In the Matter of the Petition by                                )
                                                                               )
T.V. REPORTER, INC.                                             )
Division Street                                                        )
Derby, Connecticut                                                )
                                                                               )
for a hearing upon the suspension or                   )
annulment of its second-class mail                        ) P.O.D. Docket No. 1/273
permits for fast 'n' easy Crossword                      )
Puzzles Magazine; 100 Easy Crosswords            )
Magazine; 10 Minute Crossword Puzzle               )
Magazine; Everybody's Crosswords                    )
Magazine.                                                               )

APPEARANCES:                                                    Stanley M. Estrow, Esq.
                                                                              60 East 42nd Street
                                                                              New York, New York
                                                                              for the Petitioner
                                                                              Jack T. DiLorenzo, Esq.
                                                                              John R. Bolinger, Esq.
                                                                              Office of the General Counsel
                                                                              Post Office Department
                                                                              for the Respondent

Bosone, Reva Beck

POST OFFICE DEPARTMENT Washington 25, D. C.

DEPARTMENTAL DECISION

This case involves the revocation of second-class mailing privileges of the following publications: fast 'n' easy Crossword Puzzles Magazine; 100 Easy Crosswords Magazine; 10 Minute Crossword Puzzle Magazine; Everybody's Crosswords Magazine, published by T. V. Reporter, Inc., Division Street, Derby, Connecticut. The record is extensive and the briefs by the Respondent and the Petitioner are impressive, interesting and scholarly.

According to the evidence the types of publications referred to in the foregoing paragraph are worthy; I feel sure that thousands of people enjoy them. There is no question about the privilege of mailing them; the question is in what mailing category they come.

There are three issues:

1. Are the publications "periodical publications" within the meaning of Sections 4351 and 4354 of Title 39, United States Code ^1/ or do they comprise series of books published under collective titles?

2. Are the publications "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry" as required by Section 4354(a)(5) of Title 39, United States Code?

3. Do the publications consist primarily of "novelty pages" as that term is defined in Section 132.483 of the Postal Manual?

The relevant statutes are:

Title 39, Section 4351:

§ 4351. Definition -

Second-class mail embraces newspapers and other periodicals publications when entered and mailed in accordance with Sections 4352-4357 of this title.

* * * * * * * * * * *

Title 39, Section 4354:

§ 4354. Conditions for entry of publication -

(a) Generally a mailable periodical publication is entitled to be entered and mailed as second-class mail if it --

(1) is regularly issued at stated intervals as frequently as four times a year and bears a date of issue and is numbered consecutively;

(2) is issued from a known office of publication;

(3) is formed of printed sheets;

(4) is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; and

(5) has a legitimate list of subscribers.

(b) For the purpose of this section, the word "printed" does not include reproduction by the stencil, mimeograph or hectograph processes or reproduction in imitation of typewriting.

(c) A periodical publication designed primarily for advertising purposes or for free circulation or for circulation at nominal rates is not entitled to be admitted as second-class mail under this section.

Section 132.483 of the Postal Manual contains several definitions of the term "novelty pages". One is --- The total number of novelty pages in the copies may constitute only a minor portion of the total pages. And still another is: 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.

There is no controversy on the description of each publication as given by the Respondent. Everybody's Crosswords Magazine is 7 x 10-3/8 inches, contains 68 pages, inclusive of the cover, 1 cover-title page, 42-1/3 pages of puzzle material, 3-2/3 pages of special vocabulary to be used to solve the puzzles, 4 pages of advertising, 11 pages of miscellaneous written material, and 5 pages of answers. 10 Minute Crossword Puzzle Magazine, fast 'n' easy Crossword Puzzle Magazines, and 100 Easy Crosswords Magazine have about the same physical aspects.

Relative to the issue on "novelty pages" I agree with the decision of the Hearing Examiner:

"that these publications are composed primarily of 'novelty pages' as defined in Section 132.483 of the Postal Manual. -----and that questions of the validity of the Departmental regulations are outside the scope of the jurisdiction of Hearing Examiners. Engineering Public Service Corp. v. SEC, 138 F2d 936."

Are these publications periodicals or books? I believe they are books as described in the prevailing opinion of Houghton v. Payne, 194 U.S. 88.

"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.***"

The case of Smith v. Hitchcock, 226 U.S. 53 goes further in distinguishing a periodical from a book.

The Petitioner made much of the fact that the publishing industry (Testimony of Mr. Charles Heckelmann, Tr. 56-62) considers a publication to be a periodical when it is sold by publishers through national distributors, wholesalers and newsstands and when it is composed of cheap ink and paper and has not a substantial cover and binding. I cannot see what difference ink, paper, cover and binding make when one contemplates the apropos statutes and cases set out in this decision. Other than meeting the requirements described in the statutes, it is not the physical makeup of the publication or its display for selling purposes that determines its being a periodical or a book, but rather the material that composes that publication. At times the making of a clear cut distinction between a periodical and a book has been recognized as difficult.

The Petitioner maintains that crossword puzzles are articles yet Mr. Heckelmann (Tr. 124) said:

"A. I would say it is a puzzle -- a puzzle is a puzzle is a puzzle, as Gertrude Stein would say. And these articles are articles, and each particular puzzle is a separate entity from each of its companion puzzles.

Q. I take it then you are unwilling to definitely state whether or not you consider puzzle No. 1 as being an article?

A. No. I would say we would probably have to go to Webster's Dictionary to say whether mr Would consider a puzzle an article, or whether they would consider it a puzzle. I would consider it a puzzle.

Q. You don't know whether or not it is an article?

A. I don't know. I don't know whether anybody knows. I would consider it a puzzle."

According to Webster's New World Dictionary "composition" means: "1. a composing; putting together of a whole by the combination of parts. 2. the putting together of words; art of writing prose or poetry." In the same dictionary "article" means: "1. one of the sections or items of a written document, as of a constitution, treaty, etc. 2. pl. the parts of a formal declaration considered as a whole. 3. a complete piece of writing, as a report or essay, that is part of a newspaper, magazine, or book." etc. I can see where one word alone may constitute a sentence and thereby give an idea or paint a picture when it is used in a written composition, but I fail to see where words, just words with no relationship to each other, can constitute an article.

No doubt there is some educational value in crossword puzzles but I believe that value is entirely subservient to the entertainment value. Of course, good entertainment has great value. The testimony of Mr. Jack K. Lippert, Executive Editor and Vice President of Scholastic Magazines, Inc. is important because his publications are designed primarily for students. In answer to the question (Tr. 177) "Would you tell us why you don't put more than one crossword puzzle in each issue?" Mr. Lippert replied:

"A. We put only one crossword puzzle in each issue because we must maintain a balance of various types of material and devices by which the student can acquire learning. We couldn't -- probably could, but it would not serve the purpose of the classroom teacher if we developed the context of every other page in the magazine by means of a crossword puzzle.

No doubt, it could be attempted, but there wouldn't be a sufficient body of information given on Castro's Cuba, which is a central article here, if we tried to give this information in a series of crossword puzzles on these four pages. We took four pages of Castro's Cuba and we don't believe we could do that, and furthermore, the teacher expects to have an article on Cuba go into greater depth and interpretation of the political purposes and so forth of the government there, than you could do in a crossword puzzle."

In each publication there are a few pages devoted to miscellaneous written material, but most of the pages are devoted to crossword puzzles. There is nothing about these series of publications that tie them together except the titles under the Table of Contents and the general set-up of the format. Each publication is complete in and of itself and time is not of the essence; the puzzles and other contents may be published in one issue or another irrespective of any time of publication.

The law seems to me to be well settled that the Postmaster General has authority to correct an erroneous classification decision made by his predecessors. Houghton v. Payne, 194 U.S. 88; Smith v. Hitchcock, 226 U.S. 53; Candar Publishing Co., Inc. v. Summerfield, Civil Action No. 3227-58. In Evans v. Watson, 269 F.2d 775, a precedent of seventy-five years was upset.

The contemporaneous construction rule has been almost a necessity when the meaning of a statute was ambiguous. Following the construction put upon a statute by Judges who lived at the time it was passed or soon after helps to clarify the meaning. But there are fifty-one years between the time the Act of 1879 which set out the requirements for second-class mailing privileges was passed and 1930 when second-class mailing privileges were granted to crossword puzzle publications. There is nothing contemporaneous about this situation so the rule does not apply.

Maybe some amendments should be made to the statutes involved here, but that is up to Congress.

I agree with the decision of the Chief Hearing Examiner that the publications involved in this proceeding do not meet the requirements of Sections 4351 and 4354 of Title 39, United States Code and Section 132.483 of the Postal Manual; therefore, the Respondent's revocation of the second-class mailing privileges for Everybody's Crosswords Magazine, 10 Minute Crossword Puzzle Magazine, fast 'n' easy Crossword Puzzles Magazine and 100 Easy Crosswords Magazine is sustained.

1/ For each of these sections of the United States Code there are companion postal regulations in the Postal Manual and the Code of Federal Regulations.