In the Matter of the Petition by CREDIT BUREAU OF ROCKFORD, INC., 813 E. State Street, Rockford, Illinois 61101 Denial of Application for Second-Class Mail Privileges for "THE COMMERCIAL REPORTER" P.S. Docket No. 5/119 April 27, 1977 Quentin E. Grant Administrative Law Judge Robert G. Coplan, Esq., Rockford, Illinois, for Petitioner Grayson M. Poats, Esq. Law Department United States Postal Service Washington, D. C., for Respondent Before: Quentin E. Grant, Administrative Law Judge
Petitioner appeals from the denial by the United States Postal Service of its application for second-class mail privileges for its publication, The Commercial Reporter . Such denial was issued on December 17, 1976 by the Director, Office of Mail Classification, subject to the outcome of this proceeding. It was based, essentially, on the asserted failure of the publication to comply with the definition of periodical set forth in Houghton v. Payne , 194 U.S. 88 (1904), which reads in pertinent part 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."
Specifically, the Director found that the publication fails to meet the foregoing definition in that it does not contain a variety of original articles by different authors.
Petitioner's position, briefly, is that the publication meets the criteria for mailability set forth in Part 125 of the Postal Service Manual and all the basic qualifications in Section 132.22 of that manual, i . e ., regular issuance, issuance at known office, preparation, contents, and list of subscribers and, therefore, is entitled to second-class mail privileges.
A hearing was held on March 18, 1977 in Chicago, Illinois at which both parties presented evidence. The parties were given to April 13, 1977 to file proposed findings of fact and conclusions of law. Only respondent has done so.
1. "The Commercial Reporter" is published by the Credit Bureau of Rockford, Inc., 813 East State Street, Rockford, Illinois 61101 (Tr. 8, RX-1). The Credit Bureau of Rockford is an Illinois corporation, organized for profit, and is owned by the Rockford Area Chamber of Commerce (RX-1, Tr. 9-10). Mr. Carl Loser is the General Manager of the Credit Bureau of Rockford (Tr. 5).
2. "The Commercial Reporter" is currently published three times per week (Tr. 6) and consists of approximately ten pages, 8 1/2 x 14 inches, bound together by a single staple in the upper left-hand corner of the pages (RX-3, PX-1). A subscription to "The Commercial Reporter" costs $60 per year.
3. "The Commercial Reporter" is made up entirely of updated listings of public records and instruments of record filed at the Winnebago County (Illinois) Court House (RX-2, Tr. 11). The same categories of public record information appear in each issue (Tr. 7, 12). Those categories are warranty deeds, special warranty deeds, trust deeds, trustees deed, deeds in trust, executor deeds, sheriff's deeds, quit claim deeds, real estate mortgages, real estate mortgage releases, real estate mortgage partial releases, federal tax liens, notices of liens, mechanics liens, articles of incorporation, memorandum of judgments, Northern Illinois District Court cases - Western Division, wage earner plans, marriage licenses, and divorces granted (PX-1, RX-3). All the information is presented in a listing format; none of the issues received in evidence contained any articles (PX-1, RX-3).
4. The Credit Bureau of Rockford also provides a range of credit reporting services to individuals and organizations who have entered into a membership contract with the Bureau. Members must pay a $90 yearly fee which entitles them to a weekly credit guide and the privilege of using the Credit Bureau's services by purchasing individual credit reports. (RX-2, Tr. 10)
5. Membership in either the Credit Bureau of Rockford or the Rockford Area Chamber of Commerce does not entitle a person to a subscription to "The Commercial Reporter." A separate subscription fee must be paid to receive the publication. There is no requirement that subscribers must be members of the Credit Bureau of Rockford or the Rockford Area Chamber of Commerce. Any person or organization may subscribe to "The Commercial Reporter." (RX-2, Tr. 10-11)
6. As of March 18, 1977, there were approximately 160 subscribers to "The Commercial Reporter" (Tr. 8). In September, 1976, Mr. Loser reported that, of the then 149 subscribers, 73 were members of the Credit Bureau of Rockford and 76 were not (RX-2). In addition, Mr. Loser gave the following breakdown on the business interests of those 149 subscribers:
Financial Institutions 32
Realtors 25
Building Materials and Suppliers 24
Insurance Agencies 14
Retail Stores 4
Attorneys 11
Government Offices 11
Oil Companies 7
Miscellaneous 21
Mr. Loser believes that these persons and organizations subscribe to "The Commercial Reporter" in order
"to watch certain transactions being conducted in the county that are recorded at the Recorder's office having to do with their particular field of either credit granting or law or real estate transactions and this type of thing." (Tr. 9)
1. The contents of the publication are simply updated listings of various categories of public records filed in the Winnebago County (Illinois) Court House. It contains no literary compositions, nonfictional prose, or consecutive text constituting articles. Therefore it does not meet the definition of periodical set forth in Houghton v. Payne , supra . This 74-years old definition has recently been applied again by federal courts in determining whether certain publications were eligible for second-class mail privileges. See Institute for Scientific Information, Inc. v. USPS , Civ. No. 75-3528 (USDC ED Pa. 1976); National Auto Research Publications, Inc. v. USPS Civ. No. 76-766 (USDC D.C. 1976). The publications involved in those cases consisted essentially of listings of various kinds of information.
In a recent Postal Service decision, a credit bureau publication nearly identical in format with "The Commercial Reporter" was held not to be eligible for second-class mail privileges. Credit Bureau of Logan, Inc., P.S. Docket No. 4/191 (Postal Service Dec. Dec. 30, 1976).
2. "The Commercial Reporter" is not a periodical publication. Therefore, although it appears to meet the other criteria for mailability at second-class rates, it is not entitled to second-class mailing privileges. The ruling of the Director dated December 17, 1976 denying petitioner's application was correct. Accordingly, petitioner's appeal from that ruling is denied.