In the Matter of the Petition by

CREDIT BUREAU OF ALBUQUERQUE, NEW MEXICO, INC.,
P. O. Box 715,
Albuquerque, New Mexico 87103

Denial of Application for Second- Class Mail Privileges for "BUSINESSMAN'S DAILY RECORDER"

P.S. Docket No. 1/218

William A. Duvall Chief Administrative Law Judge

APPEARANCES:
Chapin S. Carnes, Publisher
609 Gold Avenue, S.W. Albuquerque,
New Mexico 87101 for the Petitioner

Arthur S. Cahn, Esq.
Law Department United States Postal Service
Washington, D. C. 20260 for the Respondent

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE

On April 26, 1972, there was filed on behalf of the Credit Bureau of Albuquerque, N.M., Inc., 609 Gold Avenue, S.W., Albuquerque, New Mexico (Petitioner) an application for second-class mail privileges for the publication "Businessman's Daily Recorder."

On November 8, 1972, after some intervening correspondent, the Manager, Mail Classification Division, Finance Department, United States Postal Service, (Respondent) advised Petitioner that the application was denied subject to Petitioner's right to appeal the proposed ruling and seek an administrative review of the matter.

By letter dated November 22, 1972, Petitioner filed a timely appeal. Both parties have requested that this matter be decided upon the basis of the record, which consists of the application, correspondence between the parties, the proposed denial, the petition on appeal and the exhibits thereto, including the November 22, 1972, issue of the publication.

The grounds for the proposed denial of the application are (1) that the publication is not a newspaper or other periodical publication within the meaning of 39 U. S. COde 4351 and 4354 and (2) that the publication is designed primarily for advertising purposes as that term is used in 39 U. S. Code 4354(c). The latter provision of law for a long time has been interpreted to exclude from second-class mail those publications which are owned or controlled by individuals or business concerns and conducted as an auxiliary to and essentially for the advancement of the main business or calling of those who own or control them. ( 132.226b, Postal Service Manual)

The issue of the "Businessman's Daily Recorder" which accompanies the record is identified as Vol. 19, No. 230, and is the issue of November 22, 1972. The publication is approximately 8 1/2 by 11 inches and it consists of 16 pages (including the front and back covers) which are held together with two staples about 2 1/2 inches from the top and bottom of the left hand side of the publication.

The front cover is made up of the following items:

1. The upper two inches, or so, are devoted to the display of the name of the publication, the number and date of the issue, the telephone number, the monthly and annual subscription rates, a statement of the frequency of publication and the name and address of the Petitioner.

2. Immediately beneath the above heading is a statement that an application for second class mail privileges is pending.

3. In the center of the cover, in a space approximately 2 1/2 by 4 inches, is a list of persons reported to be newcomers to Albuquerque.

4. The remainder of the cover consists of 7 advertisements, approximately 1 1/2" x 3" in size, of various business enterprises in Albuquerque, such as office supply stores, a bank, an employment agency, a realtor, a rubber stamp and trophy business and an insurance agency.

The inside of the front cover carries two advertisements similar to those on the outside of the front cover and, across the bottom of the inside cover, surrounded by a border, a 1 1/2" strip advertise- ment of the Collection Division of Petitioner. The remainder of the inside front cover contains a list of names and addresses of persons to whom marriage licenses have been issued.

The body of the publication is comprised of lists giving the following information:

1. Warranty deeds;

2. Real estate mortgages;

3. Real estate contracts;

4. A notice that a listing of Real Estate Assignments and Deeds of Trust will not appear in this issue because of inability to obtain them;

5. Motor vehicle liens;

6. Security agreements;

7. District Court suits;

8. District Court judgments;

9. Small Claims suits;

10. Magistrate Court suits;

11. Bankruptcies files;

12. Transcript of judgments;

13. Release of warrant;

14. Articles of Incorporation; and

15. Notice of federal tax liens.

The inside of the back cover contains an advertisement of Petitioner's Collection Service Division, a solicitation of claims collection business and blanks in which subscribers, or others, may give information about accounts due to them which the subscribers authorize Petitioner's Collection Service Division to collect.

The outside of the back cover contains Petitioner's name and address in the upper left hand corner, five advertisements similar to those carried on the front cover, and a statement at the bottom regarding the confidentiality and accuracy of the information contained in the publication.

In regard to Respondent's contention that the "Businessman's Daily Recorder" is not a newspaper or a periodical publication, Petitioner has the following comment:

"***The content of our publication, in addition to the paid advertisements, is composed of items of public record and names of individuals who are just moving to Albuquerque. The content is obviously not advertising but newsworthy information to the specialized type person subscribing to the publication; namely, credit granters, attorneys, insurance agencies, real estate agencies, churches, government agencies, etc. ***I respectfully submit that this material is not miscellaneous printed matter but newsworthy matter, largely used by subscribers for guidance in business promotions, legal guidance, and solicitation of new accounts or new (church) members. (2nd paragraph, Resp. ltr. of September 19, 1972, to Mrs. Rose Morris). Petitioner commented as follows on the assertion that the Daily Recorder is designed primarily for advertising purposes:

"***As previously pointed out, our publication is not primarily designed for advertising purposes but for the imparting of news of a specialized nature to a group of subscribers that use the news it contains for purposes previously outlined. Nor is the publication essentially for the advancement of the Credit Bureau's two main divisions, credit reporting and consumer collections. The only items that credit granters use in the collection field is to observe those adverse items that may effect [sic] accounts already on their books such as liens, judgments and bankruptcies. Were such granters to build a file of all the other items contained in the publication of any of the information would be practically nil. It is the function of our credit reporting department to build such a file for release to credit granters at the time he receives an application for credit. Our publication is actually a third department of our business and is subscribed to for purposes already outlined." (Pet.'s ltr. of Sept. 19, 1972, addressed to Mrs. Rose Morris)

Petitioner has nowhere claimed that the "Businessman's Daily Recorder" is a newspaper as that term is used in ordinary parlance and as it is generally understood today. Therefore, one must consider whether the publication is a "periodical publication" within the intendment of the laws governing eligibility for entry as second- class mail.

There are but few court decisions that have shed light on this point and one of those cases is Houghton v. Payne , 194 U.S. 88 (1904) wherein the Supreme Court of the United States held:

"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."

Examination of the "Businessman's Daily Recorder" discloses that it contains no original articles by different authors; the issue of the publication that is in evidence is complete in itself; and there is no indication of a relation with prior or subsequent numbers. In sum, the "Businessman's Daily Recorder" is not a "periodical publication" within the meaning of 39 U.S. Code 4351 and 4354.

There remains the question as to whether the publication under consideration is "designed primarily for advertising purposes." As indicated by Petitioner in the previously quoted portions of the letter of Petitioner's President, dated September 19, 1972, to Mrs. Rose Morris, the kind of information presented in the "Businessman's Daily Recorder" is the kind of information that the Credit Bureau of Albuquerque must acquire in the ordinary course of its business. This information is used in giving credit ratings on short notice. Petitioner, in addition to maintaining this information in its files, prints and publishes it in the "Businessman's Daily Recorder."

In the letter of Petitioner's President dated December 11, 1972, to Respondent's Counsel, it is stated (p. 2):

"***The facts are that we operate three totally independent divisions -- consumer credit reporting, consumer collections, and a specialized publication subscribed to by a specialized type of subscriber for purposes outlined above."

What in reality are the facts, as established by this record, are that Petitioner operates three totally interdependent and intertwined divisions, each lending assistance to and depending - at least in part - on the others. The "Businessman's Daily Recorder" is owned and controlled by the Credit Bureau of Albuquerque and it is conducted as an auxiliary to and essentially for the advancement of the business of the Credit Bureau of Albuquerque. It is concluded that the "Businessman's Daily Recorder" is designed primarily for advertising purposes.

In view of the foregoing conclusion, it follows that the "Businessman's Daily Recorder" is not eligible for entry into the mails as second-class mail matter. The decision by Respondent to deny Petitioner's application is affirmed.