In the Matter of the Petition by
VERTICAL MARKETING, INC.,
625 North Michigan Avenue,
Chicago, Illinois 60611

Denial of Application for Second-Class Mail Privileges
for "SPHERE/ THE BETTY CROCKER MAGAZINE"

P.S. Docket No. 2/6

Rudolf Sobernheim Administrative Law Judge

APPEARANCES:
David G. Bress, Esq.
Fred W. Drogula, Esq.
Ginsburg, Feldman and Bress
1700 Pennsylvania Avenue
N.W. Washington, D.C. 20006
for Petitioner

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

INITIAL DECISION

This is a proceeding initiated by Petitioner pursuant to 39 C.F.R. Part 954 to contest the ruling of Respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter sometimes referred to as the "Manager"), issued on 14 September 1972, which denied, subject to the outcome of this proceeding, Petitioner's application of 13 April 1972 for second- class mail privileges for "SPHERE/THE BETTY CROCKER MAGAZINE" (hereinafter sometimes referred to as "SPHERE" or as the "publication").

The reasons for this decision were stated by the Manager as follows:

"Section 132.226, Postal Service Manual *** provides that a periodical publication designed primarily for advertising purposes may not qualify for second-class mail privileges. Publications designed primarily for advertising purposes include those 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.

The intent of this postal *** regulation may not be circumvented by the licensing agreement entered into between the Vertical Marketing Company and General Mills, Inc. While your firm conducts some of the business of this publication as licensee, the control thereof remains with General Mills, Inc. The title of the publication uses the trademark 'Betty Crocker' owned by General Mills, Inc. General Mills, Inc., reserves to itself the right to place or cause to be placed feature articles or regular columns, using the Betty Crocker name, either as author or otherwise, in any magazine, including a women's magazine. The licensee must submit material to General Mills, Inc., before publication. Material related to food preparation and presentation will be researched and tested by General Mills, Inc., in its kitchens 'to the extent that Licensor deems necessary or desirable...' General Mills, Inc., 'reserves the right to approve or disapprove of the advertising of specific products or types of products. It is understood that the magazine will not contain advertisements of products competitive with those of Licensor or products which are incompatible with the nature of the magazine and licensors interests. To protect these interests Licensor will, in advance of Licensee's first advertising promotion program, establish acceptable advertising standards which will include a list of categories, products, services, and companies not acceptable as the subject of advertising or as advertisers.'

Vertical Marketing is bound to use its best efforts 'to promote the TRADEMARK;' to use 'licensor's Betty Crocker Coupon plan mailing lists' and General Mills exercises control even over Vertical Marketing use of its own mailing lists. 'Licensee's subscription list shall remain the property of Licensee during the period of this Agreement and shall not be used by Licensee nor made known to or used for the benefit of any third parties, except with the prior written approval of Licensor. The right to give said approval is completely within the discretion of Licensor.' Therefore, since General Mills, Inc., in fact, controls 'SPHERE/The Betty Crocker Magazine,' the publication is deemed to be issued as an auxiliary to and essentially for the advancement of the main business or calling of General Mills, Inc. The publication is thus considered to be designed primarily for advertising purposes and, in view of the aforementioned law, it does not qualify for second-class mail privileges."

By joint letter to the presiding administrative law judge, dated 23 February 1973, to which a copy of their stipulation was attached, the parties waived a hearing in this proceeding and in lieu thereof agreed to the admission in evidence of the affidavits of James S. Fish, a vice-president of General Mills, Inc. and of Sheldon H. Widmer, a vice-president of Petitioner, together with the exhibits attached thereto, as Exhibits A and B. They also agreed to place in evidence "the eight issues" of SPHERE, published by Petitioner "during the months of January to November 1972" (Stip., dtd 23 Feb. 73, par. 2).

Actually, the record contains only seven of the eight issues published by Petitioner in 1972 (the August issue being the missing one) and contains three additional issues (January through March 1973) which presumably illustrate the content of SPHERE after second-class mailing privileges were granted to Petitioner for this publication in November 1972 for all future issues ( i . e . beginning with December 1972) in the circumstances to be set forth below.

Respondent adduced no evidence beyond the explanation of its action found in its denial letter of 14 September 1972, quoted in extenso above. Proposed findings and briefs were filed by both parties.

Administrative Law Judge Lewis to whom this proceeding had been assigned retired in 1973 without issuing an initial decision. The matter was re-assigned to the undersigned whose decision is rendered herewith. In reaching this decision, the undersigned found that his decision does not rest on determining the credibility of the witnesses whose affidavits were admitted in evidence by stipulation. Hence, the question of reopening the hearing does not arise. See Gamble-Skogmo, Inc. v. F.T.C. , 211 F.2d 106 (8th Cir., 1954); Brooklyn Eastern District Terminal v. U.S. , 302 F. Supp. 1095 (E.D.N.Y., 1968); cf . Utica Mutual Insurance Co. v. Vincent , 375 F.2d 129 (2d Cir., 1967) as to constitutional implications.

FINDINGS OF FACT

1. Vertical Marketing, Inc. (hereinafter sometimes called "Vertical" or the "Petitioner") was incorporated in the State of Illinois on 16 July 1971 (Ex. A, Ex. 1). Under Article 4 of its charter it was authorized to engage in the business of publishing, including the publication of magazines, periodicals, advertising and printed material in general ( ibid .). Vertical in January 1973 had six stockholders all but two of whom are active in the business. General Mills, Inc. is not one of Vertical's stockholders (Ex. B, par. 2).

2. It was the plan of the incorporators of Vertical to publish a magazine for women for which at about the time of incorporation they had selected the name of SPHERE ( ibid .). The managers of Vertical at the same time decided that, in order to gain acceptance for SPHERE in the highly competitive field of women's magazines, the new publication should be identified with a well-known name or trademark. They decided upon the "Betty Crocker" trademark, owned and used by General Mills (Ex. B. par. 3), a corporation with its head office in Minneapolis, Minnesota (Ex. A), and a leading producer of packaged consumer foods, primarily sold through self-service stores. These products included and include prominently the "Betty Crocker" line of convenience foods. STANDARD AND POOR'S CORP. RECORDS, F-K (12/31/73), p. 3195.

3. Negotiations with General Mills led to the execution of a license agreement between the parties, dated 28 July 1971 (Ex. B, Ex. iA) which granted to Vertical the world-wide exclusive right and license to use General Mills' trademarks "BETTY CROCKER" and "RED SPOON" in connection with the development, promotion, advertising, sale and distribution of a women's magazine. General Mills, moreover, agreed not to use the two trademarks in connection with the women's magazine activities for which Vertical was licensed to use them. General Mills further reserved the right to publish feature articles and columns using the "Betty Crocker" name in general or women's magazines subject to restrictions that in substance allowed but did not compel Vertical to publish the same in SPHERE and give it a limited veto power over their publication elsewhere ( id ., Art. I).

4. (a) Article II of the license agreement (Ex. B, Ex. 1A) generally defined the scope of the new magazine and provided for approval by General Mills of the creative material prepared by Vertical in accordance with standards already arrived at by mutual consent or thereafter to be agreed upon. Food preparation materials were to be tested in the General Mills' kitchens to the extent the latter deemed it necessary.

(b) General Mills also prohibited advertising of competing products and reserved the right to approve or disapprove product advertising ( id ., Art. II), a provision directed, as the record indicates, primarily against liquor and cigarette ads (Ex. R, par. 30). Advertising contracts of Vertical were to be limited to one year's duration, or, if longer, were to be terminable on one year's notice ( id ., Art. II).

(c) In return for the license, General Mills secured a royalty from Vertical's gross circulation receipts of 5% up to $3,000,000 and 7 1/2% above that amount ( id. , Art. III A, B) and of 5% from Vertical's advertising income ( id ., Art. III C).

(d) The license agreement was to run for about 5 years through 31 May 1977 with a five year renewal option through 31 May 1982, but General Mills was given the right to terminate the agreement sooner if the royalties earned by General Mills under the agreement failed to reach the levels set forth therein. The total minimum royalties over the full term ending 31 May 1982 totaled $1,600,000 ( id ., Art. IV).

5. Articles V and VI of the license agreement (Ex. B, Ex. 1A) set forth the covenants agreed to by each party.

(a) On Vertical's part these were:

(1) To promote diligently the licensed trademarks in the publication of a women's magazine;

(2) To conduct its business in a lawful manner and in accordance with reasonable standards of good taste;

(3) To conduct its business in accordance with reasonable standards of quality which not discredit, injure or destroy the goodwill associated with the trademarks or General Mills' reputation;

(4) To keep accurate books and records;

(5) To use General Mills' "Betty Crocker" Coupon Plan mailing lists and pay use fees therefore; not to use or communicate to others Vertical's own mailing lists without General Mills' approval; and to permit General Mills to purchase Vertical's mailing lists at a pre-set price; and

(6) To indemnify General Mills against claims arising out of its use of material supplied by Vertical in connection with SPHERE.

(b) In turn, General Mills covenanted:

(1) To furnish to Vertical the up-dated coded "Betty Crocker" Coupon Plan mailing lists, to be used only to promote subscriptions to SPHERE;

(2) To cooperate with Vertical in the promotion and development of a women's magazine;

(3) To indemnify Vertical against all claims arising out of Vertical's use of the trademarks.

6. The license agreement further expressly provided that Vertical did not become an agent of General Mills, that Vertical was an independent contracting party, not a partner of, or joint venture with, General Mills (Ex. B, Ex. 1A, Art. VII), and that protection of the licensed trademarks was entirely a matter for General Mills, although Vertical agreed to report infringements and to cooperate with General Mills in protecting them ( id ., Art. IX). Each issue of SPHERE was, however, to be copyrighted in the name of General Mills and Vertical's rights were limited to a license to use the copyright as long as the license agreement itself was in effect ( id ., Art. X).

7. Vertical began to seek second-class mail privileges for its proposed magazine in December 1971 (Ex. B, par. 11). The first issue of SPHERE, designated as its Charter or February-March issue, did not, however, appear until 1972. Circulation of the Charter issue was completed by 13 April 1972 and Petitioner applied on that date for second-class mail privileges (Ex. B, par. 13; Compl., Att'mt A).

8. Although Petitioner was diligent in following up on its application and promptly on 1 September 1972 provided to the Postal Service a copy of its license agreement with General Mills (Ex. B, Ex. 1A), when requested, the Manager's decision dated 14 September 1972, was not received until 18 September 1972 (Ex. B, pars. 14-16, 17-18). In brief, the Manager denied Petitioner's application on the ground that he considered SPHERE as an auxiliary to and essentially for the advancement of the main business of General Mills and, hence, not qualified as second-class mail matter. For the details of his decision, see pp. 2-3, supra .

9. Upon review of the Manager's decision Vertical and General Mills agreed to forego the benefit of the contract terms on which the Manager had rested his adverse decision and entered into a revised license agreement, dated 7 November 1972 and retroactively effective to 26 July 1971 (Ex. B. Ex. 2).

(a) The new agreement omitted any reference to "Betty Crocker" articles to be published in magazines by General Mills (compare Finding 4, supra ) and provided for testing of materials in General Mills' kitchens as Vertical rather than General Mills deemed it necessary (compare Finding 4(a), supra ). The provisions regarding advertising standards for SPHERE and the prohibition against advertising products competitive with those of General Mills were eliminated (compare Findings 4(a) and 4(b), supra ).

(b) The new agreement did not change its definition of the parties' relationship (compare Finding 6, supra ) and provided for some of the same covenants of the parties (compare Finding 5, supra ). It omitted, however, reference to the use of General Mills' "Betty Crocker" mailing lists and General Mills' obligation to cooperate with Vertical in the development of SPHERE (compare Findings 5(a)(5) and 5(b)(1), (2), supra ).

(c) The new agreement reduced the term of the license to a flat 5-year period with minimum royalties of $500,000 (compare Finding 4(c), supra ).

10. In sum, Vertical and General Mills attempted to meet the Manager's objections and to so refashion their agreement in such a way as to avoid any contractual basis for the conclusion that SPHERE was an advertising adjunct of General Mills' consumer food business. In this endeavor they were successful, for on 28 November 1972 the Postmaster in Des Moines, Iowa, with the Manager's authorization granted Petitioner second-class mail privileges for all future issues of SPHERE, effective as of 7 November 1972 (Ex. B. Ex. 3). The first issue of SPHERE entitled to second-class mail privileges was the issue of December 1972.

11. The Des Moines Postmaster determined, however, that third-class postage was due on all prior mailings of issues of SPHERE (Ex. B. Ex. 3). It is this part of the Postal Service action on SPHERE's application for second-class mail privileges which is contested in this proceeding and its correctness is the subject of this initial decision. Petitioner has indicated (Ex. B, par. 22) that the difference between second-class postage admittedly due and third class postage deposited with Respondent is about $150,000.

12. As of the time of the second Postal Service determination SPHERE had developed into a substantial publication with a circulation of over 600,000 copies. Almost half the subscriptions to SPHERE were derived from the "Betty Crocker" mailing lists of General Mills. About 11% came from other mailing lists, 33% from SPHERE's promotional activities and about 9% from renewals (Ex. B, Ex. 5).

13. SPHERE is a monthly magazine of approximately 60 to 70 pages per issue. The October 1972 issue, for instance, displaying an African menu on its color cover, contains on the inside of the cover page an "editorial", summarizing the contents of the issue, the table of contents and the listing of the staff and administrative information. On page 4 appears an editorial on warranties by SPHERE's contributing editor, followed by reader correspondence, general articles and book reviews. Most of the remainder of the issue is devoted to food and its preparation (10 items) and crafts, decorating and fashion, each with three items. The balance of the pages is filled with advertising, including an invitation with coupon to subscribe to, and coupons to order patterns from, SPHERE. The amount of advertising is limited, none being from General Mills. Food items illustrated and discussed are such that the reader has many brands and sources of supply available if he or she wishes to prepare dishes from recipes culled from SPHERE. In no way does the reader appear to be directed toward buying foods produced by General Mills.

14. A detailed analysis of issue content of SPHERE in 1972 (Ex. B, Ex. 7) confirms what appears from a review of the October 1972 issue. Food items predominate (44.2% of all pages), the other departments share more or less equally another 44% and only close to 12% of the pages represents advertising.

15. An analysis of advertising contained in the first seven issues of SPHERE (Ex. B, Ex. 4) shows also that many items advertised in SPHERE represent merchandise competitive with products of General Mills and that the prohibition in the original license agreement between Vertical and General Mills against the advertising of products competing for purchasers with those of General Mills was not enforced by General Mills during that period.

16. A comparison of the 1972 issues of SPHERE with the early 1973 issues does not show any material change in the general lay-out, content or character of the magazine.

17. In his affidavit (Ex. A) the General Mills' executive who signed both the original and the revised license agreement on the company's behalf, stated that the contract provisions on which the Manager based his denial of second-class mail privileges for SPHERE (Compl., Ex. A) were incorporated into the original license agreement as customary provisions to insure that the licensed use (the publication of a women's magazine) would develop in a fashion compatible with the nature of General Mills' trademarks. He affirmatively asserted that beyond this interest in the protection of its trademarks General Mills had not sought to exercise control over Vertical's operation or the content of SPHERE (Ex. A, pars. 3, 4). The various provisions of the license agreement were intended solely to preserve the reputation of General Mills' trademarks and to permit termination of Vertical's license if its product were to jeopardize the trademarks' reputation or fail to maintain acceptable quality (Ex. A, pars. 5, 6). However, General Mills never found it necessary to establish advertising standards, rarely had occasion to disapprove of advertising and, though aware of the fact, did not intervene to prevent the advertising in SPHERE of products competitive with those sold by General Mills ( id ., par. 6).

18. The mailing list provisions of the original agreement were not intended to control Vertical's publication of SPHERE but to protect General Mills against misuse of its lists (Ex. A, par. 6).

19. The test kitchen provisions of the original license agreement served the mutual interest of the parties since Vertical lacked such a kitchen and General Mills had an interest in avoiding publicity in SPHERE, using the "Betty Crocker" name, for food products of dubious quality or merit ( ibid .).

20. Because of its confidence in Vertical's management General Mills agreed after the original denial of second-class mail privileges for SPHERE to the elimination or modification of most of the provisions objected to by the Manager although it eliminated Vertical's 5-year license renewal option (Finding 10, supra ; compare Ex. B, Ex. 2 with id ., Ex. 1A).

21. The affidavit of Vertical's vice-president also denied flatly that SPHERE was published by it as an auxiliary to or for the advancement of the food business of General Mills (Ex. B, par. 24).

22. Vertical's vice-president asserted that:

(a) Vertical has used the "Betty Crocker" name solely to gain initial circulation with any benefit for General Mills purely incidental (Ex. B, par. 24).

(b) Vertical has submitted to General Mills' food copy mainly for Vertical's own benefit and has received valuable suggestions from General Mills as to effective photographing to improve the appearance of foods presented (Ex. B, par. 27).

(c) Vertical had insisted on the test kitchen provision in the original license agreement since it had none, was paying for the use of the General Mills' kitchens through increased royalties, and had always itself determined what foods be tested - a right which the revised agreement made clear (Ex. B, pars. 28, 29).

(d) Vertical selected the advertising to be published and General Mills never exercised the right to control aspects of SPHERE's advertising conferred on it by the original license agreement or insisted on establishing a standard for SPHERE's advertising (Ex. B, pars. 30-31).

(e) Vertical's obligation to "promote" the General Mills' trademarks was mere boiler plate and without meaning as to Vertical's conduct as publisher of SPHERE; that it paid commercial rates for use of General Mills' mailing lists; and that limitations on Vertical's use of its own mailing lists were a legitimate protection sought by General Mills for its own lists and of decreasing importance as Vertical was developing mailing lists of its own from other sources (Ex. B, pars. 33-36).

23. Based on the foregoing detailed Findings of Fact and the entire record I find:

(a) SPHERE is not a food magazine though food items constitute the largest single subject matter of the magazine's content. However, a substantial portion thereof, collectively equal in space to food items, is devoted to editorial and reader comment and other non-food subjects.

(b) In the discussion of food and food preparation as well as other subjects General Mills' products are not mentioned as such and are not promoted in the magazine.

(c) General Mills' advertising occupies only a small portion of the advertising space in SPHERE and is paid for at regular rates (Ex. B, par. 38(e)). On the other hand, many products, directly competitive with those of General Mills.

(d) Although the original license agreement provided General Mills with potentially substantial rights of control over Vertical's operations as publisher of SPHERE, General Mills did not prior to the grant of second-class mail privileges for SPHERE exercise control over Vertical or SPHERE or direct or compel SPHERE to be published as an adjunct or for the advancement of its own business.

(e) The relationship between Vertical and General Mills under the original license agreement was in fact an ordinary contractual relationship under which Vertical as licensee was free to operate as publisher of SPHERE in its own interest and without regard to the interest of General Mills other than the protection of the standing and reputation of the licensed General Mills' trademarks which they enjoyed at the time of the agreement. Considering the character of the magazine published by Vertical, it was obviously in Vertical's interest to protect this standing and reputation from which it benefitted.

(f) The record is bare of any facts or indication that Vertical subordinated at any time or in any way, by acts of omission or commission, its own interests to those of General Mills or that Vertical was financially controlled by, or dependent upon support of, General Mills.

(g) At all relevant times Vertical published SPHERE for its own sake as an independent business. It did not at any relevant time publish SPHERE as an auxiliary or adjunct to, or as a part of the business of, General Mills or for the advancement thereof.

(h) But for the specific issue raised by the Postal Service denial of second-class mail privileges for SPHERE prior to 7 November 1972, SPHERE was in all respects, and is conceded to have been, a periodical publication meeting the requirements for second-class mail privileges.

CONCLUSIONS OF LAW

1. The Manager's denial of second-class mail privileges for SPHERE, now limited to issues which appeared prior to 7 November 1972, was squarely based on section 132.226(b) of the Postal Manual which reads as follows:

".226 Advertising Publications Publications designed primarily for advertising purposes may not qualify for second-class privileges. They include:

***

b. Those 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.

***"

2. Numerous administrative decisions within the Post Office Department and the Postal Service have applied the provisions of the present section 132.226 to publications which either essentially seek to obtain customers for the publisher's services or purchasers for his goods or which, notwithstanding editorial content, are in the main filled with advertisements for merchandise. The Citizen Soldier , 1 Ops. AAG for P.O.D. 400 (1877)^1/; Conover-Mast Publications, Inc. , H.E. Docket No. 5/173 (1958). In the first case the publisher of a news letter, dealing with veterans and civil service matters of broader interest but published only to attract clients for the publisher's law office, was denied second-class mail privileges because his publication was primarily a continuing advertisement for the publisher's law practice. For a recent similar case see Credit Bureau of Albuquerque , P.S. Docket No. 1/218 (1973).

In the Conover-Mast case the publisher was denied second-class mail privileges because his publication served mainly as an advertising tool for manufacturers of labor saving machiner. For similar cases see Pool Publications, Inc. , P.O.D. Docket No. 1/143 (1959); National Association of Trailer Owners, Inc. , P.O.D. , H.E. Docket No. 5/173 (1958). Docket No. 1/144 (2d Jud. Off. Dec'n 1960). See also Channel Northwest, Inc. , H.E. Docket No. 5/178 (1958) where a publication listing TV shows and movies and containing stories about their performers was denied second-class mail privileges because it served primarily as an advertising medium for druggists whose names were prominently featured thereon and through whom it was distributed to the public; semble : High Fidelity Broadcasting Corp ., P.O.D. Docket No. 1/8 (Jud. Off. Dec'n 1958).

3. It appears probable that, if the publications in the cited cases had been published for their own sake without the primary advertising purpose found to have existed as a matter of fact, such publications may well have been admitted to second-class privileges under the provisions of the regulations and statutes then obtaining. For their history see the Appendices to Conover-Mast , supra ; for coordination between the pre-1970 U.S. Code provisions and present regulations see Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974).

4. Even a house organ of the publisher is not always treated as published primarily for the advancement of the publisher's other business and may be found to have been published for its own sake and profitability. The Diner's Club, Inc. , P.O.D. Docket No. 1/225 (1960), aff'd by Jud. Off. (1961); contra on its facts Pleasure, Inc. , P.S. Docket No. 1/48(1973).

5. Similarly, in Lovejoy's College Guide, Inc. , P.O.D. Docket No. 2/115 (1965), a periodical publication, having its own separate purpose and audience, was not deemed published primarily for advertising purposes only, solely because it might advance the sale of books of the publisher in a closely connected field.

6. It is apparent from this brief survey of administrative precedent that the question whether a publication owned or controlled by a business concern is conducted as an auxiliary and essentially for the advancement of the concern's main business and, hence, primarily for advertising purposes is a question of fact. This was the view of the Post Office Department at an early date (POSTAL LAWS AND REGULATIONS (1887), Sec. 337) and has remained its view in later periods. 8 Official Opinions of the Solicitor of P.O.D. 44 (1930).

No reason has been shown why this rule should be abandoned. Indeed, Postal Service Counsel urges that the granting or denial of second-class mail privileges should "accurately reflect realities" (Resp. Prop. FDGS. of Fact and Concl. of Law, p. 10). Where I part company with his position, is that to the Postal Service the only reality to be considered is the abstract terms of the original license agreement (Ex. B, Ex. 1A). The reality to be considered is Petitioner's entire operation, not only the terms of the agreement but the entire conduct of the parties in carrying out the agreement and the character of the publication itself.

7. On such consideration of the entire record, as summarized in the Findings of Fact, Respondent cannot prevail. For it is plain that General Mills did not exercise control over the Vertical's operation of its publishing venture or the content of SPHERE. General Mills in no way restricted or directed the content of SPHERE in order to suppress competition or to reap commercial advantage. To the extent that the parties cooperated in such matters as the use of mailing lists, test kitchens and advice on food photographs or perhaps the avoidance of liquor or cigarette ads, the advantages to Vertical far outweighed any interest of General Mills in such matter. Such benefits, as it may have derived, did not make SPHERE an auxiliary of General Mills' food business or a publication directed to the advancement thereof.

8. So far as the record shows, the license agreement with Vertical was for General Mills a financial transaction by which it permitted another to use General Mills' property for a substantial financial return. Provisions in that agreement intended to protect General Mills' property from misuse do not convert this transaction into the arrangement described in section 132.226(b) of the Postal Manual.

9. Accordingly, the issues of SPHERE published prior to 7 November 1972 are entitled to second-class mail status.

____________________

1/ Published also as App. A-5 to Conover-Mast Publications, Inc.