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 permits for

FAST 'n' EASY CROSSWORD PUZZLES MAGAZINE;
100 EASY CROSSWORDS MAGAZINE;
10 MINUTE CROSSWORD PUZZLE MAGAZINE;
EVERYBODY'S CROSSWORDS MAGAZINE.

P.O.D. Docket No. 1/273

February 17, 1961

William A. Duvall Chief Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON 25, D. C.

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

INITIAL DECISION OF HEARING EXAMINER

This proceeding arose by petition filed on behalf of T. V. Reporter, Inc., Division Street, Derby, Connecticut, the Petitioner, appealing from the revocation by the Director, Division of Postal Services, Bureau of Operations, Post Office Department, the Respondent, of second-class mailing privileges which had been in effect since 1954 for the publications now known as Fast 'n' Easy Crossword Puzzles Magazine, 100 Easy Crosswords Magazine, 10 Minute Crossword Puzzle Magazine and Everybody's Crosswords Magazine.

All procedural requirements were timely and properly met and the matter came on for hearing before me at a hearing held on September 8, 1960, in New York City. Counsel for both parties participated in the examination and cross-examination of witnesses and in the introduction of evidence and exhibits. On January 17, 1961, proposed findings of fact, conclusions of law and supporting briefs were submitted by counsel for both parties. Since this case is a revocation proceeding, the burden of proof is on the Respondent. The exhibits introduced by the Respondent at the hearing are sufficient to provide the bases for the conclusions herein reached.

At the hearing, by stipulation between counsel, it was agreed that the testimony of Mr. Jack K. Lippert in P.O.D. Docket No. 1/148 and the testimony of Mr. Burton N. Levey, Miss Jane Bacon, Dr. Dolores Durkin, Mr. Anthony J. Abate, Mr. Roger Garrison and Mr. Fulvio R. Fioravanti in P.O.D. Docket No. 1/229 be incorporated into and made a part of the record in this proceeding. I have read, or re-read, the testimony of all of these witnesses and have considered the exhibits concerning which they testified as hereinafter noted.

The action of the Respondent from which the Petitioner's appeal was taken was predicated on four grounds, and from these grounds the issues to be tried were formulated, in substance, as follows:

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? and

4. Are the publications "designed primarily *** for free circulation" as proscribed in Section 4354(c) of Title 39, United States Code? ^2/

The pertinent statutory provisions read as follows:

Title 39, Section 4351:

4351. Definition

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

* * * * * * * *

Title 39, Section 4354:

4354. Conditions for entry of publications

(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 definition being "*** Printed pages having blank spaces for writing or marking ***". It is also stated in this section of the Postal Manual that "*** 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.***"

Concerning the first issue stated above, the earliest case in which there is discussed the difference between a "periodical publication" and a "book" is Houghton v. Payne , 194 U.S. 88, wherein it was said at pages 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."

In a later case in which this matter was discussed, Smith v. Hitchcock , 226 U.S. 53, the Court said:

"It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law, even if it satisfies the conditions for admission to the second class set forth in 14. (citing Houghton v. Payne, supra ). It is established by the same authorities, that books, that are expressly embraced in mail matter of the third class by 17 and so made liable to a higher rate of postage, cannot be removed from that class and brought into the second by the simple device of publishing them in a series at regular intervals of time.

* * * * * * * *

"The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion if not a promise of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. *** 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."

A check of the publications discloses that, with minor variations which are of no significance insofar as the issues of this case are concerned, the following descriptions taken from the Respondent's proposed findings are accurate. All the publications are approximately 7 x 10 3/8 inches in size.

Everybody's Crosswords Magazine consists of 68 pages, including the covers, comprised of 1 title page; 1 table of contents 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 to the puzzles.

10 Minute Crossword Puzzle Magazine contains 68 pages, including the covers, comprising 1 title page; 1 table of contents page; 46 1/2 pages of puzzle material; 4 1/2 pages of advertising; 6 1/2 pages of miscellaneous written material; 3 1/2 pages of special vocabulary to be used to solve the puzzles; and 5 pages of answers.

Fast 'n' Easy Crossword Puzzles Magazine consists of 68 pages, including the covers, comprised of 1 title page; 1 table of contents page; 47 1/2 pages of various puzzle material; 4 pages of advertising; 4 pages of special vocabulary to be used to solve the puzzles; 5 1/2 pages of miscellaneous written material; and 5 pages of answers to the puzzles.

100 Easy Crosswords Magazine consists of 68 pages, including the covers, comprised of 1 title page; 1 table of contents page; 49 pages of puzzles; 4 pages of advertising; 4 pages of miscellaneous written material; 4 pages of special vocabulary to be used to solve the puzzles; and 5 pages of answers to the puzzles.

Having stated the issues, quoted the applicable statutes, cited or quoted the pertinent agency regulations, quoted from the leading court decisions and described the publications, attention is directed toward the testimony of the witnesses.

Mr. Charles Heckelman (Tr. 38-144), the first witness for the Petitioner, testified as to the manner in which the members of the publishing industry distinguish between books and "magazines", his term for periodical publications. Mr. Heckelman has a distinguished scholastic and practical background in the field of journalism. He stated that books are sold by publishers through area salesmen to such outlets as the book departments of department stores and to book stores, from whom they are bought by the public. "Magazines", on the other hand, are sold by the publishers through national distributors, wholesalers or reshipping agencies, and newsstand dealers, from whom they are bought by the public. In the production of books, it is usually, though by no means always, the practice to use a good grade of paper and ink and to have a more permanent type of binding, whereas in the case of "magazines", the ink and paper used are cheap and a staple or some other less durable means of binding is used, although, again, this can not be said to be a universal rule. In the production of paperback books, a "perfect" type of binding is used, in which a heavy plastic glue is applied at 350 degrees temperature to the edge of the book which is displayed when it is in a rack; the cover is given a similar treatment and applied to the book. In some cases, there is a lamination process which is performed on the outside covers. These steps may or may not be taken in the production of "magazines" and they were not taken in connection with the Petitioner's publications. In the production of paperback books, Mr. Heckelman said, the outside edges of the pages usually are stained to prevent the yellowing of the pages.

Mr. Heckelman, referring to Exhibit P-15, said that the trade would further regard this exhibit as a magazine because the contents (the puzzles) were contributed by at least 26 different authors, whereas, books contain the works of one author. On cross-examination, however, the witness conceded that a collection of three Greek plays is a book, although he said that this book constitutes a special case and is regarded by the trade as a "one-shot" item. In the Petitioner's publications there are also certain features, such as Fast 'n' Fun and The Special Vocabulary, which are repeated from month to month.

Books, according to the witness, stay on sale for periods from one year to many years and there may be many reprints while magazines are on sale for limited periods of time, are ephemeral in nature and are never reprinted. Books normally carry only "house" advertising of the publishers' while magazines carry advertising of a diversity of advertisers. Finally, Mr. Heckelman said that magazines differ from books in the manner of their display. Books are placed on racks so that the bound edge is exposed while magazines are given a flat display so that the front cover is visible.

The trade classifies publications as books or magazines on the basis of three factors: editorial content, physical character, and methods of sale. It was Mr. Heckelman's view that the publishing industry would classify Petitioner's publications as magazines. It was also the testimony of Mr. Heckelman that there are borderline cases in which the publications have some characteristics usually found in books and some characteristics normally found in magazines. In respect to these instances, the witness said "*** we have to take each particular item as a whole, and the balance of traits can go in one direction or another." (Tr. 94, 95, 107)

Mr. Burton N. Levey (Tr. 147-156; 159-162; 346-385), Treasurer of T. V. Reporter, Inc., was the next witness for the Petitioner. He testified generally about the make-up, revenue, and sales and distribution methods employed in issuing the publications. The chain in the distribution system is made up of the publisher, the distributor, the re-shipper or wholesaler as the case may be and the retail outlet. Postage fees for the publications at second-class mail rates are one-half cent per copy, while the applicable third-class postage rate would be six cents per copy. Concerning the audience at which the publications are aimed, the effort has been to follow a formula which would appeal to people at the educational level of fifteen years, or persons with a seventh- or eighth-grade education. It was Mr. Levey's testimony that the publications are originated for the purpose of educating people.

Miss Jane Bacon, the Editor of the publications under consideration, testified with respect to certain schedules (Exhibits P-17 through P-20) representing the textual material of the publications other than the puzzles. (Tr. 156-159; 385-393; 437-469.) These schedules show that the one- or two-page narrative articles or features appearing in the publications frequently are carried under the same caption and may be categorized under such headings as "Chatter about words, etc."; "Science"; "Animals"; "Hobby Corner"; "Odd Facts in History"; "Fan Mail"; and others. Miss Bacon related information as to how the puzzles are received and the instructions given to puzzle constructors, and she said that the publication is directed toward a person of any age but with a seventh- or eighth-grade education.

The testimony next to be considered is that of Mr. Jack K. Lippert (Tr. 172-191), who previously had testified in P.O.D. Docket No. 1/148, a case heard by this Hearing Examiner. There having already been made what is believed to be a fair assessment of the testimony of Mr. Lippert, the summary of his testimony is repeated.

Mr. Lippert is the Executive Editor, Vice President, and member of the Board of Directors of Scholastic Magazines, Inc. The business of this corporation is the publishing of periodicals and soft-covered books for use in elementary and high schools in the United States and Canada. This concern publishes a total of 12 publications which are used in all grades of the elementary school and high school level. Not all publications are for use in all grades but there is a publication which is intended for use in one or more of the grades at all levels. Some of the publications are for use by students and others of them are addressed to teachers. Some of the publications are weekly in frequency and others are published monthly. Approximately 20% of the gross circulation of Mr. Lippert's publications is sold to school boards for individual schools, with the remaining 80% being paid for by the students. With one exception, all of the publications issued by Scholastic Magazines, Inc. carry one crossword puzzle in each issue. Some of the crossword puzzles are submitted by students and others are supplied by professional crossword puzzle constructors.

Concerning the remainder of the contents of various publications, Mr. Lippert stated that the Board of Advisors of the corporation, comprised of school teachers, curriculum specialists and school administrators from various localities, meets in New York once each year. Prior to the meeting the publisher sends out questionnaires concerning the editorial contents of the publication to each of the approximately 82,000 teachers who subscribe to the various publications but who are not members of the Board. Upon the basis of the questionnaires and the discussions held at the Board meetings the publishers arrive at the type of material that is to be contained in each of the publications. From Mr. Lippert's testimony it appears that for each publication there is a general theme around which all of the puzzles for a given year will be constructed. For example, in one publication for the 1959-60 school year the puzzles concern the topic of United States geography. He stated that they did not put more than one crossword puzzle in each issue of each magazine for the reason that the publisher must maintain a balance of the various types of material and devices by which the student can acquire learning - that it would not serve the purposes of the classroom teacher if every other page in the magazine contained a crossword puzzle. In addition, Mr. Lippert stated, that the use of crossword puzzles would not permit the publisher to present a topic in such depth and with adequate interpretation as does the presentation of the same topic in the form of a narrative or an article about that subject.

Mr. Lippert stated that the basic purpose of the inclusion of a crossword puzzle in each issue of each magazine is to provide an exercise or drill in vocabulary development on the part of the readers. Mr. Lippert referred to one instance in which a crossword puzzle inadvertently was omitted from one issue of one publication. He said that as a result of this inadvertence the publisher was subjected to a bombardment of letters of protest. In response to a question as to the reasons for the strenuous protests, Mr. Lippert stated that he knows that many teachers consider that the word games and puzzles facilitate the learning process and encourage interest on the part of the students.

It is now believed to be proper to consider, together, the testimony of Dr. Dolores Durkin (Tr. 191-256), the testimony of Mr. Roger Garrison (Tr. 256-304), and that of Mr. Anthony J. Abate (Tr. 305-335). Dr. Durkin did her undergraduate work at Chicago Teachers College and the University of Iowa, and she received her M.A. and her Ph.D. (1957) from the University of Illinois. Dr. Durkin taught for five years in elementary schools and she is now an associate professor at Teachers College, Columbia University. The special emphasis of her education was in the field of child development in elementary school education. Dr. Durkin's classes now consist of pre-service students -- persons who are doing practice teaching preparatory to regular teaching; in-service students -- persons presently involved in teaching; and graduate students -- persons working on an advanced degree who are concerned with research in the field of reading.

Mr. Abate has a Bachelor's Degree from the College of the City of New York, a Master's Degree from Teachers College, Columbia University, and he had done additional graduate work at New York University and Teachers College, Columbia University. He taught in elementary schools from 1929 to 1942 when he was promoted to principalship. He is today the Principal of The West School, Long Beach, Long Island, New York.

Mr. Garrison received his B.A. Degree from Oberlin College, he has done graduate work at Harvard University and at the time of his testimony he was doing graduate study at New York University. Mr. Garrison worked on the Information and Education Program for the United States Army; was a reporter for Yank Magazine; has written for the Near East College Association; was a reporter for Life Magazine; is the author of two books concerned with the nature and use of language on a professional level and the nature of the learning process; is a member of the school board of the Ossining, New York, Free School District; he has taught writing and literature for the past thirteen years at Briarcliff College, where he is Chairman of the Department of English.

I have read the testimony of the witnesses Durkin, Garrison and Abate a number of times and I have considered the exhibits concerning which they testified (except that I have not considered the publications the mailing privileges of which are under consideration in P.O.D. Docket No. 1/229). The burden of the testimony of these witnesses is that word games in general and crossword puzzles in particular, although without reference to Petitioner's publications, constitute one of a large number of devices that are used as means of self-education and as teaching aids for use by teachers in imparting learning. These witnesses testified that the Petitioner's publications might be used for such purposes.

Dr. Durkin said that she had conducted a study involving 49 children; that from one-fourth to one-third of these children exhibited superior reading ability; that the superior readers gave evidence of having worked crossword puzzles before school age; but that she was unable to say how much of their reading ability was attributable to their having worked such puzzles.

Mr. Garrison said that he thinks that the working of crossword puzzles is a rudimentary learning, thinking and educational process.

Mr. Abate pointed up the difference between a teaching aid and an educational device and said that crossword puzzles may be used as either.

All of these witnesses identified, and testified concerning, books which contain crossword puzzles that are used in elementary schools. Mr. Garrison said that one of the weekly magazines published by Scholastic Magazines, Inc., and which contains one crossword puzzle in each issue, is used in the school or schools over which the board he belongs to has cognizance.

The deposition of Mr. Reinhard Pilz, a thirteen year old student at Algonquin Composite Collegiate, North Bay, Ontario, Canada, was taken by written interrogatories (Tr. 336-340). This witness had written a letter to the Petitioner commenting upon certain of the features contained in issue number 33 of 10 Minute Crossword Puzzle Magazine. He stated that he had been following these articles for three issues and that he enjoyed these articles, but that he actually purchased the publication for the crossword puzzles. He finds both the features and the puzzles instructive and entertaining. He would buy the publication even if it did not contain the features and it would make no difference if the articles appeared in an earlier or a later issue. Mr. Pilz also had read the articles and worked the puzzles in one issue after subsequent issues had become available for purchase, and there was for him no time limit as to the value of the contents of the publication.

The deposition of Miss Patsy Ray Tanner, a twelve year old student at Holmes School, Covington, Tennessee, was taken by written interrogatories. The questions asked and the answers given by Miss Tanner were the same in substance as those in the case of Mr. Pilz. (Tr. 341-345)

Mr. Fulvio R. Fioravanti, a mail classification specialist in the Respondent's Division of the Post Office Department, testified as to the method of handling applications for second-class mail privileges (Tr. 394-436).

In regard to the first issue in this proceeding, namely, the "periodical" versus "book" question, there is for primary consideration the testimony of the witnesses Heckelman, Bacon, Pilz and Tanner.

Mr. Heckelman's testimony was informed and informative and it was interesting to hear a qualified spokesman give the views of the industry. While many of the points considered by the industry in classifying a publication are the same as those which are determinative of these types of proceedings, it seems obvious that the industry makes its classifications with different objectives in mind. Industry emphasis is largely on such matters as production methods, promotion methods, sales and display methods. Weight is given by the industry, also, to such matters as continuity, singleness or diversity of authorship and length of time the publication is kept available for purchase. In this connection, Mr. Heckelman said that the industry considers as editorial material everything that appears in a publication except advertising (Tr. 129-130), but he declined to define a crossword puzzle as an article (Tr. 124-125). Therefore, while Petitioner's publications may largely contain a variety of that which the industry classifies as editorial material, the publications are not comprised in the main of a variety of articles, as that term is commonly known in its relation to periodicals.

The purpose of this proceeding is, of course, to determine whether Petitioner's publications come within the second class of mail matter. Thus, while the views of the industry are interesting and informative, they are not -- simply by virtue of being the industry's views -- determinative of the issues in this case for the reason that, as pointed out by counsel for the Petitioner (Tr. 282-283), it was said in Houghton v. Payne , supra ,"that the term periodical publication was to be interpreted in the ordinary meaning of the term." (See also Crane v. Commissioner, 331 U.S. 1, 6 (1946) wherein the Court said, citing Old Colony R. Co. v. Commissioner , 284 U.S. 552, 560, "In the first place, the words of statutes *** should be interpreted where possible in their ordinary, everyday senses.") We are aided in this instance by the fact that the Court in the Houghton and Hitchcock cases set forth what in usual, ordinary terms is meant by the words "periodical publication". It is quite true, however, as stated by Mr. Heckelman, that there are publications which are comprised of features of both "periodicals" and "books", and that a balancing of these characteristics must be made in order to reach a proper determination.

The Petitioner insisted, through the witness Bacon, that the fact that material is published under the same headings in the various issues demonstrates that there is literary continuity in the publications.

I find as a fact that Petitioner's publications for purposes of mail classification are not periodical publications but that they consist of series of books published under collective titles. In reaching this finding I am guided more by matters of content and substance than by matters of form. It is true that the paper, ink and binding probably are quite inexpensive, but it is common knowledge that there are books which are produced of materials of like quality and that there are periodical publications in which more expensive materials are used. These publications, consisting in the main of a collection of puzzles and their answers and words to be used in solving the puzzles, patently are complete within themselves and betray no need for continuation. The fact that the little features may be categorized under such headings as "Science", "History," and the like, is no more controlling than was the fact that the publications in the Houghton case could be classified under "literature" or "fiction", or the fact that the publications under consideration in Bates and Guild Co. v. Payne , 194 U.S. 106, could be classified under "music".

This finding is further supported by the testimony of the witnesses Pilz and Tanner wherein they stated that it would make no difference whether the little articles appeared in earlier or later editions than those in which they actually were printed, and both witnesses stated that they had read the articles and worked the puzzles in one issue after the appearance of subsequent issues. This testimony further negates the ephemeral quality and the element of continuity asserted for the publications.

There is next the question as to whether Petitioner's publications are "originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or a special industry". The testimony of the witnesses Lippert, Durkin, Garrison, Abate, Bacon, Levey, Pilz and Tanner will be considered in its relationship to this issue.

Granting full weight to the testimony of the witnesses Durkin, Garrison and Abate that crossword puzzles are one of many aids that may be used to increase one's awareness of words, improve one's vocabulary, and assist in the mastery of the language arts, and to their testimony that the publications under consideration might be used as teaching aids and rudimentary educational devices, this testimony does not squarely meet the present issue. This testimony sheds no light on the question as to which of the four classes of mail matter at which these publications shall be carried. All that these witnesses have said is that these publications may be put to such uses.

If a class of students is taken on a field trip to a fire station, the equipment to be found there will be employed as teaching aids -- in fact, man learns at one time or another from practically everything within his environment. These facts do not mean that fire trucks and other objects encountered in living are designed to disseminate information of a public character. A fire truck is designed for use in fighting fire, pens are to be written with, houses are for shelter. We learn from all of these things, but this was not the purpose for which they were originated.

Mr. Levey did state that the publications "are originated for the purpose of educating people." (Tr. 348) On the other hand, he also said, "I am not an educator." (Tr. 373) In this connection, Miss Bacon said that the easier puzzles are placed in the front and that the puzzles become more difficult as one goes through the publications. She said, "We figure, by the time they get to the back of the book, they will have learned some of the words that they didn't know in the front." (Tr. 387) Miss Bacon further said that she, as the editor, likes to include new words that come into the language. Some of these words appear in the publications before they are included in dictionaries, and some of them never appear in dictionaries (Tr. 391). The witnesses Pilz and Tanner said that they found these publications to be both informative and entertaining. They said that the solving of these puzzles is educational and that it increases their vocabularies.

It is true that the solving of the puzzles may result in the learning of a new word and that it requires the solver to use words which name persons, places, things, events or ideas which are parts of the vast body of public information. The fact that these things are true, however, does not mean that the publications are "originated and published" to disseminate information about these subjects or that they are "devoted" to these fields. There is no cohesion in the manner in which these topics are presented in the solutions to the various puzzles, and the words which constitute the solutions are disconnected and unrelated and appear vertically and horizontally to the reader, devoid of logical sequence. The weaknesses of crossword puzzles in this regard are highlighted by the following testimony of Mr. Lippert, who said that there are some 82,000 teachers who subscribe to his publications (Tr. 180); that the publisher frequently sends questionnaires to every tenth teacher on the subscription list asking for comments or suggestions as to the content of the publications (Tr. 188); and that returns to these questionnaires run from 50 to 85 per cent of the teachers canvassed (Tr. 181).

"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 purposes 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."

The Petitioner relies heavily on the case of Hannegan v. Esquire , 327 U.S. 146, in which there is a very broad definition of the word "literature". The Esquire case is not dispositive of the issue now under consideration because of the difference in the questions involved and because of the vast differences between Esquire Magazine and the present publications.

Considering the publications themselves, the testimony of the witnesses and the matters set forth in Petitioner's proposed findings and brief, I find as a fact that the publications involved in this proceeding are not originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or a special industry.

In regard to the last issue in this proceeding, there appears to be no doubt that the publications are composed primarily of "novelty pages" as that term is defined in Section 132.483 of the Postal Manual. At the hearing and on brief counsel for the Petitioner raised the question of the authority of the Postmaster General to issue this regulation. Questions of the validity of departmental regulations are outside the scope of the jurisdiction of hearing examiners ( Engineers Public Service Corp. v. S.E.C. , 138 F.(2d) 936).

The fact that the Department has at times in the past granted applications for entry or re-entry of similar publications in the mails as second-class matter does not preclude the Department from denying or revoking those privileges now if it is thought that the earlier actions were erroneous or the results of inadvertence. (See Houghton , supra ; Columbian Correspondence College v. Wynne , 25 App. D.C. 149, appeal dismissed 200 U.S. 615; State Airlines v. Civil Aeronautics Board , 174 F.(2d) 510, reversed on other grounds 338 U.S. 572; Evans v. Watson , 269 F.(2d) 775, cert. den. 361 U.S. 900.)

Based upon the entire record in this case, I conclude that as a matter of law 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. The action of the Respondent in revoking the second-class mail privileges for Everybody's Crosswords Magazine; 10 Minute Crossword Puzzle Magazine; Fast 'n' Easy Crossword Puzzles Magazine, and 100 Easy Crosswords Magazine was proper and is sustained.

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

In conclusion, this proceeding relates solely to the determination of the classification of mail matter into which the Petitioner's publications fall. There is no criticism of these publications, nor even any comment as to whether their content is "good" or "bad", and there is no intent, desire or purpose to deny the use of the mails for the distribution of these publications.

/s/

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.

2/ The action of the Respondent revoking or annulling the second-class mail privileges for the publications subsequently was withdrawn insofar as the action was based on this ground. This question, therefore, was no longer at issue.