In the Matter of the Petition by                                )
                                                                               )
NATIONAL ASSOCIATION OF TRAILER                 )
OWNERS, INC.                                                        )
                                                                               )
at                                                                            ) P.O.D. Docket No. 1/144
                                                                               )
1359 Main Street                                                    )
Sarasota, Florida                                                    )
                                                                               )
for a hearing upon its application                           )
for second-class entry of "THE                             )
MOBILEHOME OWNER."                                         )

APPEARANCES:                                                     W. Byron Sorrell, Esq.
                                                                               and Garland P. Thompson, Esq.
                                                                               White, Sorrell and Williamson
                                                                               1100 New Hampshire Avenue, N.W.
                                                                               Washington 7, D. C.
                                                                               Attorneys for the Petitioner
                                                                               Adam G. Wenchel, Esq. and
                                                                               Dean M. A. Murville, Esq.
                                                                               for the Director of the Postal
                                                                               Services Division

Kelly, Raymond J.

POST OFFICE DEPARTMENT Washington 25, D. C.

AMENDED DEPARTMENTAL DECISION

Having heretofore determined by order entered April 18, 1960 that the Departmental Decision of the Judicial Officer entered on February 24, 1960, may be reconsidered and the proceeding reopened and having by order issued on April 28, 1960, set oral arguments herein for May 10, 1960, this matter was argued and fully reconsidered at that time.

It appears from the files and records in this cause and from the arguments of counsel for the parties at the oral argument on May 10th that the National Association of Trailer Owners is a corporation organized in 1956 having for one of its purposes the operation of an advertising business in connection with the Mobile Home Trailer Industry.

In the year 1958, this corporation applied for second-class entry in the United States mails for its publication "The Mobile Home Owner". This application was denied on the grounds that the publication was designed primarily for advertising purposes and that it was devoted to the advertising of the Publishers Service Organization.

On April 13, 1959, Petitioner filed a petition for review of the proposed denial of the second-class entry and a hearing was held and an Initial Decision by the Hearing Examiner entered herein on September 4, 1959. Petitioner's brief on appeal from this Initial Decision was filed on October 23, 1959, in which six exceptions thereto were taken. In these exceptions the Petitioner contended that the Hearing Examiner erred in his decision in finding as a matter of fact:

1. that the publication "The Mobile Home Owner" is designed primarily for advertising purposes; and

2. in finding that this publication has become the medium through which the Mobile Home Dealers Association members conduct their advertising campaign; and

3. failing to rule that the record does not prove that the publication as designed primarily for the purpose of advertising the National Association of Trailer Owners; and

4. in failing to give weight to the testimony of the Petitioner that it has no connection with the Mobile Home Dealers Association or with the Mobile Home Manufacturers Association; and

5. in concluding as a matter of law that the publication "The Mobile Home Owner" does not conform with the requirements of Section 226 of Title 39, United States Code; and

6. in denying the application of the National Association of Trailer Owners, Inc. for entry into the mails as second-class matter.

The purposes of this corporation are set forth in Article 2 of the Certificate of Incorporation which is Joint Exhibit C herein and they clearly classify the Petitioner as a Service Organization and as an advertising agency. Among the purposes set forth in the articles of association of the Petitioner's Corporation the following appear pertinent herein:

"To engage in the business of catering to and providing services for the trailer industry generally, and to aid and act in the best interests of the owners, manufacturers, wholesalers, retailers, suppliers to and dealers in trailers and mobile homes. To act as adviser, and general consultant to owners of trailers and of trailer parks. To provide travel routing to subscribers to its services. To maintain and operate for profit a trade information bureau for the collection and supplying of information as to the trailer industry, as to credit and standing of firms, corporations, and individuals, as to merchandise for sale or exchange, and as to other subjects of interest to the trailer industry. To publish, print and sell newspapers, magazines and periodicals. To print and bind books of all kinds, and in particular those having as subjects the trailer industry or subjects akin thereto. To do job or general printing and lithography of all kinds, and generally to do all things done by those engaged in a similar business customarily. To conduct the business of bringing to the attention of the public through the press, magazines, pamphlets and by other means the characteristics, ability and other qualities tending to establish in the minds of the public the character and ability of the subscribers to its services, including men, women, corporations, co-partnerships, and all goods and wares manufactured and sold by subscribers. To conduct a general advertising business and press clipping bureau. To do all other things commonly done by those engaged in the same business.***"

It appears from the record that the service organization was not productive and that the Petitioner concentrated primarily on its advertising activities. In June of 1959, the Petitioner acquired the publication and took over all of the advertising contracts of the Mobile Home Dealers National Association. Most of the income is derived from advertising and the chief purpose of the publication is to aid the Mobile Home Industry.

The Petitioner contends that the principal or main business of the corporation is publication of the magazine entitled "The Mobile Home Owner" which is a specialized publication for persons dwelling in mobile homes or so-called "house trailers". Petitioner further contends that the great bulk of the advertising in this publication comes from manufacturers of mobile homes and mobile home appliances, although some advertising is from such companies as Green Giant which sells corn and peas. Petitioner further contends there is no connection between the National Association of Trailer Owners, Inc. and the dealer organization known as the Mobile Home Dealers National Association which is one of their advertisers or the Manufacturers Association known as the Mobile Home Manufacturers Association.

It is apparent from the contention of both parties hereto that the sole issue in this cause is whether or not the "Mobile Home Owner" is designed primarily for advertising purposes.

The Hearing Examiner in his Initial Decision found the publication here involved is designed primarily for advertising purposes. However, he did hold that this publication does not advertise primarily the service organization of the publisher but primarily advertises the manufacturers of mobile homes.

Section 132.226(b) of the Postal Manual provides as follows:

"Advertising publications. Publications designed primarily for advertising purposes may not qualify for second-class privileges. They include****."

Then follows subparagraphs under this general statement designated as (a), (b), (c), (d), (e) and (f). It can be seen that this regulation sets forth without equivocation that publications designed primarily for advertising purposes may not qualify for second-class privileges and then goes on to explain that they include the specific type of publications as enumerated in these six sub-paragraphs but does not exclude others which might be designed primarily for advertising purposes and certainly these sub-paragraphs are not all inclusive.

While the Hearing Examiner in his Initial Decision found that the publication is a house organ and promotes the interest of the service organization that this is only one of its purposes. The primary purpose being the advertising of the business of the manufacturers of mobile homes.

In the Departmental Decision heretofore rendered in this cause which is here being reconsidered, the former Judicial Officer of this Department relied on a document which was described as an opinion by the Acting Assistant Attorney General for the Post Office Department dated November 17, 1877. This actually is a letter from Mr. Arthur H. Bissell, the Acting Assistant Attorney General of the Post Office Department to the Postmaster General. It is not reported in the reported opinions of the Assistant Attorney General for the Post Office Department or in any other official reports of decisions or opinions and appears only in the Annual Report of the Postmaster General for that year.

It seems to me we are here wandering along a by-path instead of following the main road which we might miss entirely if we decloud the issue. The issue as heretofore stated is whether or not this publication is one intended primarily for advertising purposes. Let us here take a little further look at this by-path so that we may not be misled by it. In his Departmental Decision, the former Judicial Officer set forth that the language used by

Mr. Arthur H. Bissell in his memorandum of November 17, 1877 is intended to be all inclusive. However, there was a prior memorandum by Mr. Bissell dated June 7, 1877, which appears in 1 Opinion of the Assistant Attorney General, P.O.D. 313. This is included in his letter to the Postmaster General of November 17, 1877 and is represented to be the correct interpretation of the law. That memorandum does not attempt an all inclusive listing of publications, therein Mr. Bissell states:

"There is no ambiguity in the terms 'regular publication designed primarily for advertising purposes,' as employed in the aforesaid section, but the question of whether a given publication is within the terms employed, being a question of fact rather than law, is not easily answered."

Surely this attitude does not indicate an attempt to provide an all inclusive listing. The Respondent points out in his motion to reconsider that this point of view set forth in this quotation is also the view expressed in 16 Opinions, Attorney General 303 wherein it is set forth as follows:

"In the variety of publications which are sent out by mail, that there will be extreme embarrassment in many instances in determining whether the publication is 'primarily designed' or chiefly intended for advertising purposes cannot be doubted. There are certain publications which carry upon their face their object, and an inspection would enable it to be determined; but the difficulty arises with what class upon which there is conflicting evidence, certain circumstances indicating an intention to publish a journal valuable for literary or scientific purposes, certain other indicating an intention to employ the same journal for advertising purposes. It is impossible, however, to laydown a rule of law in the matter. The fact must be found by the Postmaster General from such evidence as he may be able to obtain, connected with his own experience and that of his subordinates, so as to determine in each case whether the publication concerning which the question arises is in the first or second class."

When the regulations of the Post Office Department provide that publications designed primarily for advertising purposes may not qualify for second-class privileges it is immaterial as to whose advertising is carried so long as the publication itself is designed primarily for advertising purposes. The Initial Decision of the Hearing Examiner is correct and the previous Departmental Decision herein must be set aside. I find this publication is designed primarily for advertising purposes and is not entitled to second-class entry and the same is hereby denied.