In the Matter of the Petitions by

POPULAR LIBRARY, INC.,
ATLAS MAGAZINES, INC.,
KENT PUBLISHING CORP.,
at New York, New York

for a hearing upon their respective applications for second-class
entry, re-entry, and additional entry of "Variety Crossword
Puzzles," "Tip Top Crossword Puzzles", "Universal Crossword
Puzzles," and "Giant Cross- word puzzles," and upon the action
of the Post Office Department in proposing to revoke certain
existing second-class mail permits.

P.O.D. Docket No. 1/151

William A. Duvall Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

INITIAL DECISION OF HEARING EXAMINER

In this proceeding there are involved four publications of three publishers, the Petitioners, as follows:

1. Atlas Magazines, Inc.                                Publisher of Tip Top
       655 Madison Avenue                                Crossword Puzzles
       New York, New York

2. Kent Publishing Corporation                      Publisher of Giant
       1165 Broadway                                        Crossword Puzzles and
       New York, New York                               Universal Crossword
                                                                         Puzzles

3. Popular Library Incorporated                    Publisher of Superior
       10 East 40th Street                                   Crossword Puzzles
       New York, New York                               (formerly, Variety
                                                                         Crossword Puzzles)

The application of Atlas Magazines, Inc. is for original entry of its publication into the mails as second-class mail matter at New York, New York, and Atlas also applied for additional second-class entry at Holyoke, Massachusetts. The other publishers are seeking re-entry or additional second-class mail entry for their publications. (Resp. Exh. 1 thru 5) With the exception of Tip Top Crossword Puzzles, the publications have been issued for periods of from two to more than four years and have been transmitted through the mails at second-class postage rates under presently existing permits for approximately the same lengths of time. In the case of Atlas Magazines, Inc., its application for original entry for Tip Top has been pending since May 9, 1958. None of the publications is published less frequently than bi-monthly.

The Director, Postal Services Division, Bureau of Operations, in letters dated April 9, 1959 (Resp. Exh. 6 thru 9) advised each publisher, as applicable, that the Director proposed to deny each application for (1) original entry, (2) re-entry, or (3) additional entry and that, in the case of Kent Publishing Corporation and Popular Library, he proposed to revoke or annul the existing second-class mail permits for their publications. The grounds for the proposed actions were stated in the notifications.

From these notices, the publishers appealed and filed their petitions for review of the Director's proposed action and requested a hearing on the issues presented.

The hearing was held on June 19, 1959, before the undersigned Hearing Examiner. All parties were represented by counsel, and the Editorial Manager of Kent Publishing Corporation, Mr. Herbert Field, was present in person and was the only witness in the case. Counsel participated in the examination and cross-examination of the witness and they have submitted proposed findings of fact, proposed conclusions of law and supporting briefs.

Counsel agreed at the hearing that there are three issues involved in this consolidated proceeding. These issues are: (1) Are these publications periodical publications; (2) Are these publications originated or published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry; and (3) Do these publications consist primarily of novelty pages.

Mr. Field stated that he makes most of the editorial decisions for Kent Publishing Corporation and that he selects and judges the material that is published. Puzzles are received from seventy-five to one hundred contributors. Desirable puzzles are retained and the undesirable ones are returned to the persons who submitted them. The puzzles that are to be published are examined carefully and the definitions are checked and edited. In examining a puzzle the editors look for material that has contemporary interest and matter that relates in one way or another to current events, literature, well-known personages, geography, sciences and the arts. With respect to Giant Crossword Puzzles, Mr. Field referred to the July, 1959, issue (Pet. Exh. 1-A), describing the various puzzles contained therein, and he explained the methods by which they are solved. It is the view of Mr. Fields that all of the puzzles constitute a test of the knowledge and skill of the readers, that new knowledge will be gained by persons who solve the puzzles and that these persons might very well be inclined to use other reference books in attempting to reach solutions. On cross-examination, Mr. Field stated that the fact that the solutions are in the backs of the publication would not deter a person from seeking the desired information from outside reference material, because to look at the answer would be to spoil the puzzle, since the reader would see words or solutions other than the particular one wanted.

On motion by Counsel for the Petitioners, it was agreed that the testimony by Mr. Fields concerning Giant Crossword Puzzles would be regarded as relating to all the publications involved in this proceeding, cognizance being taken of the fact that there are minor variations among them.

Petitioner's Exhibit 1-A, the July, 1959, issue of Giant Crossword Puzzles, except for one page of letters to the editors, table of contents, the front and back covers, a subscription order form, and six pages of narrative writing, consists entirely of a variety of puzzles and their solutions. This exhibit, including the covers, contains 198 pages. Other issues of this publication (Pet. Exh. 1-B and 1-C) contain 132 pages including front and back covers. These issues contain 3 bits of narrative writing consuming one page, each, and a few pages of advertisements, with the remainder of the contents being made up of various types of puzzles and their answers. It is pointed out that pages 83 thru 88 of Petitioner's Exhibit 1-C were cut out of the publication prior to the time of the preparation of this Initial Decision. The person by whom or the purpose for which these pages were removed from this exhibit are not known to the undersigned.

Petitioner's Exhibits 1-D and 1-E are, respectively, the May and January, 1959, issues of Universal Crossword Puzzles. These exhibits, including front and back covers, contain 100 pages. Each of these exhibits contains two one-page stories, a table of contents and a few pages of advertising, with the remainder of the publications being composed of various types of puzzles and their solutions.

In the Tip Top Crossword Puzzles series (Pet. Exh. 2-A through 2-F) the publications in their entirety, except for the front and back covers and the tables of contents, are comprised of different kinds of puzzles and their solutions. Each of these publications contains 98 pages, including the covers.

Superior (Variety) Crossword Puzzles made up Petitioner's Exhibits 3-A through 3-D, and each of these exhibits contains 100 pages, including the covers. Aside from the covers, several pages of advertising, and a two-page mystery story of which the reader is supposed to detect the culprit, the contents of the publications are made up of puzzles and their solutions.

From the foregoing brief descriptions, it is clear that the preponderance of the contents of each of the publications involved in this proceeding consists of puzzle material. Whatever the precise nature of the puzzles may be the overwhelming majority of them require that their solution that certain blank spaces be filled in by the solver.

These publications must be measured against the requirements of law and Departmental regulations.

The pertinent statutes are Sections 221, 224 and 226 of Title 39, United States Code, which read as follows:

"Classification of mail matter. Mailable matter shall be divided into four classes:

First, written matter;

Second, periodical publications;

Third, miscellaneous printed matter and other mailable matter not in the second, third, or fourth classes;

Fourth, merchandise nd other mailable matter weighing not less than eight ounces and not in any other class.

"Second-class matter. Mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year and are within the conditions named in sections 225 and 226 of this title."

"Same; conditions admitting publications to Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second class are as follows: First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively. Second. It must be issued from a known office of publication. Third. It must be formed of printed sheets: Provided, That publications produced by the stencil, mimeograph, or hectograph process or in imitation of typewriting shall not be regarded as printed within the meaning of this clause. Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."

Applicable Departmental regulations on the subject are sections 132.211, 132.224 and 132.483 of the Postal Manual, as follows:

"Mailable Publications. You may mail only newspapers and other periodical publications at the second-class rates. The copies may not contain obscene, treasonable, lottery, or other kinds of material that would cause them to be nonmailable under the provisions of part 124."

"Contents. Publications must be originated and published for the purpose of disseminating information of a public character, or they must be devoted to literature, the sciences, art, or some special industry."

"Novelty Pages. Novelty pages are printed sheets that may be used for purposes other than reading, or printed sheets with novel characteristics. Novelty pages must be prepared specifically for and intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. The total number of novelty pages in the copies may constitute only a minor portion of the total pages. An excessive use of novelty pages may give a publication the characteristics, both as to format and purpose, of books, catalogs, or other third- or fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:

a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.

b. Pages having printed pictures for cutting out.

c. Printed pages having blank spaces for writing or marking.

d. Pages having printed paper illustrations pasted to them.

e. Pages with coupons or application or order forms occupying not more than one-half of the page."

There have been few cases in which there was for determination the question of whether a publication was in fact a "periodical publication" within the meaning of Sections 221, 224 and 226 of Title 39, United States Code. The leading case dealing with this question is Houghton v. Payne , 194 U.S. 88. Here the Court said:

"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. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects."

The Court also cited the definitions of periodical appearing in Webster's Dictionary and the Century Dictionary, but stated that "It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical." ( id ., p. 98)

It already has been pointed out that the publications involved in this proceeding are published at stated intervals not less than four (4) times a year. The editorial Manager of one of the publications testified that the puzzles used in the publication are received from a number of persons varying between 75 and 100. I do not feel that it is a reasonable use of the language to classify a crossword puzzle as an article. Looking further at these publications, it is seen that there are no articles which are carried from one issue to the other and, aside from the title, there is nothing in any issue of any of the magazines to indicate any relation with prior or subsequent numbers of the same publication. In short, each issue of each publication is complete within itself. It may be, as suggested by the witness for the petitioners, that some readers who attempt to solve the puzzles would prefer to seek definitions for synonyms for the words given in some of the puzzles in sources outside the publications, themselves. However, insofar as the publications constitute an aggregation of puzzle material, they are complete within themselves, even if we disregard the fact that the answers to all the puzzles are contained in the publication thereby obviating the necessity for seeking information from outside sources.

In a later case in which it had to be determined whether a publication was a book or a periodical, Mr. Justice Holmes, speaking for the Court in Smith v. Hitchcock (226 U.S. 53, 59) said "without attempting a definition, we may say that generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation, and perhaps, have an appreciable size." It seems to me, and I find as a fact, that each of the publications involved in this proceeding has all of the attributes ascribed by Mr. Justice Holmes to books.

If my finding concerning the first issue in this case is correct, that finding is dispositive of this case, but because of the requirements of section 8(b) of the Administrative Procedure Act (5 U.S.C. 1007 (b)) attention will be addressed to the remaining issues.

The second issue is whether the publications are originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or some special industry. As pointed out by counsel for the Respondent the word "devoted", as defined in Webster's New International Dictionary, Second Edition, Unabridged, means, among other things, "to appropriate by vow; to set apart or dedicate by a solemn act, to consecrate; also, to consign over; to give up wholly; to direct the attention of wholly or chiefly". Briefly stated, this second issue concerns the purpose or purposes for which the publications are issued.

If one is to be realistic, it must be recognized that there are several purposes for which all publications are issued. From the standpoint of the publisher, it must be presumed that a determination has been made that a sufficiently large segment of the population is interested in the type of material which the publisher proposes to include in his publication. The making of this determination is required by the economic facts of publishing life. Therefore, from the publishers standpoint, the purposes of publication are (1) to fill a need or satisfy a desire of that portion of the population which is interested in a particular type of material or character of publication, and (2) to produce a publication which provides a satisfactory economic return to the publishers.

Looking at the other side of the coin, the readers of a publication subscribe to or buy individual copies of that publication because it contains the type of material in which they are interested. It seems clear to me that the principal reasons why persons buy books of puzzles are (1) that they enjoy the entertainment derived from attempting the solution of them, and (2) they derive a sense of satisfaction from being able successfully to match wits with the originators of the puzzles. Hence, from the standpoint of the reader, the primary purpose of publications such as these involved in this proceeding is to obtain entertainment, and the publishers, realizing the existence of this desire for entertainment, issue publications which will satisfy this desire of the readers and provide an economically successful venture for the publishers.

It is true that in a number of instances involved in the various puzzles in these publications, there are references to the names of famous literary characters, excerpts from famous works of literature, the names and works of famous composers of music, men of science and other persons and affairs which form a part of the vast body of public information. It can not reasonably and realistically be said however that these are the purposes for which the publications are issued or that they are the topics to which they are devoted. What is true is that such of these items as come to the attention of the readers do so purely as incidental matters - matters that are incidental to the attainment of the desired entertainment. I do not pretend, of course, to have solved or to have attempted to have solved all of the puzzles in each of the publications. I have, on the other hand, made a sufficient investigation of each of the publications to know that references to matters of public information, literature, the sciences and arts do not constitute a preponderance of the material in the publications. Even if such references did outnumber all the remainder of the material, this fact would not be controlling.

A further point which tends to buttress the conclusion that these publications are issued primarily for the purpose of affording entertainment is the fact that if a person is interested in discovering some matter of public information or some matter relating to literature, the sciences, the arts or some special industry, there are innumerable sources to which such person may go and obtain the desired information directly. If a person desires to learn of the life of Chopin and his work, Shakespeare and his plays, Dr. Einstein and his work, Michaelangelo and his sculpture and his paintings, or history or the current events of today, he does not want to have to work his way through a lot of extraneous material such as would be involved in the solution of a puzzle, the solution of which might or might not give him the precise information desired. He would go to the proper reference material or he would consult the daily newspaper where the material would be placed before him in easily accessible, readily understandable, intelligible and coherent form.

Giving consideration to all of the above factors, I find as a fact that the publications involved in this proceeding are not originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or any special industry.

As a final matter a determination must be made as to whether these publications consist primarily of novelty pages. It appears to me that it is sufficient to refer to section 132.483 of the Postal Manual wherein it is provided that the total number of novelty pages in a publication may constitute only a minor portion of the total pages, and that printed pages having blank spaces for writing or marking are novelty pages. This language is so clear and so unequivocal and the publications involved in this case so patently come within this description that there is no alternative to resolving this issue in favor of the Respondent and adversely to the Petitioners, and I find as a fact that all of these publications are composed primarily of novelty pages.

At the hearing, or on brief, or at both stages of the proceeding, the Petitioners raised three points which will be dealt with briefly, as follows:

1. The Petitioners assert that they have complied with the law and that therefore "The citizen who desires to have his publication carried in the mails of the United States as second-class mail matter, and who has fully and fairly complied with all the requirements of the statutes in regard thereto, has acquired a positive legal right to have it so carried * * *". Petitioners cite Roderiguez v. Weekley News Publications , 68 Fed. Supp. 767.

Certainly, with this truism none would disagree. But it is my conclusion that the publications herein do not "fully and fairly" comply with the controlling statutes.

2. The Petitioners assert that they would be placed at a competitive disadvantage by having their second-class entries or applications denied or revoked. This assertion is entirely without foundation. There are docketed for hearing numerous cases involving similar publications in which the same issues are presented for determination. Without prejudging any of these cases, since I have seen the exhibits in none of them, I can say only that if upon the records which will be made in these cases it appears that these other publications are in the same category as the present one, the former ones will be treated precisely the same as the latter ones.

3. The Petitioners assert that because publications similar to those involved in this proceeding have been awarded second-class mail permits for a period of from fifteen to twenty years, the Department is without authority to deny or revoke existing applications or permits which the present publishers hold or have on file with the Department. This assertion would require that if an inadvertence or a mistake had been made in the past, it must nevertheless be maintained ad infinitum. That a Department or agency is not so straight-jacketed is established by the following cases, among many others: Houghton and Hitchcock , supra; State Airlines v. Civil Aeronautics Board, 174 F. (2d) 510, reversed on other grounds 338 U. S. 572; and Evans v. Watson, C.A.D.C., July 16, 1959, 28 L. W. 2037.

Upon the entire record in this case, I conclude that as a matter of law the publications with which this proceeding is concerned do not comply with the applicable statutes and regulations, heretofore cited, and I recommend that respective applications for original entry, re-entry, and additional entry of said publications into the mails as second-class matter be denied, and that the respective existing second-class permits be revoked.

Proposed findings of fact and conclusions of law submitted by the parties not adopted herein have been considered and are denied, either for the reasons herein stated or because of their immateriality.

/s/