In the Matter of the Petition by

LITTLE, BROWN AND COMPANY (INC.)
Re "INTERNATIONAL OPHTHALMOLOGY CLINICS"

for *** second-class mail privileges.

P.O.D. Docket No. 2/86

Jesse B. Messitte Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

APPEARANCES:
Stuart MacMillan, Esq.,
of Haussermann, Davison & Shattuck
Boston, Massachusetts for the Petitioner

Jack T. DiLorenzo, Esq.
Eugene P. White, Esq.
Office of the General Counsel for the Respondent

INITIAL DECISION OF HEARING EXAMINER

The Petitioner, Little, Brown and Company, seeks in this proceeding to establish entitlement to second-class mail privileges for a quarterly publication known as "International Ophthalmology Clinics." For reasons set forth below, I conclude the Petitioner is entitled to such privileges.

The Respondent, a postal official, ^1/ contends only that the publication is a series of books issued quarterly and not a periodical. The Respondent concedes and I therefore find and conclude that all other factual and legal requirements for second-class mail privileges have been met by Petitioner.^2/

There is no doubt that a publication which is a book rather than a periodical fails to meet one essential requirement for second-class mail privileges. There is also no doubt that issuance of a publication periodically, for example weekly, monthly or quarterly, does not of itself prove that a publication is a periodical rather than a book or one of a series of books. 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).

The pertinent statute (39 U.S.C. 4351, 4353) does not define "periodical publications." During the past three or four years many publishers have differed with the Respondent as to what constitutes a periodical publication as contrasted with a book. Not even the Postmaster General himself has unlimited discretion in the matter. In the case most recently litigated on the subject, the Postmaster General, by his Judicial Officer, had determined that a publication composed mainly of crossword puzzles was a book and not a periodical. The United States District Court for the District of Columbia in reviewing the matter noted:

"The Court is unable to find that the action of the Postmaster General is lacking in a rational basis, and, therefore concludes that it was not arbitrary or capricious but that the Postmaster General acted within the bounds of proper discretion in determining the question of whether the publication was a periodical. That determination must be made by the Postmaster General. The Court may not substitute its own judgment for that of the Postmaster General, and if the Postmaster General acts within the legal definitions laid down by the Supreme Court and within the bounds of reason, his action may not be set aside." per Holtzoff, J., in Dell Publishing Co., Inc. v. Summerfield , Civil Action 2502-60 decided October 12, 1961.

The Court of Appeals for the District of Columbia reviewed the Dell case, (sub nomine Dell Publishing Company, Inc. v. Day, No. 16885 decided May 31, 1962) and in a brief per curiam decision affirmed the Court below. The Court observed "*** the Postmaster's action in revoking appellant's second-class mail permit was not 'clearly wrong'.* * * * * * ^3/ Based on a reasonable interpretation of the controlling statute, his action was neither 'arbitrary, capricious, nor an abuse of discretion.' Administrative Procedure Act 10(e) 5 U.S.C. 1009(e) ......"

On the evidence in the record and under the findings of fact set forth below the denial of second-class mail privileges to the Petitioner would be "clearly wrong." Furthermore, in the exercise of the discretion of the Postmaster General second-class mail privileges should not be denied to the Petitioner.

Having stated my views in general terms, I proceed with the details of the underlying history of this matter, as well as further findings of fact and conclusions of law.

A

HISTORY OF PROCEEDINGS

1. The Petitioner on or about July 10, 1961 filed an application with the Postmaster at Baltimore, Maryland requesting second-class mail privileges for a quarterly publication entitled "International Ophthalmology Clinics."

2. A temporary permit was issued July 26, 1961. The Baltimore Postmaster made his report December 11, 1961 and forwarded the application and report to Respondent. The application showed: the annual subscription price of the publication was $22.50; total printing of the June 1961 issue numbered 3,000; a little more than 2,350 subscriptions were received by the publisher and the balance of the printing was held for new subscribers so they might receive all of the four quarterly issues constituting the entire first year publications.

3. On January 16, 1962 the Respondent granted authorization for second-class mail privileges to Petitioner effective as of July 26, 1961.

4. On or about January 25, 1962 the Petitioner filed an application for reentry - to permit mailings under the second-class rates - at Boston, Massachusetts because all pertinent records are maintained in Boston and the publication, formerly printed at Baltimore, was now being printed at Wellesley, which is near Boston.

5. The Respondent by letter dated March 30, 1962 asserted the publication is not a periodical and "each issue is a separate publication, devoted to one subject in the field of ophthalmology and constitutes a book. ***" Respondent's letter of March 30, 1962 further stated the second-class permit at Baltimore would be annulled and the denial of the application for reentry at Boston would become final effective 15 days from the receipt by the publisher of the letter unless the publisher filed a petition under specified applicable "Rules of Practice ***" (promulgated by the Judicial Officer of the Post Office Department under authority conferred by the Postmaster General).

6. The publisher disagreed with the Respondent and on April 16, 1962 filed a petition for a hearing concerning second-class mail privileges for the publication. Respondent filed an answer on April 27, 1962.

7. A hearing was held before this Hearing Examiner at Boston, Massachusetts on May 7 and 8, 1962. It then clearly appeared that the only question to be resolved was whether each quarterly publication is a periodical under 39 U.S.C. 4351 and 4353 rather than one of a series of books issued quarterly. Respondent admitted that all other requirements for second-class mailing privileges under applicable law were met by Petitioner's publication.

8. Among the exhibits received in evidence at the hearing were: five of the quarterly issues of International Ophthalmology Clinics, the publication here in question; five illustrative publications (several with second-class permits noted), issued periodically by publishers other than Petitioner, and composed of medical clinical information in form and content very much the same as Petitioner's publication --- except for the precise subject matter, color of the covers and other minor items of no possible consequence in this proceeding; three numbers of an illustrative legal publication (with second-class permit noted) issued periodically, which in some respects may, perhaps, be significantly analogous to Petitioner's publication.^4/

9. At the hearing the Petitioner presented the testimony of five witnesses. Respondent did not testify concerning postal practices or otherwise, and he did not offer the testimony of any other witness. Counsel for each of the parties on July 9, 1962 filed proposed findings of fact and conclusions of law.

After study of the entire record I find the facts to be as set forth herein.

B

SOME FURTHER FINDINGS OF FACT

1. The Petitioner's publication is issued quarterly and is sold almost exclusively on an annual subscription basis.

2. The size of each printing is governed primarily by the size of the subscription list.

3. Petitioner has no plans for reprintings of the publication as is the normal procedure to meet demands in the case of books.

4. A book series is a collection of books put out at regular or irregular intervals with each book usually written by a separate author under a separate contract. Each author's compensation is ordinarily based, in whole or in part, upon royalties and thus depends upon the sales of that particular book. The series of books are sold largely through the book stores and the more popular books in the series often go into several editions and several printings.

5. Each issue of the Petitioner's publication is composed of a number of articles selected by the editor and the author of each article is paid a flat fee. Sales are made not through book stores but by subscription.

6. In the publishing trade there is a recognized distinction between a book and a periodical publication. Unlike a periodical

publication such as Petitioner's publication: a book is generally written under contract with one author; each book in a series is complete in itself; each book in the series is generally sold on the basis of reader demand for the work of the individual author; the series is usually sold through regular wholesale channels to the retail book stores; and the publisher generally gives credit for returns by the book stores.

7. Sample copies of the Petitioner's publication disclose it is about 6 1/8 x 9 1/4 inches, contains on the average about 200-250 pages, has hard covers and a substantial binding. Each issue has a guest editor and consists of a number of articles, each such article usually being written by a different contributor. The articles set forth matters of current interest to the professions concerned on one or two rather general topics in the field of ophthalmology such as "The Retina," "Cataract Surgery," "Neuro-Ophthalmology," "Contact Lens Management," etc.

8. The Petitioner's publication tries to bring to the ophthalmologist the current clinical events in his field of work. It does the same, in some articles, for the optometrist. The distribution of the publication to subscribers in the fifty states in the United States and in foreign countries tends to make available the latest clinical developments in the more progressive medical centers to professional men in a wide geographical area.

9. The Petitioner's publication is, in all substantial respects, identical in cover, binding, general appearance, content and otherwise with publications of other publishers, competitors of the Petitioner, all of which have and long have had second-class mail privileges. (The Respondent does not even assert that all such privileges should be revoked. His counsel merely suggests in a brief that if it were determined that the Petitioner's publication is not entitled to second-class mail privileges then Respondent "would have to consider instituting revocation proceedings against the other publications." Respondent does not claim here and now that the Post Office Department has erred over the years in granting second-class mail privileges to such other publications). ^5/

10. Petitioner formulated the program for the publication here in question, by adapting to a different field of medicine (ophthalmology) the precedents long established by W. B. Saunders Company publisher of several bimonthly publications including "The Medical Clinics of North America," "The Surgical Clinics of North America" and "The Pediatrics Clinics of North America." A similar precedent is "Clinical Obstetrics and Gynecology" published quarterly by Paul B. Hoeber, Inc., Medical Division of Harper & Brothers.

11. A medical treatise or monograph generally has a more lasting and more nearly timeless quality than the material contained in the Petitioner's publication which primarily carries current clinical information which may for a time be useful in treating patients.

12. There is continuity in the quarterly publication, here in question. Thus, for example, one issue covered various aspects of the subject of contact lenses but a previous issue had an article on contact lenses too. Continuing rapid changes in clinical practice must be promptly embodied in suitable articles if the purposes of this publication are to be achieved.

13. In preparing to obtain material for future issues, the Petitioner contacts subscribers and inquires about what subjects are of particular current interest to the professions concerned. This is quite different from the procedure followed in book publication and, perhaps, resembles somewhat the efforts employed by publishers of periodicals to supply matter of widespread current interest to their subscribers and other readers.

14. The Petitioner considers the potential market for its publication is now about 6,500 persons. Petitioner has had an actual list of 3,524 subscribers during the first year of publication.

15. The increased cost of a hard cover compared with a paper cover is relatively small and, in any event, it was deemed necessary by the Petitioner to adopt much the same format as its competitors (Saunders and Hoeber, for example) and, thus, to obtain a somewhat comparable subscription price.

16. Periodicity is an essential element of Petitioner's publication. It is sold on subscription by assuring prospective subscribers that symposia will be presented continuously and regularly concerning new surgical techniques, new therapeutic methods, new diagnostic methods -- all in the field of ophthalmology -- and all as they come to be in clinical use.

17. A primary objective of the Petitioner's publication is educational. The publication is designed to bring to the practitioner in small remote communities current information concerning the latest clinical practices in ophthalmology.

18. The Petitioner's publication, like the very similar publications of W. B. Saunders Company and Paul B. Hoeber, Inc., Medical Division of Harper & Brothers all follow the same pattern by taking for each issue selected aspects of one or two reasonably general medical subjects and presenting a variety of articles by different contributors each of which deals with those particular aspects of the subject.

19. It usually takes from nine months to a year or longer to produce a book with original content. But Petitioner's quarterly publication, of necessity, must be produced on a schedule of ten weeks.

20. It is necessary to use a glossy type paper in publications, such as the one here in question, in order to reproduce properly X-rays, micro-photographs, fungus photographs, detailed illustrations and high-screen engravings.

21. Of the 3,500 subscribers, 2,000 are registered ophthalmologists, about 1,300 are optometrists, and the remaining 200 are hospital or medical school libraries.

22. The medical profession, and optometrists as well, look upon Petitioner's publication as being in the same general category as a journal, a publication which deals with current problems and keeps them in close touch with significant clinical experiences of their contemporaries throughout the world.

23. Second-class mail privileges have been granted to somewhat analogous publications in the field of law. For example, there is "Law and Contemporary Problems," a quarterly published by Duke University Law School. Each issue is made up almost entirely of a symposium on a single subject, such as "European Regional Communities" or "Administrative Regulation." There are several articles all pertaining to the single subject and each article is supplied by a different contributor. Where the subject is highly technical (as most of those in Petitioner's publication are) the Duke University law publication also uses a guest or special editor for the symposium.^6/

24. If Petitioner receives a request for a single back number of its publication for a preceding year and sells it the price is $8.50. There have been only a few such requests. Petitioner does not advertise single copies for sale. Usually such sales are to regular subscribers who have lost or given away a single copy and wish to replace it.

25. The existence of "References" to journals and texts in connection with one or more articles does not change the essential character of Petitioner's publication as a periodical. Such references are quite usual in medical and law journals. (Sometimes such references are contained in footnotes and sometimes t the end of the article. In either case such references do not tend to establish the publication as something other than a periodical.)

26. Petitioner's publication, like medical journals and law journals, is used for reference purposes and does not become more readily outmoded than some of such journals.

27. The fact that Petitioner has at times referred to the publication as a "book" does not establish that it is not a periodical -- any more than Respondent's January 1962 acceptance of the publication as being entitled to second-class mail privileges of itself establishes that the publication is a periodical. (The determination as to whether the publication is a periodical or not must be made on the basis of all the pertinent evidence under applicable law.)

28. Many books are the same size (179-295 pages) as Petitioner's publication. But well-known periodicals, with second-class mail privileges, may have a similar or larger size. ^7/

29. The continuing pagination in each of the four quarterly issues of Volume 1 of Petitioner's publication follows the format of other very similar medical publications (Pet. Ex. 2 for example) and does not change the essential character of the publication as a periodical.

30. An annual index is not unusual in periodicals, such as law journals, and does not change what would otherwise be a periodical into a book.

31. Each number of Petitioner's publication is a periodical publication.

C

FURTHER CONCLUSIONS OF LAW

1. Each number of Petitioner's publication, International Ophthalmology Clinics, is a periodical publication and meets all requirements for second-class mail privileges under applicable law including 39 U.S. Code, Sections 4351 and 4353 and applicable language of court decisions.

2. The Petitioner's second-class mail privileges for the publication for mailings at Baltimore, Maryland should not be revoked.

3. Petitioner's application for reentry at Boston, Massachusetts should be granted.

4. Petitioner is entitled to retain second-class mail privileges at Baltimore, Maryland, if needed, and to have such privileges at Boston, Massachusetts.

5. Pertinent statutes were amended in 1958 so as to eliminate the previous requirement for second-class entry that the publication be without board, cloth or other substantial binding. (Public Law 85-426, effective May 27, 1958; See 1958 U.S. Code Cong. and Adm. News, p. 2503.)

D

SOME APPLICABLE ADMINISTRATIVE AND COURT DECISIONS

This Hearing Examiner about two years ago carefully considered the Supreme Court decisions, and language therein, concerning the differences between a periodical and a book under second-class mail statutes. (See in re One-Spot, P.O.D. Docket No. 1/231, Initial Decision July 29, 1960 which became the Departmental Decision because neither parties filed any exception thereto.) Houghton v. Payne , supra , and Smith v. Hitchcock ,

supra , were analyzed in the One-Spot decision. Repetition of that kind of detailed analysis is not necessary here.

A few brief references from the Supreme Court decisions should suffice.

In Houghton v. Payne , 194 U.S. 88, 97, it is stated:

"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."

In the instant proceeding Petitioner's publication appears at stated intervals (quarterly). Each number contains a variety of original articles by different authors devoted to a special branch of learning (ophthalmology). This is quite unlike the publication in Houghton (denied second-class mail privileges by the Postmaster General without objection by the Supreme Court) -- pamphlets issued at regular intervals, each containing an independent and separate literary work by one author such as Thackeray, Whittier, Lowell, Emerson and Irving.

In Houghton , the Court also said at pages 97-98:

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

In the instant proceeding periodicity is a significant element of the character of Petitioner's publication because it is designed to bring up-to-date clinical information on ophthalmology to the professions concerned and revise that information regularly in accordance with relatively frequent changes and improvements in clinical procedures.

In Smith v. Hitchcock , 226 U.S. 53, 59, Mr. Justice Holmes wrote:

"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."

Petitioner's publication contains a variety of topics pertaining to some general phase of ophthalmology. And the material in each issue suggests the need for relatively regular and frequent up-dating so that there is continuity of current information supplied in subsequent issues and "no single number is contemplated as forming a book by itself." This is quite different than the weekly publications, in Smith v. Hitchcock , each containing a single story complete in itself.

E

PROPOSED FINDINGS AND CONCLUSIONS

Proposed findings of fact and conclusions of law submitted by the parties, have been adopted to the extent embodied in this initial decision. All other proposed findings and conclusions are rejected because they are deemed not supported by persuasive evidence, or they are either not relevant or not material to the resolution of the question of whether Petitioner is entitled to second-class mail privileges for its publication "International Ophthalmology Clinics."

/s/

____________________

1/ Respondent is in the Bureau of Operations, Post Office Department. His position is designated "Director, Division of Classification and Special Services."

2/ Thus, Respondent's answer admits specifically that the publication (1) is regularly issued at quarterly intervals and each issue is dated and numbered consecutively (2) is issued from a known office of publication and is printed in accordance with statutory requirements and (3) has a legitimate list of subscribers. (See 39 U.S.C. 4351, 4353.) At the prehearing conference Respondent's counsel accepted as "correct" the statement that the only question to be decided is whether the publication is or is not "a periodical" and that in all other respects "the publication and the Petitioner meet the requirements of the law for second-class mailing privileges." (Tr. Prehearing Conf. p. 4).

3/ Citing " Bates & Guild Co. v. Payne , 194 U.S. 106, 109; United States v. Shimer , 367 U.S. 374, 381-2" and referring to " United States v. Drum , 368 U.S. 370, 376."

4/ At the hearing, Respondent's counsel objected to the receipt in evidence of publications other than those for which Petitioner now seeks to establish entitlement to second-class mail privileges. Respondent's counsel contended other publications with second-class mail privileges were irrelevant no matter how much like Petitioner's publication they might be. This Hearing Examiner in overruling the objection mentioned generally that there was a contrary court decision by Judge Matthews in the United States District Court for the District of Columbia. Respondent's counsel asked a citation for the decision. The Hearing Examiner has located the decision and the citation is Candar Publishing Co. v. Summerfield , Civil Action No. 3227-58-Memorandum Decision of December 30, 1959. For the benefit of Respondent's counsel a complete copy of the Memorandum Decision is marked Appendix A, annexed hereto and made a part hereof. The fact that a year later and after a de novo trial in Court the publisher lost in the Candar case (See Memorandum Decision of Judge Curran filed December 8, 1960 in said Civil Action No. 3227-58) is beside the point. See, however, pp. 9, 10, of brief of Respondent's counsel in the instant proceeding.

5/ For example, the Surgical Clinics of North America for October 1961 published by W. B. Saunders Company of Philadelphia is Volume 41 No. 5. It notes entry as second-class matter at the Post Office at Camden, New Jersey. In the absence of anything to the contrary from the Respondent in the record it might possibly be inferred that, in one form or another, the publication has enjoyed second-class mail privileges for more than 40 years.

6/ See, for example, Law and Contemporary Problems Vol. XXVI, No. 3 entitled "European Regional Communities."

7/ See, for example, Reader's Digest for May, 1962 with over 300 pages.

(Editor's note: The footnotes have been consecutively numbered for ease of reading)