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containing the name of the sponsor of each large listing and the
page upon which its listing was located. Those sponsors included
well-known companies such as American Airlines and Midas
Mufflers.
In Fraternal Order of Police, after examining the record and
copies of The Trooper magazine, we were "convinced that both the
larger listings and the business listings constitute
'advertising.'" Id. at 754. We stated:
To conclude otherwise we would have to ignore the fact that
the vast majority of the listings in The Trooper are
composed of slogans, logos, trademarks, and other
information which is similar, if not identical in content,
composition, and message to the listings found in other
professional journals, newspapers, and the "yellow pages" of
telephone directories. We also note that the contracts with
OSC, FOP’s business forms, and the magazine itself
repeatedly use such words and phrases as "advertising
revenues," "advertisers," "prospective advertisers,"
"advertising marketing program," and "advertising," to
describe the listings and related activities. [Id.]
Petitioner argues that Fraternal Order of Police is
distinguishable from the instant case because no expert testified
in that case that the listings were not advertising. In the
instant case, petitioner’s expert concluded that, under
"generally accepted marketing theory", only 10 percent of the
messages in The Constabulary were advertising. At trial,
however, petitioner's expert was asked whether she knew that
there was a relationship between the amount of space that a
contributor’s message received and the amount that was
contributed. Petitioner's expert testified:
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