In the Matter of the Petition by

ECHO MAGAZINE,
160 East 48th Street,
New York 17, New York

for a hearing upon its application for second-class entry
of "ECHO MAGAZINE."

P.O.D. Docket No. 1/219

February 16, 1960

William A. Duvall Chief Hearing Examiner

POST OFFICE DEPARTMENT, DIVISION OF HEARING EXAMINERS, WASHINGTON 25, D.C.

APPEARANCE:
Dean M. A. Murville, Esq.
Office of the General Counsel
Post Office Department for the Respondent

ORAL INITIAL DECISION OF HEARING EXAMINER

As pointed out by counsel for the Respondent in this case, application was filed by the publisher, Barrie L. Beere, for second-class mailing privileges for the publication known as Echo Magazine.

The application was filed on behalf of Echo Magazine, Inc., and it was filed on May 25, 1959. The Director of the Division of Postal Services, who is the Respondent in this case, served upon the publisher a notice of denial of this application and the notice of denial was dated December 21, 1959. The publisher then filed his appeal from this ruling of the Director by letter dated January 1, 1959. (sic)

The hearing was originally scheduled to take place on February 8, 1960, but was continued until this date at the request of the publisher. The publisher did not appear at the hearing this morning, either in person or by counsel, and no word has been received from him since the date of his telephone call in which he requested the postponement of the hearing.

Now the first issue that is presented is whether the publication meets the requirement of regular issuance that must be met in order for it to be entitled to second-class mailing privileges. In the application it is stated that the frequency of issue of the publication will be bi-monthly. Presumably with the application the publisher filed or presented for mailing at the New York Post Office copies of the first issue of the publication which is for July-August, 1959. This is Respondent's Exhibit 1. On some later date the second issue of the publication was presented for mailing. This second issue is identified as Volume I, No. 2, and on the page on which the masthead of the publication appears there is also the word "October". So it appears that this copy of the publication, this issue of the publication is for the months of September and October. Since that time no further issues have been presented for mailing at the Post Office in New York. Therefore, it can only be concluded that the publisher is not meeting the frequency of publication which he represented in his application. It is possible, of course, that he could be publishing the material and distributing it by means other than the United States mail, but if this is the case he will then be presumed to have abandoned his application, and in any event in order to be eligible for second-class mailing privileges he has to offer a publication for mailing at the frequency rate which is represented in the application. This has not been done, and so therefore the first issue is resolved in favor of the Respondent, and I find that the publication of the publisher is not complying with the requirement for the regular issuance of his publication that is established in Section 132.221 of the regulations contained in the Postal Manual, and, of course, it is also not complying with the requirement of law relating to regularity of issue which is contained in Section 226 of Title 39, United States Code.

The second issue is whether the publication is formed of printed sheets. I have more difficulty with this issue for the reason that there are printed sheets in the publication. The publication is composed in part of printed sheets, but it is not composed entirely of printed sheets. I am not an authority in the publishing business, but looking at this publication there are five so-called sheets in it which are of rather heavy stock paper or cardboard and it appears that the musical record that comprises this sheet has been impressed in some manner other than printing upon this particular type of sheet.

Now in the first issue of the publication there are five of these sheets containing phonograph recordings. So recognizing the possibility of error due to the fact that I have not a technical printing knowledge, I am going to rule that this publication is not composed or formed of printed sheets. So the second issue is resolved in favor of the Respondent.

The next issue that will be dealt with, and I am not treating these precisely in the order in which they appear in the pleadings, relates to the contents of the publication. Section 132.224 of the Postal Manual and a portion of Section 226 of Title 39, United States Code, requires that in order for publication to be eligible for second-class entry it must among other things be originated and published for the purpose of disseminating information of a public character or it must be devoted to literature, the sciences, art or some special industry. With respect to this issue it seems to me that this publication is devoted to some form of art. The records that are contained in the first issue are recordings of such entertainers as Fred Astaire, Larry Adler, and music from a Broadway Show called "Gypsy" which is currently popular. The second issue of the publication has a variety of material within its covers. One record is concerned with the visit of Queen Elizabeth to this continent, and it seems to me that that would fall under the heading of public information. There is a recording of a sports car event at Le Mans, and there is a dramatization of D. H. Lawrence's book, "Lady Chatterley's Lover," so that it seems to me that within the covers of the second issue of this publication there is matter relating to information of a public character or has information about a literary classic. There is information about a sporting event. It seems to me in the overall that the publisher has met the requirement stated in Section 132.224 of the Postal Manual, and it has met that part of the fourth condition established in Section 226 of the Title 39, United States Code, which reads: "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 ***."

The last issue as I see it is whether the publication consists primarily of novelty pages as that term is defined in Section 132.483 of the Postal Manual. I am going to read into the record certain parts of this Section of the Postal Manual at this time. This Section begins: "Novelty pages are printed pages that may be used for purposes other than reading or printed sheets with novelty characteristics ***. The total number of novelty pages in the copies may constitute only a minor portion of the total pages

***. The following kinds of pages are examples of novelty pages that may be included in second-class publication: A. Printed pages bearing words, perforations or symbols indicating that they are for detachment ***."

Now in each of the issues of this publication there are five phonographic records. In the first issue of the publication there are seventeen pages in toto. In the second issue of the publication there are eighteen pages altogether. Now, of course, five is to seventeen, or eighteen less than thirty-three and a third percent, so it seems to me that this is a minor portion of he total pages. It is difficult to tell what the framers of this regulation had in mind when they issued it, but I should say that anything less than fifty percent would literally be a minor portion. That is on that basis that I reach the conclusion that this publication does not contain an excessive number of novelty pages.

Now there is one other thing that might be pointed out in connection with this issue which is that these pages or sheets on which these phonographic records appear are susceptible of being removed from the publication but there is no indication that that is what is intended to be done with it because the instructions as to how to play these records indicate that the publication is opened to the record that it is desired to play and the remainder of the publication is folded underneath it so that the desired record appears on the top. The publication is then put on the turntable of the phonograph, and the needle is placed manually in the grooves that appear on the surface so that it appears that it was intended that the pages remain within the binding in which they come; and it is entirely possible, it appears on the surface, that the publication be used in accordance with the instructions for its use that appear in the publication.

So upon the basis of my view of this publication, I find that the publication does not consist primarily of novelty pages, and this issue is therefore resolved in favor of the Petitioner.

On the basis of all of the findings that I have stated heretofore, I conclude that as a matter of law that the publication is not entitled to entry in the mail as second-class matter, and the ruling of the Director in denying the application for second-class mailing privileges for the publication, Echo Magazine, is affirmed.

/s/

As taken from pages 7 - 14 of the Of ficial Transcript of Proceedings.