In the Matter of the Petition by                                )
                                                                               )
POPULAR LIBRARY INC.                                        )
New York, New York                                            )
                                                                               )
for a hearing upon the annulment of                      ) P.O.D. Docket No. 1/293
its second-class mail permits for                           )
                                                                               )
BEST CROSSWORD PUZZLES                              )
NEW CROSSWORD PUZZLES                               )
POPULAR CROSSWORD PUZZLES.                      )

APPEARANCES:                                                    Adam G. Wenchel, Esq. &
                                                                              Jack T. DiLorenzo, Esq.
                                                                              Office of the General Counsel
                                                                              Post Office Department
                                                                              for the Respondent
                                                                              Victor Whitehorn, Esq.
                                                                              Whitehorn & Cowin
                                                                              225 Broadway
                                                                              New York 7, New York
                                                                              for the Petitioner

Kelly, Raymond J.

POST OFFICE DEPARTMENT Washington 25, D. C.

DEPARTMENTAL DECISION

This matter comes before the Judicial Officer of the Post Office Department in virtue of the stipulation filed herein between the parties on October 19, 1960, wherein the Petitioner waived its right to a hearing before and an Initial Decision by the Hearing Examiner and agreed to submit the matter here presented directly to the Judicial Officer for the Post Office Department for a Departmental Decision.

Originally, the petition herein was filed on September 12, 1960 by the Popular Library, Inc. appealing from the August 25, 1960 ruling of the Director, Postal Services Division, Bureau of Operations, Respondent herein, holding that POPULAR CROSSWORD PUZZLES was no longer entitled to a second class permit. The Petitioner contended that the ruling of the Director was erroneous because this publication is a periodical publication within the meaning of the United States Code since it is published more or less at regular intervals and meets all the other requirements of the code and that it is originated and published for the dissemination of information of a public character and is devoted to literature, the sciences and the arts. Petitioner further contended that copies of the publication do not consist primarily of "novelty pages".

The matter was assigned to a Hearing Examiner and on September 15, 1960, Post Office Department Respondent herein filed a motion to consolidate this matter with two other similar cases involving other publications of the same Petitioner to wit, P.O.D. Docket No. 1/291 involving BEST CROSSWORD PUZZLES and P.O.D. Docket No. 1/292 involving NEW CROSSWORD PUZZLES. The petitions in these two cases were dated the same day, September 6, 1960, as was the petition herein (P.O.D. Docket No. 1/293) and the letters from the Director, Postal Services Division, Bureau of Operations, Post Office Department, Respondent in this proceeding, were likewise dated August 25, 1960 in each instance. An order was accordingly entered herein and signed by all three Hearing Examiners to which the separate cases had been assigned ordering that the same be consolidated and the consolidated case was assigned to Hearing Examiner Gerard N. Byrne, who on September 16, 1960 issued an order setting the hearing for October 19, 1960.

On September 19, 1960, Petitioner filed herein a motion for continuance

"until the determination of the pending action which was brought by DELL PUBLISHING CO. INC. of New York, N.Y. against the POST OFFICE DEPARTMENT. The issues in this consolidated proceeding will be determined by the said DELL action and accordingly it would be in the interests of all parties concerned to await the outcome of the said DELL action in order to avoid duplication of litigation."

The Respondent filed opposition to the motion for continuance and on September 23, 1960, the Hearing Examiner issued an order denying such continuance. The answer was filed herein by the Respondent on September 23, 1960 and on October 19 the stipulation was entered into between the parties and filed herein as above set forth.

Under the provisions of the stipulation the Judicial Officer allowed the parties hereto until November 4, 1960 to submit such briefs on such factual and legal points as either party might deem material. On November 4, 1960, the Respondent filed "Answer to Order of Judicial Officer". No brief was filed by the Petitioner in this connection.

The stipulation above referred to stated the issues in this proceeding as follows:

a. Are the publications periodicals within the meaning of sections 4351 and 4354 of Title 39, U.S. Code (formerly sections 224 and 226 of Title 39 U.S. C.), or are they rather books?

b. Are the publications originated and published for the dissemination of information of a public character or are they devoted to literature, the sciences, arts or some special industry?

c. Do the publications primarily consist of novelty pages within the meaning of section 132.483 of the Postal Manual (section 22.4(h)(3) of Title 39, Code of Federal Regulations)?

d. Are the publications designed primarily for free circulation within the meaning of section 132.227 of the Postal Manual (section 22.2(b)(7) of Title 39, Code of Federal Regulations)?

The stipulation also in paragraph 5 sets forth fourteen exhibits which might be considered by the Judicial Officer which exhibits were designated as joint exhibits A through N inclusive.

Respondent's answer pointed out that paragraphs 1 and 2 of each petition in the separate cases here consolidated require no answer and denied the allegation in the 3rd, 4th and 5th paragraphs of each petition. They admit the allegation in the sixth paragraph of each petition on the assumption that the word "code" therein refers to "United States Code" and likewise admitted the allegation in the seventh paragraph of each petition.

The Respondent further alleges affirmatively that the Petitioner's publications BEST CROSSWORD PUZZLES, NEW CROSSWORD PUZZLES and POPULAR CROSSWORD PUZZLES are not periodical publications within the meaning of Sections 4351 and 4354 of Title 39, U.S. Code (which sections were formerly codified as Sections 224 and 226 of Title 39 U.S. Code) (39 Code of Federal Regulations 22.2(b)(4)) but on the contrary are a series of books published under a collective title each number of which consists primarily of puzzle material. That the said publications are not originated and published for the dissemination and information of a public character nor are they devoted to literature, the arts, sciences or some special industry as required by Section 4354, supra; and that the said publications consist primarily of "novelty pages" within the meaning of Section 132.483 of the Postal Manual (39 Code of Federal Regulations 22.483) and as such are not entitled to second-class mail privileges.

Respondent further alleges in his answer that said publications are designed primarily for free circulation and as such are not entitled to second-class mail privileges under Section 4354 supra, and requests that the action of the Respondent in annulling second-class mail privileges for said publications be affirmed and any request for relief by the Petitioner be denied. In his answer to the order of the Judicial Officer however, filed on November 4th, Respondent points out that he does not believe it necessary for the Judicial Officer to decide the issue of free circulation as set forth in 4(d) of the stipulation.

An examination of the June 1960 issue of BEST CROSSWORD PUZZLES (joint exhibit D) shows this issue of the publication to consist of a total of 68 pages overall which includes the cover pages. In addition to the front cover there is one page of contents, four full page ads, twenty-three regular CROSSWORD PUZZLES occupy twenty-two pages in whole or in part, there are nine full page SKELETON puzzles, six full page DIAGRAMLESS puzzles, four full page CRYPTOGRAM puzzles and six full page WORDAGRAM puzzles. There are five full pages of answers and there are other special puzzles such as a BIBLE puzzle occupying two pages, a BLOCKBUSTER occupying two pages, ASHES IN THE TRAY puzzle occupying two pages and a CLAPBOARD puzzle occupying one page and about eight other puzzles designated brain teasers, five of which occupy only portions of crossword and other puzzle pages and one of which occupies the back cover page.

The original P.O.D. Docket No. 1/292 now consolidated herein involved the mailing privileges for NEW CROSSWORD PUZZLES. The June 1960 issue of this publication is entered in the consolidated case as joint exhibit I. It is 6 1/2 x 8-7/8 inches in size and consists of 100 pages which include the front cover. In this publication there are twenty-six pages devoted to CROSSWORD PUZZLES - sixteen pages devoted to WORDAGRAMS - ten to DIAGRAMLESS puzzles - ten to SKELETON puzzles - four to CRYPTOGRAMS. There are twelve pages devoted to answers to the various puzzles but included in these pages are three one-half page ads and a one half page specialty entitled OR WHO. There are seven pages of full page ads which include the back cover - two pages are devoted to a specialty entitled DO YOU KNOW YOUR WORLD - two pages to one entitled the SAME STORY MURDER - two pages to HIDDEN WORD puzzle - two pages to MOVIE puzzle - one page to CLAPBOARD puzzle - one page to LADDERGRAMS - one to LOTTO games - one to NUMBERS RACKET - one to FINISH THE ROUND. There is one page of contents.

The third publication herein, which was originally involved in P.O.D. Docket No. 1/293, is entitled POPULAR CROSSWORD PUZZLES and the July 1960 issue was introduced in the consolidated case as Joint Exhibit M. This is likewise a publication 6 1/2 x 8-7/8 inches and consists of 100 pages which includes the front cover. Its contents are almost identical to the publication NEW CROSSWORD PUZZLES having exactly the same number of pages devoted to regular CROSSWORD PUZZLES, WORDAGRAM PUZZLES, SKELETON PUZZLES, CRYPTOGRAMS, contents and answers - nine full page ads and thirteen pages of various other kinds of puzzles or so-called BRAIN TEASERS.

All three of these publications have blank spaces on many of the pages. These spaces are used to work the puzzles and must be written upon by the solver in order to complete the solution. It is clear that the publications here involved consist almost wholly of "novelty pages" as defined in the regulations and it can readily be seen that these "novelty pages" comprise far more than the "minor portion" of the total pages in each publication and therefore these publications cannot qualify for second-class entry into the mails.

It is likewise entirely clear from an examination of these exhibits that none of these crossword puzzle publications are originated and published for the dissemination and information of a public character nor are they devoted to literature, the sciences, arts or some special industry. Crossword puzzles are a form of entertainment or enjoyment for the solver who may find satisfaction in the accomplishment of a completed solution. They are frequently utilized as a time killer to while away empty hours. Occasionally the solver may find a new word or a new meaning for a word but that does not mean that there is any literary advantage as such gained in the solution of these various puzzles. The publications are purchased solely for the puzzles they contain by those interested in solving them.

It is clearly evident on the record that these publications do not meet the standards which would bring them within the classification of "periodical publications". A periodical is a publication which appears at stated intervals and contains a variety of original articles by different authors - is devoted to general literature or some special branch of learning or to a special class of subjects. Each issue of a periodical is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series, Houghton v. Payne, 194 U.S. 88.

There is no "literary continuity" present in these publications. Each could stand separate and distinct. Each issue of each publication is entirely complete within itself and is almost entirely devoted to the puzzles and their answers. These publications are definitely books as that term is understood and interpreted:

"Generally a printed publication is a book when its contents are complete in themselves, deals with a single subject betraying no need for continuation and perhaps have an appreciable size, Smith v. Hitchcock, 226 U.S. 53."

The user of the publications is required to make marks or write in words, letters or numbers on the pages containing the puzzles. None of the publications is devoted to current affairs in any manner and it is not necessary to go to any other source than the individual number of the publication to fill in the blanks of the puzzles and to check the answers. None of these publications have any of the characteristics which would compel a finding that any of them is in fact a periodical.

Upon the record herein and for the reasons hereinbefore stated I find that the publications here involved - BEST CROSSWORD PUZZLES, NEW CROSSWORD PUZZLES and POPULAR CROSSWORD PUZZLES do not meet the standards which are required for them to be entitled to second-class entry into the mails. I find that they are books and not periodicals within the meaning of 39 U. S. Code Sections 4351 and 4354. I find also that each of these publications consist primarily of "novelty pages" within the meaning of Section 132.483 of the Postal Manual and that none of the publications is originated or published for the dissemination of information of a public character. I also find that none of these publications is devoted to literature, the arts, sciences or to some special industry.

I likewise hold that it is not necessary for the Judicial Officer to decide the issue of free circulation as set forth in paragraph 4(d) of the stipulation.

I therefore hold that the ruling of the Director, Postal Services Division, Bureau of Operations, Respondent herein, contained in his letters of August 25, 1960 addressed to the Petitioner to the effect that these publications were no longer entitled to the second-class mail privileges was proper and is hereby approved. The revocation of second-class mail privileges for the publications here involved is sustained.