In the Matter of the Petition by

SUSAN J. SAMTUR AND STEPHEN M. SAMTUR,
Publishers, 85 Oakland Avenue,
Yonkers, New York 10710

Denial of Application for Second-Class Mail Privileges for "REFUNDLE BUNDLE"

P.S. Docket No. 4/178

September 10, 1976

Quentin E. Grant Administrative Law Judge

Nathan S. Rosenblatt, Esq.,
60 E. 42nd Street,
New York, New York, for Petitioner

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

Before: Quentin E. Grant , Administrative Law Judge

INITIAL DECISION

The proceeding was initiated by petitioners pursuant to 39 C.F.R., Part 954 to contest the ruling of respondent, represented by the Director, Office of Mail Classification, U.S. Postal Service (hereinafter referred to as the "Director") which, on March 9, 1976 denied, subject to the outcome of this proceeding, petitioners' application for second class mail privileges for their publication, Refundle Bundle (hereinafter sometimes referred to as the "publication").

A hearing was held at New York, New York, on July 8, 1976. Both parties presented evidence. Petitioners' arguments for reversal of the denial of their application were made orally on the record by their counsel. Respondent has filed proposed findings of fact and conclusions of law. Petitioners were given the opportunity to submit such findings and conclusions but did not do so.

FINDINGS OF FACT

1. Refundle Bundle is a publication privately owned and published by Susan J. Samtur and Stephen M. Samtur.

2. The petitioners publish Refundle Bundle at 85 Oakland Avenue, Yonkers, New York 10710.

3. Refundle Bundle is published monthly at an annual subscription price of $7.00. It presently has approximately 2,000 subscribers (Tr. 24).

4. Petitioners' revenue is derived from subscriber payments and advertising (Tr. 29).

5. The publication meets the basic qualifications set forth in 200.1, Domestic Mail Classification Schedule as to (a) frequency of issue; (b) issuance and mailing at a known office of publication; (c) content, and (d) list of subscribers.

6. The publication presently consists of approximately 15 pages. It began publication in September 1972 with 9 pages while the July 1976 issue contained 16 pages (Tr. 25).

7. The bulk of the publication consists of a listing of commercial refund offers (Tr. 11 and 37).

8. A typical issue of the publication (July 1976, PX-7) contains the following:

a. A cover page with space for mailing address and a coupon for use in placing advertisements in the publication.

b. One page containing general information and instructions on refunding (taking advantage of published commercial refund offers) and a subscription blank.

c. Ten pages of listing of refund offers.

d. Approximately one-half page of miscellaneous consumer interest advice and information.

e. One page of recipes.

f. Approximately one-half page of miscellaneous information concerning refunding, called "Tid-Bits."

g. Two pages of paid advertisements entitled "Switch and Swap."

9. The "heart and soul" of the publication according to petitioners is the listing of refund offers (Tr. 26). Following are five examples of typical listings:

"12/31       ADOLPH'S MEAT MARINADE OFFER , Ragu Foods, Box NB
                 843,
76             El Paso, Texas 79977 $1.00 . Send 4 empty pkgs.
                 of
                 Meat or Chicken Marinade + POP of meat. (CB)

NED            ADOLPH'S GRAVY FREE OFFER , Ragu Foods, Box 1335,
                  Lyell
                  Stat, Rochester, NY 14606 Coupon-Free Jar . Send
                  1
                  label from a jar of Adolph's gravy.

12/31         ALLBEE WITH C OFFER , Box 3031, North Brunswick,
                  NJ
76              08902 $1.00 . Send innerseal from 100 capsule
                  btl. of
                  Allbee with C. (C.B)

9/30           ALBERTO BALSAM CONDITIONER REFUND OFFER , Box
                  21855,
76              El Paso, Texas 79977 75 [. Send code # + cash
                  tape
                  from Alberto Balsam Conditioner.

9/30          ALBERTO BALSAM SHAMPOO , Box 21639, El Paso,
                 Texas
76             79977 75 [. Send front label from 7 oz. Alberto
                 Balsam Shampoo.

10. The genesis of the present controversy was petitioners' application for second class mail privileges dated April 1, 1975 (RX-1). The application was denied by the Director on November 11, 1975, on the ground that the publication, consisting principally of listings of refund offers, did not meet the definition of periodical found in the case of Houghton v. Payne , 194 U.S. 88 (1904). By letter dated November 23, 1975, petitioners contested the Director's denial on the principal grounds (a) that the publication meets all the requirements of the Houghton v. Payne definition including original article content, incompleteness of each issue in itself, and continuity; (b) that the publication meets the dictionary definition of periodical as a magazine or other publication which appears at regular or stated intervals. The Director's reply (RX-6) to petitioners' November 23 letter constituted an affirmance of his earlier denial of second class privileges stressing again the nature of the publication as, essentially, a list and stating his opinion that "[P]ublications which are, in effect, merchandise catalogs or lists of items in a particular field of business activity recently brought into the market are not considered 'a variety of original articles by different authors'." Petitioners took timely appeal from the denial.

CONCLUSIONS OF LAW

1. Despite the impressive oral argument of petitioners' counsel to the contrary, in order to gain, or retain, second class mail privileges, contemporary publications must meet the following definition of "periodical" found in Houghton v. Payne , supra :

"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 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."

This definition has been applied consistently over the years by the Administrative Law Judges and the Judicial Officer of the Postal Service. The propriety of so doing has recently been affirmed by the United States District Court (E.D. Pa. June 15, 1976) in Institute for Scientific Information, Inc. v. U.S.P.S. .

2. The publication in question does not meet the test of Houghton v. Payne for original article content. As petitioner Susan Samtur testified, the "heart and soul" of the publication are the refund offers, the listing of which comprises the bulk of the publication. By no stretch of the imagination can these listings be considered literary compositions or nonfictional prose compositions which the term "article" is commonly defined to mean. American Chemical Society , P.S. Docket No. 3/59 (Postal Service Decision, May 20, 1976). Portions of the publication which might be considered articles (i.e., consumer advice, "Tid-Bits," recipes) form too small a part of the publication to give it the character of a periodical. Further, the repetition from one issue to the next of a large proportion of the refund listings constitutes a lack of originality. See Purdue University , P.S. Docket No. 3/192 (Init. Decision, Dec. 5, 1975).

3. The publication also fails to meet the Houghton tests in that each issue is essentially complete in itself, being an "independent work, capable of standing alone." Phyllis Johnson , P.O.D. Docket No. 3/59 (Postal Service Decision, Aug. 20, 1971).

4. The Court in Houghton v. Payne decided that periodicity is not the only feature a publication must possess to qualify for second-class mail privileges. It went on to say that it must also be a periodical in the ordinary meaning of the term and then provided the definition set forth above.

5. Although the publication is undoubtedly of substantial and practical value to its subscribers, I must hold, for the reasons set forth above, that it is not a periodical publication and, therefore, that petitioners are not entitled to second class mail privileges for the publication.

6. The ruling of the Director, dated March 9, 1976, denying petitioners' application for second class mail privileges for Refundle Bundle was correct.