In the Matter of the Petition by

R. R. BOWKER COMPANY
62 West 45th Street,
New York 36, New York

for a hearing upon its application n for second-class entry
of "Paper-bound Books in Print."

P.O.D. Docket No. 2/97

June 24, 1963

Gerard N. Byrne Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D.C.

APPEARANCES:
Charles D. Ablard, Esq.
Marion E. Harrison, Esq.
930 Federal Bar Building
Washington, D.C. for the Appellant

Jack T. DiLorenzo, Esq.
Elijah B. White, Esq.
Robert M. Alexander, Esq.
Office of the General Counsel
Post Office Department for the Respondent

INITIAL DECISION OF HEARING EXAMINER

On December 7, 1961, by application of that date the R. R. Bowker Company through its officers (hereinafter termed "Petitioner") applied for second-class mail privileges for its publication "Paperbound Books in Print," (hereinafter termed "PBIP"). By letter dated June 25, 1962, Edwin A. Riley, Esq., Director, Classification and Special Services Division, Post Office Department, Bureau of Operations (hereinafter termed "Director") denied the application based on his examination of three issues of PBIP, the Summer and Spring issues for 1962, and the Winter issue of 1961, which he found to be directories of paperbound books, and not a periodical publication within the meaning of the law. (39 U.S.C. 4351, 4354, section 132.211, Postal Manual). (Joint Exhibit No. 2). A request for reconsideration evidenced by letter dated June 27, 1962, was denied by letter of the Director dated July 6, 1962, and a timely appeal was filed by letter of Petitioner dated July 11, 1962, on July 16, 1962.

By stipulation of the parties, the sole issue of this case is the status of PBIP as a mailable periodical publication (Tr. 12) as provided in the applicable statute (39 U.S.C. 4354). All of the other indicia prescribed by that statute are conceded by the Government so that the only question, as stated above, is: Is PBIP a mailable periodical as defined in the appropriate court decisions and administrative cases?

At the outset of the case the Petitioner moved that two named persons, viz., Edwin A. Riley, the Director, Classification and Special Services Division, and one of his assistants, James O. Bouton, be produced as witnesses. This motion was denied on the ground that this Hearing Examiner has no authority to compel attendance by subpoena. The Petitioner then moved for judgment for Petitioner on the basis that refusal of the Government to produce witnesses on request requires the Petitioner to present his case incompletely and disadvantageously. In view of the fact that Mr. Riley subsequently testified for himself and his Division as requested by Petitioner, this motion appears to be moot, and is also denied.

Subsequently, Petitioner filed two motions, one dated April 5, 1963, filed April 8, 1963, in effect asking certain relief from alleged dilatory actions of Respondent, and a second motion dated April 11, 1963, in which Petitioner agreed to a continuance of the re-opened hearing to April 18, 1963, asked for further relief as requested in his motion filed April 8, and further moving that the Hearing Examiner issue a finding in favor of Petitioner if both Mr. Riley and Mr. Bouton were not scheduled to testify. Since the alleged dilatory actions of Respondent were cured by the fact that a hearing was held by consent on April 18, 1963, and since Mr. Riley testified in person at such hearing (Tr. 194-288) both of these motions are denied. An oral motion made at the hearing to the same effect, is, for the same reasons, denied. At page 289 of the transcript counsel for Petitioner indicated that they had an appropriate motion to make if Respondent refused to put Mr. Rosenfeld of Respondent's office on the stand. No such motion was made.

Hearings in this case were held on September 11 and 18, 1962, and on April 18, 1963. At these hearings the Petitioner introduced into evidence some six copies of the publication in issue, PBIP, being Vol. 6, No. 4, Vol. 7, Nos. 1, 2, 3 and 4, and Vol. 8, No. 1, and also being, respectively, the issues for Winter 1961-62, Spring 1962, Summer 1962, Fall 1962, Winter 1962-63 and Spring 1963. The Petitioner also introduced into evidence the following publications:

Exs. # 3, 4, 5, 6 - Cumulative Book Index, Vol. 65, Nos. 1-6 for the months of January through June 1962.

Ex. #10 - Education Index, Vol. 33, Nos. 3, 4, 5 and 6, for the months of November and December 1961 and January and February 1962.

Ex. # 9 - Index to Legal Periodicals. Vol. 54, Nos. 7, 8, 9, 10 and 11, and Vol. 55, Nos. 2 and 3, for April, May, June, July, August, November and December 1961.

Ex. # 8 - Readers' Guide to periodical literature, Vol. 62, No. 8 for May 2 - June 1, 1962.

These latter four publications were introduced as comparative evidence, as they all have been granted the second-class privilege. They will be referred to hereinafter as "Group A."

Petitioner also introduced into evidence also by way of comparative evidence the following:

Ex. #16 - Spot Television Rates and Data for January 15, 1961.

Ex. #19 - Consumer Magazine and farm publication rates and data for March 27, 1962.

Ex. #20 - Business publication rates and data for May 24, 1962.

These publications also have the second-class privilege; they will be referred to hereinafter as "Group B."

Also introduced by Petitioner by way of comparative evidence were the following:

Ex. #15 - Official Airline Guide for August 15, 1962.

Ex. #17 - The Official Guide of the Railways etc. for February 1962.

Ex. #18 - Official Bus Guide for July 1962.

These publications also enjoy the second-class privilege; they will be referred to hereinafter as "Group C."

Other exhibits were introduced by both sides, including the position description of Mr. James O. Bouton, an assistant to Mr. Edwin A. Riley, copy of the application for second-class privileges filed by the Petitioner, copy of the letter of denial signed by Mr. Riley, various affidavits, and Petitioner's Exhibit No. 1, showing certain data with respect to various issues of PBIP. The various affidavits mentioned above will be mentioned in more detail later on in this opinion.

The first witness for the Petitioner was Mrs. Anne J. Richter, Book Editor and member of the Board of Directors of Petitioner, R. R. Bowker Company. She testified substantially as follows: (Inter alia)

The format of PBIP is in three sections, a subject arrangement of the material, an author arrangement of the material and a title arrangement of the material; the advantage of these arrangements is that people who have knowledge of only one of these elements can find a reference to the publication he desires to use; there is also a section containing editorial material, current comments, news items about new paperback series that are coming out, plus an article by specialists using PBIP to explain how they use it, all of which is prepared in part by the editor and part by guest editors; in each quarter a galley sheet of titles as they appeared in the previous (quarterly) publication is prepared and sent to the appropriate publishers who are requested to review the list and to delete, amend or add as appropriate; every part of the text of the publication is examined and reappraised and corrected every quarter; the changes from quarter to quarter are as shown in Petitioner's Exhibit No. 1 (which is quoted as follows):

PAPERBOUND BOOKS IN PRINT

                                      WINTER              SPRING              SUMMER              FALL

ADDITIONS                       '61-62               '62                       '62                      '62
     (newly-published titles)

     Author index               1360                   1621                  1539                  1700
     Title index                    1360                   1621                  1539                  1700
     Subject index             *1088                  *1287                 *1200                *1360

DELETIONS
     (titles that have gone
     out of print since
     previous edition)

     Author index                493                     560                     552                    385
     Title index                     493                     560                     552                    385
     Subject index              *390                    *450                   *450                   *319

CORRECTIONS                3639                    3284                  4896                  3502
     (changes in price,
     order number, title,
     etc.)
     Publisher section
                                           *50                      *50                      50                       51

     TOTAL CHANGES       8873                   9433                10778                   9083

TOTAL NUMBER OF
     ENTRIES:                   *41160               *42960               *46480               *50120

PERCENTAGE OF
     CHANGE                        23%                   23%                   25%                   19%

*approximations

The publication in issue (PBIP) is similar in several respects to Cumulative Book Index (Petitioner's Exhibit Nos. 3, 4, 5 and 6), except that these exhibits are issued in the form of new matter for each of two months and cumulated every third month, whereas the quarterly in issue, PBIP, is cumulated in each issue. (This is shown graphically in Petitioner's Exhibit No. 1, supra); each issue of PBIP outdates prior issues which are not useable except possibly for historical research; the publication contains editorial or textual material consisting of current comments written by an editor and guest editor which comprise a small part of the publication percentagewise, and which were inserted at the suggestion of the Post Office Department.

A second official of the Petitioner, Daniel Melcher, Vice-President, testified substantially as follows that:

He is the vice-president of R. R. Bowker Company; one of his functions was to obtain the second-class privilege for PBIP; he came to Washington from New York on or about October 17, 1961, and talked to Mr. James O. Bouton in the office of Mr. Riley, Director of Classification and Special Services Division of the Post Office Department; his information was checked by Mr. Bouton who informed him that PBIP would be eligible for second-class mail privileges, suggested that some editorial text or articles be added; and to file for that privilege in the main place of business and a subsidiary entry where some copies would be mailed from the bindery.

On cross-examination Mr. Melcher emphasized that all the entries in each issue of PBIP are subject to various kinds of changes, that each item must be checked for each issue; that many items are carried over from issue to issue either changed or unchanged; that those in the business of using PBIP would want the latest issue in order to be up to date, but a year-old issue would still be valuable; that he refers to the magazine as a "book" which is the universal custom in the trade, but that actually PBIP is a magazine and a periodical.

In connection with Mr. Melcher's testimony, Mr. Bouton's position description in the Post Office Department was consulted and placed in evidence. This document contains the following statement (inter alia):

V. Personal Work Contacts

Responsibilities of the position require high level contacts with all patrons, including officials in large mail order concerns, business and industrial organizations, and representatives of mailing associations to assist them in their mail service problems.

Has continual contact with operating and administrative personnel at various levels in the Postal Establishment to evaluate the program and interpret pertinent laws, regulations and rulings.

In addition Petitioner introduced into evidence the direct testimony of several distinguished professors and librarians as follows:

J. Sherwood Weber, Ph.D., Professor of English at Pratt Institute, Brooklyn, New York, and an educational magazine columnist.

Frank L. Schick, Ph.D., Assistant Director, Library Services Branch, U. S. Office of Education, Department of Health, Education and Welfare.

Eugene P. Willging, Director of Libraries, Catholic University of America, a member of accrediting teams of the Middle States Association and a member, and appearing on behalf, of the American Library Association.

John Learmont, sole owner and operator of Learmont Bookstore, Washington, D. C., who attended the London School of Economics, and left to join the British Army in 1939. He has operated his bookstore since April 1950, and is President of the Washington Booksellers Association.

Each of these gentlemen was well acquainted with the publication in issue, PBIP, and each of them has a thorough knowledge of his respective field. Their testimony collectively and individually attested to the usefulness of PBIP in education, in library operation, in the commercial field of bookselling, and its periodicity was emphasized by all. Also its continuity was brought out, in that the part which describes new material in each quarterly number is verified in succeeding number(s) as having been published or not, so that a continuous flow of information is available. Each of the educational and librarian witnesses attested to the growing use of paperbacks in those fields in place of more permanently bound books and anthologies. Since their testimony was essentially cumulative discussions of each individual's statements will not be set out.

In addition Petitioner submitted four affidavits (Exhibits 7, 11, 12 and 13) executed, respectively, by

James R. Squire, Executive Secretary, The National Council of Teachers of English,

Jerome Cushman, Librarian, City of New Orleans, Louisiana,

Marian N. Craddock, Director, Oklahoma City Libraries,

Edwin Castanga, Director, Enoch Pratt Free Library, Baltimore, Maryland,

all of which fully support the value of the publication in issue, PBIP, in education and in libraries. Since the affidavits are essentially cumulative evidence as between themselves and as to oral testimony of experts they will not be set out in detail, although, as in the case of testimony on behalf of Petitioner, they will receive consideration.

Evidence on behalf of Respondent consisted solely of testimony by Mr. Edwin A. Riley, Director, Classification and Special Services Division, Bureau of Operations, who testified substantially as follows:

The matter of classification of mail as second-class is initiated at the local level with mail classification sections by submission of an application with supporting data which are verified by the local classification people (Tr. 196); the papers are then forwarded to the Washington, D. C. Classification and Special Services Division where they are referred to a staff employee who recommends action thereon to the Director (Mr. Riley) who takes action thereon; the recommendations of the staff are not binding on him, he is solely responsible for deciding the matter (Tr. 199); it is the policy of his office not to make a decision as to eligibility for second-class privilege until an application is received; there are some 25,000 publications granted second-class privileges of which some 10,000 are newspapers; each application is considered on its merits without reference to prior permits; that a policy against granting the privilege to "lists" has been established, and that PBIP is essentially a "list"; that permits granted 40, 50 or 60 years ago which have not been reviewed make possible a complete shift in the character of the publication; that Index to Legal Periodicals was originally admitted to second-class in 1914, Readers Guide to Periodical Literature in 1925, Education Index in 1929, and Cumulative Book Index sometime prior to 1948 (all in Group A, supra); that, of the exhibits submitted (Groups A, B, and C, above) those in Group A appear to be within the same category as PBIP and he caused revocation notices to be sent to these four publications; that the publisher of PBIP described (in the Summer Issue, 1962, at page 675) this publication as containing three indexes, and that is what the publication is, merely an index; that the publications in Group B, supra, require more study to determine their eligibility for the second-class privilege (Tr. 223); that the publications in Group C above appear to be in another class by reason of legislation (39 USC 4352(c)) but they, likewise, will be reviewed with a view to possible revocation (Tr. 220); that Mr. Bouton's position description is not wholly correct as it is now stated and was not on the occasion of his talk with Mr. Melcher, vice-president of the Bowker Company; that Mr. Bouton's duties were changed as a result of reorganization; that in any event he had the authority to advise only (Tr. 235); that Mr. Bouton's duties were and are as set out in Section 823.432(1)(c) of the Postal Manual; that there are precedents in his office for not giving second-class privileges to list correction services (Tr. 266) but that he could not remember any specific cases (Tr. 267).

Thereafter, the Respondent rested and the Petitioner recalled Mr. Daniel Melcher, Vice-President of Petitioner company, who testified substantially as follows:

The Petitioner first applied for second-class privileges at Boston, Massachusetts, and received a negative view, but the postmaster there stated that the matter would have to be taken up with Washington, and referred Petitioner to New York for such action (Tr. 293); Mr. Klavanna of the New York Post Office agreed that the matter could not be settled except in Washington; Mr. Melcher came to Washington and obtained an appointment in Mr. Riley's office where the conversation took place as stated in his previous testimony; application for second-class privilege was made in New York and Boston (Tr. 295).

The Petitioner thereupon rested and that concluded the hearing.

There remains to be considered, of course, the publication in issue, Paperbound Books in Print, various issues of which were admitted in evidence. As all are essentially similar, except as to size, only the latest issue (Petitioner's Exhibit No. 22) for Spring 1963 will be considered in detail. This publication is approximately 8 1/2 x 11 x 3/4 inches, and in this respect differs from its predecessors which were approximately 5 1/2 x 8 1/2 x 1 inches. It contains some 79 topics in its "Subject Index" ranging from Archaeology through world affairs with cross-references, with a new system of topics consisting of 26 major classifications and numerous subdivisions thereof to be adopted in the future. There is an article "Art For Publishing's Sake" consisting of 6 1/2 pages, another article relating to paperbound books of an informative nature consisting of 6 pages, and some 6 1/4 pages of advance titles arranged by proposed months of publication, and New Fiction arranged by subjects consisting of 2 1/4 pages. The subject index consisting of alphabetical listings of subjects runs from page 27 to page 153, the Author Index, an alphabetical index of authors, runs from page 154 to page 300 and the Title Index, an alphabetical index of titles, from page 301 to page 432 all inclusive. There follows an article on paperback cover design of some three pages, and five pages of "Notes On The Indexes Of PBIP", "Publishers and Symbols", "Abbreviations" and "Table of Contents", 440 numbered pages in all, with indexes of 21,800 actively available inexpensive reprints and originals with selective subject guide as stated in the masthead. There is a small amount of advertising in the publication.

It must be concluded that this is an extremely valuable publication, useful to librarians, university students and commercial dealers alike, but its educational value to these classes of people is not in issue here; the sole issue here is, as stipulated, does this publication qualify as a periodical publication within the statutes.

The statutes governing the entry of second-class mail are sections 4351 and 4354 of Title 39, United States Code, ^1/ insofar as this case is concerned. As stated at the beginning of this hearing, all conditions for entry have been met by Petitioner and are conceded by Respondent, with the sole exception of what constitutes a periodical publication. It is the contention of Petitioner that PBIP constitutes a periodical publication; on the other hand the Respondent asserts that it is not a periodical publication as defined by the cases.

It will be observed that there is no definition of the word "periodical" in the statutes, so that the courts, in interpreting this law have been required to formulate a definition. In prior decisions by courts and by Hearing Examiners and the Judicial Officer of the Post Office Department this matter has been considered at length, and in detail, and reference to one case in

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.

particular will be made here. Departmental Decision dated May 25, 1962, T. V. Reporter, Inc. , P.O.D. Docket No. 1/229, Initial Decision dated July 29, 1960, One-Spot Publishers, Inc. , P.O.D. Docket No. 1/231. (This decision became the Departmental Decision when Petitioner failed to appeal from the Initial Decision) and Departmental Decision dated May 25, 1961, Publication Management Corp. , P.O.D. Docket No. 1/280. Of these decisions One-Spot Publishers, Inc. is most closely applicable to the instant case by reason of similarity of subject-matter. Accordingly, it is quoted as follows, and the quotation is adopted as controlling in this case:

Petitioner's publication One Spot New Release Reporter is a weekly publication which has been published regularly once each week since January 21, 1959. Examination of sample copies, which are exhibits, reveals: the publication is 8 3/4 inches long and 6 3/8 inches wide; it contains more than 100 pages; the covers are made of heavy paper; it is an alphabetical compilation of recordings (in the category known in the trade as popular music) released, according to reports received by Petitioner, during the thirteen weeks immediately preceding the date of the publication; all the recordings are listed both by the titles of the records and the names of the performing artists; other information in the publication includes the name of the recording company and the type and speed of the record. New releases reported to Petitioner each week are added to the publication, immediately following that week and generally, at the same time, all recordings released during the fourteenth week prior to such publication are omitted. Each thirteenth weekly issue is designated by the Petitioner as a "Permanent File Copy." The accumulation of these permanent file copies provides a reference to all previous releases. Any weekly issue could serve as the permanent file copy, as well as the one so designated by Petitioner, so long as each thirteenth issue thereafter were also used as a permanent file copy. Generally, upon inquiry from their customers or potential customers, record dealers use the publication as a reference source to identify titles, artists, recording companies or type and speed of records. The publication provides subscribers with some current information on record releases, generally not conveniently and readily available from other sources. New recordings of the type reported in One Spot New Release Reporter are released in considerable number each week, perhaps ranging from 500 to 1,000 and averaging about 700, and such records may be produced by any of some 400 recording companies. Each successive issue of One Spot New Release Reporter adds about 1/13 new material and drops about 1/13 old material. The Petitioner reports, as new recordings, those released over a thirteen week period because records are not always released in all parts of the country at the same time and the Petitioner considers the thirteen week period as the time reasonably necessary to determine whether particular records have been sufficiently widely accepted by the public to be eligible for inclusion in Petitioner's monthly publication One Spot Popular Reporter. Of the approximate average of 700 new records released each week, only about 25 to 100 will become popular, or in the vernacular "click", and then be listed in the One Spot Popular Reporter.

Petitioner's publication One Spot Popular Reporter is a monthly publication which has been published regularly once each month since March, 1959. Sample copies show the publication: is bout 8 3/4 inches long and about 10 1/8 inches wide; contains 300 or more pages; has covers made from heavy paper; has a binding consisting of two staples and a cloth-like outer wrapper; and contains an alphabetical listing, by titles, and also by performing artists, of recordings of popular music in current demand, according to information sent to Petitioner by record manufacturers. A recording continues to be listed in One Spot Popular Reporter so long as Petitioner considers it to be of interest. Some new recordings listed in One Spot New Release Reporter are dropped at the end of thirteen weeks and never appear in One Spot Popular Reporter. Some items listed in One Spot Popular Reporter may be dropped after the first month or other brief period, but many items may continue to be listed indefinitely. As high as 95 per cent of the content of any issue of One Spot Popular Reporter may be the same as the next preceding issue. The publication is a reference source for record dealers in connection with inquiries from customers or potential customers.

The two publications, described above, are sold only on the basis of fully-paid subscriptions and contain no advertising copy. As of August 5, 1959, there were 1,934 fully-paid subscriptions to One Spot New Release Reporter and 1,970 fully-paid subscriptions to One Spot Popular Reporter. The annual subscription price for the One Spot New Release Reporter is $20.00 and the One Spot Popular Reporter is sold for $25.00 per year, with a reduction for purchasers who subscribe to more than one of Petitioner's publications. The subscribers to the two publications consist mainly of retail record dealers. It is useful to such dealers to have current information concerning new record releases and to have information concerning those records which continue to be in popular demand. The two publications may be considered successors to similar publications published at frequencies of not less than once a month since 1926, but those predecessor publications were sent by third-class mail and they did not have second-class mail privileges.

The "Security Owner's Stock Guide" for March, 1960 (herein sometimes referred to as "Stock Guide") published by Standard and Poor's Corporation, is a reference type publication dealing with Common and Preferred Stocks and it has second-class mailing privileges. There are elements of similarity (use as reference material and, perhaps, some inclusion of old data from issue to issue) between the Stock Guide and Petitioner's publications.

Petitioner does not contend that the two publications, with which this case is concerned, are newspapers and it is obvious that they are not. Petitioner does contend the publications are "periodicals."

However, the law is well settled that compliance with the specific and express conditions of Section 226 (now 4354) may exist, and yet second-class entry may properly be denied because the publication is neither a newspaper or periodical, under Section 224 but is rather a book under Section 235. Houghton v. Payne , 194 U.S. 88 (1904; Bates & Guild Co. v. Payne , 194 U.S. 106 (1904); and Smith v. Hitchcock , 226 U.S. 53 (1912).

Part 132.211 of the Postal Manual; [39 C.F.R. 22.2(a)(1)] reads, so far as here pertinent:

"Only newspapers and other periodical publications may be mailed at the second-class rates * * *."

Neither the governing statutes nor the regulations of the Post Office Department define "periodical" or define "book" so as to cast any light on the issue presented in this case.

The two publications, here under study, do not clearly and unmistakably fall within the category of books such as was the case in Houghton v. Payne , supra , or Smith v. Hitchcock, supra . In the Houghton case, for example, so clear was it that the publications were books that the Supreme Court concluded that the Postmaster General properly revoked second-class mailing privileges notwithstanding the fact that such privileges had been granted to the publications for sixteen years. In describing the publications, in the Riverside Literature series, Mr. Justice Brown stated:

"The publications are small books, 4 1/2 by 7 inches, in paper covers, and are issued from the office of publication either monthly or quarterly, and numbered consecutively. Each number contains a single novel or story, or a collection of short stories or poems by the same author, and most, if not all of them, are reprints of standard works by Thackeray, Whittier, Lowell, Emerson, Irving, or other well known writers, and from a literary point of view are of very high class. Each number is complete in itself and entirely disconnected with every other number." ( Houghton v. Payne , 194 U.S. 88, 95)

And at page 98, Mr. Justice Brown noted that except for the consecutive numbering of the issues "***no one would imagine for a moment that these publications were periodicals and not books."

And again at page 100 Mr. Justice Brown emphasized:

"We regard publications of the Riverside Literature Series as too clearly within the denomination of books to justify us in approving a classification of them as periodicals, * * *."

Similarly the publications in Smith v. Hitchcock , supra , were considered clearly books. That case involved dime novels, such as the Frank Merriwell series, issued at stated intervals and consecutively numbered.

The two publications, in the instant case, are not, however, clearly and unmistakably within the category of periodicals, such as those one may observe by the dozen on any metropolitan newsstand. One specific illustration is the well-known magazine, Esquire, which was the subject matter of litigation in Hannegan v. Esquire , 327 U.S. 146 (1946).

While most publications, presented for second-class entry, no doubt, can readily be identified as periodicals or books, as the case may be, there are some which do not lend themselves easily to such identification. Publications in this gray area, bear enough characteristics of periodicals and enough characteristics of books (or perhaps other publications which are neither newspapers or periodicals) to make the task of identification difficult. Such publications may well include those which have been referred to by high authority as "nondescript publications." Thus, the Court in Houghton v. Payne , 194 U.S. 88, 96, 97 stated:

"By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or composition.' A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals. Payne v. Railway Pub. Co. , 20 D.C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class."

Perhaps the Petitioner's two publications may also be considered as nondescript. But it does not follow, from the above-quoted remark in Houghton v. Payne , that every nondescript publication is a periodical. The attorneys for the Director ask the Hearing Examiner to rule that the publications, here under consideration, are not periodicals, and thus not entitled to second-class mail privileges, largely, if not entirely, on the strength of the language or criteria suggested in two Supreme Court cases ( Houghton v. Payne , supra , and Smith v. Hitchcock, supra ) which dealt with publications deemed to be books, beyond question. Some might contend that: the language or criteria or guideposts suggested in those cases are of doubtful applicability to any "nondescript" publications including those in this case; and this contention is, perhaps, supported by the definition of the word "nondescript." Thus, Webster's New International Dictionary (Second Edition Unabridged 1954) defines the adjective "nondescript" as follows:

"Not easily described; unclassifiable; belonging, or apparently belonging, to no particular class or kind."

But such language, criteria or guideposts are almost all there are, on the present record, against which to measure the evidential facts, and I consider it necessary and proper to attempt to use those tests.

The language of the Court (per Mr. Justice Holmes) in Smith v. Hitchcock , 226 U.S. 53, 59, includes the following:

"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."

Each party in this case relies upon part of the foregoing as supporting its contention in respect to whether or not the Petitioner's two publications are periodicals.

Attorneys for the Director advert to the following language in the earlier case of Houghton v. Payne , 194 U.S. 88, 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." (Emphasis added)

* * * * * * * * *

After careful study of the record and the legal authorities, I find as an ultimate fact that Petitioner's publication One Spot New Release Reporter is not a periodical. I have been persuaded to so find largely on the strength of the combination of certain uderlying facts considered in the light of the language, criteria or guideposts of Houghton v. Payne and Smith v. Hitchcock, supra . Each issue of the publication has appreciable size, being 8 3/4 inches by 6 3/8 inches, and contains more than 100 pages. Each issue deals with a single subject. There is not only in each issue a complete absence of any variety of original articles by different authors but in fact each issue contains essentially a composite listing, primarily for reference purposes, of records released during the preceding thirteen weeks, as reported to the Petitioner by manufacturers and others. Each issue is complete unto itself; the Petitioner's promotional literature says so; and, the title of the publication appears to emphasize that all the releases, which are sufficiently recent to be considered as new, will be found between the covers of each issue (i.e., in one spot). While periodicity is useful and perhaps important to subscribers in respect to each week's new material (generally less than 8 per cent) the old material (generally more than 92 per cent) is surely not required weekly in order to supply any new information to the subscriber. With respect to the more than 92 per cent of the contents in each issue, which already appeared in the next previous issue, such content is neither original nor, indeed, even new timely material for the subscriber. 0 In view of the foregoing facts, taken in combination, and after weighing carefully all the contrary contentions of the Petitioner, I regard the publication One Spot New Release Reporter as having qualities more like a reference book (with weekly revised editions which modify only a very small portion of the previous book content) than a periodical. In any event, I find that it is not a periodical.

As stated in the quoted case, I regard Paperbound Books In Print (PBIP), the publication in the instant case, as having qualities more like a reference book (with quarterly revised editions which modify only a moderate portion (23%) of the previous book content) than a periodical. In any event, I find it is not a periodical. As an additional theory of law it must be noted that in Houghton v. Payne , supra , the Supreme Court in describing a periodical stated: "each number of which contains a variety of original articles by different authors." An "article" has been defined as a "literary composition on a specific topic forming an independent portion of a book or literary publication especially of a newspaper, magazine, review or other periodical. Miller v. State , 81 Ark. 359, 99 S.W. 533."

Measured by these standards, the "original articles by different authors" are an unimportant section of this publication apparently for the primary purpose of qualifying this publication as a periodical without actually doing so. Gilberton World-Wide Publications, Inc. v. Summerfield , U.S.D.C. D.C., Civil No. 1373-60.

The following findings of fact are made and declared:

1. By application dated December 7, 1961, the Petitioner applied for second-class mailing privileges for a publication entitled "Paperbound Books in Print" at the New York, New York, Post Office.

2. By letter dated June 25, 1962, the Respondent advised the Petitioner that subject to its right to file an appeal pursuant to Part 204, Title 39, Code of Federal Regulations, he was denying the application for second-class mailing privileges for "Paperbound Books in Print."

3. The separate numbers basically have three sections:

a. A subject index with titles thereunder listed in alphabetical order;

b. An author index arranged in alphabetical order; and,

c. A title index arranged in alphabetical order.

4. Each quarter the paperbound books that will be issued in the coming three months are added to the appropriate following "Paperbound Books in Print," and the titles and authors thereof that have gone out of print are deleted or dropped from the number of "Paperbound Books in Print."

5. As of the time of the hearing, about 17,500 copies of each number were printed, of which number about 13,000 were sent to subscribers.

6. "Paperbound Books in Print" is used by libraries, the book sellers of the country, college professors, college book stores, various individuals and publishers.

7. Normally, about 77% of the material appearing in each number has appeared in previous numbers.

8. The several numbers of "Paperbound Books in Print" consist of a series of separate books published under a collective title.

9. The separate numbers of "Paperbound Books in Print" are not numbers of a periodical publication.

10. The narrative material which appears in the several numbers is essentially fill-in material, and is completely subordinate to the information concerning paperbound books which appears in "Paperbound Books in Print."

11. The testimony of subordinates to Mr. Riley would not be material or required in this case since the sole power to decide the right to a second-class entry is vested in Mr. Riley pursuant to Section 823.432 b. of the Postal Manual.

The following conclusions of law are drawn:

1. "Paperbound Books in Print" consists of a series of books published under a collective title.

2. The several numbers of "Paperbound Books in Print" are not numbers of a periodical publication within the meaning of sections 4351 and 4354 of Title 39, U. S. Code.

3. The publisher of "Paperbound Books in Print" was not entitled to receive second-class mailing privileges for "Paperbound Books in Print," and the Respondent properly denied the application for second-class mailing privileges.

Proposed findings of fact and conclusions of law submitted by both parties have been fully considered and are adopted to the extent herein indicated. Otherwise such proposals are denied for the reasons stated or for immateriality.

/s/

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.

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