who purchase their copies at a newsstand. 39 C.F.R. § 22.2(b)(5) reads:
'Publications must have a list of persons who have subscribed by paying or promising to pay for copies to be received during a stated time. When news agents purchase copies for resale or receive copies on consignment for sale, only the persons who buy copies from the news agents may be included in the subscription list.'
The Court is of the opinion that plaintiff's publications satisfy the fourth condition of § 226 in that they are either 'of a public character' or are 'devoted to * * * some special industry'. The precepts of nudism presented by 'Sunshine & Health' and 'Sun Magazine' do not have the public acceptance given the ideas and way of life presented by 'Ladies' Home Journal' and 'House and Garden',
but they are not, for that reason, undeserving of equal treatment by the Postal Service. And see discussion in Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 66 S. Ct. 456, 90 L. Ed. 586.
The June first denial states:
'2. The publication is designed to advertise and promote the business of the publisher, its owners, affiliates and advertisers in that the publication consists primarily of advertising and editorial write-ups and other copy designed to create patronage for the foregoing. * * *'
What is meant by 'advertising' in § 226 is a legal question and one whose resolution is aided by the previous provision in § 226 that publications devoted to some special industry may receive second-class rates. Clearly plaintiff's publications 'advertise' nudism -- in the sense that the publications 'advocate and explain nudism and the nudist mode of living.'
But in 1877, the Annual Report of the Postmaster General made clear that a publication is not designed primarily for advertising if it is among 'those publications originated and published for the dissemination of information upon some special subject, or devoted to the interests of some special industry, having a legitimate list of subscribers and being conducted so as to attract more.' Such publications, it was said, 'should be regarded as equally entitled to all the benefits of the 'privileged' class as the leading metropolitan dailies of the country.' (at p. 242; set forth in 28 U.S.Law Week 2425 (March 1, 1960)). The Post Office Department recently utilized this standard, holding on February 24, 1960, that a magazine published by a trailer owners' association to advance the interests of the mobile-home industry and principally financed by the sale of advertising space to trailer manufacturers and their national associations was not designed primarily for advertising purposes and so not disqualified from receiving authorization for second-class rates. The opinion mentions that 'The Iron Age', 'The American Grocer', and 'The Northwestern Lumberman' are other trade journals authorized to use second-class rates.
It is true that two of plaintiff's stockholders are stockholders in a New Jersey stock corporation, Sunshine Park, Inc., which owns real estate for a nudist community. But Sunshine Park, Inc., is not a stockholder in the plaintiff and has placed only a minimal amount of advertising in plaintiff's publications.
This is hardly sufficient to base a finding that the publications consist primarily of material designed to create patronage for this nudist community.
The Court concludes that plaintiff's publications are entitled to second-class rates. The motion of the defendant is denied; the motion of the plaintiff is granted.
Counsel are requested to submit an order reflecting the above.