In the Matter of the Petition by

R. H. SMITH, JR., Publisher, T.G.I.F.,
P. O. Box 1683,
Hollywood, California 90028

Proposed Annulment of Second-Class Mail Privileges for "T.G.I.F."

P.S. Docket No. 3/112

May 9, 1975

William A. Duvall Chief Administrative Law Judge

R. H. Smith, Jr., Publisher,
P. O. Box 1683, Hollywood, California, pro se
Grayson M. Poats, Esq.,
Law Department, U. S. Postal Service,
Washington, D.C., for Respondent

INITIAL DECISION^1/

T.G.I.F., a publication of R. H. Smith, Jr., the Petitioner, is the publication under consideration in this case. By letter dated August 5, l974, the Respondent, the Director of the Office of Mail Classification, in the Bureau of Finance of the United States Postal Service, advised the Petitioner that it was proposed to revoke the second-class mail privileges theretofore in effect for the publication T.G.I.F. The reason for the proposed revocation was the allegation that the publication is designed primarily for advertising purposes.

The publisher was advised that he was allowed 15 days within which to admit the laws and regulations relating to second-class mail entry; or he might, alternatively, file a petition appealing from the proposed revocation.

Some correspondence was exchanged between the parties and this hearing was continued a time or two in order to give the parties an opportunity to resolve this case without the necessity of a hearing. Finally, the matter came on for hearing on April 12, l975, with both parties present.

The Petitioner is appearing for himself and he is not an attorney. A witness who testified on behalf of the Postal Service discussed and described in detail the contents of the July 1974, the January 1975, and the March 1975 issues of the publication, T.G.I.F.

During the course of the hearing there was disclosed the fact that there are two clubs which are run by the publisher of the publication in question in this proceeding. Those clubs or organizations are known as the "Executives" and the "Bachelors Society."

The publication contains solicitations for membership in these organizations and it contains solicitations for subscriptions to the publication. In the publication it is made known, also, that membership in either one of the two organizations carries with it the additional benefit of a subscription to the publication.

There are references in various places in the publication to the address of Mr. Smith in his capacity as publisher of T.G.I.F. and in his capacity as head of the two organizations.

It is not intended to suggest that that there is no other material that is published in the publication. There are, from time to time, certain articles. For example, there is one article on dining places in the Southern California area, and some mention is made of the wines that are available.

The publication carries, also, advertisements of certain books on the subjects of the best place and the best method to pick up either girls or boys. Otherwise, the publication contains adver- tisements of a personnel nature, in which the advertiser describes himself or herself, and announces the fact that he is eager to meet someone of the opposite sex with similar likes and dislikes, so that the parties may have a compatible acquaintance.

It is not necessary to dwell any further at length on this publication to give one an understanding of the purposes for which the publication exists. It is true that it is to serve as a vehicle for forming acquaintanceships between young people, but primarily this publication is to further the business interests of the publisher.

This is not a new situation and it is one that has been encountered by the Postal Service for many, many years. In fact, almost 100 years ago, on March 7, l877, to be exact, the Attorney General for the POst Office Department rendered an opinion to the Postmaster General in regard to a publication that was being issued by an attorney who had offices in Washington. This attorney's principal practice was to obtain veterans benefits for veterans located throughout the country. This attorney had other items of interest in his publication and he used stories of various kinds, but here is what the Attorney General had to say in that situation:

"I am not holding that a lawyer, mechanic, or merchant, a claim agent, or physician may not edit a legitimate newspaper, entitled as such to the pound rates. I do hold, however, that when a person (engaged in any of the trades or professions names, or others of similar character) undertakes, in addition to and in connection with such occupation or profession, to publish a newspaper, having for its principal object the promotion of the particular class of business in which its editor or proprietor is engaged, conveying through its columns the superior facilities of its editor or proprietory for the transaction of that particular business in such a manner as to impress even a casual reader with the fact that the entire influence of the paper is devoted to forwarding the professional interests of its editor or proprietor, that such a paper falls within the rule. Nor does it materially alter the case that such a paper contains a large proportion of reading matter of interest to the general public.

"It is not the amount of space occupied by what are ordinarily denominated advertisements that brings it within the rule. Seventeen-eighteenths of the paper in question may, as the petitioner alleges, be devoted to reading matter. The rule has been held, and I think correctly, to apply to a paper filled with reading matter other than advertisements, containing not a single advertisement in the ordinary sense of that term, for the reason that it made the simple announcement in a marginal form, that it was published by a firm engaged in a certain trade, as, for instance, 'this paper is published by John Smith, the grocer.' The most casual examination of the paper under consideration discloses the interest of its publisher in its circulation. He may have, as he says, tens of thousands of subscribers, and all the paraphernalia of a regular newspaper. His paper may be read, and doubtless is read, by thousands of ex-soldiers and others having claims, real or prospective, against the Government, but the paper is so apparently, palpably, and notoriously devoted to forwarding the private interests of the proprietor as an attorney and claim agent that I can not see how we can avoid the conclusion that the paper is devoted, primarily, to advertising his business. Suppose, instead of seventeen-eighteenths, as is claimed, ninety-nine one-hundredths of the space were devoted to matter relating principally to the subject of pensions and other claims, and the paper should contain a simple announcement in some peculiar and attractive form that it was issued by 'John Smith, attorney and counselor at law, and solicitor of claims and patents,' is it not apparent that it would fall within the rule?"

I can think of no description that would more accurately fit the present situation in the instant case than that language used to describe the situation as it existed with respect to that publisher back in 1877.

In short, I find the follow as as matters of fact:

1. The publication T.G.I.F. is not a periodical publication because it does not conform with the definition of periodical publication appearing in the case of Houghton v. Payne , which is reported at 194 U. S. 88.

2. The publication T.G.I.F. is "apparently, palpably, and notoriously devoted to forwarding the private interest" of the publisher whose business is the operation of these clubs and not the reporting of news.

It follows as a matter of law, therefore, that the proposed revocation of second-class mail privileges by the Respondent was correct and that proposed action is sustained.

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1/ Transcribed from oral decision as rendered at close of hearing held April 12, l975. Minor language changes have been made, but the substance of the decision is unchanged.