In the Matter of the Petition by

SPECIALIZED PERIODICALS, INC.
merged with HARLE PUBLICATIONS, INC.,
215 Fourth Avenue,
New York 3, New York

for a hearing on the applications for second-class re-entry of
cross-word puzzle magazines.

P.O.D. Docket No. 1/183

May 9, 1960

Edward Carlick Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON 25, D. C.

APPEARANCES:
Joseph L. Nellis, Esq.
1411 K Street, N.W. Washington 5, D.C.
for the Petitioner

Jack T. DiLorenzo, Esq.
Adam G. Wenchel, Esq.
Eugene P. White, Esq.
Office of the General Counsel
Post Office Department
for the Respondent

INITIAL DECISION OF HEARING EXAMINER AND ORDER INTRODUCTORY STATEMENT

This proceeding is governed by the Rules of Practice in Proceedings Relative to the Denial, Suspension or Annulment of Second-Class Mail Privileges, 24 F.R. 3592, 39 C.F.R. Part 204, effective May 5, 1959.

By amended petition ^1/ the Publisher, the Petitioner herein, took appeal (Rule 7(b)) from the several rulings of the Director, Postal Services Division, the Respondent herein, which in effect were revocations of second-class mail privileges of what may be described for the purpose of this introduction, as crossword puzzle magazines totaling seven different publications or entries. Following the close of the evidentiary hearing (the dates of same shown in the footnote numbered one), each party filed by agreement with approval, their proposed findings of fact, conclusions of law and supporting brief document on February 23, 1960. However, it appearing, upon receipt of the transcript with the exhibits from the reporter, that several exhibits were missing, the parties submitted a stipulation which included the substitution of exhibits, and which was filed and made a part of the record on the same date, viz., March 22, 1960. Thereafter, by order of the undersigned dated April 1, 1960, the parties were requested to file supplemental proposed findings so as to correct the same deficiency appearing in each such document, namely, that "appropriate citations" to the record be made in support of the various proposals. (Rule 17(b)) On April 11, 1960, both parties filed such supplemental proposed findings. Thereupon, the record was completed for this decision.

ISSUES

Four of the issues are, as summarized by the undersigned at the hearing to which the parties agreed (Vol. 1, Tr. 30-31) and which are recited by the parties in their proposed findings document (Petitioner's, at page 4; Respondent's, at page 3), as follows:

1. Whether the magazines constitute periodicals within the meaning of Sections 224 and 226 of Title 39, U.S. Code.

2. Whether the magazines are originated and published for the dissemination of information of a public character as set forth under 39 U.S. Code 226.

3. Whether the magazines are devoted to literature, the art, sciences, or to some special industry, as set forth by the above cited statute, and

4. Whether the magazines consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual.

In addition Petitioner asserts that if the rulings of the Respondent are upheld that such action would in substance:

5. Constitute undue discrimination since his competitors whose second-class permits have not been denied or revoked would thus gain a competitive advantage with Petitioner suffering an irreparable financial detriment (Page 4, paragraph 6, proposed findings document), and

6. The record ^2/ fails to show that the past actions of granting second-class entry to these various publications were in fact, and in law, made in error by the application of discernible standards. (Page 5, paragraphs numbered 7, 8 and 9 of proposed findings document and page 3, paragraphs (4) and (5) of the amended petition)

Preliminary findings of fact which include the events leading to the commencement of this proceeding and other relevant details and matters, are made a part hereof as an appendix.

1. That Petitioner (including his predecessor in interest) presently holds second-class entry for the following seven crossword publications with the date of original entry shown in the opposite column: ^3/

1.     Speedy Crosswords                 1938
2.     Easy Crosswords                     1935
3.     Keen Crosswords                     1954
4.     Spare-Time Crosswords           1950
5.     Handy Crosswords                   1948
6.     Simple Crosswords                   1951
7.     Champion Crosswords              1939

2. That all the magazines in evidence, a total of eleven publications (see appendix for particulars), which apparently were submitted as being representative of the various publications in question, are of the same size, viz., 5 1/2 x 7 1/2 inches and total either 68 or 84 pages, including the cover.

3. That the magazines in content for the greater part, consist of crossword puzzle material, including the answers; that the puzzle part itself, that is, the blanks to be filled in, take up approximately one half of a page with the other half being the written portion in connection therewith, except in some isolated instances such written portion comprises more than one page but not more than one and one half pages; and that the small remainder of the publications, viz., approximately 3 or 4 pages, has one or two other features such as one or two fictional stories of approximately two pages in length which are generally concluded in the next issue and/or some very general informational section, and one advertisement with a second one occasionally, with such one advertisement being shown as the back cover. I, therefore, find that the dominant character of the magazines is that of crossword puzzle publications. ^4/

4. That until the receipt of certain communications from the Respondent dated April 9, 1959 (for details see appendix, paragraph numbered 3), there had never been a question raised with the Petitioner by the Respondent regarding the denial of application for entry or re-entry of the crossword puzzle magazines published by the Respondent (Vol. 1, Tr. 3-15, Vol. 2, Tr. 20).

5. That other magazines of substantially the same character, that is, which may be characterized as crossword puzzle magazines, have for many years been accorded second-class mail privileges (Vol. 2, Tr. 21). ^5/

6. That since September, 1958, the Respondent has taken the position of not granting second-class entry to crossword puzzle magazines believed to be of a similar character to the ones in question (Vol. 1, Tr. 85) and, furthermore, since such date Respondent has undertaken to revoke such kind of magazines presently having the mail privilege in question (Vol. 2, Tr. 59-61). ^6/

7. Petitioner has made a proposed finding to the effect that the refusal of the Department to grant second-class mail privileges to the publications "would cause serious economic distress to Petitioner and would, moreover, suffer financial disadvantages not endured by its competitors for the reason that wholesalers and retailers of crossword magazines will, if the proposed action of the Director, Postal Services Division, not be disapproved, refuse to deal in or stock Petitioner's periodicals." (Page 2, number 4, proposed findings) This is denied for the reason that Petitioner cites not testimony or proof in support thereof but argument, viz., Vol. 2, Tr. 57-58 (Supplemental findings, page 3). However, it is recognized as the Judicial Officer has stated in a recent Departmental Decision, namely, T. V. Reporter, Inc. , P.O.D. Docket No. 1/142, at page 6, that this mail privilege is a "Government subsidy" for certain periodicals. Therefore, obviously, it must be recognized to this extent the Petitioner would be at a competitive disadvantage but whether it is to the extent as proposed above is not shown in the record and any proper inferences that may be derived in this respect because of the revocations of the second-class entry would clearly be overcome by the above finding numbered 6.

8. For the same reasons the last two proposed findings of the Petitioner numbered 14 and 15 are denied. These proposed findings are that Petitioner's competitors consist also of newspapers "and other periodicals which feature crossword puzzles as part of their publications" and that "it is a commercial certainty ... that the Petitioner will be eliminated as a competitor in the crossword puzzle field" if second-class entry is not granted.

CONCLUSIONS OF LAW

In view of the findings of fact above stated, I make these conclusions as to the seven questioned crossword puzzle magazines and their successor titles:

1. That they are not periodicals within the meaning of 39 U.S.C. 224 and 226. This conclusion has been so resolved by recent Departmental Decisions which since they appear applicable to the magazines in question and I, therefore, so deem because of the above findings, and thus so conclude as ruled therein. I refer to T. V. Reporter, Inc. , P.O.D. Docket No. 1/142, dated March 30, 1960, and Crossword Pleasure, Inc., et al. , P.O.D. Docket No. 1/148, dated April 5, 1960. ^7/ (No court decisions covering such material or specific kind of publication has been cited in this proceeding or in the referred to decisions, also no such decisions are known to the Hearing Examiner).

2. That they consist primarily of novelty pages within the meaning of the cited section of the Postal Manual. This conclusion is made for the same reasons stated for the previous conclusion.

3. That they are not originated and published for the dissemination of public information. Each party relies upon the contents of the magazines themselves of being evidence of their respective positions on this issue. (Petitioner's proposed findings document, pages 9-10, Respondent's proposed findings document, page 9) Reference is again made to Crossword Pleasure, Inc. decisions for this conclusion and in particular to page 5 of the Departmental Decision as follows: "The solver of the puzzle fills in the blank spaces provided with entirely unrelated words having no connection with each other or no sequence of thought and certainly do not contribute to what is ordinarily understood as the 'spread of public information.'" ^8/

4. That the record fails to show that they are not devoted to literature, the sciences, arts, etc. as required by the pertinent statute. This conclusion does not mean that they are so devoted to such subject or subjects. The Respondent concedes that he has the burden of proof on this and certain other issues (Point VIII, page 16, proposed findings document) and argues that "it is questionable whether crossword puzzles of any type can be considered literature." (Page 10, proposed findings document) On the other hand the Petitioner argues, among other points concerning this question, that "it would be pure sophistry to contend that a publication whose contents consisted of dissertations on the use of language in literature, the arts or the sciences was entitled to entry, but one which presented similar concepts in popular crossword form was not." (Page 11, proposed findings document) Therefore, it appears, of course, at least as to this proceeding, that it is not for the Hearing Examiner to determine from the contents alone whether the publications meet such requirements but that additional proof must be adduced by the party having this burden. ^9/

5. Petitioner's proposed conclusion of law that the Department can not now revoke the second-class mail privileges as asserted under "Issues," herein at page 4, paragraph numbered 6, is denied as being of no merit since such question as herein presented and under the findings made in connection therewith, viz., numbered 7 and 8, has been resolved by the aforesaid Departmental Decision of T. V. Reporter Inc. , page 7.

8/ (continued) of the receipt in evidence of same, no discussion of this proof as to this conclusion, as well as to the conclusion numbered 4 herein, is deemed necessary, particularly because of the nature of such proof which on its face appears to be of no significant weight. The proof referred to are, Petitioner's Exhibits, according to the transcript (Vol. 2, p. 45) numbered 1 through 8 and 10 through 26. However, from an examination of the exhibits, number 1 is the letter of solicitation used by and from the Petitioner.

FINAL CONCLUSION OF LAW

In view of the foregoing conclusions of law I hold that the rulings of the Respondent Director of August 27, 1959, denying re-entry of the applications of the Petitioner for the crossword puzzle magazines herein involved, are hereby upheld since the publications do not meet with the requirements of 39 U.S. Code 224 and 226 and 132.483 of the Postal Manual in the required particulars above concluded.

Proposed findings of fact and conclusions of law not herein specifically found or concluded have been considered and are regarded as being immaterial or unjustified or, in view of the findings or conclusions herein made, unnecessary.

/s/

Edward Carlick Hearing Examiner

Although Departmental and Initial Decisions are made available for public inspection (Rule 23) courtesy copies of the referred to decisions mentioned in the Initial Decision in this proceeding will be furnished simultaneously to the parties.

/s/

APPENDIX

PRELIMINARY FINDINGS OF FACT

1. That re-entry for second-class privileges of the seven publications enumerated in finding numbered 1, because of changes in title, locations of office or frequency, had been granted a number of times since the original entry. (This is undisputed and is also reflected in the Departmental card exhibits noted in footnote 2).

2. That currently, viz., prior to the institution of this proceeding, all of the seven publications were before the Respondent for re-entry of second-class mail privileges because of one or more than one of these changes, namely, of name and/or frequency or change of office. This is undisputed and the details are set forth in Petitioner's supplemental proposed findings page 2, paragraphs numbered 2(a) through 2(n), which are hereby adopted.

3. That by letters dated April 9, 1959, the Respondent in substance, advised the Petitioner of his intention to deny the re-entry of the seven publications above named, which re-entry had been requested for one or more reasons as above stated, and which letters set forth identical grounds or reasons for such proposed denials. (Resp. Exhibits 15, 19, 22, 25, 29, 33 and 36).

a. That these identical grounds in substance are as stated by Respondent's proposed findings of fact, paragraph 7, page 2, adopted and quoted as follows:

(1) Each of the publications was a book rather than a periodical within the meaning of Sections 224 and 226 of Title 39, U.S. Code.

(2) None of the publications was originated and published for the dissemination of information of a public character, nor was any of the publications devoted to literature, the arts, sciences, or some special industry.

(3) Each of the publications consisted primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual.

b. However, in each of these seven letters the Respondent informed the Petitioner to the effect that the proposed action would be delayed pending examination of the first issue of the particular magazine published after May 15, 1959, if the Petitioner wished to submit such issue and that Petitioner did request Respondent to withhold such action and did submit the later publications, five of which bore the new titles. This is undisputed. (Resp. proposed findings, paragraph 5).

4. That by seven letters dated August 27, 1959 (Resp. Exhibits 16, 20, 23, 26, 30, 34 and 37) the Respondent ruled and so informed the Petitioner to the effect that having examined the new issues of the particular publications in question as well as the earlier issues, the various applications of re-entry for the seven publications are being denied on the identical grounds as above enumerated.

5. That this proceeding was timely instituted by the Petitioner. ^10/

6. That the magazines received in evidence for the determination of the issues, all of which were admitted either through stipulation or without objection, are as follows:

a. Simple Crosswords, October, 1959 issue (Resp. Exhibit No. 35), being one of two of the seven publications which retained the same title.

b. Easy Crosswords, October, 1959 issue (Resp. Exhibit No. 21), being the other publication which retained the same title.

c. Handy Crosswords, June, 1959 issue (Resp. Exhibit No. 31), and its present successor, Pastime Crosswords, November, 1959 issue (Resp. Exhibit No. 32), the new name for which re-entry was requested.

d. Speedy Crosswords, June, 1959 issue (Resp. Exhibit No. 17), and its latest title, namely, Convenient Crossword Magazine, November, 1959 issue (Resp. Exhibit No. 18).

e. Spare-Time Crosswords, April, 1959 issue (Resp. Exhibit No. 28), and its present title, Hobby-Time Crosswords, September, 1959 issue (Resp. Exhibit No. 27).

f. Quickie Crosswords, October, 1959 issue (Resp. Exhibit No. 24), the predecessor title under which second-class entry is held being Keen Crosswords, which was not offered in evidence.

g. Champion Crosswords, March, 1959 issue (Resp. Exhibit No. 38), and its successor title, Blue Ribbon Crosswords, October, 1959 issue (Resp. Exhibit No. 39). ^11/

7. Petitioner's proposed findings numbered 8 through 12 are adopted; they are as follows:

The printed pages comprising Petitioner's periodicals do not bear words, symbols or perforations indicating that they are for detachment.

The printed pages comprising Petitioner's periodicals do not contain printed pictures for detachment or cutting out.

The printed pages comprising Petitioner's periodicals contain blank spaces for writing and marking, but these blank spaces must be read in conjunction with the directions given in the crossword puzzle, and are part of an entire written page.

The printed pages comprising Petitioner's periodicals do not contain printed paper illustrations pasted to them.

The printed pages comprising Petitioner's periodicals do not contain coupons, applications or order forms which occupy more than one-half of the entire page.

1/ The original petition for review filed October 16, 1959, referred to the predecessor Rules of Practice and to which Respondent filed the required answer under the present Rules (Rule 7(d)). The amended petition was filed following the granting of leave to file same at the hearing which commenced December 10, 1959, and concluded the following day, for the purpose of correcting this error which otherwise might lead to confusion, and to which Respondent did not object and referred to the said answer as being the answer to this amended petition.

2/ The Petitioner probably inadvertently, requested that the Respondent has failed to show the requested conclusion. It was ruled at the hearing that as to such issue and certain others the Petitioner has the burden of proof (Vol. 1, Tr. 62-65). But, of course, the determination of this issue is made on the entire record as required by the Administrative Procedure Act, 5 U.S.C. 1007(b) which is restated in Rule 18(c).

3/ This is undisputed (page 1 of the parties supplemental proposed findings document) and is shown in the so-called Departmental cards in evidence which reflect the status of a particular publication - Resp. Exhibits 40 through 46.

4/ Although Respondent has proposed that each of the publications in evidence contain puzzle material of a certain number of pages and therefore resulting in certain percentage figures (supplemental proposed finding No. 10), and that certain other sections consist of a certain number of pages which constitute certain percentage figures (supplemental proposed finding No. 11), it is deemed unessential to compute the exact pages of each of the eleven publications in evidence which are devoted to certain features and to determine the correct computation of percentage of these particular features. In the first place the magazines, of course, speak for themselves, and whether the undersigned would have made a correct mathematical computation is not the question of fact involved; the pertinent question is the making of sufficient findings of fact in this respect so that proper conclusions of law may be reached. (It is, of course, also desirable that such findings be sufficiently identified so that a decision could be more legally useful).

5/ This citation refers to the testimony of the Publisher-President which stands unrefuted and is, in fact, supported by the testimony presented on behalf of the Respondent (Vol. 1, Tr. 86).

6/ The citations in this finding refer to the unrefuted testimony presented on behalf of the Respondent by Mr. Fulvio Fioravanti, having the title of "Mail Classification Specialist," of the Postal Services Division.

7/ Prior to these decisions which were issued after the parties had submitted their proposed findings documents, no Departmental Decision on this subject formulized through the present procedures or its predecessor rules had been issued. In determining whether the magazines come within the scope of these decisions it is apparent from said decisions that the Hearing Examiners' Initial Decisions must necessarily and they were so considered.

8/ Since the Petitioner makes no mention in his proposed findings document of the solicited letters received in evidence over objection, or their value, and since the Respondent also fails to make mention of same except to reiterate his objection discussion of this proof as to this conclusion, as well as to the conclusion numbered 4 herein, is deemed necessary, particularly because of the nature of such proof which on its face appears to be of no significant weight. The proof referred to are, Petitioner's Exhibits, according to the transcript (Vol. 2, p. 45) numbered 1 through 8 and 10 through 26. However, from an examination of the exhibits, number 1 is the letter of solicitation used by and from the Petitioner.

9/ In the Crossword Pleasure, Inc. Departmental Decision it appears as is shown by the referred to Initial Decision of the Hearing Examiner, that the record failed to show that the crossword puzzle magazines there in question fulfilled such requirements of the pertinent statute. In that proceeding the Petitioner undertook the burden of proof and at the hearing introduced witnesses who testified on this point. It is noted that in the Departmental Decision at page 5 it is stated as follows: "Likewise I find nothing in the record that these publications are devoted to literature, the sciences, the arts or some special industry."

10/ There seems to be no dispute about this: Respondent has not made an issue of this in the record including the pre-hearing pleadings. However, this finding is made since Respondent for some unapparent reason states on page 2 of his brief as follows: "Respondent did not file an appeal from the decisions of April 9, 1959, denying the applications for re-entry within the specified time."

11/ It is noted that Respondent in his supplemental proposed findings probably inadvertently referred to these two titles in reverse order (page 2).