In the Matter of the Petition by                                )
                                                                               )
FIZEEK ENTERPRISES, INC.                                    )
1318 - 14th Street, N.W.                                        ) P.O.D. Docket No. 1/235
Washington 5, D. C.                                               )
                                                                               )
for second-class entry of its                                 )
publication FIZEEK.                                                 )

APPEARANCES:                                                    Stanely M. Dietz, Esq.
                                                                              1406 G Street, N.W.
                                                                              Washington, D. C.
                                                                              Attorney for the
                                                                              Petitioner
                                                                              Saul J. Mindel, Esq. and
                                                                              Eugene P. White, Esq.
                                                                              Office of the General Counsel,
                                                                              Post Office Department,
                                                                              for the Respondent

Kelly, Raymond J.

POST OFFICE DEPARTMENT Washington 25, D. C.

DEPARTMENTAL DECISION

Hearing was held on May 12, 1960, in the above matter. At the opening of this hearing without objection, the Complainant-Respondent amended the answer and withdrew from the consideration of the Judicial Officer the charges set forth in paragraphs 2, 3, 4, 6 and 8 of the Answer filed herein on the 28th of March 1960. This left for the consideration of the Judicial Officer the following charges:

1. Paragraphs 1 and 5 of the Answer as to the mailability of the magazine FIZEEK;

2. Paragraph 7 of the Answer that the publication here involved is a book and not a periodical;

3. Paragraph 9 of the Answer that the publication was devoted primarily to advertising and was published for advertising purposes;

4. Paragraph 10 of the Answer that the publication did not contain the name of known authors or place of publication including street and number as required by postal regulations.

By stipulation of the parties the following joint exhibits were placed in evidence:

Joint Exhibit No. 12 which was an application dated April 6, 1959.

Joint Exhibit No. 13 which is a letter of denial dated February 5, 1960.

Joint Exhibit No. 14 - Form 3501 labelled FIZEEK, No. 1, May 1959.

Joint Exhibit No. 15 - Form 3501, labelled FIZEEK, No. 2, July 1959.

Joint Exhibit No. 16 - Form 3501, labelled FIZEEK, No. 3, October 1959.

Joint Exhibit No. 17 - Form 3501, labelled FIZEEK, No. 4, December 1959.

Mailer-Petitioner introduced his exhibit number 1, the publication - LAUGH BOOK - which was received in evidence over objection of Complainant-Respondent.

Counsel for the Mailer-Petitioner contends that the Post Office Box address set forth on page 3 of the exhibit in question is sufficient to comply with the statute and regulations. He disputes the contention of the Complainant-Respondent that the pages of the publication carrying the pictures with the name of the photographer constitutes advertisements. He pointed out that pages 8, 9 and 10 of the publication, exhibit number 11, were devoted to part 2 of the article entitled "Bigger Biceps and Triceps by Better Bowling" the last thing on page 10 states "Note: The third and last article on this series will appear next month" and pages 12, 13, 14 and 16 are devoted to an article on "Sunshine Builds Body Health" and that this complies with the requirements of 39 U.S. Code 224. Also on page 15 is a notation that this is the first of a series of continued articles.

Counsel for the Complainant-Respondent insists that the regulations require street and number and that a Post Office Box number is not sufficient under the provisions of the regulations set forth in Postal Manual Section 132.25f. ^1/

Counsel for Complainant-Respondent further contends that this publication is not a periodical under the definition laid down by Justice Holmes in Smith v. Hitchcock, 226 U.S. 53. ^2/ He cited the Departmental Decision of the previous Judicial Officer in reference to the Joke Book Case in P.O.D. Docket No. 1/44 and the opinion of the present Judicial Officer in P.O.D. Docket No. 1/148 in this connection.

Counsel for Complainant-Respondent further contends that seventy-five percent advertising rule set forth in 132.226 of the Postal Manual has been violated because the publisher does not pay for the photographs. These are received free from the photographers in return for the publication carrying the name of the photographer under the picture and also in the directory and by urging the readers in comments in connection with the photographs and in the directory to give consideration to the suppliers of the published pictures. He claims this further advertises the business of the photographer. ^3/

Counsel for Mailer-Petitioner placed on the record his Oral Proposed Findings of Fact and Conclusions of Law which set out his claims as follows:

1. that the publication here involved is a periodical;

2. that the publication here involved is not primarily devoted to advertising purposes;

3. that the publication does contain a proper known office address within the meaning of the statute.

Therefore as a matter of law the publication here involved is entitled to second-class entry.

The Complainant-Respondent asked for fifteen days within which to file proposed findings of fact and conclusions of law herein which was granted. It has been determined in the Departmental Decision of April 28, 1960, in Manual Enterprises, Inc., et al., P.O.D. Docket No. 1/246 in which this publication was also involved that same was non-mailable under 18 U.S. Code 1461. I therefore find as more fully stated in Manual that the publication FIZEEK is beamed toward the male homosexual and that it appeals to the prurient interest of the male homosexual; that this is the group for whom it is published, to whom it is sold and by whom it is read; that the male homosexual is the predominant audience who buys and reads this publication and that the male homosexual thus becomes the "average" reader thereof. It is therefore obscene and is unmailable under Section 1461 supra.

The second issue to be decided is whether or not FIZEEK is a book or a periodical publication.

The record shows it is devoted almost completely to photographs of nude or almost nude male figures and that the scant space devoted to text about the value of bowling in building the biceps supposedly of the male nudes in some of the photographs or the meager extent of the article on how "Sunshine Builds Body Health" presumably in these same nude or practically nude figures is so trivial when compared to the remainder of the space in the publication that it cannot be held sufficient to compel classification of this publication as a periodical. Each issue of FIZEEK is devoted to one subject, photos and pictures of the male body. There is no literary continuity - the feeble attempt to publish some text cannot give the publication the substance required under the decisions.

In Houghton v. Payne, 194 U.S. 88, it is stated:

"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."

I find the publication FIZEEK is a book and not a periodical and is not entitled to second-class entry into the mails.

Concerning the question of whether or not the publication FIZEEK is designed primarily for advertising purposes, the record shows that the publication is composed almost entirely of photographs of the male body - most of which take up a full page. The Respondent contends that each of these picture pages amounts to an advertisement and therefore the publication is predominantly composed of advertising in violation of the requirements of 39 U.S. Code 226, 289a; Postal Manual 132.226a, .226c.

Respondent further contends that most, if not all of the photographs used in the publication FIZEEK carry photo credits and that each issue of the publication contains a directory where the business address of each photo-credit (supplier) is given and that since the publisher makes no payment for the photographs used and makes editorial comment in the publication urging support of these advertisers that these facts demonstrate that FIZEEK is essentially an advertising publication geared to advance the business of the advertisers and implies that the supplier of each of these photographs has for sale other pictures of the type displayed.

While these facts are clear it does not appear from the record that such a handling of the subject matter is regarded in the advertising field as true advertising within the meaning of the statute and since the record does not show that the advertising profession regards this as advertising it is difficult for determination to be made on this point and since it is not absolutely necessary to the disposal of this cause that a conclusion that this magazine is devoted primarily to advertising be made a decision on this point need not be reached.

The last point raised in this matter is that the identification statement is incomplete under the regulations. The Respondent points out that Section 132.25f ^4/ of the Postal Manual requires the publication in the magazine of the name of known office or place of publication including street and number address of such office when there is letter-carrier service. The records show that letter-carrier service is provided in the location and in the city and in the area in which the Petitioner maintains his establishment and that the magazine prints in its publication nothing more than a Post Office Box number as its address; that this required information must be printed in a position or in a style and size of type that would make it clearly distinguishable from the names of other offices of the publication.

It does not take much reasoning to point out that a Postal Box Number is not a street and number and does not show the name of the known office or the place of publication and I therefore find that these publications in evidence here do not comply with the quoted section of the Postal Regulations.

As pointed out above, it is clearly established and I hold that the publication FIZEEK fails to meet the statutory and postal regulation requirements and is not entitled to second-class entry under 39 U.S. Code 224, 226.

1/ Name of Known Office or Place of Publication, including street and number when there is letter-carrier service, must be printed in a position or in a style and size of type or with a designation that will make it clearly distinguishable from the names of other offices of the publication. When there is no post office at the place where published, the name of the post office where mailed must be shown as the office or place of publication. Addresses in mastheads and date lines must be printed so they will clearly show where change of address notices, undeliverable copies, orders for subscriptions, and other mail items are to be sent.

2/ As books are not turned into periodicals by number and sequence, the magazines are not brought into the third class by having a considerable number of pages stitched together. 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, and see also Houghton v. Payne, 194 U.S. 88.

3/ Note the June 1960 issue of FIZEEK, Exhibit No. 11, page 34; also see page 44 with more editorial comment.

4/ Name of Known Office or Place of Publication, including street and number when there is letter-carrier service, must be printed in a position or in a style and size of type or with a designation that will make it clearly distinguishable from the names of other offices of the publication. When there is no post office at the place where published, the name of the post office where mailed must be shown as the office or place of publication. Addresses in mastheads and date lines must be printed so they will clearly show where change of address notices, undeliverable copies, orders for subscriptions, and other mail items are to be sent.