In the Matter of the Petitions by

DELL PUBLISHING CO.,INC.
relating to applications for re-entry into the mails
as second-class matter and relating to revo-cations of
existing second-class mail permits for the publications
"POCKET CROSSWORD PUZZLES" and
"OFFICIAL CROSSWORD PUZZLES."

P.O.D. Docket No. 1/141;
P.O.D. Docket No. 1/147;
P.O.D. Docket No. 1/155;
P.O.D. Docket No. 1/156

January 15, 1960

William A. Duvall Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON 25, D. C.

INITIAL DECISION OF HEARING EXAMINER

This case involves (1) applications by Dell Publishing Co., Inc., of New York, New York, the Petitioner, for re-entry into the mails as second-class matter of the publications known as Official Crossword Puzzles and Pocket Crossword Puzzles, and (2) proposed revocations by the Director, Division of Postal Services, Post Office Department, the Respondent, of existing second-class mail permits for these two publications. The postal history of these two publications is as follows:

                                      Official                                  Pocket

Original entry as            Dunellen, New Jersey          Dunellen, New Jersey
quarterly publi-              August 26, 1940                   September 24, 1943
cation

Re-entry as bi-              Dunellen, New Jersey          Dunellen, New Jersey
monthly publi-                November 28, 1945              April 20, 1948
cation

Additional entry             New York, New York           New York, New York
                                      November 1, 1949                October 20, 1949

Application for               December 29, 1958              November 4, 1958
re-entry at New
York City

By letter dated April 9, 1959, the Respondent advised the Petitioner that the last above mentioned applications were denied, and that the Respondent proposed to institute proceedings for the annulment or revocation of the existing second-class privileges of the publications. The latter action was initiated by letter of June 15, 1959, from the Respondent to the Petitioner.

In each instance the Petitioner filed timely appeals by petition, to which the Respondent replied by answers. The cases were consolidated and came on for hearing before the undersigned on October 1 and 2, 1959. Both parties were represented at the hearing by counsel who participated in the examination and cross-examination of witnesses and who filed proposed findings of fact, conclusions of law and supporting briefs, the excellence of which merits special note.

At the hearing it was agreed that there are three issues to be resolved in this proceeding, as follows:

1. Are the publications "periodical publications" within the meaning of Sections 224 and 226 of Title 39, United States Code;

2. Are the publications originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry; and

3. Do the publications consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual?

Mrs. Kathleen Rafferty who is the editor of both publications was the first witness in behalf of the Petitioner. She testified that there is a regular formula which is followed in making up each publication, and that this formula has been employed substantially since the time when she became associated with the publications in 1941. Every issue of both publications contains a variety of puzzle materials among which are crossword, diagramless, anagrammatic, cryptogram, picture puzzles, crypto-quizzes, kriss kross, laddergram and word arithmetic puzzles. Each issue of Pocket contains at least two pages of textual narrative matter and each issue of Official contains one page of such material.

There are between 100 and 150 persons who contribute puzzles of the various types to the publications. Puzzles are chosen for each publication to suit the tastes of puzzle solvers with varying degrees of skill and education, and, in most cases the puzzles are identified, either in the index or by some characteristic mark, so that the person who looks through the magazine can tell at a glance the difficulty of any particular puzzle. Mrs. Rafferty and her staff choose puzzles for publication which it is felt deal with matters of national interest, such as politics, literature, movies, television and books.

Mrs. Rafferty testified that it had been her understanding ever since she had been connected with the publications that when a diagram was to be included on a page the diagram could not occupy more than 50% of that page. She also testified that it had been her understanding that the Post Office had a rule to the effect that the inclusion in a publication the size of Pocket of two pages of textual matter was sufficient to make the publication eligible for second-class mail privileges, assuming that the publication met the other requirements of the statutes and postal regulations. It was her understanding in connection with a publication of the size of Official that the inclusion of one page of textual matter was adequate.

The next witness for the Petitioner was Miss Marian Reissenweber, who is an Educational Psychologist and Therapist on the staff of the Institute for the Crippled and Disabled in New York City. In 1944 Miss Reissenweber became unemployed because of total physical disability incident to brain injury resulting from encephalitis. Miss Reissenweber testified that her disease left her with a lack of coordination between her eye and her hand so that it was difficult to touch a particular object at which she was looking because of the variance in the place where the object actually was and the place where the object appeared to be. She also testified that she had a considerable degree of impairment with the use of language because her recollection of words was deficient to some degree and there was an impairment in her ability freely and relevantly to associate words. There was also an impairment of her perception of distance and size resulting from a severe visual involvement which made it impossible for her to read and to see from the ordinary angle and position. Miss Reissenweber was treated at various institutions and she also experimented with various methods of self-treatment. In some manner she discovered the use of crossword puzzles and eventually she decided that the publications involved in this proceeding were the type of material best suited to her purposes.

In 1949 Miss Reissenweber was sufficiently rehabilitated to obtain employment at the institution with which she presently is connected. She stated that her responsibilities now are to develop, select and use materials which will be suitable for the qualitative psychological evaluation of adult patients who have sustained disability as a result of brain injury. In the practice of her profession Miss Reissenweber uses crossword puzzles and, in particular, she uses Pocket and Official crossword publications. Miss Reissenweber stated that the use of these publications is her own idea and that the institution with which she is associated has not officially adopted their use as a therapeutic measure. The number of persons treated by Miss Reissenweber varies from time to time. There are twenty persons in the group with which she was working at the time of the hearing in this case and Miss Reissenweber stated that of this number fifteen have been benefited by the use of crossword puzzles. Miss Reissenweber was careful to point out repeatedly that the use of crossword puzzles is only a small portion of the overall treatment provided for patients of the type with whom she works. The principal value of crossword puzzles to patients with whom this witness comes in contact is in their tendency to assist in the restoration of eye-hand coordination and their tendency to restore vocabulary.

The last witness on behalf of the Petitioner was Dr. Eugene T. Maleska who at the present time is the Coordinator of Teacher Recruitment for the Board of Education of the City of New York. Dr. Maleska has constructed several thousand puzzles during the past twenty years, many of which have been published in the New York Times, the New York Herald Tribune and numerous puzzle publications of national distribution, including three crossword publications published by Petitioner.

Dr. Maleska testified that his association with crossword puzzles dates back to the time when he was going to high school on the train. He used to pick up papers that were left by some other passenger and work the crossword puzzles. He said that he discovered that he was immensely increasing his vocabulary. Later, as a teacher in public schools he would have his pupils bring in crossword puzzles that had appeared in the daily newspaper and he would help each student to solve his puzzle. When the puzzles were solved he would list the new words which had been learned on the blackboard. Eventually some of the students would construct their own crossword puzzles. Later on, when he was teaching graduate students who were elementary and junior high school teachers, he employed the same system of having the teachers become interested in and learn new words.

Dr. Maleska said that the Board of Education by whom he is employed has issued a spelling manual and that in this manual there is a reference to crossword puzzles under the heading "Games and Devices." Dr. Maleska said that crossword puzzles are used as a supplementary device in teaching and that insofar as he is concerned one of the principal aims of education is to attempt to persuade or attract school children to use their leisure time in a wholesome manner. The witness for purposes of illustration, referred to Petitioner's Exhibit No. 17, page 58, crossword puzzle 18 and indicated that in this puzzle there is information of various types. He pointed out that there were allusions to the Bible, contemporary events, geography, history, music and many different kinds of words.

Dr. Maleska did agree with counsel for the Director that in several particulars various types of puzzles appearing in Pocket and Official were substantially the same as tests which are given in school. He stated, however, that there is a big difference between the use of crossword puzzles and the giving of tests in that the former require the employment of additional skills in combining the horizontal words with the vertical words in order to reach a proper definition as a part of the solution of the puzzle. Dr. Maleska also indicated that he believes one of the principal advantages of the use of crossword puzzles in teaching is that it stimulates the student to think.

Concerning the extent to which crossword puzzles are used in the public school system in the City of New York Dr. Maleska testified that he does not have precise information, but that he has instructed approximately 500 teachers and the use of crossword puzzles has been pointed out to this group. He also testified that there are approximately 32,000 teachers in New York City. Of the 500 teachers to whom Dr. Maleska has recommended the use of crossword puzzles as a supplementary teaching device, he does not know to what extent any of the teachers have employed them.

The provisions of law controlling eligibility for second-class mailing privileges are stated in 10 and 14 of the Act of March 3, 1879 (20 Stat. 359), as amended, and are codified as 224 and 226 of Title 39, United States Code:

" 224. 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. ^1/

* * * * * * * *

226. 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 are found in 132.211, 132.224 and 132.483 of the Postal Manual, as follows:

" 132.211 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.

* * * * * * * *

" 132.224 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."

Section 132.483 generally defines the term "novelty pages" and includes in this definition "***Printed Pages having blank spaces for writing or marking ***". It is provided in this Section of the Postal Manual that "***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 earliest case in which a distinction is made between a "periodical publication" and a "book" is Houghton v. Payne , 194 U. S. 88. In this case the Court said (id., pp. 97-98):

"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.

"A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. * * * 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. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines."

In a later case, Smith v. Hitchcock , 226 U. S. 53, the Court said:

"It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law, even if it satisfies the conditions for admission to the second class set forth in 14. (citing Houghton v. Payne , supra ). It is established by the same authorities, that books, that are expressly embraced in mail matter of the third class by 17 and so made liable to a higher rate of postage, cannot be removed from that class and brought into the second by the simple device of publishing them in a series a regular intervals of time.

* * * * * * * *

"The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion if not a promise of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. *** 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. There may be exceptions, as there are other instances of books."

Counsel for the Petitioner insists that the contents of the publications under consideration, preponderantly a collection of puzzles, are "articles" as that term is used in Houghton v. Payne, supra . I cannot agree with this proposition.

In Webster's New International Dictionary, Second Edition, an "article" is defined in the sense in which it is used in this case as "a literary composition forming an independent portion of a magazine, newspaper, encyclopedia, etc." It therefore seems to me to be clear that in order for matter to be properly categorized as an "article," it must be a series of words or sentences that are used in a coherent manner and which relate to a central theme. There may, of course, be other definitions and this one is not intended to be exclusive. While it is true in the case of some of the puzzles appearing in the Petitioner's publications that they revolve around some central idea, such as politics, movies, radio, or television, the words which are used to solve the puzzle appear vertically and horizontally on the page before the reader, and there are many words interspersed throughout the puzzle which bear no relationship to the theme around which the puzzle is constructed. Taking a few examples at random in Petitioner's Exhibit No. 28, which is Pocket Crossword Puzzles for May-June, 1959, the movie crossword appearing at pp. 30 and 31 therein calls for definitions or synonyms for the following terms: born, toward, shelter, kind of sea gull, long-limbed, upset, stooped, red vegetable, heavy overcoat and cupid. These words are totally irrelevant to the "movie" theme of the puzzle. For this and other reasons it seems to me that to call puzzles of the type making up the content of the Petitioner's publications "articles" is to place an undue, unusual and unwarranted interpretation and meaning on that term.

Counsel for the Petitioner next insists that there is literary continuity in the Petitioner's publications. It has been pointed out that in Pocket there may be as many as two pages of narrative material, and that in Official there is one page of such material. None of these items of narrative material is continued from one issue to another. The only item having the characteristic of continuity in the publications consists of the puzzle contest which is a feature carried in both Pocket and Official. Both publications are issued bimonthly. Taking any one of the publications, a puzzle contest may be assumed to appear in one issue. The answers to this puzzle do not appear in the same issue with the puzzle itself, but the answers appear in the second issue succeeding the issue in which the puzzle appeared. In other words insofar as the puzzle contest is concerned there is a lag of approximately four months between the time at which the puzzle appears and the time in which the answers are published.

In addition to this feature counsel for the Petitioner contends that the fact that readers of the publication know that month after month they will continue to receive a collection of crossword puzzles in the various categories used by the publisher constitutes that type of continuity of literary character which the Court in Houghton had in mind. I cannot agree with this contention of the Petitioner's. When a puzzle has been solved it is a complete unit within itself. The fact that some later issue of the publication may contain a puzzle which is constructed around the same topic, for example, movies, by no means indicates that there is a literary or any connection other than the topic.

In each of the publications the answers to each puzzle are contained within the publication, except as has already been pointed out in the case of the contest. Aside from this one item each issue of both publications is a complete publication independent of every other issue of the same publication. I do not believe that the inclusion in these publications of this one feature is sufficient to bring the publication within the definition of second-class matter or "periodical publications" announced by the Court in the Houghton case. Rather, I think that despite this slight indication of a need for continuity these publications constitute one of the exceptions contemplated by the Court in Smith v. Hitchcock . This conclusion is supported by the fact that there is no particular element of timeliness that is discernible in the various issues of the publication. For example, Dr. Maleska testified that the puzzles that he submits to the editor may appear at any time from two months to five months after he has submitted it. In addition to this fact, Miss Reissenweber testified that it frequently happens that the publications are put in the library of the institution where she is employed and are reused from time to time. Thus, if the material is of such character that a certain issue can be picked up and the contents solved months - and perhaps years - later, there is no need for continuity and continuity is in fact not present. I find that the publications are not "periodical publications" within the meaning of 224 and 226 of Title 39, United States Code.

The next question to be decided 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. The Petitioner stresses three main points in connection with this issue. The Petitioner points out that in the case of Hannegan v. Esquire , 327 U. S. 146, the Court gave a very broad definition to the term literature. Secondly, the Petitioner lays stress upon the fact that Miss Reissenweber used these particular publications in her own re-training and that she now uses them as one of numerous therapeutic measures for patients with whom she is associated. The Petitioner also emphasized the testimony of Dr. Maleska wherein he stated that he has used and has recommended the use of crossword puzzles as an aid in the teaching of spelling and in the enlarging of one's vocabulary.

It is not contested in this proceeding that there are various references to writers, composers, actors, books, songs, plays and stories in the puzzles contained in the publications. Whether there are references to these matters is not the issue in this proceeding, but the question is whether these publications are "originated and published" for a certain purpose or whether they are "devoted" to certain fields. The Esquire case involved a different type of publication than is involved here and for this reason its value as a precedent is doubtful.

Insofar as the use made of these publications by Miss Reissenweber is concerned, it is clear that they are employed as a mechanical device to increase eye-hand coordination in much the same way as are peg-board toys provided by parents for their children. There is, of course, the additional utility of helping the patients to re-acquire or cultivate word association and vocabulary. In Dr. Maleska's case, he testified that he has used these puzzles in teaching and that he has recommended that other teachers use these puzzles as devices to improve spelling and to increase vocabulary. However, Dr. Maleska had no information as to how many of the teachers he has instructed actually employ crossword puzzles for these purposes, and, if any of the teachers do use them he is unaware of the extent of their use. In those cases in which Dr. Maleska knows of the use of crossword puzzles, he said that their use did not amount to "sugar coating the pill" but he did agree that the use of these puzzles makes the learning process a little less painful, and that it stimulates the interest of the pupil. We are then led to the question as to why the interest is stimulated, and I think that the conclusion is inescapable that the pupil's interest is stimulated because he is indulging in an activity which is enjoyable to him, and the fact that he is acquiring information at the same time is, to him, of secondary concern. In this connection it is highly significant that in the spelling manual issued by the Board of Education of the City of New York the reference to crossword puzzles is a subdivision under the heading "Games and Devices."

From the testimony of these two witnesses, it is clearly apparent that the uses to which these witnesses have put the publication are unusual and not those which normally would be expected. As pointed out by counsel for the Respondent, the fact that an axe is at times used as a murder weapon does not mean that axes were designed and intended to be used for that purpose. It seems to me that when one considers a publication such as either of those under consideration in this proceeding he must arrive at the conclusion that their primary purpose is to afford entertainment and that this is the area of activity to which they are devoted. In the course of providing this entertainment reference necessarily must be made to persons, places, things and events. The appearance of such references in the publications, however, do not convert the publication into one which is originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or some special industry. Such references as are contained in and conveyed by the publications are purely incidental to the primary purpose to which the publications are devoted, namely, the furnishing of a means of obtaining entertainment.

From the standpoint of the reader, if certain information in a particular field is desired it would be much more simple, direct, accurate, and informative for the person to go to a recognized source such as a reference book or a newspaper where the information would be presented to him in a coherent and intelligible narrative form. Contrasted with this method is the method which the Petitioner would have us follow: If it is assumed that a particular puzzle is constructed around a central theme in which a person desires some particular information, the person must not only derive the exact synonyms for the definitions given or do the proper amount of decoding, but he even then runs the risk that the particular information in which he is interested is not contained in the solution of the puzzle. He may have had a delightful time in solving the puzzle, but he would not necessarily be one step nearer to the possession of the information that he was seeking. Upon the basis of these considerations I find that Pocket and Official are not originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or some special industry.

Concerning the last issue it appears to me to be beyond question that the publications of the Petitioner are composed primarily of novelty pages. No valid basis is shown in Mrs. Rafferty's testimony for the idea that so long as a diagram connected with a puzzle did not occupy more than 50% of the space on a page that such a page would not be taken into consideration in computing the number of novelty pages in a publication even though the terms the synonyms for which would constitute the solution of the puzzle or diagram would be contained on the same page. Suffice it to say that if there has ever been such a regulation I have not known of its existence. I will say affirmatively that I believe that no such regulation ever has existed and none exists now. It would seem to be completely illogical to say that the diagram constitutes any more important part of the puzzle than do the terms for which the synonyms are to be supplied. In any event, I find that the publications which are the subject of this proceeding consist primarily of novelty pages within the meaning of 132.483 of the Postal Manual.

At the hearing, counsel for the Petitioner offered into evidence two exhibits (Petitioner's Exhibits Nos. 32 and 33) consisting of letters from readers of the publications. Objection to the receipt in evidence of these exhibits on the ground that they were hearsay evidence was sustained. While I believe that the rulings made at the time the exhibits were offered were correct, I now reverse that ruling and receive those exhibits in evidence in order that the Petitioner may rely on all the material offered at the hearing. I have read all the letters contained in the two exhibits and I find nothing therein to change any of the findings heretofore made. In fact, most of the letters support the finding that the primary purpose of the publications is that they provide entertainment to the readers. Some writers also said that their vocabularies had been increased, some pointed out errors in the publications, and other writers sought employment as puzzle contributors.

On the question of the burden of proof, Section 7 of the Administrative Procedure Act (5 U.S.C. 1006) specifically provides that "Except as statutes otherwise provide, the proponent of a rule or order shall have the burden of proof." Thus, insofar as the Petitioner was seeking permission to re-enter the publications at a new location, the burden of proving that it was eligible therefor rested with the Petitioner. I adhere to the ruling made at the hearing.

The fact that the Department has at times in the past granted applications for entry and re-entry of the publications in the mails as second-class matter and the fact that the format of the publications has remained constant do not preclude the Department from revoking those privileges now if it is thought that the earlier actions were erroneous or the results of inadvertence. (See Houghton, 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, cert. den ., 28 L.W. 3165.)

Based upon the entire record in this case, I conclude that as a matter of law the publications involved in this proceeding do not meet the requirements of Sections 224 and 226 of Title 39, United States Code, and Section 132.483 of the Postal Manual. The Petitioner's application for re-entry of the publications Official Crossword Puzzles and Pocket Crossword Puzzles into the mails as second-class mail matter are denied and the existing second-class mail permits applicable to these publications are hereby revoked.

Proposed findings of fact and conclusions of law submitted by the parties have been fully considered and they are adopted to the extent herein indicated. Otherwise such proposed findings and conclusions are denied for reasons stated or because of their immateriality.

In order that there will be no confusion, I should like to state that the quality of the material contained in the publications involved in this case, i.e., whether the material is "good" or "bad", was not in issue. Had such an issue been presented, I would have had no hesitancy in finding that Pocket and Official are publications of high type and caliber. The fundamental question in this case, however, is the matter of the proper class of mail to which these publications should be assigned, and the decision herein is based upon the application of the requirements established by the Congress to the Petitioner's publications. Because my study of the case convinces me (1) that these publications are books; (2) that they do not meet the fourth condition which is prerequisite to second-class mail privileges; and (3) that they consist primarily of "novelty pages", it would be discriminatory to grant second-class mail privileges to these publications and to deny such privileges to other mailers of third- and fourth-class matter. In addition, it would place an undue and improper burden upon the taxpayers to carry at second-class postage rates matter that does not meet the conditions of eligibility for those rates.

/s/

1/ 225 is not pertinent in this proceeding.

Applicable Departmental regulations are found in 132.211, 132.224 and 132.483 of the Postal Manual, as follows: