In the Matter of the Petition by

INNOVATIONS ASSOCIATES,
P. O. Box 261,
Randolph, Massachusetts 02368

Denial of Application for Second-Class Mail Privileges
for "CURRENT EVENTS SWEEPSTAKES"

P.S. Docket No. 2/57

William A. Duvall Chief Administrative Law Judge

APPEARANCES:
Howard B. Levitz,
Owner and Publisher Innovations Associates
P.O. Box 261
Randolph, Massachusetts 02368 for Petitioner

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

INITIAL DECISION

FINDINGS OF FACT

1. On July 12, 1972, Petitioner herein, Innovations Associates, P. O. Box 261, Randolph, Massachusetts, filed application for second- class mail entry of its publication called "Current Events Sweepstakes" (the publication).

2. By letter dated March 13, 1973, Respondent, the Manager, Mail Classification Division, Finance Department, United States Postal Service, advised Petitioner that, subject to the latter's right to appeal within 15 days, the application was denied.

3. The basis for the denial was the assertion that the publication is not a "newspaper or other periodical publication" within the meaning of applicable provisions of law.

4. Petitioner took a timely appeal from the proposed denial of March 13, 1973.

5. The matter came on for hearing in Boston, Massachusetts, on May 25, 1973. At the conclusion of the hearing the parties submitted the matter for decision on the basis of the record, which consisted of the transcript of the testimony of the witnesses and certain exhibits about which more will be said later in this decision.

6. Petitioner's business had been in operation approximately four years as of the date of the hearing (Tr. 4).

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; and 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 vie with each other in providing correct answers to the questions.

13. The purposes of the publication are to test the student's 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).

DISCUSSION

The provisions of law relied upon by Respondent in the notice of denial of Petitioner's application are sections 4351 and 4354 of Title 39, United States Code, which read, in pertinent part, as follows:

"S4351. Definition

Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title." "S4354. 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.

* * * * * * *"

While the foregoing provisions clearly indicate that only

"periodical publications" are eligible for second-class mail entry, that term is not defined. The mere fact that a publication is issued at regular intervals does not qualify such a publication as a "periodical publication" within the meaning of the language quoted above. On this point the Supreme Court of the United States held as follows in Houghton v. Payne , 194 U.S. 88, 96 (1903):

"But while section 14 [of the statute then in effect and which was substantially the same as the present statute! lays down certain conditions requisite to the admission of a publication 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.

Under section 10 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."

As to the "ordinary meaning of the term," the Court, in Houghton v. Payne ( supra , at p. 97), commented as follows in regard to the term "periodical":

"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."

Petitioner's publication does contain some of the attributes set forth in the foregoing definition. For example, there is periodicity by virtue of its regularity of issuance. There is, also, some continuity which is apparent in the subject matter of some of the questions, although continuity is not required by the nature of the publication.

The chief deficiency of the publication is that it fails to meet the basic requirement of the Court's definition -- that is, it does not "contain 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."

Petitioner's owner was of the view that the publication is so new in concept and design that it presents a situation to which existing postal laws are not applicable. Petitioner's owner did candidly say, however, that when he sought legal advice in connection with this matter, he was advised that under Houghton v. Payne , supra , it is possible that the publication is not a periodical (Tr. 34).

The Houghton definition of "periodical publication" still bears the indicia of validity. It has been cited and relied upon by the courts and by this Agency through the years. Smith v. Hitchcock , 226 U.S. 53 (1912); Dell Publishing Co. v. Summerfield , 198 F. Supp. 843 (1961), aff'd. as Dell Publishing Co. v. Day , 303 F. 2d 766 (1961); R. R. Bowker Company, P.O.D. Docket 2/97 (1964); American Art Agency, P.O.D. Docket No. 2/269 (1968); Phyllis Johnson, P.O.D. Docket No. 3/59 (1971); and American Chemical Society, P.O.D. Docket No. 3/90 (1973). Regretfully, the publication under consideration in this proceeding does not embody the essential elements of the Houghton definition.

CONCLUSIONS OF LAW

1. The publication "Current Events Sweepstakes" is not a "periodical publication" within the meaning of sections 4351 and 4354 of Title 39, United States Code.

2. The decision of Respondent to deny second-class mail privileges for the publication "Current Events Sweepstakes" was correct and is hereby affirmed.