In the Matter of the Petition by                                )
                                                                                )
AMERICAN ART AGENCY, INC.                              )
7311 Fulton Avenue                                               )
North Hollywood, California 91605                         ) P.O.D. Docket No. 2/269
                                                                                )
for a second class mail permit for                          )
the publication "TIP TOP."                                        )

Rosenblatt, Peter R.

POST OFFICE DEPARTMENT
WASHINGTON, D. C. 20260

DEPARTMENTAL DECISION

STATEMENT

The matter here at issue has been confined by stipulation of the parties to the single question of whether the Petitioner's publication, Tip Top , is properly classifiable as a periodical, within the purview of the statutes and regulations prescribing the conditions for second class mail entry (39 U.S.C.A. sec. 4351 ff. and Post Office Department Manual 132.2).

The record reveals that the Petitioner requested second class mail privileges for Tip Top by application dated February 15, 1967. An authorized officer of the Post Office Department's Bureau of Operations (hereinafter "Respondent"), by letter dated August 17, 1967, denied the application upon the ground that Tip Top "is essentially a book of pictures" which therefore "does not have the requisite characteristics of ... a periodical publication."

The Petitioner duly challenged Respondent's determination and issue was joined. A hearing was held in Los Angeles, California on November 6, 1967 before a Post Office Department hearing examiner.

The hearing examiner's Initial Decision, docketed February 23, 1968, sustained the Respondent's determination and the Petitioner appeals.

THE PUBLICATION

The testimony of the Petitioner's witnesses and an inspection of joint exhibits 1-4 (Tip Top, Volume 6, Nos. 1-4, dated October, 1966, January, 1967, April, 1967, and July 1967, respectively)

reveals, inter alia, the following with respect to each issue of the publication:

1. It is 8 1/2 by 11 inches in size.

2. Its cover and pages are formed of heavy, glossy paper stapled together in typical magazine fashion.

3. It contains from 79 to 87 inside pages.

4. The contents are divided into four categories of material:

--"Personalities"; five or six sets of photographs of female models in various stages of undress, with emphasis on their legs. Each set is accompanied by written material purporting to provide some personal information about the model featured therein and linking her to the motif of the photographs.

--"Pictorials"; five or sex sets of photographs presented in a format essentially similar to "Personalities".

--"Features" (called "Articles" in the most recent issue in evidence); five signed articles, illustrated to some extent by photographs or drawings, which relate in one way or another to Tip Top's basic subject--appreciation of the female leg. Discussion in these essays generally concerns current stocking designs, hemlines, leg watching and like topics dealing with aspects of the subject of legs.

--"Facts and Fillers" (called "Features" in the most recent issue in evidence); four or five items including letters, current gossip and comments based on correspondence from the readership, and photographs and text based on material submitted by readers.

--In addition each issue contains a small number of advertisements.

DISCUSSION

As aforesaid, the parties have stipulated out all issues with respect to Tip Top's entitlement to a second class mail permit, other than its standing as a "periodical."

The Supreme Court said in Houghton v. Payne (1903) 194 U.S. 88, 96, that while the statute (which is essentially unchanged to the present):

"lays down certain conditions requisite to the admission of a publication as to mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites."

The record leaves no doubt that the parties intended their stipulation to cover those "certain requisites of a periodical" which are defined by statute. These are analyzed in "The Post Office and Publishers' Pursestrings: A Study of the Second-Class Mailing Permit" by C. D. Ablard and M. E. Harrison, 30 Geo. Wash. L. Rev. 4 (1962) . The Respondent raises no issue on that account, and I find that Tip Top meets those requisites.

The issue therefore is whether Tip Top satisfies those other requisites of a periodical which are not set forth in statute law. To the extent that they have been enunciated at all, their import must be sought in a few court decisions, supplemented by some decisions of the Post Office Department Judicial Officer and the ordinary meaning of the term "periodical".

The latter requires mention since the Supreme Court declared, in the first of its pronouncements on the subject, that the statute requires that

"the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term." (Houghton v. Payne, supra, p. 96).

The dictionaries, which can I think, usually be regarded as the most reliable repositories of a word's ordinary meaning, define that feature of periodicity as a "tendency to recur at regular intervals" (Webster). Current dictionaries define a periodical in terms of periodicity alone.^1/ But that is obviously not the definition which the Supreme Court had in mind, since they declared that the "ordinary meaning" of the term embraced something more than the feature of periodicity. The definitions adopted by some of the older dictionaries in use at the time of the Houghton v. Payne decision also distinguished, without elaboration, between periodicals and books. It is precisely in this respect that all the Court's own decisions have sought to establish the term's meaning. Insofar then, as any "ordinary meaning", useful for present purposes, has been assigned the term periodical, it must be sought elsewhere than in the dictionaries.

The deliberations of courts other than the nation's highest See Fifield v. American Automobile Association (Dist. Ct., Mont., 1967) 262 F.Supp. 253, 256-7 for a good roundup are equally unhelpful in establishing the "ordinary meaning" of the term periodical, since their interpretations are influenced by the other types of statutes under which the issue has arisen. hence there does not appear to be any really meaningful way the "ordinary meaning" of the term can be established.

The Court has described its own understanding of the term's ordinary usage as follows (Houghton v. Payne, supra, p. 97):

"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."

This statement of the Court's must be read within the context of the specific holding in which it appeared, and of two other cases concurrently decided. Smith v. Payne (1903) 194 U.S. 104, and Bates & Guild Co. v. Payne (1903) 194 U.S. 106 .

In Houghton v. Payne the publication sought to be entered as second class mail, under a statute essentially identical to that which now applies, consisted of small paperbound books issued monthly or quarterly, numbered consecutively and belonging to a "Riverside Literature Series." Each number contained a single novel or story, or a collection of short stories or poems by the same author, and most, if not all of them, were reprints of standard literary works.

The publication at issue in Smith v. Payne was, likewise, a literary series, though "apparently of an inferior class of literature."

Each issue of the publication involved in Bates & Guild Co. v. Payne purported to be a monthly magazine "complete in itself, ... devoted to one of the world's great musicians, giving thirty-two pages of engraved piano music, ... with editorial notes suggesting the proper interpretation; a beautiful frontispiece (sic) portrait, a life, and estimates of his genius and place in art...."

The essential similarity in the character of the publications involved in these early cases is manifest and elucidates the thrust and purpose of the quoted passage from page 97 of Houghton v. Payne. The Court did not wish, in the words of Bates & Guild Co. v. Payne, supra, p. 110, to "be controlled by the cover" of a publication which proclaimed that the serial literary works within met the basic statutory requisites of a periodical.

The issue next came to the Court's attention in a context differing only slightly from that of the three previous cases. The publications at issue in Smith v. Hitchcock (1912) 226 U.S. 53, 57, were "weekly, each containing a single story complete in itself, but the same character is carried through the series and the reader is led by announcements to expect further tales after the one before him. Most of the stories are by the same author." They were, in fact, the Frank Merriwell series. The Court again rejected the suggestion that the Postmaster General's review of an ostensible periodical's bona fides ought to be confined to a consideration of its conformity with the statutory requisites alone. In this context the Court found no difficulty in holding that the Postmaster General's ruling against the Petitioner's claim was not unreasonable. In so doing it added somewhat to the recognized elements of a periodical (Ibid, at p. 59):

"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.... 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."

These then, are the court decisions which trace the bounds of the Postmaster General's discretion in deciding which publications shall be deemed periodicals. There are others which go no further than to declare that various findings of the Postmaster General were not, in the words of one, "lacking in a rational basis and, therefore, ... not arbitrary or capricious.... 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" Dell Publishing co. v. Summerfield (Dist. Ct., D.,C., 1961) 198 F.Supp. 843, 845, aff'd. as Dell Publishing Co. v. Day, 303 F. (2d) 766. See also Candar Publishing Co., Inc. v. Summerfield, Civil Action No. 3227-58, Dist, Ct., D. C., Dec. 8, 1960 . The Dell Publishing Co. case concerned paper-bound "pamphlets" issued bi-monthly, which contained crossword and other puzzles with blanks for their solutions. The Departmental Decision which was there under review (P.O.D. Docket Nos. 1/141, 147, 155 and 156, 1960, p. 7) had held that they were not periodicals within the meaning of the statute because:

"They do not contain a variety of original articles by different authors as articles are originally (sic) understood.... There is no indicated relationship with prior or subsequent numbers of the publication and each publication stands complete within itself. There is no continuity of literary character from one issue to another and no connection between the different issues in the nature of (sic) the meager one or two page article."

While it is well established that previous Departmental Decisions are not binding so long as departures therefrom are not arbitrary and remain consistent with Congressional grants of authority, a review of others of these decisions may be helpful.

Two other crossword puzzle publications considered in In Re: T. V. Reporter, Inc., (1961) P.O.D. Docket No. 1/273 and In Re: T. V. Reporter, Inc. (1962), P.O.D. Docket No. 1/229, were similar to those which figured in the Dell Publishing Co. case, supra, and the Judicial Officer's decisions denying second class entry were based on essentially the same reasoning.

In Re: One-Spot Publishers, Inc. (1960) P.O.D. Docket No. 1/231, concerned two separate publications; a weekly alphabetical compilation of new popular music record releases in which new releases were listed for a maximum of thirteen consecutive issues, and a monthly compendium of popular music records in which a listing was maintained for as long as the publisher considered it to be of interest. The hearing examiner (there was no appeal) held that neither publication was a periodical because each issue of both had appreciable size, dealt with a single subject, and was complete unto itself. "There is ... 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,... of records." Periodicity was found to be "useful and perhaps important" to subscribers with respect to each week's new material, but this was found to comprise only a very small proportion of each issue's material in both publications. The hearing examiner found "a quality of permanence" in each issue and regarded the publications as having qualities more like reference books than periodicals. The publications were, accordingly, denied second class entry.

A contrary determination was reached in In Re: International Ophthalmology Clinics (1963) P.O.D. Docket No. 2/86, where each issue of the publication in question was hard-covered, the size of an average book, was edited by a guest editor and contained a number of articles. All of the articles were devoted to one or two ophthalmological topics, and each was usually contributed by a different author. The Judicial Officer found that the publication was a periodical because it assured 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". A "relationship between the articles of today and the articles of tomorrow" was discerned "provided the publisher continues to make the subject matter current and clinical."

Two other publications considered by Judicial Officers share some common characteristics with Tip Top. In Fizeek Magazine, the subject of In Re: Fizeek Enterprises, Inc. (1960) P.O.D. Docket No. 1/235, p. 5:

"the scant space devoted to text about the value of bowling in building the biceps supposedly of the male nudes in some of the photographs or the meager extent of the article on how 'Sunshine Builds Body Health' presumably in these same nude or practically nude figures is so trivial when compared to the remainder of the space in the publication that it cannot be held sufficient to compel classification of this publication as a periodical. Each issue of Fizeek is devoted to one subject, photos and pictures of the male body. There is no literary continuity--the feeble attempt to publish some text cannot give the publication the substance required under the decisions."

In Re: Publishers Development Corporation (1967) P.O.D. Docket No. 2/247 concerned Figure, a photography magazine devoted to studies of "nude models taken in various poses" (Ibid, p. 6). All, or almost all of the photographs in some issues were taken by one or two featured photographers (working, of course, with numerous models), while other issues displayed the work of several photographers. The text and picture captions are of a primarily technical nature, as might be expected of a publication whose avowed theme was an analysis of figure photography techniques.

It was not surprising therefore, in light of the publication's purpose and the fairly consistent shape of the human figure, that the Judicial Officer found that "The poses in each issue resemble the poses in the other issues--there is a sameness" and that the "little bit" of text was "completely dominated by the nude figure" (Ibid, pp. 6-7). The magazine's figure studies were also found to place an "emphasis on the breasts" (Ibid, p. 7). Figure, hence, was found not to be a periodical.

The Initial Decision in this case, avowedly and appropriately, follows much the same line of reasoning (Initial Decision, p. 11). There appears here the same emphasis on the balance of written material versus photographs, "current" information versus "old," and the "sameness" factor referred to in the previous paragraph.

While, by almost any standard, it would be difficult to discern much of worth in Tip Top, I do not feel that a judgment on the value of the publication's contents can be countenanced in what should be a purely technical decision. Thus, I do not think that the characterization of Tip Top's written materials as "trivial," "inconsequential," "space filler" or non-marketable, or an attempt to contrast "genuine" reading material with Tip Top's (Ibid, see pp. 7, 8, 9, 11, 14) is useful to the purposes at hand. Nor do I find an evaluation of the publication's photographs as suitable to the collector of "provocative" materials (Ibid, p. 6), or the infusion of the opinion with a judgment as to their worth, relevant to the sole issue here.

The Supreme Court's holdings provide no basis for a finding that the publication is a book rather than a periodical. Unlike the series of complete works which were the subjects of the Supreme Court decisions, each issue of Tip Top cannot be said to exhaust its chosen subject to the point where it is a complete work in itself and betrays "no need of continuation" (Smith v. Hitchcock, supra, 226 U.S. 53, 59), or indicates no "relation with prior or subsequent numbers of the same series" (Houghton v. Payne, supra, 194 U.S. 88, 97).

Certainly the issues of Tip Top are no more complete in themselves than are those of International Ophthalmological Clinics or any other acknowledged periodical commonly displayed on newsstands, in which topics within an identifiable subject are explored without exhausting that subject. A series of articles by ophthalmological specialists on specific clinical topics does not exhaust the subject of clinical ophthalmology. By the same token a series of articles, essays or studies on movie stars, archaeological topics or aspects of the natural beauty of the American West, appearing in a single issue of a publication addressed to one of these subjects does not necessarily so cover its chosen topic as to "betray no need of continuation."

The Houghton v. Payne decision explained the requisite "continuity of literary character" and the "connection between the different numbers of the series in the nature of the articles appearing in them" in the following terms (p. 97):

"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." While, to be sure, Houghton v. Payne did not attempt to set up a definition of a periodical, it did describe some of a periodical's characteristics in order to contrast them with those of the literary series then before the Court. To paraphrase the opinion, we have, in Tip Top, a publication which appears at stated intervals, each number of which contains a variety of original articles (see discussion, infra, p. 14) by different authors, devoted to a special class of subjects. Each number is incomplete in itself and indicates a relation with prior and subsequent numbers by the nature of the articles appearing in them--all of them devoted to "leg watching." Tip Top's success in meeting these non-definitional requisites shows, at the very least, that the publication differs materially from that which the court there held to be a book.

If distinctions need to be drawn between Tip Top and the publications involved in previous exclusionary departmental decisions, including those which were found not unreasonable by the courts, these too are present, for the reasons given above.

No reason has been assigned to support the assumption, implicit in the Initial Decision, that photography is somehow less original and valid a mode of expression than the written word. Certainly a series of photographs may be arranged to tell a story, express a view or convey an effect no less tellingly than a prose or poetic composition, with or without written captions or supplements. I see no reason to suppose that a publication which is heavy on photographs and light on text must therefore be deemed a book, complete in itself (though, of course, it could be). The modality by which ideas are conveyed in a publication, whether it be photography, graphic art or the printed word seems, in itself, no more relevant a criterion of a periodical than is artistic accomplishment or social value, though all of these may be important factors in making other kinds of determinations.

The Initial Decision (pp. 11-12) has extended to this case a tendency to equate periodicity, unquestionably a major criterion of a periodical, with "timeliness", for which I find scant authority. The difference between the two terms is significant. While, as aforesaid, periodicity merely refers to "a tendency to recur at regular intervals", timeliness conveys a sense of opportuneness or good timing. Furthermore, it seems clear that the word, as it was used in the Initial Decision, was intended to infuse periodicity with a further connotation of currentness, recentness or novelty. I find no precedent for such an absolute requirement in the Supreme Court decisions, and no reason to perpetuate it in departmental decisions.

It is not impossible to think of legitimate subjects for periodical comment in which the elements of currentness, recentness, novelty or, as the Initial Decision put it, "timeliness", are either of marginal importance or are not present at all. Unless one were to consider the very creation of works of fiction or comment on literary, historical and other subjects a "timeliness" factor, such efforts would have to be held to lack that element. If their creation were considered to satisfy the requirement, then every new photograph or written statement would meet the requirement regardless of its subject--an obvious absurdity.

In my view "timeliness" should be given due consideration, as one of a number of factors bearing upon the qualification of a publication as a periodical. But it is not a sine qua non. Indeed, as I have indicated, many genuine periodicals possess little or none of this quality.

If "timeliness" of content were as decisive a factor as might be inferred from the Initial Decision Tip Top's case might, indeed, not fare well. Its main subject, the female leg, is characterized by a certain timeless appeal about which it must be quite difficult to produce startlingly new or original materials as one of the Petitioner's witnesses put it, "legs don't change that much" (T., p. 68) . But viewed in what I think to be proper perspective some "timeliness" can be found in discussions and photographs about hemlines and stockings, comparisons of national leg types, letters to the editor and the publication's other features which draw from contemporary events or styles. To the extent that the chosen subject is susceptible of discussion as a contemporary topic--and I repeat that I do not believe that a periodical can be unconditionally required to meet such a test--I believe that Tip Top has done so. In the absence of a clear legislative or regulatory mandate Respondent cannot rest its rejection of the Petitioner's application upon the ground that the publication's topic is insufficiently contemporary in flavor.

In short, I find Tip Top to meet all of the requirements of a periodical which have been laid down by the courts, as well as those which are specifically enumerated in the statutes and regulations; and the parties hereto have agreed by stipulation that it meets every other second class mail requirement. If a need exists for a more precise definition of a periodical for second class mail purposes, this might well become a fit subject for a Post Office Department regulation, promulgated pursuant to established procedure.

I therefore find that the subject publication, Tip Top, is a periodical within the meaning of the applicable statutes and regulations. The Initial Decision herein is reversed and the Petitioner's application is remanded to the Respondent for action consistent herewith.

____________________

1/--Webster: "published at regular intervals of more than one day."

--American College: "Issued at regularly recurring intervals (or more than one day)."

--Funk & Wagnalls: "Pertaining to publications, as magazines, etc., that appear at fixed intervals of more than one day; also, published at regular intervals."