In the Matter of the Petition by

ONE-SPOT PUBLISHERS, INC.
7610 Madison Street,
Forest Park, Illinois

in respect to second-class mailing privileges for the publications
ONE SPOT NEW RELEASE REPORTER and ONE SPOT POPULAR REPORTER.

P.O.D. Docket No. 1/231

July 29, 1960

Jesse B. Messitte Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

APPEARANCES:
Argyle H. Gudie President,
One-Spot Publishers, Inc.
Brown & Lund, by W. M. Burkhalter, Esq.
Washington, D. C. (post-hearing appearance)
for the Petitioner

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

INITIAL DECISION OF HEARING EXAMINER

This proceeding presents the single question of whether two publications of the Petitioner are periodicals, as distinguished from books, so as to be entitled to second-class mail privileges. The parties have agreed that all other requirements for second-class mail privileges are met by the publications.

On January 21, 1959, the Petitioner, One-Spot Publishers, Inc., an Illinois corporation, filed with the Post Office at Forest Park, Illinois, an application for second-class mail privileges in respect to a weekly publication titled One Spot New Release Reporter. By letter dated February 8, 1960, the Director of the Postal Services Division, Bureau of Operations of the Post Office Department at Washington, D. C., (sometimes referred to herein as the Director and sometimes as the Respondent) denied the application. The reasons given by the Director for the denial were: the law prescribes that only newspapers and other periodical publications may be mailed at the second-class rates; the copies of the issues of One Spot New Release Reporter submitted with the application are merely compilations, listings or directories of phonograph records which are to be used by dealers as reference material or reference books; the greater part of the entire contents of each issue submitted consists of the same material which appears from issue to issue; therefore, One Spot New Release Reporter, is not a newspaper or other periodical publication but is rather a "book" within the meaning of the postal rate statutes.

The Petitioner filed an application on March 2, 1959, with the Post Office at Forest Park, Illinois, for second-class mail privileges for a monthly publication titled One Spot Popular Reporter. The Director denied the application by letter dated February 8, 1960, and the reasons given were identical with the reasons he gave for denying a second-class permit to the Petitioner for One Spot New Release Reporter.

On February 26, 1960, Petitioner duly filed its appeal from the ruling of the Director denying the second-class permit for the publication One Spot New Release Reporter. Among many other things, Petitioner alleged that the publication is a periodical under applicable law and that the Director's ruling was consequently in error. The Respondent's answer filed March 14, 1960, joined issue with that allegation by Petitioner and affirmatively asserted that the publication is not a periodical publication within the meaning of Sections 224 and 226 of Title 39 of the United States Code or within the meaning of Section 132.211 of the Postal Manual, but is rather a book within the meaning of Section 235 of Title 39 of the United States Code.

On February 26, 1960, Petitioner also duly filed its appeal from the ruling of the Director denying the second-class permit for the publication One Spot Popular Reporter. Stripped of non-essentials, the substance of allegations of the petition is that the Director erred because the publication is a periodical and not a book. The answer filed by Respondent denied that the publication is a periodical and, in effect, alleges it is a book.

In view of the Respondent's concession at the hearing and again in his proposed findings and conclusions that the periodical versus book question is the only issue to be decided, there is no need to consider matters in the petitions of appeal or answers relating to other subjects. It is proper to assume that if the publications are periodicals then second-class permits should be issued because all other requirements have been met.

A hearing was held before this Examiner on April 1, 1960. The proceedings in the two cases P.O.D. No. 1/231, (One Spot New Release Reporter) and P.O.D. No. 1/232, (One Spot Popular Reporter) were consolidated, with the consent of the parties, into a single proceeding bearing the designation P.O.D. No. 1/231.

The only witness was Argyle H. Gudie, president and sole stockholder of the Petitioner.

There is, however, no dispute in respect to the pertinent evidential facts, as disclosed by the record.

Petitioner's publication One Spot New Release Reporter is a weekly publication which has been published regularly once each week since January 21, 1959. Examination of sample copies, which are exhibits, reveals: the publication is 8 3/4 inches long and 6 3/8 inches wide; it contains more than 100 pages; the covers are made of heavy paper; it is an alphabetical compilation of recordings (in the category known in the trade as popular music) released, according to reports received by Petitioner, during the thirteen weeks immediately preceding the date of the publication; all the recordings are listed both by the titles of the records and the names of the performing artists; other information in the publication includes the name of the recording company and the type and speed of the record. New releases reported to Petitioner each week are added to the publication, immediately following that week and generally, at the same time, all recordings released during the fourteenth week prior to such publication are omitted. Each thirteenth weekly issue is designated by the Petitioner as a "Permanent File Copy." The accumulation of these permanent file copies provides a reference to all previous releases. Any weekly issue could serve as the permanent file copy, as well as the one so designated by Petitioner, so long as each thirteenth issue thereafter were also used as a permanent file copy. Generally, upon inquiry from their customers or potential customers, record dealers use the publication as a reference source to identify titles, artists, recording companies or type and speed of records. The publication provides subscribers with some current information on record releases, generally not conveniently and readily available from other sources. New recordings of the type reported in One Spot New Release Reporter are released in considerable number each week, perhaps ranging from 500 to 1,000 and averaging about 700, and such records may be produced by any of some 400 recording companies. Each successive issue of One Spot New Release Reporter adds about 1/13 new material and drops about 1/13 old material. The Petitioner reports, as new recordings, those released over a thirteen week period because records are not always released in all parts of the country at the same time and the Petitioner considers the thirteen week period as the time reasonably necessary to determine whether particular records have been sufficiently widely accepted by the public to be eligible for inclusion in Petitioner's monthly publication One Spot Popular Reporter. Of the approximate average of 700 new records released each week, only about 25 to 100 will become popular, or in the vernacular "click", and then be listed in the One Spot Popular Reporter.

Petitioner's publication One Spot Popular Reporter is a monthly publication which has been published regularly once each month since March, 1959. Sample copies show the publication: is bout 8 3/4 inches long and about 10 1/8 inches wide; contains 300 or more pages; has covers made from heavy paper; has a binding consisting of two staples and a cloth-like outer wrapper; and contains an alphabetical listing, by titles, and also by performing artists, of recordings of popular music in current demand, according to information sent to Petitioner by record manufacturers. A recording continues to be listed in One Spot Popular Reporter so long as Petitioner considers it to be of interest. Some new recordings listed in One Spot New Release Reporter are dropped at the end of thirteen weeks and never appear in One Spot Popular Reporter. Some items listed in One Spot Popular Reporter may be dropped after the first month or other brief period, but many items may continue to be listed indefinitely. As high as 95 per cent of the content of any issue of One Spot Popular Reporter may be the same as the next preceding issue. The publication is a reference source for record dealers in connection with inquiries from customers or potential customers.

The two publications, described above, are sold only on the basis of fully-paid subscriptions and contain no advertising copy. As of August 5, 1959, there were 1,934 fully-paid subscriptions to One Spot New Release Reporter and 1,970 fully-paid subscriptions to One Spot Popular Reporter. The annual subscription price for the One Spot New Release Reporter is $20.00 and the One Spot Popular Reporter is sold for $25.00 per year, with a reduction for purchasers who subscribe to more than one of Petitioner's publications. The subscribers to the two publications consist mainly of retail record dealers. It is useful to such dealers to have current information concerning new record releases and to have information concerning those records which continue to be in popular demand. The two publications may be considered successors to similar publications published at frequencies of not less than once a month since 1926, but those predecessor publications were sent by third-class mail and they did not have second-class mail privileges.

The "Security Owner's Stock Guide" for March, 1960 (herein sometimes referred as "Stock Guide") published by Standard and Poor's Corporation, is a reference type publication dealing with Common and Preferred Stocks and it has second-class mailing privileges. There are elements of similarity (use as reference material and, perhaps, some inclusion of old data from issue to issue) between the Stock Guide and Petitioner's publications.

Section 224 of Title 39 of the United States Code provides:

"Mailable matter of the second class shall embrace all newspapers and other periodicals 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."

Petitioner does not contend that the two publications, with which this case is concerned, are newspapers and it is obvious that they are not. Petitioner does contend the publications are "periodicals."

Section 225 (39 U.S.C.) relates to examination at the office of mailing of matter presented as matter of the second class. It has nothing to do with the issue in this case.

Section 226 (39 U.S.C.) states:

"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 publication 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, art 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."

Although the Petitioner proposes findings designed to show compliance with some of the specific conditions of Section 226 (39 U.S.C.) such findings are quite unnecessary in view of Respondent's concession that second-class entry is not precluded because of Petitioner's failure to meet the specific requirements as expressed in that Section.

However, the law is well settled that compliance with the specific and express conditions of Section 226 may exist, and yet second-class entry may properly be denied because the publication is neither a newspaper or periodical, under Section 224 but is rather a book under Section 235. Houghton v. Payne , 194 U.S. 88 (1904); Bates & Guild Co. v. Payne , 194 U.S. 106 (1904); and Smith v. Hitchcock , 226 U.S. 53 (1912).

Section 235 of Title 39 of the United States Code reads, in part here pertinent:

"Mail matter of the third class shall include books, circulars, and other matters wholly in print (except newspapers and other periodicals entered as second-class matter) * * *."

Part 132.211 of the Postal Manual; [39 C.F.R. 22.2(a)(1)] reads, so far as here pertinent:

"Only newspapers and other periodical publications may be mailed at the second-class rates * * *."

Neither the governing statutes nor the regulations of the Post Office Department define "periodical" or define "book" so as to cast any light on the issue presented in this case.

The two publications, here under study, do not clearly and unmistakably fall within the category of books such as was the case in Houghton v. Payne , supra , or Smith v. Hitchcock , supra . In the Houghton case, for example, so clear was it that the publications were books that the Supreme Court concluded that the Postmaster General properly revoked second-class mailing privileges notwithstanding the fact that such privileges had been granted to the publications for sixteen years. In describing the publications, in the Riverside Literature series, Mr. Justice Brown stated:

"The publications are small books, 4 1/2 by 7 inches, in paper covers, and are issued from the office of publication either monthly or quarterly, and numbered consecutively. Each number contains a single novel or story, or a collection of short stories or poems by the same author, and most, if not all of them, are reprints of standard works by Thackeray, Whittier, Lowell, Emerson, Irving, or other well known writers, and from a literary point of view are of very high class. Each number is complete in itself and entirely disconnected with every other number." ( Houghton v. Payne , 194 U.S. 88, 95)

And at page 98, Mr. Justice Brown noted that except for the consecutive numbering of the issues "***no one would imagine for a moment that these publications were periodicals and not books."

And again at page 100 Mr. Justice Brown emphasized:

"We regard publications of the Riverside Literature Series as too clearly within the denomination of books to justify us in approving a classification of them as periodicals, * * *."

Similarly the publications in Smith v. Hitchcock , supra , were considered clearly books. That case involved dime novels, such as the Frank Merriwell series, issued at stated intervals and consecutively numbered.

The two publications, in the instant case, are not, however, clearly and unmistakably within the category of periodicals, such as those one may observe by the dozen on any metropolitan newsstand. One specific illustration is the well-known magazine, Esquire, which was the subject matter of litigation in Hannegan v. Esquire , 327 U.S. 146 (1946).

While most publications, presented for second-class entry, no doubt, can readily be identified as periodicals or books, as the case may be, there are some which do not lend themselves easily to such identification. Publications in this gray area bear enough characteristics of periodicals and enough characteristics of books (or perhaps other publications which are neither newspapers or periodicals) to make the task of identification difficult. Such publications may well include those which have been referred to by high authority as "nondescript publications." Thus, the Court in Houghton v. Payne , 194 U. S. 88, 96, 97 stated:

"By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.' A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals. Payne v. Railway Pub. Co. , 20 D.C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class."

Perhaps the Petitioner's two publications may also be considered as nondescript. But it does not follow, from the above-quoted remark in Houghton v. Payne , that every nondescript publication is a periodical. The attorneys for the Director ask the Hearing Examiner to rule that the publications, here under consideration, are not periodicals, and thus not entitled to second-class mail privileges, largely, if not entirely, on the strength of the language or criteria suggested in two Supreme Court cases ( Houghton v. Payne , supra , and Smith v. Hitchcock , supra ) which dealt with publications deemed to be books, beyond question. Some might contend that: the language or criteria or guideposts suggested in those cases are of doubtful applicability to any "nondescript" publications including those in this case; and this contention is, perhaps, supported by the definition of the word "nondescript." Thus, Webster's New International Dictionary (Second Edition Unabridged 1954) defines the adjective "nondescript" as follows:

"Not easily described; unclassifiable; belonging, or apparently belonging, to no particular class or kind."

But such language, criteria or guideposts are almost all there are, on the present record, against which to measure the evidential facts, and I consider it necessary and proper to attempt to use those tests. Moreover, both parties in their briefs suggest that such tests be used.

The language of the Court (per Mr. Justice Holmes) in Smith v. Hitchcock , 226 U. S. 53, 59, includes the following:

"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."

Each party in this case relies upon part of the foregoing as supporting its contention in respect to whether or not the Petitioner's two publications are periodicals.

Attorneys for the Director advert to the following language in the earlier case of Houghton v. Payne , 194 U. S. 88, 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.

* * * * * * * *

"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,) * * *. Books are not often issued periodically, and, if so, their periodicity is not an element of their character."

Again each party, apparently, relies upon part of the foregoing as supporting its contention.

After careful study of the record and the legal authorities, I find as an ultimate fact that Petitioner's publication One Spot New Release Reporter is not a periodical. I have been persuaded to so find largely on the strength of the combination of certain underlying facts considered in the light of the language, criteria or guideposts of Houghton v. Payne and Smith v. Hitchcock , supra . Each issue of the publication has appreciable size, being 8 3/4 inches by 6 3/8 inches, and contains more than 100 pages. Each issue deals with a single subject. There is not only in each issue a complete absence of any variety of original articles by different authors but in fact each issue contains essentially a composite listing, primarily for reference purposes, of records released during the preceding thirteen weeks, as reported to the Petitioner by manufacturers and others. Each issue is complete unto itself; the Petitioner's promotional literature says so; and, the title of the publication appears to emphasize that all the releases, which are sufficiently recent to be considered as new, will be found between the covers of each issue (i.e., in one spot). While periodicity is useful and perhaps important to subscribers in respect to each week's new material (generally less than 8 per cent) the old material (generally more than 92 per cent) is surely not required weekly in order to supply any new information to the subscriber. With respect to the more than 92 per cent of the contents in each issue, which already appeared in the next previous issue, such content is neither original nor, indeed, even new timely material for the subscriber. There is, perhaps a quality of permanence in each issue because it can be used for long-time or permanent reference purposes by combining it with each thirteenth issue thereafter, thus providing a complete permanent list of all recordings released after the date of earliest releases contained in the One Spot New Release Reporter first delivered to the subscriber. Recognizing this factor of permanence, the Petitioner actually designates one issue in each thirteen week period, as a permanent file copy, to be retained by the subscriber indefinitely. In view of the foregoing facts, taken in combination, and after weighing carefully all the contrary contentions of the Petitioner, I regard the publication One Spot New Release Reporter as having qualities more like a reference book (with weekly revised editions which modify only a very small portion of the previous book content) than a periodical. In any event, I find that it is not a periodical.

I also find as an ultimate fact that the Petitioner's publication, One Spot Popular Reporter, is not a periodical. In so finding, I have considered the record as a whole in the light of the legal authorities. However, I have been most impressed by the combination of certain of the underlying facts, in view of the language, criteria or guideposts of Houghton v. Payne and Smith v. Hitchcock , supra . Each issue has appreciable size, being about 8 3/4 inches by 10 1/8 inches and containing 300 or more pages. Each issue deals with a single subject. Each issue not only fails to contain a variety of original articles by different authors but, in fact, is a listing for reference purposes of popular records, as reported by record manufacturers to Petitioner, and duplicates to the extent of as much as 95 per cent the content of the next preceding issue. Each issue is complete unto itself; Petitioner's promotional literature says so; and, the name of the publication tends to emphasize that all popular recordings are listed between its covers (i.e., to be found in one spot) and without regard to any previous issue. While periodicity is useful, and perhaps important, to subscribers in respect to each month's new material (perhaps 5%) the old material (95%) is surely not required monthly in order to supply any new information to the subscriber. In view of the foregoing, and after careful study of Petitioner's contrary contentions, I consider the publication One Spot Popular Reporter to have characteristics more like a reference book (with monthly revised editions only modifying a very small portion of the previous book content) than a periodical. In any event, I find it is not a periodical.

A few other matters, mentioned in the briefs filed by each party, are appropriate for comment.

The president of the Petitioner testified at the hearing that: he publishes 14 different publications; he has been in the publishing business for more than 30 years; in his opinion, the two publications in this proceeding are not books because "periodicity of their publication is an element * * * of their character" and they are issued periodically and bring new information to the subscriber. I do not consider this testimony to outweigh the factors noted above which have led me to find the publications are not periodicals but are rather like books. Perhaps, it is not without significance that the Petitioner's president, himself, upon several occasions referred to the publications as "books." Perhaps, too, the closeness of the question, here presented, is evidenced by the fact that Petitioner's predecessors publishing since 1926 the same type publications, as those here, mailed them third-class and did not have second-class mail privileges for them.

Assuming, without deciding, that the Post Office Department has erroneously granted second-class mail privileges to other publications, used for reference purpose and containing some duplication of content from issue to issue, it does not follow that such erroneous action should be extended to encompass Petitioner's publications. Stock guides, such as Standard and Poor's publication "Security Owner's Stock Guide" for March, 1960, and perhaps transportation guides such as the railway guide considered in Payne v. National Railway Publishing Co. , 20 App. D.C. 581 (1902), could, as Petitioner contends, be publications somewhat analogous to Petitioner's publications. But if the other second-class entries are erroneous, as is here assumed, the remedy is to revoke them and not to extend second-class mail privileges to new publications such as the two involved in this proceeding.

Because the Petitioner suggests that the Stock Guide and the railway guide publications, with second-class entry, evidence discrimination against Petitioner's publications, if there are factual or historical differences of significance between such publications justifying the difference of classification, a witness competent to testify to such matters might, perhaps, have been helpful to provide a more informative record. Comparisons could, easily, have been limited by the Examiner to a few representative publications, proven to be substantially similar, so as not to burden unduly the Director or his staff. However, I consider the present record as sufficient to make a reasonably informed judgment on the issue before me.

Both parties refer to Payne v. National Railway Publishing Co. , supra . The case concerned second-class mailing privileges and "the well-known railway guide containing railroad and steamboat time-tables with much information concerning the movements of the railroads, undoubtedly of special use to the officials of the railroads, and of great general use to the traveling public." (20 App. D.C. 581, 583) The Court divided two to one. A majority (per Morris, J.) held that second-class mail privileges could not be denied to the railway guide on the basis of a regulation of the Post Office Department which by restricting second-class matter to publications consisting "of current news or miscellaneous literary merit, or both ***" imposed requirements in excess of the governing statute. But Shepard, J., dissented and, at page 605, noted his views that: the railway guide was a reference book; it did not consist entirely of new matter "like the ordinary periodical." But rather, he said: "The great bulk of the matter carried from date to date of successive issue is old. Most of it has been carried time and again and delivered to the same subscribers; for all that the later issue undertakes to do is to note such changes in schedules, or such new ones as may have occurred since the next preceding issue." The words of Shepard, J., in dissent, seem to be echoed in the reasons the Director gave the Petitioner for denying second-class entry to the publications before me. And although an appeal was taken from the decision of the majority, that appeal was dismissed on motion of the Solicitor General as shown in 192 U. S. 602 (1904).

On first blush, the decision in Payne v. National Railway Publishing Co. , 20 App. D.C. 581, seems a precedent supporting significantly the contentions of the Petitioner in the instant case. This is particularly so, if one assumes although the opinion of Morris, J., does not show it, that the two Justices composing the majority were confronted by Shepard, J., with his arguments in dissent and were passing generally on the criteria in respect to what constitutes a periodical as distinguished from a book. Whatever doubt there might once have been on that score was, however, pretty clearly resolved by Shepard, J., himself, writing for the full Court (same Justices as in the railway guide case) in Payne v. Houghton , 22 App. D.C. 234 (1903) and carefully delimiting the scope of the ruling in the National Railway Publishing case by stating at pages 244 and 245:

"***the action of the Postmaster-General in that case was based upon a regulation of his Department, in excess of his authority, because it made a substantial addition to the requirements of the statute."

"Upon the practical admission, as apprehended by the court in that case, that the plaintiff had complied with the requirements of the statute itself, and had been denied the admission of its publication to the mails as matter of the second class, by virtue of the unauthorized regulation, it was held that the Postmaster-General owed it the performance of a simple duty plainly imposed by the act of Congress ***."

Thus, I cannot regard the railway guide case (20 App. D.C. 581) as a significant precedent on the question of what constitutes a periodical as distinguished from a book. Moreover, the Supreme Court's reference in Houghton v. Payne , supra , to the railway guide, as a "nondescript" publication admitted to second-class entry, may have been a way of saying the railway guide itself does not meet the criteria, generally applicable, for identifying or classifying a publication as a periodical for second-class entry purposes. But the railway guide, by long history, going back to 1870, as second-class matter, crowned by successful litigation against the effort in 1901 of the Post Office Department to revoke second-class mailing privileges, may now have established rights in the premises peculiar unto itself. (See Payne v. National Railway Publishing Co. , 20 App. D.C. 581, 583, 586, for history of railway guides and second-class entry.)

As a matter of law, I conclude that the Petitioner's two publications One Spot New Release Reporter, and One Spot Commonly, disputant to disputant from which, order Reporter are not newspapers or periodicals within the meaning of 39 U.S. Code 224 and 226. Rather they are like books under 39 U.S. Code 235.

Accordingly, it is the decision of the Hearing Examiner that the Petitioner is not entitled to second-class mailing privileges for its publication One Spot New Release Reporter or for its publication One Spot Popular Reporter.

Proposed findings and conclusions of the parties have been adopted to the extent embodied in this decision. Other proposed findings and conclusions are deemed either not relevant or not material to the resolution of the issue presented in this case.

/s/