In the Matter of the Petition by

THE REUBEN H. DONNELLEY CORPORATION
2000 Clearwater Drive,
Oak Brook, Illinois 60521

Revocation of Second-Class Mail Privileges for "OAG TRAVEL PLANNER
AND HOTEL/MOTEL GUIDE"

P.S. Docket No. 2/78

October 10, 1975

William A. Duvall Chief Administrative Law Judge

John M. Burzio, Esq.,
Hydeman, Mason & Goodell,
1225 Nineteenth Street,
N.W., Washington, D.C., for Petitioner

Arpad de Kovacsy, Esq.,
Law Department, United States Postal Service,
Washington, D.C., for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION

This is a proceeding initiated by The Reuben H. Donnelley Corporation (Petitioner) pursuant to 39 C.F.R. Part 954 to contest the ruling of the Manager of the Mail Classification Division, Finance Department, speaking for the United States Postal Service (Respondent) which on March 8, 1973 annulled, subject to the outcome of this proceeding, Petitioner's second-class mail privileges then in effect for the "Travel Planner & Hotel/Motel Guide" (hereinafter sometimes referred to as the "Travel Planner").

The reasons for this ruling were stated by the Manager as follows (PEt., Ex. C):

"The law (39 United States Code 4351 and 4354; section 132.2, Postal Service Manual), provides that only 'newspapers and other periodical publications' constitute mailable matter of the second-class. Publications must be originated and published for the purpose of disseminating information of a public character, or they must be devoted to literature, the sciences, art, or some special industry. "A periodical, as ordinarily understood, is a publi- cation 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. (See Houghton v. Payne , 194 U.S. 88 (1904)).

"The provisions of Title 39, United States Code, cited above have been carried forward by section 3 of the Postal Reorganization Act, Public Law 91-375, as implemented by Postal Service Orders 71-9 and 71-10, June 21, 1971.

"The 'OAG Travel Planner and Hotel/Motel Guide' is devoted to listings of the names, addresses, telephone numbers and room rates of hotels and motels, and information pertaining to airlines (lists of locations of ticket offices and travel information). The publi- cation is primarily an update service with each subsequent publication updating the previous publication with an inconsequential amount of new material. In addition, the publication contains no original articles and is, in fact, a reference book or directory. Accordingly, the publication is not a periodical. (See In the Matter of R. R. Bowker Company , P.O.D. DOcket No. 2/97), In the Matter of One-Spot Publishers, Inc ., P.O.D. Docket No. 1/231, and In the Matter of Zulch & Zulch , P.O.D. Docket No. 3/46)."

Petitioner replied to Respondent's notification by a letter, dated March 26, 1973, addressed to the Postmaster at Hinsdale, Illinois, the post office of original entry (Pet., Ex. D), setting forth Petitioner's view as to why, notwithstanding the legal authorities cited by the Manager, it was entitled to second-class mail privileges for its publication. Under date of April 2, 1973, the Manager advised Petitioner that it adhered to the view that Travel Planner was not a periodical publication within the meaning of section 132.2 of the Postal Service Manual (PSM) and predecessor statutes (Pet., Ex. E). Petitioner was further advised that it was entitled to bring this proceeding for review of the Manager's ruling.

Pleadings were filed and a hearing was held thereafter at which the parties presented testimonial and documentary evidence. Proposed findings and conclusions and briefs and reply briefs were filed by both parties.

Petitioner is a Delaware Corporation with its principal office in New York, New York. It publishes the Travel Planner in Oak Brook, Illinois, and it has enjoyed second-class mail privileges for the Travel Planner since 1958 (Pet., Ex. A). Publication of the Travel Planner commenced in 1958 when certain material was transferred from the Official Airline Guide (OAG) to the new publication because the OAG had become too bulky. The publication was at first called the OAG Travel Planner, but since early 1972 has been called by the current name of OAG Travel Planner and Hotel/Motel Guide and was re-entered as second-class mail matter under that title in May 1972 (Pet., Ex. C).

The Travel Planner was published in 1974 in 32,217 copies (Pet/r Ex. 2). Of these, business firms and Government agencies subscribed to about 55%, travel agents to about 30% and airlines to about 15% ( ibid .). A number of subscribers ordered more than one copy (see Pet'r Exs. 3, 4). The issues of the Travel Planner for Fall and Winter 1972, being volume 14, Nos. 3 and 4 (Jt. Exs. 1, 2), and Spring 1973, being volume 15, No. 1 (Jt. Ex. 3), were introduced in evidence. In addition, a loose-leaf copy of the 1973 summer issue, marked up for changes from the prior issue (Jt. Ex. 3), was introduced in evidence (Jt. Ex. 4).

The Travel Planner is published each year at regular quarterly intervals. From issue to issue about 11% of the material in each issue is either added or changed material, except from the Spring to the Summer issue when changes represent about 22% of the material in the later issue (Tr. 26). Nothing in the record indicates that the structure and character of the Travel Planner have undergone material change since the summer issue of 1973.

The Travel Planner's quarterly issue, as represented by volume 14, No. 3 (Fall 1972) (Jt. Ex. 1), comprises in excess of 600 pages between flexible cardboard covers. The front cover shows the title on top and to the left thereof the publication's logo "oag" which referes presumably to the publication's derivation from and supplementation of the Official Airline Guide to which all or nearly all Travel Planner subscribers also subscribe (Tr. 23). At the bottom of the front cover appears the following language:

"INCLUDING Mobil Travel Guide QUALITY RATINGS FOR OVER 15,000 HOTELS AND MOTELS" and the explanation of the Mobil Guide's well-known five star ratings. The inside of the cover of the Travel Planner contains a "Memo" by the publisher to subscribers, followed by a table of contents and general information on the publication and the Mobile Guides and their rating system. The back cover of joint Exhibit 1 contains advertisements for OAG and Avis Rent A Car System, Inc.

The Travel Planner (Jt. Ex. 1) is divided into the following sections:

Hotel/Motel Systems Directory (6 pages)

Hotel/Motel Representatives (1 page)

Quick Reference Destination Index (476 pages)

United States Travel Information (11 pages)

International Travel Information (76 pages)

Listing of Military Installations and Colleges and

Universities (43 pages)

Miscellaneous (13 pages)

The bulk of the Travel Planner consists of the Destination Index (1) to cities having airline service, accompanied by some 30 airport diagrams and nine metropolitan area maps, and (2) to all cities over 2,000 inhabitants which do not have airline service. For example, the Travel Planner informs the reader under "Abilene, Texas", which has airline service, of its telephone area code, the identification of its airport, the airline which serves it, reservation phone and ticket office location and of a number of hotels and motels with their telephone number, address and Mobil Guide rating. For "Ada, Okla.", which does not have airline service, the Travel Planner informs the reader of the distance to, and the place of, the nearest airport, availability of bus service and hotels and motels with telephone numbers, address, and Mobile Guide rating. Location information and nearest airport only are furnished for colleges, universities and military installation.

Foreign travel information lists documents required of citizens of the United States and Canada for entry, currency restrictions and the foreign country's consulates in the United States and the United States and Canadian Foreign Service offices in the foreign country. A calendar of events is furnished as applicable. Similar calendar of events information for each state of the United States, together with a place to which inquiry for further information may be addressed, is furnished in the section devoted to United States Travel Information.

The Travel Planner is not in whole or in part a reprint of the Mobil Travel Guide. Petitioner does, however, obtain much of its hotel and motel information once a year from Mobil Oil Corporation and reproduces Mobil Travel Guide ratings for Mobil-rated hotels and motels which the Travel Planner lists.

The Travel Planner does not contain articles by any authors on any subject other than the publisher's memo to subscribers which is on the inside of the front cover. The Travel Planner is essentially a listing of destinations, their location in relation to the nearest airport furnishing airline service, and the mode of transportation between the listed destination and such airport. In addition, the Travel Planner furnishes a miscellany of information for nationwide and international travel.

The Travel Planner does not contain any time-tables or transportation schedules either for air or land transportation nor any information on ticket prices or the type of tickets which may be available. At best it provides the user with leads as to where to find the necessary transportation. Travel Planner is, in fact, what its name states it to be: a tool to travel planning and not a guide to the actual transportation schedules and prices.

There is no doubt whatever that the Travel Planner is not a "periodical publication" within the meaning of the postal regulations and their predecessor statutes as interpreted in Houghton v. Payne , 194 U.S. 88 (1904). The Travel Planner lacks a variety of articles by different authors and is a reference work -- a type of publication which the United States Postal Service has held over an extended period of years not to be mailable at second-class mail rates. For current references see Florists' Transworld Delivery Association , supra ; Shepard's Citations, Inc ., P.S. Docket No. 1/88 (1974); Northwest Missouri State University , P.S. Docket No. 3/42 (1975). In Teleflora, Inc. v. U. S. Postal Service , Civil Action No. 75-228 (1975), these principles are upheld by the U. S. District Court for the District of Columbia.

While the matter is not entirely free from doubt, the Travel Planner appears to meet the requirement of the Houghton v. Payne definition that each number of a periodical publication be incomplete in itself and indicate a relation with prior or subsequent numbers of the same series. The publication in question appears to fill this requirement in the updating and change characteristics of many of its entries.

In Petitioner's brief a belated claim was made for possible recognition of Travel Planner as a newspaper. This claim must be denied for a number of reasons, not the least of which is that the claim for such recognition would inject into the proceeding an entirely new issue - an issue that was neither pleaded nor tried. The lack of authority for, and the impropriety of, giving consideration to such a tardily raised question is discussed in the matter of Ralph Petillo , P.S. Docket No. 3/132(Unappealed Initial Decision, pp. 9-11, (1975)). It may be noted in passing, however, that examination of Travel Planner discloses that it obviously and patently is not a newspaper.

The Travel Planner is not a transportation guide of the type which the Court in Houghton v. Payne said had been "treated" as periodical publications. It does not contain any transport schedules and does not inform any reader when any means of transport is to depart or to arrive at any destination. Nobody using the Travel Planner can schedule his or her travels and determine when he or she must leave in order to arrive at a desired time. At best, the Travel Planner provides leads as to where transportation schedule information is to be found. Such a publication cannot be considered a transportation guide of the same class as the various consolidated railroad and bus timetable publications or the OAG, published by Petitioner.

Accordingly, the proposed annulment action of the Manager was correct and it is sustained.