P.O.D. Docket Nos. 1/141; 1/147; 1/155 and 1/156
June 07, 1960
In the Matter of the Petitions by
DELL PUBLISHING CO., INC.
relating to applications for re-entry into the mails as second-class matter and relating to revocations of existing second-class mail permits for the publications “POCKET CROSSWORD PUZZLES” and “OFFICIAL CROSSWORD PUZZLES”.
P.O.D. Docket Nos. 1/141; 1/147; 1/155 and 1/156
APPEARANCES:
William I. Denning, Esq. and
Ernest H. Lang, Esq.
Denning & Wohlstetter
1518 K Street, N.W.
Washington 5, D.C.
Attorneys for the Petitioner
Jack T. DeLorenzo, Esq. and
Adam G. Wenchel, Esq.
Office of the General Counsel,
Post Office Department
DEPARTMENTAL DECISION
By order entered in this cause on June 25, 1959, the above matters were consolidated for hearing.
The Dell Publishing Company, Inc., Petitioner in all four matters is seeking in Docket 1/141 second-class re-entry for their publication POCKET CROSSWORD PUZZLES and in Docket 1/147 is seeking second-class re-entry for their publication OFFICIAL CROSSWORD PUZZLES. In Docket 1/155 they are opposing the revocation of second-class entry for the publication POCKET CROSSWORD PUZZLES and in Docket No. 1/156 they are opposing the revocation of second-class entry for the publication OFFICIAL CROSSWORD PUZZLES.
The consolidated hearing herein was held before the Hearing Examiner beginning at 10:00 a.m. on Thursday, October 1, 1959, and concluding on Friday, October 2, 1959. The Initial Decision of the Hearing Examiner was filed on January 15, 1960. The Hearing Examiner based upon the record of the case held that as a matter of law the publications involved in the proceedings did not meet the requirements of Section 224 and 226 of Title 39, United States Code[1] and Section 132.483 of the Postal Manual and therefore the Petitioner’s application for re-entry of the publications OFFICIAL CROSSWORD PUZZLES and POCKET CROSSWORD PUZZLES into the mails as second-class matter were denied and the second-class mail permits previously issued which were applicable to these two publications were revoked.
The Hearing Examiner further held that these publications were books within the definitions set forth in the court decisions and were not periodical publications within the meaning of Sections 224 and 226 of Title 39 and that they were not originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or some special industry. He further held that they consist primarily of novelty pages.
Timely appeal from the decision of the Hearing Examiner was taken by the Petitioner herein and exceptions to the Hearing Examiner’s Initial Decision together with a brief on the exceptions were filed in the consolidated case on March 1, 1960. Respondent’s Reply Brief was filed on March 28, 1960.
On February 8, 1960, a letter was sent to the Postmaster, United States Post Office, Classification Section, Room 3011, General Post Office, New York 1, New York, in which the Petitioner stated as follows:
”We hereby withdraw our application on Form 3510 of November 4, 1958, for re-entry of POCKET CROSSWORD PUZZLES in the Post Office of New York, New York County, New York. The May-June, 1960, and subsequent issues of POCKET CROSSWORD PUZZLES will be mailed under original entry at Dunelle, New Jersey and under our original entry at New York, New York.”
On March 1, 1960, a motion to dismiss was filed in Docket No. 1/141 which involved the application for second-class re-entry for POCKET CROSSWORD PUZZLES.
It will be necessary for us to dispose of the question raised by the motion to dismiss and by the Petitioner’s desire to make the withdrawal as indicated and whether or not this can be done at this time. Petitioner claims he has a right to move dismissal at this time even after the case has been fully heard on its merits and the Initial Decision of the Hearing Examiner entered.
The Respondent points out that in the consolidated hearing of this cause all of the evidence pertinent to any of the cases or all of them should be and was considered in connection with each so far as applicable to the questions raised in each of the four matters which were consolidated for hearing. He points out that the proceedings are so inextricably interlocked that it is impractical to try and separate the evidence relating to the denial of the re-entry and the evidence relating to the revocation of the existing entry at this late stage in the proceedings.
In the exceptions filed by Dell to the Examiner’s Initial Decision and brief on exceptions, Petitioner points out that in these consolidated proceedings they sought review of the action of the Director, Postal Services Division, Bureau of Operations in proposing revocation of second-class entries for OFFICIAL CROSSWORD PUZZLES and POCKET CROSSWORD PUZZLES (Dockets 1/155 and 1/156), and the denial of Dell’s application for transfer of entry for these same publications from Dunellen, New Jersey, to New York, New York (Dockets No. 1/144 and 1/147).
Under date of June 15, 1959, the Director revoked the second-class mail privileges of OFFICIAL CROSSWORD PUZZLES and POCKET CROSSWORD PUZZLES for reasons stated in his letter of April 9, 1959,[2] and in the Initial Decision the Hearing Examiner sustained the Director on these three points.
Petitioner contends that on February 8, 1960, they withdrew their applications for transfer of entry for the above publications from Dunellen, New Jersey, to New York City thus leaving for decision herein only the revocation proceedings initiated by the Director in Dockets 1/155 and 1/156. The first question which must be disposed of is whether or not authority exists for the Petitioner after the hearing and after the Initial Decision to withdraw from consideration two of the matters heard in the consolidated hearing and considered and decided by the Hearing Examiner after such decision has been rendered.
As above set forth the Petitioner send the letter of February 8th, but in addition to that filed a motion on March 1, 1960, in both Dockets No. 1/141 and 1/147 to dismiss the same.
It is quite apparent that all the evidence and the exhibits brought out and introduced at the hearing should be considered in this cause on both the questions of re-entry and revocation and were so considered by the Hearing Examiner. It would be strange if after a cause has been heard and decided, the losing party could cancel out all proceedings and void the decision by withdrawing his request for a determination and dismissing his case.
I must conclude that at this late day in these proceedings the Initial Decision of the Hearing Examiner having been entered, that the attempt to withdraw any of the contested issues presented and decided in the hearing cannot be considered and that the motion to dismiss filed herein must be denied.
The issues involved in this cause were agreed by the parties to be:
1. Are the publications “periodical publications” within the meaning of Sections 224 and 226 of Title 39, United States Code;
2. Are the publications originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry; and
3. Do the publications consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual?
The record discloses that every issue of both publications contains a variety of puzzle materials among which are crossword, diagramless, anagrammatic, cryptogram, picture puzzles, cryptoquizzes, kriss kross, laddergram and word arithmetic puzzles. Each issue of Pocket contains at least two pages of textual narrative matter and each issue of Official contains one page of such material.
There is some evidence that “crossword puzzles are used as a supplementary device in teaching” by one witness and as an aid in a very minor degree “for the qualitative psychological evaluation of adult patients who have sustained disability as a result of brain injury” by another witness. The institutions with which the witnesses were connected have in no way adopted or recognized these practices which were the individual ideas of these witnesses. The first was interested in crossword puzzles as an avocation having constructed several thousand for various newspapers and for Petitioners publications. He contended the practice of working out crossword puzzles taught the puzzle worker new words and gave him new information of various sorts and stimulated him to think. Neither witness knew of crossword puzzles being employed in public school systems or elsewhere beyond their own personal use. The other witness used them following brain injury in aiding her recovery.
These publications do not possess the characteristics required to bring them within the definition of a periodical. They do not contain a variety of original articles by different authors as articles are originally understood. Surely puzzles are not articles within the contemplation of the Statute and Regulations. Likewise by no stretch of the imagination could the one short article in each publication be construed as a “variety” of articles.
The two pages of narrative material in POCKET CROSSWORD PUZZLES (out of the 100 pages in this publication) and the one page of narrative material in OFFICIAL CROSSWORD PUZZLES (out of the 60 pages) can scarcely be said to have such impact upon the character of these publications so as to give them literary continuity, connection between the different numbers, incompleteness within itself or any other characteristic which would compel a finding that this was a periodical.
The fact that the solver may occasionally learn a new word or a new meaning to a word does not change the purpose for which crossword puzzles are universally utilized viz. entertainment and to while away the time by the solvers. There is no indicated relationship with prior or subsequent numbers of the publication and each publication stands complete within itself. There is no continuity of literary character from one issue to another and no connection between the different issues in the nature of the meager one or two page article. On the other hand, the publications are definitely books and present all the characteristics of books as the same has been defined in the Decisions. The contents are complete within themselves and they deal with a single subject – namely, puzzles. The fact that the answer to one puzzle appears in a later issue does not alter the general character of the publication. There is no indicated need for continuation between the various issues. Thus it can be seen that neither of these publications is originated or published for the dissemination of information of a public character nor are they devoted to literature, the arts, the sciences or some special industry.
As to the first issue, it does not appear that these publications are “periodical publications” within the meaning of the statute or the court interpretations.
“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.” Houghton v. Payne, 194 U.S. 88 (97).
“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.” Smith v. Hitchcock, 226 U.S. 53.
As to the second issue I agree with the determination of the Hearing Examiner that neither POCKET or OFFICIAL are originated and published for the dissemination of information of a public character nor are they devoted to literature, the sciences, arts or some special industry. The Hearing Examiner’s analysis, discussion and reasoning on this issue is clear, correct and logical and is hereby approved and adopted.
Regarding the third issue I find the publications here involved consist primarily and almost entirely of novelty pages within the meaning of 132.483 of the Postal Manual.[3]
A typical issue of POCKET CROSSWORD PUZZLES reveals that it is 5-1/4” x 7-1/4” – that it has 100 pages – 84 pages of which consist of puzzle material – 10 pages of which consist of answers to the puzzles – 2 pages consist of Table of Contents, names of contributors and miscellaneous material, two pages consist of advertising, one is a cover page, one page is entitled Pitter Patter.
A typical issue of OFFICIAL CROSSWORD PUZZLES shows that it is 8-7/16” x 11-3/8” and that it has 68 pages, 60 pages of which consist of puzzle material – 5 pages consist of the answers to puzzles – 1 pages consists of Table of Contents, names of contributors and miscellaneous matter – 2 pages are cover pages.
Both publications have blank spaces on the pages. These are used to work the puzzles. The pages must be written upon by the solver in order to complete the puzzle. The record clearly shows that these publications consist almost wholly of “novelty pages” as defined in the regulations. In this case there can be no question but that these “novelty pages” comprise far more than a “minor portion” of the total pages and therefore these publications cannot qualify for second-class entry into the mails.
The fact that the Post Office Department may have previously granted the second-class entry to these publications does not now preclude him from reexamining the question and coming to the conclusion that the original decision granting the entry was erroneous. In fact, he is bound to correct an error when one is found. The doctrine of contemporaneous construction has no bearing upon an obvious error or an inadvertent mistake. Houghton v. Payne, (supra).
The Hearing Examiner’s findings on the issues here involved 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 above set forth the applications of the Petitioner for second-class re-entry for their publication POCKET CROSSWORD PUZZLES (Docket 1/141) and for second-class re-entry for their publication OFFICIAL CROSSWORD PUZZLES (Docket 1/147 should be and they hereby are denied.
I further hold for the reasons hereinbefore indicated that the revocation of the second-class mail privileges for POCKET CROSSWORD PUZZLES (Docket 1/155) and OFFICIAL CROSSWORD PUZZLES (Docket 1/156 should be and hereby is sustained.
Raymond J. Kelly
Judicial officer
[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 circulations, or for circulation at nominal rates.
[2] That the subject publications are not periodical publications within the meaning of Sections 224 and 226 of Title 39, United States Code (Section 132.211 Postal Manual), but are rather books. They are neither originated and published for the dissemination of information of a public character nor devoted to literature, the sciences, arts, or some special industry as required by Title 39, U.S. Code, Section 226 and Section 132.224, Postal Manual. The copies consist primarily of novelty pages within the meaning of Section 132.483, Postal Manual, and are therefore not such a publication as is entitled to second-class mail privileges under 39 U. S. Code Sections 224 and 226.
[3] §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 third- or 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.