In the Matter of the Petition by

SOUNDINGS NORTHWEST FM and Fine Arts Guide,
Post Office Box 1062,
Bellevue, Washington 98009

Denial of Application for Second- Class Mail Privileges for
"SOUNDINGS NORTHWEST"

P.S. Docket No. 3/97

May 2, 1975

William A. Duvall Chief Administrative Law Judge

James A. Middleton, PUblisher ,
725 172nd Place, N.E.
Bellevue, Washington, pro se

Arpad de Kovacsy, Esq. ,
Law Department,
U.S. Postal Service,
Washington, D.C., for Respondent

INITIAL DECISION^1/

On September 18, 1974, the Manager of the Mail Classification Division, Finance Department of the United States Postal Service, hereinafter referred to as the Respondent, advised Mr. James A. Middleton of Bellevue, Washington, who will hereinafter be referred to as the Petitioner, that the publication of which the Petitioner is the publisher, namely, "Soundings Northwest," is regarded as being not eligible for second-class mail privileges for which it earlier had applied.

The reasons stated by the Respondent as the basis for his proposed ruling on the matter are stated as follows:

"Section 132.2, Postal Service Manual, specifies that 'periodical publications' which meet the mailability criteria established in Part 125 may be mailed at the second-class rates. 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.

Based on the contents of the May, June and July, 1974 issues of 'Soundings Northwest,' this publication does not appear to be a periodical publication. Pursuant to section 132.211, Postal Service Manual, only 'periodical publications' may be mailed at the second-class rates of postage. 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 or 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 articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature.

The material submitted is not a periodical publication within the meaning of section 132.2, Postal Service Manual. It is simply a guide to broadcasts of FM radio stations in Seattle and a calendar of events for museums and galleries and stage performances in Seattle, and each issue is complete. This material fits more appropriately the area of the mail classification scheme which provides for mailing miscellaneous printed matter since the only feature it appears to have in common with periodical publications is that the material is issued in accordance with a schedule. Regular issuance does not change its basic character as miscellaneous printed matter.

It is not possible to have miscellaneous printed matter accepted for mailing at the postage rates provided for newspapers and other periodical publications merely by mailing according to a predetermined schedule. (See Houghton v. Payne, 194 U.S. 88 (1904), American Chemical Society Case POD Docket No. 3/90, February 16, 1973, Shepard's Citations, Inc., PS Docket No. 1/88, February 19, 1974, American Bibliographical Center, PS Docket No. 2/106 (1973))."

In the notification to the Petitioner, the Respondent gave the Petitioner the option of filing within 15 days information showing that the requirements of the postal laws and regulations governing second-class mail eligibility had been met, or in the alternative, the Petitioner was given the notification that he could appeal this ruling by filing a petition within 15 days of the receipt of the notification.

A timely appeal was filed by the Petitioner on September 30, 1974, and the matter came on for hearing on April 9, 1975, in Seattle, Washington. At the hearing Petitioner participated in the examination of the Respondent's witness and proceeded to present his case although he was not represented by counsel in this matter. There were received in evidence various items indicating the background of this proceeding in the form of correspondence exchanged between the parties and, in addition thereto, there were received among other exhibits various copies of the publication under consideration.

It should be pointed out that in the statement of the reasons why the Respondent proposes to deny the Petitioner's application for second-class mail privileges, the Respondent quoted a portion of the definition of the term "periodical publications" as that definition is given in the case of Houghton v. Payne , cited above. Despite the fact that that case was decided in 1904, that is the final expression of the views of the Supreme Court of the United States in regard to the subject of what a "periodical publication" is, and this has been the definition which has been followed by the Postal Service through the years since the date of that decision, so it is a period in excess of 70 years.

In that period of time there has been opportunity for the Congress to make itself heard on this subject and, in addition to that, there have been occasions in which the Supreme Court might have amended the decision given in the Houghton v. Payne decision, but neither of those branches of the Government has sought to amend that definition; and the Postal Service feels that it is incumbent upon it to follow that definition to the best of its ability.

How does one go about making a determination in a case of this sort? There is really only one way, and that is to take the publication in question and look at it and analyze it and measure it against the yardstick established by the Supreme Court in the Houghton case, which has been followed in a long line of cases in the Postal Service. One of the issues of the publication that was considered by the office of the Respondent in this case was the issue for May, 1974. The first section in this issue of the publication is entitled "This Month in Seattle." In this section there is a variety of features, e.g., an item called "Museums and Galleries" in which are shown information about art exhibits, lectures on art, and classes in art, and the times and places where these events are to occur are stated.

The next item that appears under the larger heading "This Month in Seattle" is under the heading of "Music." In this department, there is an itemization of musical events including in many, if not most, cases the names of the performers and the musical numbers that will be on the program, together with the times, dates, and places at which the musical events will occur.

Another category under the broader title "This Month in Seattle" is the category "Dance." As the name suggests, it tells where dance programs will be given, by whom they will be performed, whether or not it's free or for paid admission, and the time and place of the event.

The next category under "This Month in Seattle" is an item entitled "Stage." In this department, there are shown the theater plays that are to be presented in the month of May. The names of the authors of the plays are given, the names of the members of the cast, the theater at which the play is to be given, curtain times, and dates are shown.

Another department under "This Month in Seattle" is entitled "Festivals." Some of these subtitles will be self-descriptive. They are Ethnic Cultural Weeks, ASUW '74 Spring Art Fair, Issaquah May Festival, A Country Fair in a City Park, Lake Hills Fine Arts Fair, University District Street Fair, Open Forum Special--All-Ages Fair & Frolic, 3rd Annual Northwest Folk Life Festival, and there is an announcement that the King County Arts Commission is looking for people with heritage skills for festivals in July, and there's a name and telephone number for interested persons to call.

Finally the last department under "This Month in Seattle" is the item "Expo '74 World's Fair," and it just lists different items of musical and other artistic interest that will occur as a part of the fair during that month.

The next major department within the publication for May '74 is entitled "Commentary," and this item is in the nature of an expression of the views of the publisher or the editor, as the case may be, and would, normally, be regarded as an editorial. This consumes approximately a half a page, and I shall list the amount of space devoted to some of these items through here. In each instance in which narrative material is mentioned, the amount of space which it is indicated is occupied by such material is a generous allowance for each particular item. For example, the "Commentary" does not consume a full half a page, but it will be credited as if it does consume a half page.

There is an item entitled "Books." This consists of half a page of one paragraph reviews of certain books, and then there is a paragraph in which there is a review of two books. Following this there is a column or an item in the publication entitled "Records." This consists of two pages of commentaries on certain recordings of classical music. Illustrative of this material would be one appearing on page 23 which has the subcaption "Saint-Georges:

Symphonie Concertante, G: Symphony No. 1; Scena from 'Ernestine'; String Quartet No. 1." and then it gives the number of the record in parentheses (M 32781), and it tells who the performing artists are. It has, also, some editorial comment about the quality of the recording or of the artist and why it is believed that this particular record will be of interest to a lover of music.

The other items in the May, 1974, issue of the publication are first an identification of the FM stations in the Seattle area, and a guide or a listing of the programs of each station for the month of May, 1974.

We will now move to the issue of the publication for April, 1975. The makeup and composition of the issues of the publication are similar with the exception that some departments are expanded and some are contracted. The first department in the issue for April, 1975, is entitled, again, "This Month in Seattle," and the first item under that caption is entitled "Galleries and Museums." It is of the same character as the similar item appearing for the issue of May, 1974.

The next sub-item under "This Month in Seattle" is entitled "Music," and it is a guide to musical events giving the names of the performers and the numbers on the program. The next sub-item is entitled "Dance." It consists of announcements of dance programs or films. The next sub-item is entitled "Stage," and again it is a naming of the plays giving their authors, the names of the members of the cast, the names of the theaters, dates, and curtain times. There is also some "editorial" matter in the form of one-sentence synopses of the plays and some other brief data.

The next major department in the publication is entitled "Commentary," and in this issue, this particular department is considerably expanded over the similarly designated article in the May, 1974, issue. The editorial portion of this department for the April, 1975, issue consumes approximately one and three quarters pages. There is a sub-item entitled "Tapes" which consists of approximately one and one-half pages of comment about certain tape recordings of classical music. There is the "Records" department which consists of approximately two and one-half pages of commentaries concerning certain recordings of classical music. In this issue there is a new feature called "Budgeting" which consumes about half a page. Another new item appearing in the "Commentary" for April, 1975, is entitled "Station Profile KRAB-FM," and it consumes one and one-quarter pages. Its title is sufficiently descriptive of the contents of this item.

Finally there is an article entitled "Phase Linear 4000" which deals with a preamplifier, which is a device that is used in audio control.

The remainder of the publication, as was the case in May, 1974, is devoted to an identification of the FM stations and a guide or listing of the programs of each station for the month of April, 1975. In connection with each station there is a short statement setting forth with each station there is a short statement setting forth most of the characteristics of the programming of that station.

Now, in the May, 1974, issue there were approximately three pages out of a total of 55 which were devoted to matters which, according to the views of the Postal Service for a long period of years, would come within the definition of periodical publication. On the other hand, in April, 1975, there was a total of ten pages out of 48 pages which could be considered as containing matters regarded by the Postal Service as conforming with the definition of periodical publication.

The editor of "Soundings Northwest" testified that the issue of April, 1975, is unusual for several reasons: one, April is a month in which there is a lot of activity in the art world in Seattle; two, there was some problem with one of the stations, and an editorial was written about that situation. The editor also stated that in subsequent issues for the year 1975 it was most likely that the material of the character which the Postal Service regards as being articles, and thus qualifying the publication for second-class mail privileges under the definition of periodical publications, would be less.

Therefore, we are left with material which can only lead to the conclusion that the basic and dominant character of the publication "Soundings Northwest" is that of a listing or a guide to the programs that are to be broadcast by the FM stations of the Seattle area for the appropriate month. When this dominant characteristic of this publication is measured against the criteria which the United States Supreme Court has laid down, and which has been followed by the Postal Service for over 70 years, there is only one conclusion that seems to me to be reasonable, and that is that the publication, "Soundings Northwest," is not a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354 and within the meaning of the Postal Service regulations relating to the subject of second-class mail eligibility.

Both parties made presentations of their proposed findings of fact and conclusions of law on the record, and I have considered these proposed findings of fact and conclusions of law along with the rest of the record, and to the extent indicated heretofore, these proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are contrary to or unsupported by the law and by the evidence of this case.

____________________

1/ Transcribed from oral decision as rendered at close of hearing held April 9, 1975. Minor language changes have been made, but the substance of the decision is unchanged.