In the Matter of the Petition by                                  )
                                                                                  )
LITTLE, BROWN AND COMPANY (INC.)                   )
Re "INTERNATIONAL OPHTHALMOLOGY CLINICS" ) P.O.D. Docket No. 2/86
                                                                                  )
                                                                                  )
for *** second-class mail privileges.                         )

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

Bosone, Reva Beck

POST OFFICE DEPARTMENT
Washington 25, D. C.

DEPARTMENTAL DECISION

There is but one issue in the above named case: Is the publication of the Petitioner a periodical or a book?

On or about July 10, 1961, the Petitioner applied for second-class mailing privileges for a publication entitled "International Ophthalmology Clinics" with entry point at Baltimore, Maryland. About six months later, January 26, 1962, the application was granted. At this time the Petitioner applied for re-entry at Boston, Massachusetts. On January 30, 1962, the Respondent denied the application for re-entry and the second-class mailing privileges were revoked. A hearing was held and a decision was made in favor of the Petitioner. The Respondent appealed.

The Petitioner introduced into evidence, and they were received, several publications that use the second-class mailing privilege. They were two titles published by the W. B. Saunders Company of Philadelphia and London: Exhibit P-1 is entitled "The Medical Clinics of North America"; Exhibit P-2 is entitled "The Surgical Clinics of North America" with the subtitle "Problems in Surgical Management." These publications use the second-class mailing privilege. The Petitioner also introduced, and they were also received in evidence, three copies of a publication from the School of Law at Duke University, Durham, North Carolina, entitled "Law and Contemporary Problems." This publication has enjoyed second-class mailing privileges since December 10, 1946. The question was raised: Are these publications comparable to those which are the subject of this case? The Hearing Examiner held that they were comparable and for that reason "would have some bearing" on whether or not the application should have been denied. Candar Publishing Co. v. Summerfield, Civil Action No. 3227-58- Memorandum Decision, December 30, 1959.

But without a decision as to the comparability of the publication exhibits with those entitled, "International Ophthalmology Clinics," a decision can be made on the question involved: Is the publication a book or a periodical?

It was agreed that the publication met all the other requirements for the use of the second-class mailing privilege.

39 U. S. Code, Sec. 4354, Subsection (a) reads "Generally a mailable periodical publication is entitled to be entered and mailed as second-class mail if it -- (4) under (1) '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 ---.'" One might say this "covers the water front" and its latitude lends itself to controversy. Medicine is a science. Ophthalmology is a particular field in medicine. The question is: Is "International Ophthalmology Clinics" a periodical?

Since the Congress of the United States has never spelled out what a periodical is, one must rely upon the interpretation of the statute by the cases.

In Houghton v. Payne, 194 U. S. 88, page 97, the court says:

"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."

According to the testimony of the Petitioner's witnesses the procedure in publishing a periodical and that of a book are different. Of course, some of this could be a matter of policy adopted by the publisher. There was no testimony refuting this testimony. The witnesses said that the writer of an article is not under a contract; he receives a flat fee while he who writes a book receives a royalty. The publication is not sold through book stores as books are but is sold on a subscription basis with a full subscription list. That while there is a close working relationship between the publisher and the author of a book, the writer of an article is independent. Further detail is not necessary. This testimony does shed some light on the subject and it seems to me should be weighed with the rest of the evidence.

"International Ophthalmology Clinics" is a publication the size of the average book. It has a hard cover, which is permissible nowadays. Each issue has a guest editor and consists of a number of articles usually contributed by a different author. The articles are related to the general subject.

In Joint Exhibit 5 the Publisher's Note, page V, says:

"This volume inaugurates a quarterly subscription series of books designed to provide the busy clinician with the latest concepts and technics, treatments, and diagnostic aids actually used by practitioners in the world's great ophthalmology centers.

"It has been a source of particular satisfaction to us, as publishers, to watch the idea for this series take hold and grow. In the course of our conversations with practitioners we quickly confirmed the need for such a publication. All agreed that although journals provide excellent outlets for original research, textbooks serve as basic references, and monographs give thorough coverage to special subjects, there has been no clearinghouse for continuing information on the diagnostic and treatment procedures currently in use by leading ophthalmologists. The INTERNATIONAL OPHTHALMOLOGY CLINICS has been carefully planned to meet this need.

"In order that the series will be as useful as possible, each issue will confine itself to one or two clinical topics. These will usually be in the form of symposia edited by international authorities who will in turn select specialists to write the individual chapters. The material will be presented in a direct, easy-to-comprehend manner and will consider research questions only when they have direct bearing on specific clinical problems. It is our hope that in this way the clinician will have ready at hand practical, authoritative advice (while it is still fresh) that he can promptly put to use in his own practice.

"The success of this series will hinge upon its ability to anticipate the needs of its subscribers. We solicit your help in achieving this goal. Please send us your suggestions and criticisms. We will pay very close attention to all comments and be guided by them in our planning for future symposia.

"We are happy to have you participate with us in the INTERNATIONAL OPHTHALMOLOGY CLINICS. May this first volume, and the succeeding ones, offer you rewarding reading."

The Publishers

I believe that one can take judicial notice of the fact that medical science has undergone and is continuing to undergo changes in every field of medicine. If the Publisher's Note, supra, is lived up to I believe the publication should be considered to be a periodical. Mr. Fred Belliveau, head of the Medical Book Department of Little, Brown and Company, Boston, Massachusetts, said when asked what the purpose of the publication is, "Well, we are attempting by publishing the Clinics to have at hand for the practicing man in ophthalmology a quick referral place where he can go and catch up on the latest clinical happenings in his field; and that is what we're trying to do, something that is of a current, practical, useful calibre."--Tr. 49. Dr. Robert G. Reinicke, a resident ophthalmologist at the Massachusetts Eye-Ear Infirmary--Tr. 134--called to testify by the Petitioner, was asked, "Now, from the point of view of the profession of which you are a member, do you treat this in the same manner that you would a medical treatise or a book on medicine or a book on ophthalmology?" He answered, "No, I would not classify this as a textbook on ophthalmology. I feel that it's quite apart from that. I look upon it in the same general category as a journal and in filling a special specific need, I thin, in many instances. of bringing practitioners throughout the Country up to date on the way different topics are treated in specific medical centers. I think most of the topics covered in these particular editions do not make any pretense of being the last word. I mean by the last word, final authoritative subjects, but, rather, they are describing the way they are currently treating different conditions and operative problems in their particular institution. ---"--Tr. 135. It is emphasized by the Petitioner's witnesses throughout the hearing that the articles deal with current medical problems in the various clinics in the country. ^1/

If the articles in the publications involved in this matter are current then there is an implication of continuity. I agree with the Hearing Examiner that there is periodicity when he said, " - - - by assuring prospective subscribers that symposia will be presented continuously and regularly concerning new surgical techniques, new therapeutic methods, and new diagnostic methods--all in the field of ophthalmology--and all as they come to be in clinical use." There is a relationship between the articles of today and the articles of tomorrow provided the publisher continues to make the subject matter current and clinical.

The Respondent alleges that the Hearing Examiner erred in transferring the hearing to Boston and refers to Section 204.11 of Title 39, C. F. R., which reads: "Hearings are held in Room 5241, Post Office Department, Washington 25, D. C., or other locations designated by the presiding officer." I believe the Hearing Examiner should designate Room 5241 in the Post Office Department, Washington, D. C., for all hearings unless in his discretion the parties to the action would be better served by his designating a different location. I believe the Hearing Examiner in this case was justified in holding the hearing in Boston, Massachusetts.

CONCLUSION OF LAW

The publication entitled "International Ophthalmology Clinics" is a periodical according to the requirements set out in 39 U. S. Code 4351-4354 and is entitled to have the second-class mailing privilege.

1/ Hitchcock v. Smith, 34 App. D. C. 521 (1910); Smith v. Hitchcock, 226 U. S. 53 (1912); United States Ex Rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407 (1921).