In the Matter of the Petition by

TV FUNFARE, INC.,
2500 35th Avenue,
Rock Island, Illinois

for a second-class mail permit it for "TV FUNFARE".

P.O.D. Docket No. 1/284

May 10, 1961

Jesse B. Messitte Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D. C.

APPEARANCES:
Herbert M. Spector, Esq.
Rock Island, Illinois Jack Schroeder, Esq.
Davenport, Iowa for the Petitioner

Jack T. DiLorenzo, Esq.
J. Warner Mills III, Esq.
Office of the General Counsel
Post Office Department for the Respondent

INITIAL DECISION OF HEARING EXAMINER

The Petitioner on May 24, 1960 filed with the Respondent (Director of the Postal Services Division, Bureau of Operations, Post Office Department) an application (through the postmaster at Rock Island, Illinois) for second-class mail privileges for a publication known as "TV FUNFARE" to be issued "Monthly". The application stated, among other things, that two issues had already been published. It would appear that Petitioner had, on or about December 18, 1959, filed a similar application. But the Postal Service Director (Respondent) apparently, at first, rejected the earlier application on the ground that it was filed through the postmaster at Rock Island, Illinois and it should have been filed through the postmaster at Chicago, Illinois, if, as the application stated the "Known Office of Publication" were located at Chicago. The Respondent by letter dated July 14, 1960 notified the Petitioner of the denial of the application of December 18, 1959 (presumably as amended or supplemented by the application of May 24, 1960) for the reason, among others, that the June 1960 issue of TV Funfare which accompanied the application (as amended or supplemented) was not a periodical within the meaning of 39 U.S. Code 224 and 226 but was a book "consisting principally of pages designed for coloring purposes by children". Petitioner disagreed and filed a petition on August 22, 1960 to establish its right to second-class mail privileges. The Respondent filed an answer on September 2, 1960 and, among other things, alleged the publication TV Funfare was not a periodical but on the contrary was "a series of books". After a number of postponements of the hearing date, a hearing was held at Washington, D. C., March 3, 1961. The parties filed proposed findings of fact, conclusions of law, and supporting briefs as of April 17, 1961.

The question, broadly stated, is whether Petitioner under 39 U.S. Code 224 and 226 is entitled to second-class mail privileges for any issues of the publication TV Funfare. This decision, on the basis of the analysis, findings of fact and conclusion of law below set forth, determines that Petitioner is not so entitled.

39 U.S. Code 224 reads:

"Mailable matter of the second class shall embrace all newspapers and other periodicals 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."

The publications issued by Petitioner under the name TV Funfare are obviously not newspapers. Petitioner does not contend they are. Petitioner does contend they are periodicals.

Section 225 (39 U.S. Code) relates to examination at the office of mailing of matter presented as matter of the second-class. It does not appear to have anything much to do with the question presented here.

39 U.S. Code 226 states:

"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 sheets: Provided, That publication produced by the stencil, mimeograph or hectograph process or in imitation of typewriting shall not be regarded as printed within the meaning of this clause. Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, art 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."

The pleadings of the parties, as modified by stipulations of record, and my analysis of the subject matter of the proceeding indicate that the sole important matter, in dispute, which needs to be decided is whether the issues of TV Funfare dated March, April, May and June 1960 are periodicals rather than books or other matter of the third class.

The law is well settled that compliance with the specific and express conditions of Section 226 may exist, and yet second-class entry may properly be denied because the publication is neither a newspaper nor periodical, under Section 224 but is rather a book (or other third class matter) under Section 235. Houghton v. Payne , 194 U. S. 88 (1904); Bates & Guild Co. v. Payne , 194 U. S. 106 (1904); Smith v. Hitchcock , 226 U. S. 53 (1912).

Section 235 of Title 39 of the U.S. Code reads, in part here pertinent:

"Mail matter of the third class shall include books, circulars, and other matters wholly in print (except newspapers and other periodicals entered as second-class matter) * * *."

Part 132.211 of the Postal Manual reads, so far as here pertinent:

"Only newspapers and other periodical publications may be mailed at the second-class rates * * *." [See also: 39 C.F.R. 22.2(a)(1)]

The following language of the Court in Houghton v. Payne , 194 U. S. 88, 97, 98 (1904) indicates some factors which may serve to distinguish a book from a periodical:

"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."

* * * * * * * *

"*** Books are not often issued periodically, and, if so, their periodicity is not an element of their character."

Study of the entire record and applicable law has led this Hearing Examiner to the following findings and conclusions.

1. Petitioner published six issues of TV Funfare. They were dated January, February, March, April, May and June (1960). The issuance of each publication occurred during the month preceding the date shown on the publication. There have been no issues subsequent to the one dated June 1960. The parties stipulated that if Petitioner should resume publication of TV Funfare and want a second-class permit Petitioner would be required to file a new application for such permit with the Postal Services Director, the Respondent. Consequently the only practical impact of this initial decision, if it becomes final, is whether the Petitioner's deposit of money for postage at third class or other rates, should be refunded in the amount that such deposit exceeds second-class postage rates.

2. The January and February issues of TV Funfare appear to have predominantly the characteristics of periodicals. They each consist of more than sixty pages almost all of them either (a) listing with comments current TV programs for children, or (b) being articles by different authors, such as articles reviewing television shows for children or advising parents in respect to their relationship to children, or (c) containing letters from readers or (d) covering subjects closely related to one or more of the foregoing items. There is a reasonable continuity of basic printed content between the January and February issues.

Of the sixty-four pages, including front and rear cover, in the January issue not more than three consist primarily of outlines of figures for coloring. Of the eighty pages in the February issue not more than four are primarily for coloring. Periodicity of publication is obviously important and necessary in the current listings of TV shows for children. If the Petitioner had continued to publish regular monthly issues like the January and February issues, it may well be that the granting of a second-class permit would have been quite proper. But it is not necessary for me to make such a finding because there were only two such issues and the governing statute (39 U.S. Code 224 and 226) requires that a periodical be issued at least as frequently as four times a year as one of the conditions precedent to entitlement to second-class mail privileges.

3. The nature and content of the publication TV Funfare changed radically in the issues dated March, April, May and June 1960. The dominant characteristic of each of those issues was the large number of pages for coloring. In the March issue at least twenty-five of forty-eight pages are for coloring. In the April issue at least twenty-five of forty-eight pages are for coloring. In the May issue at least twenty-nine of forty-eight pages are for coloring. In the June issue at least thirty-two of forty-eight pages are for coloring. Moreover the March, April, May and June issues contain no listings whatsoever of current TV shows and thus the need for periodicity is completely gone. While there are some articles and items in the March, April, May and June issues such as "Pointers for Parents" by Dr. Frances Horwich and "Pet Peeves from Youngsters" which evidence some continuity of printed subject matter they are quite inadequate, to justify classification of the publication as a periodical, when contrasted with the principal content of the publications which is that of a coloring book. Therefore the March, April, May and June issues are primarily coloring books and they are not periodicals for purposes of postal rate classification.

4. Petitioner did not issue TV Funfare after the issue dated June 1960. The cessation of publication on or before June 1, 1960 obviously was not caused by a fire in September 1960 which is said to have destroyed Petitioner's facilities for printing and publishing.

5. Petitioner claims the TV program listings were not continued in the March, April, May and June issues of TV Funfare because the person who compiled the listings left the employ of Petitioner. This may be so.

6. I conclude, as a matter of law, that:

(a) the January and February 1960 publications of Petitioner's TV Funfare are not entitled under 39 U.S. Code 224 and 226 to second-class mail privileges because they are not part of a series of such publications issued "as frequently as four times a year";

(b) the March, April, May and June publications of Petitioner's TV Funfare are not periodicals within the meaning of 39 U.S. Code 224 but rather are either coloring books or other third class matter within the meaning of 39 U.S. Code 235; their essential or predominant nature as coloring books is not altered by the inclusion of a few articles similar to what is frequently, and perhaps characteristically, found in periodicals; the lack of the periodicity factor of these publications by removal of the current TV listings also supports the conclusion that these four publications are not periodicals; and

(c) Petitioner is not entitled to second-class mail privileges under 39 U.S. Code 224 and 226 for its January, February, March, April, May or June publication of TV Funfare.

All proposed findings of fact and conclusions of law are adopted to the extent embodied in this initial decision. Others are rejected as either not relevant or not material.

At this time, Section 132.483 of the Postal Manual (sometimes called "the novelty regulation") does not require detailed analysis and discussion. This examiner has already found for reasons which appear to him good and sufficient that the publications, here in question, are not periodicals entitled to second-class mail rates. To the extent that the novelty regulation contains anything of legal or persuasive significance tending to establish that the publications are not periodicals entitled to second-class mail privileges, it reinforces the conclusions already reached without reliance upon the novelty regulation.

/s/