact, there was a somewhat similar situation which arose almost a hundred years ago, in 1877. The Postmaster General described the situation and asked the then Assistant Attorney General of the United States for his opinion in regard to the matter and, briefly summarizing, this is the situation that was described. There was an attorney in Washington who specialized in the collection of claims for and on behalf of veterans. This attorney then undertook to publish a document which he called a newspaper, and in this newspaper he, from time to time, would insert subtle notices that he was in the business of prosecuting veterans' claims. The Postmaster General asked the Attorney General's opinion as to whether this publication was entitled to be carried in the mail as second-class matter. On March 7, 1877, the Assistant Attorney General wrote a lengthy reply to the Postmaster General in which he said in part the following:
"I am not holding that a lawyer, mechanic, or merchant, a claim agent, or physician may not edit a legitimate newspaper, entitled as such to the pound rates. I do hold, however, that when a person (engaged in any of the trades or professions named, or others of similar character) undertakes, in addition to and in connection with such occupation or profession, to publish a newspaper, having for its principal object the promotion of the particular class of business in which its editor or proprietor is engaged, conveying through its columns the superior facilities of its editor or proprietor for the transaction of that particular business in such a manner as to impress even a casual reader with the fact that the entire influence of the paper is devoted to forwarding the professional interests of its editor or proprietor, that such a paper falls within the rule. Nor does it materially alter the case that such a paper contains a large proportion of reading matter of interest to the general public.
"It is not the amount of space occupied by what are ordinarily denominated advertisements that brings it within the rule. Seventeen-eighteenths of the paper in question may, as the petitioner alleges, be devoted to reading matter. The rule has been held, and I think correctly, to apply to a paper filled with reading matter other than advertisements, containing not a single advertisement in the ordinary sense of that term, for the reason that it made the simple announcement in a marginal form, that it was published by a firm engaged in a certain trade, as, for instance, 'this paper is published by John Smith, the grocer.' The most casual examination f the paper under consideration discloses the interest of its publisher in its circulation. He may have, as he says, tens of thousands of subscribers, and all the paraphernalia of a regular newspaper. His paper may be read, and doubtless is read, by thousands of ex-soldiers and authors having claims, real or prospective, against the Government, but the paper is so apparently, palpably, and notoriously devoted to forwarding the private interests of the proprietor as an attorney and claim agent that I can not see how we can avoid the conclusion that the paper is devoted, primarily, to advertising his business. Suppose, instead of seventeen-eighteenths, as is claimed, ninety-nine one-hundredths of the space were devoted to matter relating principally to the subject of pensions and other claims, and the paper should contain a simple announcement in some peculiar and attractive form that it was issued by 'John Smith, attorney and counselor at law, and solicitor of claims and patents,; is it not apparent that it would fall within the rule?"
The publication involved in this case does not always contain the same number of pages, but Exhibit Nos. R-1 through R-4 are copies of various issues of the publication. At the top of each issue is the title, "Best of the Open Line", and underneath the illustration at the top is the notification, "Published monthly as a public service to its listeners by WMT RADIO/600 Cedar Rapids, Iowa." On the back page of each issue there is the following language:
"The Open Line
WMT RADIO
PARAMOUNT THEATRE BUILDING
CEDAR RAPIDS, IOWA 52406"
Between the matter that has been read as appearing on the first and last pages, there are primarily recipes for various dishes, most of which, incidentally, look extremely delicious.
When the publication that is involved in this proceeding is compared with the publication that was being described by the Assistant Attorney General in 1877 in his opinion to the then Postmaster General, it can be seen that the situations are very, very closely similar. The ruling in regard to the publication presently before us must be the same as the ruling that was made almost a hundred years ago. The ruling must be that the publication is designed primarily for advertising purposes because in truth and in fact, the publication does serve as an auxiliary to and essentially for the advancement of the main business of the publisher and in this connection it must be concluded, it can only be concluded, that the publisher, the beneficial owner of this publication, is Radio Station WMT in Cedar Rapids.
Radio Station WMT receives by means of the program,"The Open Line", numbers of recipes from persons, principally women, within the area served by WMT. These recipes are received in great numbers. From the many which WMT receives, it selects certain of the recipes and it has them typed and sent to Direct Mailing and Printing Company, which, in turn, prints the recipes in the publication and mails them to the subscribers. Direct Mailing and Printing Company may include in the publication only that material which it receives from Radio Station WMT.
On the basis of these facts, which were stated clearly by the witnesses for the Petitioner, the only conclusion that can be reached is that WMT is the true publisher and it certainly follows, also based on the credible testimony of Petitioner's witness, that the publication of this brochure is beneficial to the radio station in terms of the generation of good will and if it were not so beneficial, then publication would cease. There remains to be considered the one issue and that is whether the publication, :The Best of the Open Line", is a periodical publication within the meaning of postal laws and regulations governing second-class mail eligibility.
The leading case on this point, as has been pointed out not only in this proceeding but in many others, is that of Houghton v. Payne , 194 U.S. 88 which is a 1904 case. In that case, the Supreme Court in discussing a provision of law, which is very much the same as the provisions of law under which this proceeding is brought today, pointed out that while the law mentions "periodical" publications, it does not define that term. The Court then proceeded to define the term as follows:
"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."
The Court's discussion continues but that is the portion that is pertinent to this case. The listing of recipes in a printed document giving the ingredients, telling how much of each ingredient is to be used and giving direction as to when and how to mix them and then cook them, does not, in my opinion, meet the definition given by the Supreme Court of articles and since these recipes are not articles, the publication which is made up almost exclusively of these recipes does not meet the Supreme Court's definition of a periodical publication, and that is the definition which has been followed by the Postal Service for nearly 70 years. This has been cited time after time and relied upon not only by the Postal Service but the courts themselves have cited and quoted from the Houghton v. Payne case. Thus, the definition given in that case certainly has withstood the test of time and it is still valid and still adhered to.
In conclusion, it is found that the publication, "The Best of the Open Line", is devoted primarily to advertising purposes in that it serves as auxiliary to and essentially for the advancement of the main business of the publisher, Radio Station WMT in Cedar Rapids, Iowa, and it is also concluded that the publication is not a "periodical publication" within the meaning of the postal laws and regulations governing second-class mail eligibility.
It follows, therefore, that the decision of the Respondent to deny the application for second-class mail privileges for the publication involved in this proceeding was correct and it is sustained.
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