P.O.D. Docket No. 1/256
September 19, 1960
In the Matter of the Petition by )
)
DELL PUBLISHING CO., INC. )
) P.O.D. Docket No. 1/256
for a hearing on the revocation of )
second class mailing privileges )
for its publication "Dell Crossword )
Puzzles". )
APPEARANCES: William I. Denning, Esq. &
Ernest H. Land, Esq.
1518 K Street, N.W.
Washington 5, D. C.
for the Petitioner
Jack T. DiLorenzo, Esq.
Office of the General
Counsel, Post Office
Department, for the
Respondent
Kelly, Raymond J.
POST OFFICE DEPARTMENT Washington 25, D. C.
DEPARTMENTAL DECISION
This matter comes before the Judicial Officer on appeal from the Initial Decision of the Hearing Examiner entered July 22, 1960, in which the second-class mail privileges of the publication DELL CROSSWORD PUZZLES were revoked.
The publication originally entitled DELL CROSSWORDS was initially granted entry as a bi-monthly at New York, New York on February 7, 1939, and re-entry was granted on change of title to DELL CROSSWORD PUZZLES on April 6, 1948.
By letter dated May 9, 1960, the Director, Postal Services Division, Bureau of Operations served notice on Petitioner, Dell Publishing Company Incorporated, that entry would be revoked unless the Petitioner filed a petition for review within fifteen days in accordance with the terms of Section 204.7(b) of the procedures governing administrative hearings relative to the denial, suspension or annulment of second-class mail privileges.
Petition for review was filed on May 23, 1960 and a hearing was held before the Hearing Examiner on June 16, 1960. The Initial Decision of the Hearing Examiner upholding the revocation as proposed by the Director was filed on July 22, 1960.
Timely appeal was taken by the Petitioner from the Initial Decision of the Hearing Examiner filed July 22, 1960 and the Petitioner on August 5, 1960 filed his exceptions to the Hearing Examiner's Initial Decision and brief supporting said exceptions.
In a previous proceeding between the same parties involving second-class mail privileges of crossword publications issued by Petitioner (the same being a consolidated proceeding of Dockets numbers 1/141, 1/147, 1/155 and 1/156) a full and complete hearing was held and an Initial Decision entered therein. Appeal was taken and a Departmental Decision was entered in said consolidated proceeding on June 7, 1960.
In the instant proceeding Respondent's Counsel requested that the Hearing Examiner take official notice of the Petitioner's exhibits 17 and 23 received in evidence in the prior consolidated hearing above referred to in order to establish the similarity of the publications involved in the present proceeding and those in the previous consolidated proceeding. Exhibit 17 is the June-July 1958 issue of the publication, OFFICIAL CROSSWORD PUZZLES, and exhibit number 23 is the July-August 1958 issue of the publication, POCKET CROSSWORD PUZZLES.
Petitioner requested that the Hearing Examiner take official notice of the testimony of the Petitioner's witnesses in the prior consolidated hearing and that such testimony be considered as applicable to the issues involved in this cause. These requests of both parties were granted.
The hearing in this cause was thus considerably shortened and the very small transcript of the proceedings discloses that it was apparently held merely for the purpose of introducing Respondent's exhibits 1-8 both inclusive, to determine the issues involved in this proceeding and to make the requests, which were granted, that the Hearing Examiner take official notice of the testimony of Petitioner's witnesses in the previous consolidated hearing as being applicable to similar questions involved herein and further that the Hearing Examiner likewise take official notice of exhibits 17 and 23 in the prior consolidated hearing for the purpose of comparison with exhibits 5, 6, 7 and 8 in this cause.
It was agreed at the opening of the proceeding before the Hearing Examiner that the issues here involved were as follows:
1. Whether the publication DELL CROSSWORD PUZZLES is a periodical within the meaning of Sections 224 and 226 of Title 39 U. S. Code 1/ or whether such publication is a book.
2. Whether this publication here involved is originated and published for the dissemination of information of a public character or is devoted to literature, the sciences, arts or some special industry within the meaning of the fourth condition of Section 226 of Title 39 United States Code.
3. Whether the publication consists primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual so as to be precluded from second-class entry. 2/
The Petitioner contends that the magazine DELL CROSSWORD PUZZLES here involved is a periodical within the meaning of the postal laws and regulations, that it is not a book and that it comes within the meaning of the fourth condition of Section 226 of Title 39 U. S. Code above referred to and that it does not consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual.
On August 22, 1960, Counsel for Respondent filed a reply brief herein in which he contended that the Respondent's position on the issues involved in this proceeding is set forth in his brief to the Hearing Examiner dated November 17, 1957 and in his reply brief dated March 28, 1960 to the Judicial Officer both of which documents were submitted in the previous consolidated proceeding involving the same parties heretofore referred to. As requested the Judicial Officer will consider herein the points brought out in the Respondent's brief and reply brief filed in the prior consolidated proceeding so far as the same are here material.
Respondent contends herein that he is not required to make any showing of changed conditions in a revocation proceeding nor is he required to show that the original entries were erroneously granted; that all that he is required to show is that the publications are not entitled to entry at the time the revocation orders were made.
The Hearing Examiner made a comparison of Petitioner's exhibits 17 and 23 in the prior consolidated proceeding between the same parties and the Respondent's exhibits 5, 6, 7 and 8 in the present case. He correctly found that the three publications involved differ from each other in size, with POCKET CROSSWORD PUZZLES and DELL CROSSWORD PUZZLES having 100 pages each while OFFICIAL CROSSWORD PUZZLES has but 68 pages. These figures include in each instance the outside, front and back covers. He likewise correctly found that the publications are so similar in content that the evidence and testimony in the prior consolidated case would apply with equal force to the issues of the present case, the same issues being involved in both cases. He therefore correctly adopted the description of the various publications set different issues which would bring the publication under the classification of a periodical. Conversely the publication is definitely a book and presents all the characteristics of a book - the contents are complete within themselves and they deal with a single subject; namely, puzzles. The fact that the answer to one or more of the puzzles would appear in a latter issue does not alter the general character of the publication. There is no indicated need for continuation between the various issues. This publication is not originated or published for the dissemination of information of a public character nor is it devoted to literature, the arts, the sciences or some special industry.
This publication is not a "periodical publication" within the meaning of the statute or the court decisions. Houghton v. Payne, 194 U.S. 88 (97); Smith v. Hitchcock, 226 U.S. 53.
It is further clearly evidence that the publication here involved consists primarily and almost entirely of novelty pages within the meaning of Section 132.483 of the Postal Manual (supra). It consists of blank spaces on the pages which are used to work the puzzles. These blank spaces must be written upon by the solver in order to complete the puzzle. It is clearly evident therefore that this publication consists almost wholly of novelty pages as defined in regulations and that the novelty pages comprise far more than "a minor portion" of the total pages and therefore this publication cannot qualify for second-class entry into the mails.
Although not specifically set forth as one of the issues herein it is brought out in the reply brief filed herein by the Respondent that the Post Office Department may have previously granted second-class entry to this publication but this does not now preclude the Department from re-examining the question and coming to the conclusion that the original decision granting the entry was erroneous. In fact the Postmaster General is bound to correct an error when one is found. As stated above the question here involved is whether or not this publication is now entitled to second-class privileges. It clearly does not qualify therefor and second-class entry must be denied. The doctrine of contemporaneous construction has no bearing upon an obvious error or an inadvertent mistake. (Houghton v. Payne, supra).
The Hearing Examiner correctly determined that the burden of proof to establish that an existing entry should be revoked is on the Respondent-Director and that this burden was fully sustained for the reason that the four issues in the publication introduced in evidence in this cause show on the face of each publication that it is not entitled to entry into the mails as second-class matter.
The Hearing Examiner likewise correctly determined that since the format of the publication is admittedly the same as when the original entry was granted, it is clearly evident that the initial grant was the result of error, mistake or inadvertence.
The Hearing Examiner attached to his Initial Decision herein a copy of his Initial Decision rendered in the previous consolidated hearing between the parties in P.O.D. Docket Nos. 1/141, 147, 155 and 156, which he by reference incorporated into his Initial Decision herein and which more fully discusses and disposes of the points here involved. The Hearing Examiner's findings on the issues here involved as set forth in his Initial Decision herein and the Initial Decision in the previous consolidated hearing incorporated therein and made a part thereof are sustained and are adopted.
The proposed findings of fact and conclusions of law submitted in this cause by the parties are adopted or denied as indicated by the discussion herein. Those not discussed are deemed immaterial to this decision and are denied.
I therefore hold that for the reasons indicated the revocation of the second-class mail privilege for DELL CROSSWORD PUZZLES is sustained.
1/ § 224. Second-class matter. Mailable matter of the second class shall embrace all newspapers and other periodical publications 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. § 226. Same; conditions admitting publications to. 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 paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications. Fourth. 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, 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.
2/ § 132.483. Novelty Pages. Novelty pages are printed sheets that may be used for purposes other than reading, or printed sheets with novel characteristics. Novelty pages must be prepared specifically for and intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. The total number of novelty pages in the copies may constitute only a minor portion of the total pages. An excessive use of novelty pages may give a publication the characteristics, both as to format and purpose, of books, catalogs, or other thirdor fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:
a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.
b. Pages having printed pictures for cutting out.
c. Printed pages having blank spaces for writing or marking.
d. Pages having printed illustrations pasted to them.
e. Pages with coupons or application or order forms occupying not more than one-half of the page.