In the Matter of the Petition by                                )
                                                                               )
HOLMES MANAGEMENT COMPANY                      )
P. O. Box 7133                                                       )
Tamuning, Guam 96911                                         )    P.S. Docket No. 4/71
                                                                               )
Denial of Application for Second-                          )
Class Mail Privileges for "TV GUAM"                     )

APPEARANCES FOR PETITIONER:
Mr. Lee M. Holmes
Holmes Management Company
Tamuning, Guam

APPEARANCES FOR RESPONDENT:
Grayson M. Poats, Esq.
Law Department
U. S. Postal Service
Washington, D. C.

Lussier, Edward F.

POSTAL SERVICE DECISION

The subject proceeding involves the denial of an application for second-class mail privileges for the Petitioner's publication, "TV Guam." Chief Administrative Law Judge William A. Duvall rejected the basis assigned by the Director, Office of Mail Classification, for denying the application and found the publication entitled to second-class mail privileges. The Respondent has taken an appeal from that decision. The only issue in the case is whether the publication is designed primarily for advertising purposes, whether it is conducted as an auxiliary to and essentially for the advancement of the main business of the owners within the meaning of Postal Service Manual, Section 132.226. The Initial Decision, while recognizing merit on both sides of the issue and the difficult question involved, found the factual circumstances unique in many respects, and weighing all the relevant aspects set aside the denial of the application. In so doing it went into some detail as to the factual background involved and there is no need here to repeat it except to deal with such areas as are related to the specific exceptions which Respondent takes to the Initial Decision.

Respondent's first exception is to the finding that the first section of the publication contains feature articles which occupy on the average eleven pages. My review of the publications in evidence indicates that there are, on the average, more than eleven pages of what might be termed feature articles but that this total is not found in the first section alone. Respondent contends that eight pages of such articles appear in the first section of the publication and its exception to this extent is allowed.

Respondent's second exception is to what it terms the discussion at page 6 of the Initial Decision with respect to broadcast schedules of Stations KGTF and KUAM. The record as supplemented by Exhibits PA 1, PA 2 and PA 3, without objection from Respondent, supports the finding that Station KGTF comes on at 3:30 p.m. and Station KUAM at 4:00 p.m. Respondent's exception is allowed only to the extent of making this correction.

The remaining exceptions are disallowed with brief comment. The majority, while constituting proper argument tend to exaggerate the particular nuances or omissions in the Initial Decision to the point where the Respondent's obvious, but unwarranted, concern for the possible precedential effect of the decision overlooks the hard fact, and the Initial Decision makes this clear, that this case is almost entirely unique in its circumstances and even at that, very close in the final analysis. The Initial Decision, as I view it, was not intended to, and does not, constitute a departure from existing law. It stands for a factual judgment in a particular, and unusual, set of circumstances.

While Respondent aptly argues its disagreement, most of which goes to the weight it would have attached to many aspects of the evidence, it does not convince me that the ultimate conclusion is unsupported by the evidence or erroneous. With this introduction it must also be stated at the outset that with respect to most of Respondent's exceptions it is not the insignificance of any particular fact or legal principle that is ultimately involved but the overall evaluation in relation to all of the evidence in this particular case which controls. Lengthy comment on each exception, required or appropriate in different circumstances, is subject to giving the erroneous contrary impression and will therefore be foregone.

Respondent's third exception is to the absence of certain findings of fact regarding Petitioner's acquisition of Guam Cable TV and the need for publication of Cable TV schedules. However, the requested findings do not materially add to the findings already made and would not affect the final result in light of all other facts in this case.

Respondent's next exception is to Judge Duvall's conclusion that Petitioner's hope that the publication enhances the image of Guam Cable TV "sheds little, if any, light on the problem." Respondent obviously would give the hope more evidentiary weight than Judge Duvall. Nevertheless, I see no error in Judge Duvall's evaluation here in light of all the evidence and the fine scale necessary for a decision in this case.

Respondent also takes exception to what it considers Judge Duvall's minimization of the title and logo of the publication "TV Guam" in comparison to the nationally known "TV Guide" in determining the publication's primary purpose and to the citation, in this regard, to Exxon Travel Club, Inc., P.S. Docket No. 2/85 (1974). The exception is more to form than to substance since the decision Exxon relied upon, Amoco Motor Club, P.S. Docket No. 2/50, makes the principle upon which Judge Duvall relies quite clear. Here again the matter is one of weight to be given the evidence.

Respondent also excepts to the fact that Judge Duvall did not give more weight to the large amount of space given over to television information in the publication. This, as with the other matters, appears not to have been ignored but rather weighed and found not dispositive, along with all else, in what he concluded, and the record indicates, is a unique factual situation.

Respondent takes exception to the apparent weight given to the finding at page 16 that Petitioner estimates that from 500 to 1,000 copies of TV Guam may be sold to persons who do not watch television. In so doing it points to other evidence from which different inferences might, but need not, be drawn.

Respondent takes exception to the consideration, at page 16, of the publisher's future intentions. The fact is in the record and Petitioner has not referred the undersigned to any objection to its introduction into evidence although now attaching far greater significance to its being mentioned than a reading of the decision indicates Judge Duvall intended.

In similar vein Respondent finds insignificant the weight given to the fact that the publication lists television programming according to Cable TV channel numbers and the inconvenience in the reader's having to refer to a chart in the front of the publication to determine the "off-air" channels. The inconvenience is not all that apparent nor the fact that important to the outcome of this case.

Respondent also takes exception to the finding at page 17 that the advent of other TV program guides did not cause a change in the rate of increase of Cable TV viewers, on the basis that the evidence is not clear that the TV guides could not have helped maintain the rate of increase. The finding objected to can fairly be drawn from the evidence and will not be disturbed.

Respondent's next exception relates to Judge Duvall's discussion of Guam TV's competitive situation found at pages 18-20 of the Initial Decision, to the importance given to the geographical facts and to the factual finding regarding the percentage, in families, of Cable TV subscribers. The record supports the finding on the last point and Respondent's argument on the first two points is principally one of weight to be given the evidence upon which I find Judge Duvall's opinion the more persuasive.

Respondent takes strong exception to the comments in the Initial Decision regarding the degree of conviction shown by Respondent in asserting its case. Suffice it to say there is no lack of conviction in the length and earnestness of the Appeal Brief. However, I find, as the Initial Decision also expressly found, that this has no bearing on the outcome.

Respondent would also distinguish the two cases cited at page 22 of the Initial Decision. In so doing it makes a good case but this does not resolve the ultimate issue in Respondent's favor unfortunately. The issue of whether the particular publication is an auxiliary to, and essentially for the advancement of Guam Cable TV still must be made upon evaluation of all the particular circumstances here involved. Reasonable men may, and obviously do, differ on the point. The burden of proof Respondent refers to in its Appeal Brief is in reality the burden of persuasion on the crucial factual issues. Petitioner carried that burden in the Initial Decision. I find no error in this on appeal. The Initial Decision is affirmed.