In the Matter of the Petition by                                      )
                                                                                     )
NATIONAL AUTO RESEARCH PUBLICATIONS, INC.    )
Box 758                                                                        )
Gainesville, Georgia 30501                                          )    P.S. Docket No. 2/131
                                                                                     )
Proposed Revocation of Second-Class                       )
Mail Privileges for "OFFICIAL USED                              )
CAR MARKET GUIDE BLACK BOOK"                           )

APPEARANCES:
                                                                                     Marion Edwyn Harrison, Esq.
                                                                                     Harrison, Lucey & Sagle
                                                                                     Washington, D. C.
                                                                                     for Petitioner

                                                                                     Grayson M. Poats, Esq.
                                                                                     Law Department
                                                                                     U. S. Postal Service
                                                                                     Washington, D. C.
                                                                                     for Respondent

Lussier, Edward F.

DECISION ON MOTION FOR RECONSIDERATION

Petitioner has filed a motion for reconsideration with supporting Brief, raising two basic arguments for reversal of the Postal Service Decision in this case. Respondent has filed a Brief in support of its position and Petitioner a Reply Brief thereto.

The first argument, termed, by Petitioner, "The Periodicity Issue" maintains that the Postal Service Decision, by upholding the Initial Decision finding that "Black Book" is not a "periodical publication" within the meaning of Houghton v. Payne, 194 U.S. 88 (1904), while at the same time failing to hold that "Black Book" is a newspaper, is somehow illegal since it does not "classify" the publication. In this connection Petitioner also draws attention to the Postal Service Decision's upholding of the Initial Decision conclusion that "Black Book" is not the type of nondescript publication entitled to second-class mail privileges. The apparent inference Petitioner would draw is that there is no such thing as a nondescript publication unless it is also entitled to second-class mail privileges, an inference unaccompanied by any legal support. The point of both the Initial Decision and the Postal Service Decision in this respect was to emphasize the very limited extension of second-class mail privileges to one kind of nondescript publication, namely, transportation guides. "Black Book" has been found by both decisions to be neither a "periodical publication" nor the kind of nondescript publication entitled to be treated as a periodical publication. The Postal Service Decision further held "Black Book" was improperly found to be a newspaper. Once this point is reached the need for further "classification" is superfluous whether it is as nondescript matter, miscellaneous matter, a reference guide, or some other name. Petitioner contends, however, that the failure to take this second step is to "invite a costly remand from the United States District Court unless the Court were to undertake to classify as the agency should have done rather than to review the agency's classification." No explanation is given for that conclusion and I can perceive none. The importance attributed by Petitioner to the alleged necessity to give the publication a generic name does not withstand analysis. The issue is to determine the legitimacy of the publication as an offspring of the class entitled by law to second-class mail privileges and once that is determined negatively, not to determine, however interesting, who the potential father might be.

Petitioner's second argument termed "The Newspaper Issue" takes strong exception to numerous portions of the Postal Service Decision but sheds little light on the subject. The Postal Service Decision found that "The issue, as stated by Counsel for Petitioner at the opening of the hearing, and agreed to by Counsel for Respondent, was whether 'Black Book' is a periodical within the purview of Houghton v. Payne, 194 U.S. 88 (Tr. 3, 4)" (Postal Service Decision, p. 3). Petitioner contends (Brief, pp. 4, 9; Reply Brief, p. 3) this misstates the fact and inaccurately recites the parties' views. The simplest response to that characterization is to let the record speak for itself:

" PROCEEDINGS

JUDGE SOBERNHEIM: On the record.

This is the time and place for the hearing in the proceeding of National Auto Research Publications and the Petitioner has a proposed revocation of a second-class entry of its publication called 'The Official Used Car Market Guide Black Book' which is docketed at the office of the Administrative Law Judges of the United States Postal Service as P.S. Docket No. 2/131.

Shall we have an opening statement, Mr. Harrison.

MR. HARRISON: Your Honor, it would be very brief.

In his Answer, counsel for Manager conceded most of the allegations of the Petition.

onsequently, what we are really talking about, is whether the 'BLACK BOOK,' if I may refer to it by its short, abbreviated common name --

JUDGE SOBERNHEIM: Yes.

MR. HARRISON: -- is a periodical publication within the purview of the statute; such issues as irregularity as numbering a minimum of four issues annually are not issues in this case.

JUDGE SOBERNHEIM: What are the issues in this case?

MR. HARRISON: The specific issue is whether, as phrased by the Manager in his letter of proposed revocation; whether the publication is a periodical within the purview of the role (sic) in Houghton v. Payne.

JUDGE SOBERNHEIM: Do you want to state anything about it, why you say it is or isn't?

MR. HARRISON: No, Your Honor. I think I would prefer to make my arguments in the briefing.

JUDGE SOBERNHEIM: Mr. Cahn, Mr. Poats; does that state the issue correctly?

MR. POATS: Yes, it does."

(Transcript, pp. 3, 4)

Petitioner buttresses its argument that it was not the "fundamental issue" in the case that was being discussed in the colloquy but only the specific issue as phrased in the Postal Service notice of revocation by the additional charge that "The type of subjective musings that give rise to the Judicial Officer's statement that 'It is clear from this record that the parties gave no thought to the newspaper classification . . .' is unsupported by the record." On the contrary, how is one ever to ascertain the thoughts of the parties except through their words and actions. The total absence of the newspaper issue therein presents an example of the eloquence of silence. After the case was tried Petitioner filed a Brief, a Reply Brief and a Supplemental Brief with the Administrative Law Judge and nowhere raised or argued the newspaper issue. This would suffice to convince any reasonable reader that it was not intended to be in issue. However, Petitioner now asserts that in fact it was considered and discarded. Its argument proceeds along the following unconvincing line:

" * * * Given the Judicial Officer's laudatory evaluations of the competence of counsel one might think the Judicial Officer would recognize the logical deliberative flow of Counsel for Appellee - to wit, he considered both the newspaper and transport guide classifications but concluded he should try the case on the specific issue raised by the Manager, the Manager's pleadings having raised no other specific issue. Counsel for Appellee took into consideration several desiderata, including the fact that both the Administrative Law Judge and the Judicial Officer are new to the Postal Service and to the uninitiated one risks the possibility of a threshold negative reaction when the cosmetics or physical configuration of a publication deviates from the norm. Appellee had to try the case on the Manager's periodicity issue - the only option was whether also to try it on a second issue." (Appeal Brief, p. 11) It might be added, perhaps redundantly, that option was obviously rejected.

As pointed out in the Postal Service Decision the record might exist where an issue not explicitly tried or argued was obvious and the parties chargeable with its presence, "where the form and content of a publication may make it clear at a glance that it is what is commonly regarded as a newspaper but that is not the case with the Black Book" (at p. 6). ^1/ It further contends that the decision "nowhere offers the reader a clue" as to whether there is deemed to be insubstantial evidence of record to support the conclusion in the Initial Decision that "Black Book" is a newspaper (Brief, p. 10). However, the statement on page 6, quoted immediately above, and the further statement on page 8 that " * * * I would not conclude as did the Initial Decision, that Black Book is a newspaper * * * " cannot be overlooked if one seeks clues.

It was unnecessary, of course, to go into further detail since the ruling on Respondent's first exception, which raised the impropriety of deciding the case on a new issue, was dispositive of the case. However, Petitioner's Briefs raise throughout the specter of further costly proceedings if the Postal Service Decision is based on such a limited holding. It specifically asks that the Postal Service Decision be reconsidered and "Black Book" be found to be a newspaper entitled as such to second-class mail privileges. It was not my intention to leave Petitioner ^2/ in a state of confusion as to how I would rule on the merits of the newspaper issue on this record. The avoidance of any such confusion was precisely the reason for including the above-quoted statements in the decision. In light of the importance attached thereto by Petitioner and to eliminate any remaining doubt, I consider it appropriate to amplify the Postal Service Decision on this point.

As pointed out in the Postal Service Decision the conclusion in the Initial Decision placed some reliance upon two administrative decisions which are not precedent for the result reached. Moreover, in concluding that "Black Book" was a newspaper the Initial Decision referred to Webster's Third New International Dictionary of the English Language (1961) and defined a newspaper as a publication regularly printed and distributed, usually at short interval, daily or weekly, containing news or other matters regarded as of current interest. ^3/ It concluded that no specific form is required of newspapers and that while "Black Book" did not have the appearance or format of the usual newspaper it nevertheless was a newspaper because it conveys current news. It describes "Black Book," quite accurately, as a "booklet" and although finding its substantial use as a reference tool in gauging car price trends valuable as such only if back issues are kept and consulted, relegates this purpose to apparent secondary importance in concluding that "Black Book" also provides current price data which can be used in making business decisions by subscribers, and is thus a newspaper. The extensive collation, price averaging and editorial judgment involved in arriving at the reported prices is likewise given little importance as distinguished from the handling given a similar monthly publication in National Automobile Dealers Used Car Guide Company, P.S. Docket No. 2/183, decided contemporaneously with the Initial Decision in this case. ^4/ previous administrative decisions, cited by the parties, in which the newspaper issue has been raised have been rare. In 1964 in the case of Silver Burdette Co., P.O.D. Docket No. 2/133, a publication entitled "World Events" which consisted of a resume of major news events of the week, printed in two parts, one a teacher's section and the other a large sheet for classroom purposes, containing a map with photographs and news items, was found to be a newspaper. A principal issue in the case was whether the large sheet was "printed" and it was held that the two parts should be viewed together as one publication. In another 1964 case, Civic Education Service, P.O.D. Docket No. 2/144, the Initial Decision, unappealed, found another publication intended for use in schools, consisting of a large map with current newsworthy items relating to the area depicted, to be a newspaper. In 1973 the Initial Decision, also unappealed, in Postrib Corporation, P.S. Docket No. 1/66, held that a publication known as "Book World," a supplement to a number of newspapers, qualified as a newspaper. The reasons given for the proposed revocation of "Book World," both found unsupportable in the record, were that it was designed primarily for free circulation and was a section only of a newspaper rather than a complete newspaper. On the other hand the history of administrative litigation and decisions on the issue of whether a particular publication meets the Houghton v. Payne test for a "periodical publication," stretches back across the entire list of cases in the docket books of the Judicial Officer Department of the Post Office Department and Postal Service. A large number of these cases will be found to involve publications in which newsworthy items and information of interest to the purchaser of the publication are involved. The absence of further decisions on the "newspaper" issue reasonably suggests that the matter of what is a newspaper has not been a problem.

Respondent contends that several of the definitions of newspapers and common experience indicate that format as well as contents and audience are important, and that where hard cover bindings and other structural attributes are added to sheets of printed paper it is no longer thought of as a newspaper.

It would be most helpful to the reader, but not feasible, to attach a copy of "Black Book" to this decision so that the issue is not discussed in a vacuum. In lieu thereof, a few pages, in actual size, will have to suffice. The cover of "Black Book" is

At this point, there appears a photocopy of the

cover of "Black Book". followed by three general information pages. The first explains the key to the book.

ere there appears a photocopy of a page from

"Black Book".

The second is a reference table:

Here is a photocopy of a reference page from

"Black Book".

The third lists certain points the publisher wishes to advertise about the book and emphasizes the confidentiality of the information:

Here is a photocopy of another page from

"Black Book".

There follow 157 to 158 pages (in the four "Black Books" in evidence as Respondent's Exhibit 2) a representative sample of which looks like this:

Here is another photocopy of a page from

"Black Book".

That "Black Book" was not considered to be a "newspaper" by Petitioner is apparent from the record as pointed out in the Postal Service Decision. ^5/ That "Black Book" is not what would commonly be called a newspaper is even more obvious whether viewed objectively or subjectively. Nor is it "unobjective" to base such a conclusion in large part upon the appearance of the publication. It is unconceivable to me that Congress, in enacting the Postal laws including "newspapers" in the class of "other periodicals" entitled to second-class mail privileges, had in mind anything like the type of publication here involved. Nor do I see in the few administrative cases dealing with the matter any precedent for so doing. To the extent it may be so argued this decision should make it perfectly clear that they should not be so construed.

Conclusion

The motion for reconsideration advances no valid ground for reversal of the Postal Service Decision and it is hereby affirmed as amplified in this Decision to include the holding on the merits of the "newspaper" issue.

1/ At one point in its Brief Petitioner denies that it contends that the newspaper issue is implicit in every case saying "The straw man hardly needs knocking down." (Brief, p. 12). Yet in the following pages it argues forcibly that:

"The Manager is obligated to prove not merely that BLACK BOOK is unqualified for continued entry on one basis of classification but that BLACK BOOK is unqualified on every basis of classification (except, of course, those bases conceded by the publisher, of which in the instant case there is none)." (Brief, p. 19)

"The Manager as the moving party should have been required to plead consistent with the full sweep of his burden of proof - namely, that BLACK BOOK is disqualified from continued entry on every ground. The Manager cannot lighten his burden of proof by relying upon the defect in his own pleadings." (Brief, p. 20)

"Appellant has failed to meet its burden of proof to establish by substantial evidence that BLACK BOOK is unqualified on every ground for continued second class entry." (Brief, p. 2) and in its Reply Brief again:

"Appellant incomprehensibly and hyperbolically complains that Appellee '. . . desires that in every revocation action the Postal Service have the burden of proving that under no conceivable, hypothetical or theoretical circumstances could the subject publication be eligible for second-class mail privileges . . .' and agonizes that 'Such a burden of proof would require lengthy pleadings and . . . Unless a stipulation could be agreed upon 7/ . . . the Postal Service would also have to produce evidence disproving all such possible grounds. . . .' 8/

Such is the nature of litigation. Such is the stuff of burden of proof." (Reply Brief, pp. 4, 5)

2/ Or for that matter others who might read the decision with unwarranted hopes of opening up an entire new avenue for obtaining second-class mail privileges for publications not regarded as newspapers by the common man.

3/ The Respondent's Appeal Brief cites in full the definition in Webster's Third New International Dictionary of the English Language (1961) as follows:

"newspaper: a paper that is printed and distributed daily, weekly, or at some other regular and usu. short interval and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest." and two other dictionary definitions of the word:

"newspaper: a publication, printed on newsprint, issued at regular and usually close intervals, esp. daily or weekly, and commonly containing news, comment, features and advertising." Random House Dictionary of the English Language (1967 Unabridged Edition)

"Newspaper: A publication, usually in sheet form, intended for general circulation, and published regularly at short intervals, containing intelligence of current events and news of general interest." Black's Law Dictionary, Revised Fourth Edition (1968)

4/ Facts, if considered by the initial decider of fact to be vital to the outcome of the case as a result of a line of reasoning involving an issue not pleaded, tried or argued, all concerned quite obviously would have an interest in developing at trial, as pointed out in the Postal Service Decision at page 7.

5/ The writer of the Initial Decision alone considered it a newspaper but he did so, in my judgment, on an incomplete record and on an erroneous basis placing undue weight upon the currency of the information contained therein.