In the Matter of the Petition by	) October 17, 1975
					)
 SOUNDINGS NORTHWEST 			)
 FM and Fine Arts Guide 		)
 Post Office Box 1062 			)
 Bellevue, Washington 98009 		) P.S. Docket No. 3/97
					)
 Denial of Application for Second- 	)
 Class Mail Privileges for 		)
 "SOUNDINGS NORTHWEST" 			)

 APPEARANCES:				James A. Middleton, Publisher, pro se
					Arpad de Kovacsy, Esq.
					Law Department
					United States Postal Service
					Washington, D.C. 20260
					for Respondent
					
 Lussier, Edward F.  

This case is before the undersigned on an appeal by Soundings Northwest, the Petitioner herein, from an Initial Decision by Chief Administrative Law Judge William A. Duvall.

The Initial Decision concluded that the publication is not a periodical publication entitled to second-class mail privileges and upheld the decision of the Manager of the Mail Classification Division, Finance Department, of the United States Postal Service, which denied Petitioner's application for second-class mail privileges.

Petitioner has raised what it terms are "some minor corrections" in the findings of fact describing the publication. These items are minor and immaterial to the appeal as they are clearly insufficient to change the character of the publication into one generally recognizable as meeting the test of a "periodical" set forth in Houghton v. Payne, 194 U.S. 88.

The three basic exceptions Petitioner takes to the Initial Decision are to the lack of what it terms any informative discussions in the Initial Decision to its arguments that Soundings Northwest is a newspaper; that it has inherent periodicity; and that program guides are given special status as periodicals in the Postal Service regulations. Petitioner covers the first two contentions in succinct one paragraph arguments in its appeal brief. Petitioner's argument on the newspaper contention is that it qualifies because it communicates to the public intelligence of passing events in both FM programming and in exhibits and performances in the art world and that there are newspapers which are published on a monthly basis. Respondent, while maintaining in its reply brief that Soundings Northwest is not a newspaper, objects to the propriety of raising the issue since it was never mentioned in the pleadings or in the testimony and only brought up as an afterthought in the closing argument. A review of the record indicates the correctness of the Respondent's position. See the discussion in Ralph Petillo, P.S. Docket No. 3/132, regarding the untimeliness of matters brought up for the first time in oral argument.

The second contention of "inherent periodicity" of the publication while not discussed as such in the Initial Decision was obviously rejected as the proper test of a periodical under Houghton v. Payne. For the most recent decision confirming that viewpoint see William R. Good, P.S. Docket No. 2/123.

Petitioner's third contention relates to a section of the Postal Service Manual which exempts from the requirement for a list of paid subscribers various publications, including program announcements or guides published by an education radio or television agency of a state or political subdivision thereof or by a nonprofit educational radio or television station. Petitioner does not claim to fall within the purview of that section as it is a commercial enterprise. It does not follow from this section of the manual that commercial program announcements or guides are to be considered a special class entitled to recognition as periodicals. Petitioner has not shown, and my independent review has not revealed, that the legislative history of this section of the manual, picked up from 39 U.S.C. § 4355, contemplated any such conclusion.

Petitioner's exceptions to the Initial Decision have been reviewed and are disallowed. The Initial Decision is hereby affirmed.