In the Matter of the Petition by

PHYLLIS JOHNSON, Publisher
333 Sixth avenue
New York, New York  10014

“Aspen” – Denial of Second-Class Mail privileges

P.O.D. Docket No. 3/59

APPEARANCES:

Phyllis Johnson, Publisher, pro se
333 Sixth Avenue
New York, New York  10014
Petitioner

Arthur S. Cahn, Esq.
Law Department
U. S. Postal Service Washington, D.C.  20260
Respondent

INITIAL DECISION OF HEARING EXAMINER

            On December 16, 1966, Miss Phyllis Johnson, the publisher of “Aspen,” and the Petitioner herein, was granted a second-class mail permit for “Aspen” after a series of discussions with the then Director of Classification and his principal deputy.  The issue of “Aspen” which was discussed at the meeting culminating in the issuance of the second-class permit was the third issue of that publication, designated by the publisher as the “Fab” issue (Ex. P-9).  Various changes were made in the original design of the publication at the suggestion of, and in order to obtain the approval of, the postal officials with whom the publisher discussed the matter.

            Because of various difficulties, subsequent issues were published only irregularly, as follows:  January, 1967 and June, 1967; two issues in March, 1968; one issue in June, 1969; two issues in September, 1970; and one issue in December, 1970.  At the hearing in December, 1970, the publisher indicated that the difficulties which had existed earlier had been resolved and that as of that time there was no impediment to the maintenance of regularity of publication on a quarterly basis in the future.

            On several occasions, the Petitioner was advised by the Director of Mail Classification of the U. S. Postal Service (Respondent) that the publication was not being “regularly issued at stated intervals as frequently as four times a year” as required by the provisions of 39 U. S. Code 4354(a)(1) as a condition for eligibility of a publication to be entered and mailed as second-class mail.  These notices further advised the publisher that unless she undertook to correct this situation the second-class permit would be revoked.  The publisher submitted several letters in reply from time to time indicating an intention to meet the periodicity requirements in the future.  On the basis of these reassurances the Respondent exercised forbearance and did not revoke the permit.

            On October 12, 1970, however, the Respondent wrote to the Petitioner stating that it had been determined that Petitioner was still not complying with 39 U. S. Code 4354(a)(1) and stating that it was the Respondent’s intention to revoke the second-class mail permit because of such non-compliance.  By letter dated October 28, 1970, Petitioner appealed Respondent’s ruling.  On November 6, 1970, Respondent amended the notice of proposed revocation to include as an additional basis for such action the charge that the publication is not a “periodical publication” within the meaning of 39 U. S. Code 4354.  The matter came on for hearing on December 11, 1970.  Both parties have filed briefs setting forth their arguments in regard to the issues.

            After the hearing, Respondent moved for the issuance of an order sustaining the order of the Respondent revoking the second-class permit of “Aspen.”  The basis of the motion was the admission on the record at the hearing by the publisher (Tr. 33) that regularity of issuance of the publication had not been maintained.

            On January 6, 1971, the undersigned issued an order sustaining the ruling of the Respondent insofar as it applied to all issues of the publication which preceded the September, 1970, issue of the publication.  Because of highly persuasive evidence received at the hearing that the publication could be regularly issued as required by law, the undersigned set aside the Respondent’s ruling insofar as it was intended to apply to the September, 1970, and subsequent issues of “Aspen” so long as that publication (1) is issued as regularly and as frequently as is required by the government statute and (2) otherwise complies with the laws governing second-class mail.  In his brief, Counsel for the Respondent has taken strenuous exception to the denial of the motion to dismiss, saying:

            “This action brings up the question of the proper division of responsibilities as between the director, Office of Mail Classification and the Hearing Examiners.  The Director clearly has been delegated authority to grant, deny, or revoke second class mailing privileges.  The Hearing Examiners have been delegated authority to determine whether the action was justified.  The Director submits that the Hearing Examiner can only decide on the basis of the facts as they existed as of the time the Director took his action.  He cannot decide the legality and propriety of the Director’s action on the basis of facts which come into existence after the Director has taken his action.  The significance of such ‘after facts’ is for evaluation by the Director, not the Hearing Examiner.  In this case, at the time of revocation, ‘Aspen’ clearly had not met an objective statutorily mandated requirement, i.e, that it be published four times a year.”

            Former Section 232 of Title 39 U. S. Code (March 3, 1901, c. 851, §1, 31 Stat. 1107) provided as follows:

            “When any publication has been accorded second-class mail privileges, the same shall not be suspended or annulled until a hearing shall have been granted to the parties interested.”

By the Act of September 2, 1960, (Public Law 86-682, 74 Stat. 579) Title 39 U. S. Code was codified and enacted into law.  Section 4352(b) of Title 39 U. S. Code is based on the former Title 39, Section 232 (39 U. S. Code, Section 4352, historical note).

            The present 39 U. S. Code 4352(b) reads as follows:

            “The Postmaster General may revoke the entry of a publication as second class mail whenever he finds, after a hearing, that the publication is no longer entitled to be entered as second class mail.”

            Since the Postmaster General is empowered by this section to impose the ultimate sanction (that is, revocation of a second-class permit), it must be concluded that this authority includes the lesser authority to suspend an existing second-class mail permit for a temporary period.  The right of a publisher to appeal a proposed revocation of a second-class mail permit is not only guaranteed by the Constitution and provided by the Administrative Procedure Act but it is also recognized in the footnote to §4352 cited above.  Since the Congress is presumed not to engage in or to require futile activities, it must be presumed that there must be come significant and legitimate purpose to be served when a publisher appeals from a ruling of the Director of the Office of Mail Classification.  Despite the proposed annulment stated by the Director in his notice, Petitioner’s permit remained in effect by virtue of the appeal, and relevant, pertinent facts and evidence bearing on the events subsequent to the Respondent’s ruling may be taken into consideration either in support of or in contradiction to such ruling.  It is true that an unfortunate choice of language was made in the ruling on Counsel for Respondent’s motion to dismiss.  Instead of sustaining the director’s ruling annulling the second-class mail permit for the publication “Aspen” for all issues prior to the September, 1970 issue, Respondent’s ruling should have been set aside and there should have been substituted for that ruling one by which the second-class mail period for all issues of “Aspen” prior to September, 1970, was suspended.

            In addition to the foregoing considerations, an affirmative ruling on the motion to dismiss would have left unresolved the question as to whether “Aspen” is a “periodical publication” within the meaning of 39 U. S. Code 4354.  It would then be necessary for the publisher to file another application for admission of “Aspen” to the mails as second-class matter and, presumably, the Respondent would have to issue a ruling denying the application because the publication is not a “periodical publication.”  That ruling would have to be appealed, and the parties would at some point of time in the future reach substantially the place where they are today.  In this, as in all other types of administrative proceedings, it is generally desirable to dispose of as many questions as possible in one proceeding in order to minimize the expenditure of time and money on the part of both parties to the proceeding.

            Broadly speaking, the issues now to be considered are:

            (1)  Is “Aspen” regularly issued at stated intervals as frequently as four times a year; and

            (2)  Is “Aspen” a “periodical publication” within the meaning of 39 U. S. Code 4354.

            In order to resolve these issues it is well to start with a description of the publication.  Aspen No. 7 is identified as the “British box” (Resp. Ex. 1).  This issue is best described in the words of the publisher (Tr. 47) when she said “This whole issue was conceived as an issue that would describe what was going on in London at the end of the ‘Swinging Decade’ that the people referred to as the ‘London Decade’.  And we had Mario Amaya, who is Editor of ‘Art and Artists’, an art magazine, who got all of the top artists and writers in London to do special articles for us.”

            The publication is comprised of a number of sections.  The publication as a whole is not bound, each section being separate (this statement is made for descriptive purposes, only, and does not necessarily have a bearing upon the decision of this case).

            The other issue of the publication introduced into evidence (Resp. Ex. 2) is identified as Aspen No. 9, “Dream Weapon.”  The physical make-up of this issue of the publication is the same as that of Respondent’s Exhibit 1, described in the preceding paragraph.  The various sections of the publication consist of such things as a humorous sewing pattern, a mock diary, phonograph records, drawings, narrative material and photographs.

            The central idea of Aspen No. 9 is described by the publisher as follows:  “The significance is that the dream is the ultimate weapon.  We got the young artists who have pretty much dropped out, they don’t have any contact with the ‘Establishment’ galleries, but they do have a very rich art life going.  We got together a group of people that we felt were representative of this group, and thought it was important to show what is going on there.”  (Tr. 52)

            Some insight in regard to the policy of the publication is gained from the following question to and answer by the publisher:

            Q.  “Do you do each issue around a separate theme?

            The witness:  Yes, we try to, in that it expresses what is going on in art and literature.

            Now, our next issue of art is about the artists who are using scientific concepts in their work, and these are the artists who are on the complete other end of the pole from these.  They are very scientific and they are strongly entrenched in the Establishment.  They are the artists that are being shown in museums and galleries and being bought by all of the collectors.***.”  (Tr. 54, 55)

            Another clue to the design of the publication is found in the following statement by the publisher (Tr. 47, 48):

            Each  issue that we do, we try to feel that each article is a very necessary building block in the issue.  We choose these people very specifically to make specific points, and if one of the things is left out, we really feel we have left out a very important coverage. ***:

There is no question but that the publication meets such requirements of 39 U. S. Code 4354 as issuance from a known office of publication; being comprised, at least in part, of printed sheets; and having a legitimate list of subscribers.[1]  However, the law is well settled that compliance with the specific and express conditions of Section 4354 may exist and yet second-class entry may properly be denied because the publication is neither a newspaper or periodical under 39 U. S. Code 4351.  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. 132.2(a)(1)) provides

            “Only newspapers and other periodical publications which meet the mailability criteria established in Part 124 may be mailed at the second class rates.”

Neither the governing statutes nor the regulations of the U. S. Postal Service define “periodical” so as to cast any light on the issue presented in this case.

            The publication here under study does not clearly 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).

            Most publications presented for second-class entry probably can readily be identified as periodicals or books, as the case may be, but 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 enough characteristics of other publications which are neither newspapers nor 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 compositions.’  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, “Aspen” may also be considered as a nondescript publication.  But it does not follow from the above-quoted remark in Houghton v. Payne that every nondescript publication is a periodical.

            Respondent’s Counsel asks for a ruling that “Aspen” is not a periodical, and thus not entitled to second-class mail privileges, largely, if not entirely, on the strength of the language or criteria suggested in Houghton v. Payne, supra, which dealt with publications deemed to be books, beyond question.  Some might contend that the language or criteria or guidepost suggested in those cases are of doubtful applicability to any “nondescript” publications, including the one in this case.  This contention is, perhaps, supported by the definition of the word “nondescript” which has been defined as follows:

“Not easily described; unclassifiable; belonging, or apparently belonging to no particular class or kind.”  (Webster’s new International Dictionary (Second Edition Unabridged 1954)).

            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 single subject, betray no need of continuation, and, perhaps, have an appreciable size.  There may be exceptions, as there are other instances of books.”

            Both parties have relied on part of 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.”

            After careful study of the record and such authorities as exist, I find that “Aspen” is not a “periodical publication” within the meaning of 39 U.S. Code 4354.  Each issue deals with a single subject.  It is true that this subject is treated in different ways in the various “sections” of the publication, but each section in one way or another bears upon the central topic of the issue in which it appears.  Each issue is complete unto itself and it bears no relation to prior or subsequent issues and can be considered to be an independent work, capable of standing alone.  It is true that periodicity is, if not an attainment, at least a goal of the publisher but, because of the complete way in which a subject matter is treated, periodicity (as in the case of the publications under consideration in Houghton v. Payne, supra)“ is not an element of their character.”  For example, a person interested in the subject of London during the 1960s, could get the same impression conveyed by Aspen No. 7 regardless of when he referred to that publication.  It might even be regarded as a reference book of a type in regard to the London of that era.

            As indicated earlier, there are some publications which can not be positively categorized as either books or periodical publications.  “Aspen” is in that group.  In any event, I find that, while “Aspen” is the embodiment of an original, clever and imaginative idea, it is not a periodical publication.  As a matter of law, I conclude that the publication “Aspen” is not a newspaper or a periodical publication within the meaning of 39 U. S. Code 4351 and 4354.  Accordingly, the action of the Respondent in proposing to revoke the second-class mailing permit previously issued for the publication “Aspen” was correct, and, in the absence of an appeal followed by a ruling to the contrary by competent authority, is sustained.

            In view of the foregoing conclusion, it is unnecessary to decide the question as to whether “Aspen” is regularly issued at stated intervals as frequently as four times a year.  That has become a moot question.

                                                                        William A. Duvall
                                                                        Chief Hearing Examiner

[1] The remainder of this decision is based in large part upon the Initial Decision of the Hearing Examiner in the Matter of One-Spot Publishers, Inc., P.O.D. Docket No. 1/231, decided July 29, 1960.  This decision was unappealed and became the final Departmental Decision.