In the Matter of the Petition by

FEATURE PUBLICATIONS, INC.,

and

HEADLINE PUBLICATIONS, INC.
32 West 22nd Street,
New York 10, New York

for a hearing upon their applications for second-class entry of
army fun and BROADWAY LAUGHS, ARMY LAUGHS and DOLLS & GAGS.

P.O.D. Docket No. 1/254

December 29, 1960

William A. Duvall Chief Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

APPEARANCES:
Benjamin E. Winston, Esq.
475 Fifth Avenue
New York 17, New York for the Petitioners

Jack T. DiLorenzo, Esq.
John R. Bolinger, Esq.
Office of the General Counsel
Post Office Department for the Respondent

INITIAL DECISION OF HEARING EXAMINER

This proceeding involves action by the Director, Division of Postal Services, Post Office Department, the Respondent, denying applications for re-entry or additional second-class mail entry and revoking existing second-class mail privileges under which have been mailed the publications "Army Fun" and "Broadway Laughs", published by Feature Publications, Inc., one of the Petitioners, and "Army Laughs" and "Dolls & Gags", published by Headline Publications, Inc., the other Petitioner. Samuel Bierman is the owner of both publishing companies.

In August and November of 1959, the Respondent advised the Petitioners that in the opinion of the Respondent the publications in question did not conform to the requirements for eligibility for second-class mail privileges, but that opportunity would be allowed the publishers to make such changes as the publishers desired in order to render the publications eligible. The record indicates that in some correspondence engaged in by the publishers, their attorney, and the Respondent certain deficiencies were pointed out by the Respondent. Later, the publishers made such changes as would, in their view, bring the publications into conformity with the provisions of law and regulation governing second-class mail matter. By letter of May 2, 1960, however, the Respondent advised the publishers that their permits, which had been in existence for a number of years, were being revoked and their applications for re-entry and additional entry were being denied, subject to the publishers' right to appeal the ruling. The publishers appealed by Petitions and this proceeding arose.

The sole issue in this case is whether the publications involved are periodical publications within the meaning of Sections 224 and 226 (now, Sections 4351 and 4354) of Title 39, United States Code, and Section 22.2(a) of Title 39, Code of Federal Regulations, or whether the publications consist of series of books published under the several collective titles. ^1/

This case divides itself naturally into two phases: first, the consideration of those issues of the various publications prior to the time the changes in them were made, and second, the consideration of those issues of the publications containing the material added after the receipt by the publishers of the August and November, 1959, letters from the Respondent.

On December 8, 1960, Judge Curran, of the United States District Court for the District of Columbia, handed down his memorandum decision in Candar Publishing Co., Inc. v. Summerfield (Civil Action No. 3227-58), in which was involved the question of the eligibility of certain publications for second-class mail privileges. An administrative determination that the publications involved in that proceeding were not eligible for second-class mail privileges was sustained by the Court.

In the instant case Exhibits A-1, B-1, C-1 and D-1 are typical of the copies of the various publications as they were published prior to the changes in their make-up heretofore mentioned. Mr. Bierman's testimony and a comparison of the exhibits in the Candar case with Exhibits A-1, B-1, C-1 and D-1 herein, disclose that these publications in the two cases are so similar that Candar is dispositive of the first phase of this case, and the aforementioned exhibits in this case do not meet the requirements for second-class mail matter.

The second phase of this case is more difficult to resolve. It is obvious that a change in the make-up of the various publications was instituted beginning with Exhibits A-2, B-2, C-2 and D-2. Editorial matter in the form of 2-, 3-, and 4-page narrative articles has been increased to the point that it now consumes from 19 to 20 per cent of the publications. ^2/ Advertising has been added so that either 4 or 5 pages in each issue are devoted to advertising. "Continuity strips" consume 18 to 24 per cent of the publication. These "continuity strips" are 1- or 2-page comic-strip types of pieces illustrating humorous situations in which the characters are involved. In some of these strips the characters are portrayed as speaking, while in others the reader derives the meaning of the cartoons without the characters' speaking. Finally, a table of contents has been included. The remaining 44 to 52 per cent of the contents of the publications are made up of single-panel cartoons. In view of the quantity and variety of the new material described above, the decision in the Candar case, cited above, does not provide a sufficiently close precedent to be determinative of the second phase of this proceeding.

The question of book versus periodical was discussed as follows in 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. 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. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.

"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,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. *** It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines."

Counsel for the Petitioners points out the changes, indicated above, which have been incorporated into the publications. He argues that these changes resulting from his clients' good faith efforts toward compliance with the controlling statutes and regulations entitle them to the continued effectiveness of the second-class mail permits, and to the granting of the additional applications with respect to these publications.

Respondent's counsel maintains that it is well established that compliance with the technical requirements of the statute does not suffice to guarantee that a publication is entitled to second-class mail privileges. He also points out that the fact that second-class mail privileges have been granted does not preclude their later revocation if the original grant was in error. ( Houghton v. Payne , supra ; Bates and Guild Co., Inc. v. Payne , 194 U.S. 106; Smith v. Hitchcock , 226 U.S. 53; et al.)

The argument is made on behalf of the Respondent that none of the material has any time value. While this statement is true, its effect in this proceeding is not so great as it might be in other cases. The editorial matter added to the publications under consideration is narrative in form, is on a variety of subjects and was contributed by different authors. While the editorial items in these publications could not be so described, it is entirely possible that articles on moral, philosophical or ethical subjects could be completely timeless and still be includable in a publication clearly entitled to second-class mail privileges.

It is urged for the Respondent that the size of the publications could well bring it within a description of a book rather than a periodical. This statement is true, but there also are some periodical publications of 100 or more pages for which second-class mail privileges properly have been granted.

The lack of continuity of literary character and the completeness of each issue of each publication within itself are apparent to anyone who examines them. This is the one phase of the consideration of these publications in which their lack of time value is of some weight. That the contents of the publications do lack continuity, can stand alone, and have no time value is demonstrated by the testimony of Mr. Bierman that the contents may and do appear in more than one of the publications.

As it was said in the Bates and Guild Co. case supra , "*** cases may still arise where the classification of a certain publication may be one of doubt. Such is this case." In the view of this writer, the present case is perhaps the closest one to be considered in recent years.

Having in mind all of the foregoing factors for and against the eligibility of the publications for second-class mail privileges, resort is had to one final consideration. This question is, "What is the dominant characteristic of these publications?"

While it is true that editorial and other material has been added, the additions were made for the obvious purpose of retaining second-class mail privileges. It appears that the effort of the publishers was to add only enough of the editorial material to achieve the desired purpose and still have the character and identity of the publication linked to those issues published prior to the inauguration of the changes. When one examines these publications he is left with the overall impression that he is looking at a series of cartoons which have been gathered together and published in one place. This dominant characteristic, together with lack of literary continuity and the completeness of each issue, combine to lead to the conclusion that these publications partake more of the nature of books than of "periodical publications" as that term is used in the cited statutes and regulations. I so find.

It is concluded as a matter of law that the publications in question do not meet the requirements for eligibility for second-class mail privileges as set forth in Sections 224 and 226 (4351 and 4354) of Title 39, United States Code, and Section 22.2(a) of Title 39, Code of Federal Regulations. The rulings of the Respondent in revoking the existing second-class mail privileges of Army Fun, Broadway Laughs, Army Laughs and Dolls & Gags, and his actions in denying applications for re-entry and additional entry for each of these publications are affirmed.

Proposed findings of fact and conclusions of law, or the substance of them, submitted by the parties have been fully considered and they are adopted to the extent herein indicated. Otherwise such proposals are denied for the reasons stated or because of their immateriality.

/s/

1/ Other allegations were made in the publishers' Petitions, but no evidence was adduced as to these charges so they must fail for want of proof.

2/ All publications contain 100 pages, including front and back covers. The covers are included in any percentages used.