In the Matter of the Petition by                                )
                                                                               )
ESSEX EDITORS, Division of                                  )
ROBERT ROSCHE INCORPORATED                       )
601 Skokie Boulevard                                             )
Northbrook, Illinois 60062                                       ) P.S. Docket No. 2/52
                                                                               )
Denial of Application for Second-                          )
Class Mail Privileges for "NEWSCOPE"                   )

APPEARANCES: M. Robert Wolfson, President
Essex Editors
601 Skokie Boulevard
Northbrook, Illinois 60062
for Petitioner

D. Scott Railsback, Esq.
Law Department
U. S. Postal Service
Washington, D.C. 20260
for Respondent

Wenchel, Adam G.

This proceeding was commenced by the Publisher's petition appealing from the denial of his application for second class mail privileges for "NewsCope." Because the parties believed the factual questions and legal issues were substantially identical to those presented in Innovation Associates, P.S. Docket No. 2/57, they agreed to accept the Initial Decision in that proceeding as the Initial Decision in this matter. The Chief Administrative Law Judge accepted the stipulation and entered an order authorizing the parties in this proceeding to appeal from the findings and conclusions in the Initial Decision in Innovation Associates. Subsequently, the Chief Administrative Law Judge rendered an Initial Decision in Innovation Associates adverse to the publisher from which the Petitioner in this proceeding has appealed. ^1/ In view of the foregoing this decision is based upon a review of the record in Innovation Associates and on the stipulation that NewsCope is in all material respects identical to "Current Events Sweepstakes", the publication involved in Innovation Associates.

The question presented in both proceedings is whether the publication has the essential character of a periodical publication. ^2/

As found by the Administrative Law Judge the publication has the following characteristics:

"7. The publication is published weekly during the school year except for the last two weeks in December. (Ex. P-1)

"8. The subscription rate is $45.00 per year (Ex. P-1) and the subscription list is comprised for the most part of public and private elementary, junior high, and high schools (Tr. 5).

"9. Four issues of the publication were received in evidence. Each issue is 8 1/2" by 11" in size and contains 12 pages. (Exs. P-1 through P-4)

"10. The text of the publication consists of questions and answers in ten subjects, as follows: National Affairs; War and Peace; Economics; The Arts; Science; Social Problems; International Affairs; Politics; Sports; and Odds and Ends.

"11. The questions and answers are prepared by three different persons, not otherwise connected with Petitioner, and, at times, Petitioner's owner supplies some of them.

"12. The publication is received by the classroom teacher (Tr. 26), who divides the class into two competing groups. These groups view with each other in providing correct answers to the questions.

"13. The purposes of the publication are to test the students' knowledge of current events, to stimulate interest in and to provide a basis for further discussion of current events (Tr. 19, 22).

"14. The publication is an interesting medium which has achieved recognition by its audience for its high degree of success in achieving its intended purposes. (Ex. P-10)

"15. The students obtain their knowledge of current events primarily from sources other than the publication (Tr. 23)."

The Chief Administrative Law Judge upon consideration of whether the publication is a periodical publication applied the standards established in Houghton v. Payne, 194 U.S. 88. The Houghton court stated, in addition to meeting the formal standards of the statute, a periodical publication to be enterable as second class mail must be a periodical publication in the ordinary meaning of that phrase. The court then defined a periodical publication as follows:

"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." (at p. 97)

The Chief Administrative Law Judge concluded that the publication is not a periodical publication primarily because it does not "contain a variety or original articles by different authors ***". Presumably he was not concerned with either whether there was a "variety" or whether there were "different authors" or editors, but rather concluded the questions, of which the publication is composed, were not the kind of articles to which the court referred. I concur in that conclusion.

On appeal Petitioner argues that the Administrative Law Judge applied the wrong test because his publication is a newspaper to which the test quoted from Houghton does not purport to apply, but the publication is not a newspaper. The publication in evidence purports to be a game. Its purpose rather than to be a disseminator of news is to stimulate students to acquire elsewhere a knowledge of current events. While the answers to questions do furnish information, the publication is neither originated nor published for the dissemination of news.

Conclusion

The Petitioner is not entitled to second class mail privileges for NewsCope. The recommendation of the Initial Decision to uphold the denial of the application for second class mail privileges for NewsCope is sustained and the appeal is denied.

____________________

1/ Innovation Associates not having appealed, the Initial Decision has become final as to their publication. That circumstance, however, in no way prejudices the appeal in this proceeding.

2/ Houghton v. Payne, 194 U.S. 88 (1904) is still the leading case in the second class field. It made clear that the term "periodical publication" does not include every publication issued four times a year or more frequently.