In the Matter of the Petition by WILLIAM B. CECIL, Grant, Bushnell and Company, P. O. Box 249, Pawling, New York 12564, Denial of Application for Second-Class Mail Privileges for "THE NATIONAL COUNTERFEIT DETECTOR" P.S. Docket No. 4/101 February 17, 1977 William A. Duvall Chief Administrative Law Judge William B. Cecil, Editor and Publisher , 370 Lexington Avenue, New York, New York, Prose Gerald E. Cerasale, Esq. Law Department United States Postal Service Washington, D. C., for Respondent Before : William A. Duvall , Chief Administrative Law Judge
This case was initiated when William B. Cecil of Pawling, New York, appealed from a ruling of the Manager, Mail Classification Division, Finance Department, United States Postal Service, to the effect that Mr. Cecil's application for second-class mail privileges for the publication "National Counterfeit Detector" was denied. The reason stated in the letter of denial was that, in substance, the publication is not a newspaper or periodical publication within the meaning of the applicable second-class mail laws and regulations and, therefore, it is not qualified for second-class mail privileges. More specifically, the directive stated that the reason for the denial was that the publication does not contain a variety of original articles by different authors.
As is the case in so many of these types of proceedings, the ruling of the Postal Service was based upon the definition of a periodical publication which is found in the decision of the Supreme Court of the United States in the case of Houghton v. Payne , 194 U.S. 88 at page 97. Here the Court made the following statements:
"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 number 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."
That paragraph in the decision continues, but that is sufficient for the purpose of this hearing.
There were introduced in evidence a number of the issues of the publication under consideration. Those issues were identified as Respondent's Exhibits 2 through 11, with an additional copy being identified as Exhibit X-1.
In reaching a determination in this case it is necessary to measure the characteristics of this publication against the qualifications established in the Supreme Court's decision, a portion of which has just been read. There is disagreement with the applicability of that decision in these types of proceedings and that point will be discussed later in this decision. But for present purposes it is necessary to examine the publication for which application has been made for second class privileges.
Beginning with Issue No. 2, Exhibit No. 2, which is the January, 1974, issue, there is a section which begins on the inside of the front cover consisting of six pages in which are listed new counterfeits that have become known since the publication of the next earlier issue, which according to this plan of publication, was, or would have been, December, 1973. This is followed by a listing of counterfeits of the one dollar denomination, then five dollar denomination, and ten dollar denomination, from pages 6 through 21.
The next section of the publication is entitled "Index to Counterfeits," and that extends over a period of slightly more than two pages. This is followed by a two-page article bearing the title "Detecting the Counterfeit." Then the listing of the different counterfeit notes resumes on page 26 and continues throughout the remainder of the 45 pages of the publication.
I have prepared a table which sets forth a comparable statement of contents for all of the other exhibits which were mentioned. But it is not necessary to go through this list in detail and to do so would unduly prolong this proceeding, so I shall summarize the findings made by an examination of this publication.
The new material in each publication ranges from three to six pages with this particular division of the publication taking up four pages in seven of the publications. There is one issue, Exhibit No. 11, which has only three pages of new material. There are two issues, Exhibit Nos. 2 and X-1 which have six pages of new material. And there is one issue, Exhibit No. 9, which has five pages of new material.
All of the issues of the publication, except X-1, contain 45 pages excluding the front and back covers. X-1 has 49 pages excluding the front and back covers.
Exhibit 2 contains an article entitled "Detecting the Counterfeit." This article appears in all of the rest of the issues except Exhibit X-1 and it consists of two pages.
Beginning with Exhibit 3 there is an additional article which is one page in length and which appears under the heading "Instructions." This article appears in Exhibits 3 through 8.
In Exhibit 9 there are two pages that may be considered as containing an article. The same is true of Exhibit 10. In Exhibit 11 there are four pages that may be said to contain an article. Incidentally, all of these are repetitious of previous articles. And in Exhibit X-1 there is an article on the inside of the front cover entitled "How to Identify Counterfeit Currency."
The question now is whether the material within the covers of this publication is such that it could be called original articles by a variety of authors as required if one adheres to the Houghton v. Payne definition. The answer to that question has to be in the negative for reasons which follow: By far the vast bulk of the publications consists of lists of various kinds. Lists are not, and never have been, regarded as articles, and the fact that these lists are substantially the same from one issue to another prevents their being regarded as original - even if they were articles.
It was the testimony of the publisher that only about five percent of new material appears from one issue to the next, which necessarily means that about 95 percent of the material in the issues is repetitious.
It was also the statement of the publisher that the content of this publication represents his own individual work product. Therefore, there is no content which could be said to be the work of different authors. So that if one adheres to the Houghton v. Payne definition, one is impelled to the conclusion that this publication, which is admittedly a valuable publication and contains information of a public character, is not entitled to be carried in the mails as second-class mail matter.
The publisher had many things to say with respect to the Houghton v. Payne decision and to the manner of its application by the Postal Service. The publisher is obviously a gentleman who is accustomed to using the tools of words and he uses the tools exceptionally well.
He has described Houghton v. Payne as "obscure, outdated and antiquated." Unfortunately, the courts that have ruled on this matter thus far have not so regarded the definition in Houghton v. Payne . Three fairly recent cases lead to the last stated conclusion. One such case was Teleflora, Inc. v. The United States Postal Service , Civil No. 75-288 decided by the United States District Court for the District of Columbia, June 25, 1975. Another such case was that of National Auto Research Publications v. The United States Postal Service, et. al. , Civil No. 76-766 decided by the United States District Court for the District of Columbia, December 20, 1976. A third such case was that of The Institute for Scientific Information v. The United States Postal Service , No. 75-3528 decided by the United States District Court for the Eastern District of Pennsylvania on June 15, 1976. In connection with the last-mentioned case, it is now on appeal to the United States Court of Appeals for the Third Circuit, so I cannot state at this time what the eventual outcome of that case will be. But nevertheless, to this date, courts which have had occasion to review the definition established by the Supreme Court in Houghton v. Payne , and to review the manner of the application of that decision by the Postal Service, have been unanimous in their upholding of the definition and its manner of application. Whatever happens, it is hoped that, if and when the Houghton definition is modified or abolished, whoever does that will provide an adequate substitute for it, if the Postal Service is to remain in the business of classifying material as being eligible for second-class mail privileges as they now exist.
If one undertakes to formulate a definition of second-class matter under the present regulatory framework, one is hard pressed to come up with a different definition which is sufficiently understandable to be capable of reasonable application. However, the applicant in this case, the petitioner-publisher, has provided what he says should be an adequate yardstick for measuring whether publications are eligible to be entered in the mails as second-class matter, and he referred to his criteria as the three "P's": first, the publication should be fully p aid; second, the publication should possess the quality of p eriodicity, being published at regular intervals (presumably, as frequently as four times a year in conformity with the present definition, or perhaps he had in mind some other frequency); and, third, it must be composed of information of a p ublic character. Having established this definition, the publisher says that his publication conforms to it and that, therefore, he is entitled to have second-class mailing privileges for his publication.
The publisher appeals to one's logic to say that the exception which was mentioned by the Supreme Court in Houghton with respect to Railway publications should be broadened to include his publication. It has been pointed out in many previous cases that nowhere has it ever been judicially suggested that anything other than a transportation guide should be regarded as eligible for consideration as an exception to the Houghton definition.
The publisher states that his publication is not like the one that was involved in the case involving the Florists' Transworld Delivery Association case, nor is it like a college catalog. Therefore, the Petitioner insists, rulings with respect to those types of publications are not necessarily applicable to his publication. Acting upon the suggestion of the publisher in this case, one uses one's logic to apply to a later case principles which have been enunciated in earlier cases. One does not expect to find identical repetitions in publications bearing different names and which are offered by different publishers, so that the broad principles that have been announced, adopted and followed by the courts, and by administrative interpretation, must by some process of logic be utilized in a variety of situations.
In order to clear up what I believe to be a misconception on the part of the publisher, I did not understand the Postal Service to state that it based its ruling upon a conclusion that the content of the publisher's publication in this case is not textual material. If that is the basis of the ruling of the Postal Service in this case, and I don't believe it is, I would disagree with it. I agree that there is textual material in this publication. I think the form which the textual material takes is such that prevents the publication's being recognized as being eligible for second-class mail privileges.
To go back to the three "P's" which the publisher would use to determine eligibility for mailability at second-class postage rates, there would be great difficulty in drawing a circle which would not include as mailable as second-class matter almost any publication that one could imagine. Sears Roebuck could then charge for its catalog. It certainly has periodicity. It certainly contains information of a public character. And that illustrates the difficulty of providing a workable definition to guide those who are attempting to apply the laws governing eligibility for second-class mail entry.
In view of all the foregoing considerations, particularly the examination of the publication itself, and upon full consideration of the proposed findings and conclusions of the parties, and the able argument on the part of the publisher, I conclude that the ruling of the Manager of the Mail Classification Division denying the application of the publisher for second-class mail privileges for the publication, the "National Counterfeit Detector" was correct and that ruling is hereby sustained.