In the Matter of the Petition by NATIONAL TRACK AND FIELD HALL OF FAME OF THE UNITED STATES OF AMERICA, INC., 1524 Kanawha Boulevard, Charleston, West Virginia 25311 Denial of Application of Second-Class Mail Privileges for "HALL OF FAME NEWS" P.S. Docket No. 3/136 May 30, 1975 William A. Duvall Chief Administrative Law Judge Thomas V. Flaherty, Esq., Kay, Casto & Chaney, 1616 Charleston National Plaza, Charleston, West Virginia, for Petitioner Arpad de Kovacsy, Esq., Law Department, United States Postal Service, Washington, D. C., for Respondent Before : William A. Duvall , Chief Administrative Law Judge
The National Track and Field Hall of Fame of the United States of America, Inc., of Charleston, West Virginia, the Petitioner in this proceeding, filed application for second-class mailing privileges on August 22, 1974, for the publication known as the "Hall of Fame News."
This matter, in the course of events, was assigned for examination by a Mail Classification Specialist in the Office of the Director of Mail Classification, Finance Department, United States Postal Service, the Respondent in this proceeding.
On January 8, 1975, the Petitioner was notified that Respondent proposed to deny this application for second-class mail privileges because in the view of the Respondent the Petitioner did not meet the requirements or the definition of a strictly professional society which was the basis on which the Petitioner had applied.
In addition, the Petitioner had also indicated that it was applying as a strictly historical society. There was some correspondence between the parties in regard to this matter until finally, on April 16, 1975, the Respondent advised the Petitioner that it did not regard the Petitioner as being either a strictly professional society or a strictly historical society. (39 U. S. Code 4355(a)(8); 132.23 P.S.M.) In this final communication which was received in evidence as Exhibit R-4, there is the following paragraph:
"For postal purposes, a strictly historical society is considered to be an organization the primary purpose of which is to furnish the resources to discover, collect and systematically record the history of civilization or a particular segment thereof. Such a society should provide for the preservation of such material and for its accessibility to the members of the society and the general public. Furthermore, a strictly historical society should be engaged in extending educational services through the production of published matter, by holding regular meetings, by presenting addresses and lectures or by using mass media."
Appearing as a witness on behalf of the Petitioner in this proceeding was Dr. Jack Rose, the Director of the Respondent organization. Introduced through Dr. Rose as Petitioner's Exhibits 1 and 2, respectively, were the Certificate of Incorporation of the Petitioner, dated June 6, 1974, and the Constitution and Bylaws of the Petitioner.
In paragraph III of the Certificate of Incorporation the objects and purposes of the corporation are stated to be as follows:
"(a) To acquire and preserve, for the public, real estate situate in or near the City of Charleston, Kanawha County, West Virginia, for the establishment, construction and operation of a National Hall of Fame of Track and Field complex, and to devote the same exclusively to charitable, scientific and educational purposes.
"(b) To make the said property available for (i) the development and maintenance of a National Hall of Fame of Track and Field museum, athletic complex and related facilities which will foster and promote in the public a greater interest in and appreciation of track and field; (ii) the exhibition and display of awards, accomplishments, memorials, and other attractions honoring individuals in the sport of track and field, and thereby fostering the public interest, appreciation and understanding of the sport of track and field; (iii) the stimulation of a greater interest in the sport of track and field in institutions of learning and to educate the public as to the healthful and otherwise beneficial aspects of said sport; and (iv) such other activities of public interest and benefit as may from time to time be accommodated thereon."
In Section 4, Article III of the Bylaws there is the following sentence. "The Annual Meeting of the Corporation shall be held open to Board of Governors in each year at such time and place as may be designated by the Executive Committee."
Also received in evidence were Petitioner's Exhibits 3, 4, and 5 which are the August, October and December, 1974, issues of the publication named the "Hall of Fame News."
These issues of this publication describe events that occurred at the induction of the first group of sports stars into the Hall of Fame. They also describe events in the sport of track and field that are about to, or which have taken place, and they state the aspirations and plans of the group for the future, such as the printing of the plan of the building, which is to replace the temporary headquarters of the organization.
Dr. Rose testified that there are at the present time some two hundred fifty historical items in the temporary quarters of the organization, and they are being catalogued so they may be easily identified and located in the future.
The indication was that the organization is running out of space in its temporary quarters and is in need of new and more spacious quarters. In this connection, Dr. Rose pointed out that under legislation which recently has been enacted by the Legislature of the State of West Virginia, $850,000 would be provided either to, or for the use of, this organization for the construction of a new building to house its displays and for its other activities.
In the first induction, which was previously mentioned, twenty-six persons were inducted into the Hall of Fame. This induction does not necessarily mean these individuals are members of the organization, but they are honorees of the organization.
The plans are to develop other subjects and data with regard to other persons prominent in the track and field activities. It is an ongoing process. For example, it is projected there will be developed and placed in book form a history of track and field events of the Olympic Games from the time of their inception to the present, and this data will be kept up to date as time goes by.
Some of the memorabilia of the various starts in the world of track and field are enclosed in glass in the headquarters of the organization in order that they will be permanently preserved. In addition to these displays, the organization uses photographic slides, movie films, and videotapes in preserving records of various sports events.
In terms of educational activities, these types of communications media are used for presentation before school groups, service clubs, sports critics, conferences, and the like. In addition, there is evidence in the record that a program having to do with the Petitioner in this case has been broadcast over the educational television network and that it has been, or is, scheduled for telecast in eleven states and twenty-four cities.
The headquarters of the organization is located in Charleston, West Virginia, on one of the main streets in the city which also is a state highway. The hours in which the headquarters are open are from 9 to 5 on Monday through Friday, and the building may be opened to individuals or groups, on request, on weekends. The headquarters of the organization are open to anyone who cares to enter.
The organization has conducted educational clinics of two types. Some of the educational clinics are devoted to technical matters relating to track and field, and others of these clinics have been of the purely historical type to tell of the occurrence of important events in the history of track and field.
Received in evidence as Petitioner's Exhibit 8 is a flier which is an announcement in the Pepperdine University School of Continuing Education of a one unit course consisting of fifteen hours of instruction on the subject "Profile of the Olympic Games, Past, Present, and Future."
In addition, there was received in evidence as Petitioner's Exhibit 9 a copy of the Arpil 20, 1975, issue of the Sunday Gazette-Mail, a newspaper published in Charleston, West Virginia, in which there is an announcement that at the Garnet Career Center, in Charleston, the Petitioner would sponsor a class in the Profile of the Olympic Games, Past, Present, and Future between the dates of April 30 and May 1, 1975.
Dr. Rose testified that the organization is young and, by dint of necessity, much of the time of its Director is spent in organizational matters. As time goes by and the organizational matters tend to reach a plateau, more time will then be available for devotion to the historical facet of the organization.
Appearing as a witness for Respondent in this proceeding was Mr. Earl B. Hohbein who is a Mail Classification Specialist in the office of the Respondent. Mr. Hohbein made reference to a ruling by the Internal Revenue Service which sets forth the basis on which that organization makes a judgment as to whether an entity may qualify for exemption from federal tax as a charitable, religious, scientific, testing for public safety, literary, educational, or other organization of similar purposes. The word "historical" is not mentioned.
In this ruling, which is related to the Internal Revenue Code Section 501 (c) (3), there are the following statements:
"The requirement that your organization's purposes and powers must be limited by the articles of organization is not satisfied if the limitation is contained only in the bylaws or other rules or regulations. The requirement is not satisfied by statements of your organization's officers that you intend to operate only for exempt purposes."
It must be pointed out that this regulation, so far as I am and have been made aware by Respondent, has no relation whatever to the eligibility of the publications of the named types of organizations for second-class mail purposes.
Another point that comes to mind is that if the Postal Service is going to rely on this kind of a regulation in determining whether the publication of an organization is entitled to be admitted to the mail as the publication of a historical, or any other kind, of society, the Postal Service has the duty, and I think the legal requirement, to so advise persons by publishing in the Federal Register a notification that this standard or test, as the case may be, is going to be applied. The publishers are entitled to know the requirements they must meet.
Respondent's witness testified that he had, in connection with his work on this case, contacted another organization that bears the name the District of Columbia Historical Society. This society, however, has never applied, so far as the witness was aware or at least as far as this record shows, for second-class mail privileges, so what decision might be reached in the case of a publication of that organization is not known and would have to be speculation as of this time.
Mr. Hohbein testified that the testimony in this proceeding by the Petitioner had no effect on his view that the publication is not entitled to second-class mail privileges as a strictly historical society. Respondent's witness so testified despite the fact that he answered affirmatively when he was asked, item by item, whether the organization of the Petitioner complied with the requirements that are set forth in the definition stated in the third paragraph of the letter of April 16, 1975, from the Respondent to the Petitioner, which letter in turn was written by the witness. The witness said that taking these items individually the Petitioner's organization complied with each and every one of them, yet, when viewed as a whole, the Petitioner's organization still was not in compliance with the requirements of the Postal Service for a historical society.
It seems to be only fair that when an applicant for second-class mail privileges is initially denied those privileges; and he seeks information as to what he must do to be qualified for such a permit; and when the applicant meets all of the items in the definition, such an applicant should be awarded the permit he is seeking. Any other result is incongruous, to say the very least.
On the basis of the evidence that has been received in this proceeding, I find as a matter of fact that the National Track and Field Hall of Fame of the United States of America, Inc., is a strictly historical society. Even if one uses the definition, or the yardstick, set forth by the Internal Revenue Service it still seems that this Petitioner would meet the requirements because not only does the Petitioner possess the authority to engage in certain activities under its charter and bylaws, but, also, one looks in vain to find a prohibition in those bylaws which would prevent this Petitioner from performing as a strictly historical society.
In addition to the foregoing fact, it is not necessary to rely only on the statements of the organization's officers for evidence as to the purposes to be served by this organization. A look at its facilities and examination of its activities are more convincing than anything that appears in its bylaws or in its Certificate of Incorporation or in any other such document. The activities of the organization clearly indicate that it is a historical society within the definition used by Respondent and within the meaning of applicable postal laws and regulations, and that it will become more so as time goes by.
Some mention was made of the fact it has not had regular meetings. How many regular annual meetings can an organization have when it has been in existence only nine months? The Constitution and By-Laws clearly provide for annual meetings.
In conclusion and as a matter of law, it is concluded that the Petitioner in this case is entitled to be issued a second-class mail permit with respect to its publication, the "Hall of Fame News."
It follows that, to the extent indicated, the proposed denial of the application for second-class mail privileges issued by the Director is set aside.
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