P.O.D. Docket No. 1/229
May 25, 1962
In the Matter of the Petition by )
)
T. V. REPORTER, INC. )
Division Street ) P.O.D. Docket No. 1/229
Derby, Connecticut )
)
for second-class entry of "New York )
Journal American Crosswords Magazine". )
APPEARANCES: Stanley M. Estrow, Esq.
60 East 42nd Street
New York, New York
for the Petitioner
Jack T. DiLorenzo, Esq.
Eugene P. White, Esq.
Office of the General Counsel
Post Office Department
for the Respondent
Bosone, Reva Beck
POST OFFICE DEPARTMENT Washington 25, D.C.
DEPARTMENTAL DECISION
In this case the Petitioner, publisher of the New York Journal American Crosswords Magazine, on October 30, 1959, applied for second-class mailing privileges.
On December 9, 1959, the Respondent denied the application for the following reasons: The copy of the publication, February 1960, submitted with the application was a book and not a periodical - neither was it originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or a special industry; that it consisted primarily of novelty pages; and that the circulation requirements were not met.
From this decision the Petitioner filed a petition seeking second-class privileges for his publication.
A hearing was held and on December 15, 1961, the Hearing Examiner filed the Initial Decision in which he held that as the publication involved was not a periodical but a book it should be denied second-class mailing privileges.
The Petitioner's copy (exhibit J5) filed with the application contains 68 printed pages inclusive of front and back cover; of this number of pages there are 49 pages of crossword puzzles along with 6 pages of answers; it has 7 pages of little stories independent of the puzzles; there are 4 pages of advertising, and a table of contents; it is 7" by 10 1/2" in size and has one cover page. The foregoing is a description in brief of the issue. Exhibits J6 and J7 are similar
The pertinent statute involved is Title 39 U.S. Code 4351 and 4354. 1/
The Petitioner maintains that the publication complies; it is issued regularly at stated intervals as frequent as four times a year; it bears a date; is numbered consecutively; is issued from a known office of publication; is originated and published for the dissemination of information of a public character -- or is devoted to literature, sciences, the arts, or some special industry.
There are four issues:
1. Is the publication, New York Journal American Crosswords Magazine, a book or a periodical within the meaning of the postal laws and the regulations of the Court decisions?
2. Is the publication originated and published for the dissemination of information of a public character, or is it devoted to literature, the arts and sciences or some special industry?
3. Does it contain an excess number of novelty pages within the meaning of Section 132.483 of the Postal Manual?
4. Does it comply with the circulation requirements of Section 226 of Title 39 U.S.C. and the sections of the Postal Manual Sections 132.225 and 132.227?
The Initial Decision has held that the publication is a book and not a periodical and therefore not entitled to the second-class mailing privileges. With that ruling I agree.
The Petitioner maintains that the publication meets the requirements of the law 39 U.S.C. Sections 4351 and 4354.
The chief witness for the Petitioner, Mr. Charles N. Heckelman of New York and a man of broad background in the publication field, described what the trade and he considered a periodical. He said a magazine (Tr. 274-278) has a variety of contents such as short stories, picture features, editorials, cartoons, service articles, and different authorship; the magazine is ephemeral; it serves its purpose and usually is forgotten; the paper and structure are cheap.
Mr. Heckelman said a book is different; it is one item, a novel, a study of something, and one authorship and has a timeless quality -- it does not become outdated. Structurally the book is made to last -- the color, paper and binding are better than that of the magazine.
With these descriptions I think the cases in law agree. The disagreement comes in the application of them. Mr. Heckelman says exhibits J5, J6 and J7 -- New York Journal American Crosswords Magazine (Tr. 283-284) are definitely magazines because there are as many as 27 authors referring to the constructors of crossword puzzles; there are 13 other items; all three issues have a continuing feature called "Let's Take a Trip" and other feature items; there are variety and advertising. "The publication indicates it is a bi-monthly which means it is a sixty-day publication only on sale for sixty days." And the paper is cheap.
The Petitioner's witnesses allude to the one who originates the puzzle not as an author which would mean he was an originator of something -- a creator -- or the writer of a book or article - but as a constructor - one who directs construction or builds. I would not presume to argue the different shade of meaning in the two. They are the same if one takes the interpretation of the Petitioner and his chief witness, Mr. Heckelman (Tr. 284). "I would say that these are definitely magazines -- there are 27 authors of crossword puzzles alone." He maintains there is variety as a different person made up each puzzle.
I am convinced that unlike a periodical these issues in question, exhibits J5, J6 and J7 have one main item -- crosswords regardless of how many different people constructed the puzzles -- that they do not convey connected and intelligible ideas - that by "articles" referred to in the cases, the courts have in mind the presentation of connected ideas.
Houghton v. Payne, 194 U.S. 88 (1904) and Smith v. Hitchcock, 226 U.S. 53 (1912) are applicable cases. The Supreme Court said in the Houghton case:
"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."
In Smith v. Hitchcock, supra - Justice Holmes holds:
"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."
One needs only to glance at the three exhibits to see that crossword puzzles constitute most of the publications. There is no time element involved in these puzzles; one may work them today or a year from now; word changes and additions as the Initial Decision states are relatively slow. In fact it would seem to me that time would not materially alter the use of the crossword puzzle at all, as used in the publications in this case.
The issues are of cheap paper but the physical aspects of a publication don't make it a book or a periodical; it may be something to consider along with everything else but it is not determinative. Smith v. Hitchcock, 34 App. C.D. 521 (1910). If it were, I would wonder why some hard-cover publications are periodicals and some soft-cover publications are books. Mr. Heckelman's testimony seemed to me to emphasize the physical aspects more than the contents of a publication to determine whether it is a book or a periodical. (Tr. 303)
There are short narrative articles in these three exhibits but they are such a small part of the issues compared with the crossword puzzles that their presence doesn't change the purpose. While they are interesting there is no time element involved. There is some advertising but not enough to affect the status of the publication.
If a publication is of one item and is not ephemeral its being published on certain days and at certain times on certain paper in a certain binding do not change it to a periodical, Houghton v. Payne, 194 U.S. 88. The three publication issues are the best evidence of this conclusion.
Is the publication originated and published for the dissemination of information of a public character, or is it devoted to literature, the arts and sciences or some special industry? I think not.
It is of general knowledge that if a publication answers the foregoing in the affirmative along with other requirements it is entitled to and deserving of the second-class mailing privilege.
From the first debate on the postal rate bill in the Congress of 1879 to the present the plea has been that periodicals which meet the requirements of the statute and the law as established by the cases should have a lower rate because of their contribution to knowledge. 2/
Mr. Arthur Wynne who originated the crossword puzzle in this country was fascinated by it. "One day before World War I he needed a space killer." "He thought of the word square game he played as a child." Crossword puzzles have grown in popularity ever since -- a deserved popularity, I believe.
But Mr. Wynne thought of them as a game. Most of the witnesses for the Petitioner referred to them as games -- as entertainment. Mr. Roger H. Garrison (Tr. 153) after stating that crossword puzzles do have educational value, said, "-- in 1923 they became the most talked of form of entertainment in the United States--". He went on to say that the "crossword puzzle became a serious adult pastime."
Now all of Petitioner's witnesses testified that crossword puzzles have an educational value, that they are vocabulary builders, that one "gains familiarity (Tr. 176) with word meanings -- to re-establish an awareness of the word meaning --." The witnesses who were teachers said - "word games are used as teaching aids." (Tr. 218) Miss Dolores Durkin an associate professor in child development (Tr. 75, 80, 81, 84) said, "while one group of students is being taught another group may be doing crossword puzzles. This may give the child who has had trouble learning to read a different attitude toward reading. He builds his vocabulary at the same time" -- "In other words, it is a kind of a game to play --" and further "this goes back to my idea of the value of children receiving some of these things as kinds of games in a way and derive a great deal of value from it."
It cannot be disputed that one gets a mental image, a scene, an idea, a thought when he sees a word. But everything regardless of what it is stimulates a thought, an idea, an image. Where can one draw the line? That is where the dilemma lies. If the lines were not drawn somewhere all kinds of publications would be eligible - provided they met the other requirements. The Congress has seen fit to leave the requirements practically unchanged.
Regardless of what the crossword puzzles are designated, I don't believe the publication is devoted to those purposes set out in the statute.
Crossword puzzles are educational it is argued (and argued well) but I believe that this is purely an incidental attribute of these publications. That is certainly not a conclusion against crossword puzzles; however, an educational benefit doesn't make a publication that contains mostly crossword puzzles a periodical. There is no censorship in this conclusion because the publisher is not precluded from sending his publication through the mail. He just isn't permitted to use the second-class privilege.
Does the Petitioner's publication in question contain an excess number of novelty pages within the meaning of Section 132.483 of the Postal Manual?
The section reads as follows:
"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; -- printed pages having blank spaces for writing or marking."
I can't see where this regulation takes anything away from the statute or adds anything. There is nothing mandatory about it; it operates as a guide to the director in the Post Office Department who has the responsibility of deciding whether a publication is a book or a periodical. I do not consider the "regulation operates to create a rule out of harmony with the statute." From the time lower rates for second-class mail were debated in the Congress to now the low rate is a concession to the principle that knowledge should be spread. A guide-line to help determine this is the application of this regulation.
It seems to be the fashion nowadays not to say a thing is white or black but to speak of shades of white and shades of black. There are greys into which one can cast his problem and justify his thinking. It isn't difficult to find justification for almost any position one wants to take. It is good to have elasticity in one's thinking but at the same time it can't be stretched too far unless it is based on general principles.
There is the statute and that is clear; there are the law cases that interpret that statute; and there are regulations that describe patterns which may be of assistance in determining whether or not a publication is a periodical or a book.
The "novelty page" regulation is the latter. The exhibits J5, J6 and J7 consist primarily of printed pages having blank spaces for writing or marking. This interpretation is of the pertinent statute. It is not unreasonable since it states that if there are too many novelty pages, it may not meet the requirements of the statute; it merely helps to characterize a publication and in so doing "promotes the speed and uniformity with which applications for second-class privileges may be processed." Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1912). The Postmaster General's responsibility in bringing order out of confusion proceeded according to Section 4 - rule making - Administrative Procedure Act. If he goes too far then there is a remedy. The law on this is familiar and clear. Bates & Guild Co. v. Payne, 194 U.S. 106 (1904).
Does the publication comply with the circulation requirements of Section 226 of Title 39 U.S.C. and the Sections of the Postal Manual Sections 132.225 and 132.227? 3/
Soon after the New York Journal American Crosswords Magazine filed its application for the second-class mailing privilege it was denied. This was done before facts on the circulation of the publication could be known. These could not be known before March, 1960 (Tr. 39). It was presumed that the Respondent was not relying upon the circulation statute when the said application was denied. This the Respondent denied.
On March 1, 1960, the Respondent made a motion to dismiss the Petitioner's appeal. I believe the Hearing Examiner's denial of this motion was proper in the light of the circumstances.
On February 20, 1962, after the appeal was taken the Petitioner believing that the issue was raised made a motion to reopen proceedings for additional evidence. The motion was granted over the Respondent's objection.
It seems to me that since the Respondent through practice had adopted the policy of waiting a reasonable time under the circumstances for data on circulation if the publisher had complied with the law in other respects it would follow that if the Respondent denied the application for second-class mailing privileges without waiting for the circulation data - the Respondent was not depending upon the lack of this data in making his decision. Respondent presented the argument that to grant the motion was to indulge in policy making of the Respondent's responsibility. I fail to see the relevance of the Respondent's position in this; the policy would be whatever the Respondent made it - then and now.
Evidence on circulation was submitted. The Respondent did not care to proceed further.
The Petitioner's evidence -- exhibit C - shows that for the first issue there were 125,000 copies published; 47,452 sold by news agents; number returned to publisher 76,928; total subscriptions 124,384. Exhibit D shows the distribution and sale of eleven issues.
It is my conclusion now that the additional evidence has been admitted, that the publication involved is not designed primarily for free circulation and that said publication conforms to the requirements of Sections 132.225 and 132.227 of the Postal Manual as this regulation was worded at the inception of this proceeding and to Section (c) of Section 4354 of Title 39 U.S. Code.
The Respondent has argued that the Initial Decision should include findings upon all material issues of fact and law presented on the record and the reasons for those findings - Title 39 C.F.R. - 204.19(c) and pursuant to Section 8(b) of the Administrative Procedure Act, codified as Section 1007(b) of Title 5, U.S. Code.
The key word to the interpretation of these sections is "material". What then does "material" mean? Webster's New World Dictionary (1958) says - "4- in law, important enough to affect the outcome of a case, the validity of a legal instrument, etc."
If there is more than one issue anyone of which could be determinative of the case such as this one reviewed here, it is argued and with some merit that the decision on the one issue makes the others immaterial; therefore they do not have to be decided.
As I read the cases wherein the foregoing sections are discussed, the courts have discussed "subsidiary findings" and have said there need not be findings on these. Minneapolis & St. Louis Railway Co. v. U.S., 361 U.S. 175; Alabama Great Southern Railway Co. v. U.S., 340 U.S. 216.
A subsidiary finding is by definition an aid to the material finding. A collateral finding may be one co-equal with a main issue, however, subsidiary and collateral findings seem to mean the same in the cases and are alluded to as "immaterial."
I do not believe the four issues in this case are immaterial even though a decision on any one of them may dispose of the case.
The Departments and Agencies of the Government owe the people who do business with them the right to know what the policies of each are. If there are clear-cut issues such as those in this case and a final decision is made on one issue which disposes of the case, I don't believe the parties to the action should be left in a quandary as to the other issues. For the expedition of future business with the Departments and Agencies the issues - the material ones as here - should be decided.
However, there may be exceptions. In a case where there is a failure to meet one of the primary requisites "regularly issued at stated intervals -- and numbered consecutively" - where the publication is deficient in the matter of the basic technical requirements of the statute - 39 U.S.C. 4354 "the character or quality of the contents of the publication becomes immaterial, for no second-class permit could be issued regardless of the nature of the publication's content". In the matter of Zest Publishing Company, Inc., P.O.D. Docket No. 1/234.
I realize the position which I have taken is debatable and there are strong cases on each side. I prefer to take the stand that the four issues in this case are material and that there should be a decision on each.
The Petitioner is not entitled to second-class mail privileges for the publication because it is not a periodical within the meaning of 39 U.S.C. 224; and because it was not originated and published for the dissemination of information of a public character, nor was otherwise devoted to literature, the arts, the sciences, or some special industry and it consists primarily of novelty pages. The publication does, however, meet the circulation requirements (132.225 and 132.227).
This is a tentative decision for the purpose of giving the Petitioner and the Respondent until June 8, 1962 an opportunity to proceed as they may deem fit and proper; otherwise, this will be the final decision.
1/ § 4351. Definition - Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title. ?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.
2/ Excerpt taken from Congressional Record - Jan. 23, 1879, pg. 693 -- "Mr. Money. Now, Mr. Speaker, in this matter of reducing the postage on periodicals published less frequently than once a week, the law as it exists today is not only illogical, but absurd; and not only absurd, but foolish; and more than that, it is unjust. As I stated in the outset of my remarks, the object of the establishment of the postal service is for the dissemination of useful knowledge among the people and to promote private correspondence. This being the object, we ought to adopt those means and appliances which will best subserve that end. The Post Office Department, looked at in that light, may be considered as a great educator of the people in all parts of the country. Now that class of publications which is least entitled to be called an educator is admitted to the most privileged rates; and that highest class of literature, in which are ranked all the monthly, bimonthly, and quarterly publications, is excluded from the privileged rate, although they are in their very nature the highest educators that reach the people in that way. Take, for instance the Missionary Herald, the oldest monthly in the United States, with over one hundred thousand subscribers. From the fact that that journal is published monthly it is compelled to pay the extraordinary rate of three cents a pound. Take all the monthlies of the country, and I say if you examine the character of those monthlies you will find more than two-thirds of the monthlies of this country are not the mere vehicles of literature to the people, but are instructors in the highest sense of the term. You may take every school-teacher's journal in the country; you may take every engineer's journal; you may take every law journal, and every medical journal, and every religious journal, and almost all the agricultural and live-stock journals of the country, including those referring to bee culture and other special industries in which the people are interested -- they all come within this class, and are compelled to pay the extraordinary rate of three cents a pound."
3/ § 132.225 - List of Subscribers. Publications must have a legitimate list of persons who have subscribed by paying or promising to pay for copies to be received during a stated time. ?132.227 - Free Circulation Publications. Publications designed primarily for free circulation may not qualify for second-class privileges. Publications are designed primarily for free circulation when the total number of copies furnished during any 12-month period to legitimate paid subscribers (see 132.225) and to the purchasers of single copies constitutes less than 65 percent of the total number of copies distributed by mail at the second-class pound rates or the transient rate, by the publishers' carriers, and by other means for any purpose. See 132.31a. NOTE: The 65 per centum paid circulation standard established by this paragraph is effective upon publication. Publications which do not meet this standard but which now have second-class permits must maintain at least 55 per centum paid circulation until December 31, 1961, after which date the 65 per centum standard must be complied with.