P.O.D. Docket No. 3/59
August 20, 1971
OFFICE OF THE POSTMASTER GENERAL
Washington, D.C. 20260
In the Matter of the Petition by )
)
PHYLLIS JOHNSON, Publisher )
333 Sixth Avenue )
New York, New York 10014 )
)
) P.O.D. Docket No. 3/59
)
"Aspen" - Denial of Second-Class )
Mail Privileges )
APPEARANCES: For the Petitioner
Phyllis Johnson, Publisher, pro se
Jeremiah S. Gutman, Esq.
Levy, Gutman, Goldberg & Kaplan
363 Seventh Avenue
New York, New York 10001
For the Respondent
Jack T. DiLorenzo, Esq.
Arthur S. Cahn, Esq.
Law Department
U. S. Postal Service
Washington, D. C. 20260
Wenchel, Adam G.
POSTAL SERVICE DECISION
Statement of the Proceedings
This matter comes before the Judicial Officer on an appeal by the Publisher-Petitioner from the Initial Decision of the Hearing Examiner sustaining the administrative determination that the second-class mail permit for "Aspen" should be revoked. The Initial Decision sets out the events leading up to Publisher's petition appealing the Acting Director's notice of revocation. The Initial Decision concluded that "Aspen" is not a periodical publication within the meaning of 39 U.S.C. 4354 and, therefore the action of the Respondent in proposing to revoke the second-class mail permit was correct. The Hearing Examiner refrained from deciding whether the publication was issued with the statutorily required regularity.
The Publisher's petition of appeal from the Acting Director's ruling was filed pro se. She also appeared without counsel at the hearing and filed the posthearing brief pro se. The appeal brief and subsequent pleadings, however, are signed by counsel.
Postal Reorganization Act
Since the commencement of this proceeding pertinent provisions of the Postal Reorganization Act, P.L. 91-375, relating to postal rates and classification have become effective. Section 2 of the Act re-enacted title 39 U.S. Code. In the re-enactment the sections concerning mail classification, including those relating to second-class mail matter, were omitted and thus repealed. On the other hand, section 3 of the Act expressly continued the rates of postage established by prior law until changed in accordance with provisions of the new law. 1/ Section 5(f) of the Act likewise continued the provisions of former title 39 U.S. Code in effect as regulations until revoked or modified. 2/ Postal Service Order No. 71-9 3/ revoked substantially all provisions of former title 39 except those "relating to classes of mail, rates of postage, and fees for postal services that are continued in effect by section 3 of the Postal Reorganization Act". However, Postal Service Order No. 71-10 4/ states "all regulations of the Post Office Department, which are in effect at the time the United States Postal Service commences operations, shall continue in effect according to their terms until modified or repealed by the Postal Service." Postal Regulations (39 C.F.R. Part 132) embody the substance of sections 4351-4356 of former title 39 U.S. Code.
Further, section 5(b) 5/ of the Postal Reorganization Act expressly provides that pending administrative proceedings are to be continued as if the Act had not been enacted.
As indicated above, the statutes under which the proceeding was commenced are no longer in force, as such. Nevertheless, the same rules of law apply under current Postal Service regulations. For ease of reference and consistency with the references at earlier stages of this proceeding, this decision cites sections in Part IV of former title 39 U.S. Code rather than the corresponding provisions of 39 C.F.R. 132, although it would be more technically accurate to cite the latter.
Motion to Reopen
The Petitioner by newly retained counsel has made application to reopen the hearing. Respondent opposes the application. The basis for the application is that the Publisher appearing pro se failed at the hearing to introduce certain evidence that counsel thinks is pertinent.
A review of the hearing transcript demonstrates that the hearing was of an extremely informal nature and that the Hearing Examiner assisted Miss Johnson in a way that assured the presentation of her case without hindrance of legal technicalities. Further, the record of the hearing fully demonstrates that the Hearing Examiner and counsel for Respondent cooperated with Miss Johnson to produce a hearing in which she would be comfortable in making her presentation. A fair hearing resulted in which the evidence necessary to a decision in the proceeding was placed in the record. The application to reopen must be judged from the standpoint that the Publisher made a conscious decision not to retain trial counsel. The reason for this decision is not known, but it is clear from the record that it was not based on financial inability (Tr. 13, 57).
It is true that counsel may have developed a theory of the case that escaped Miss Johnson, but that factor is not
To grant the petition for remand on the record in this case would preclude considering any hearing as complete unless the Petitioner was represented by an attorney-at-law. That result is inadmissible.
In view of the foregoing premises, the application to reopen the hearing is denied.
Respondent's Exceptions
In the section of his reply brief under the heading "Periodicity Requirements" (pp. 5 and 6), filed after time to appeal had expired, Respondent excepts to certain findings and conclusions in the Initial Decision. Section 954.20 of the applicable Rules requires exceptions to be filed as stated herein. There is no provision in the Rules allowing exceptions to be filed in the reply brief after time for appeal has expired. The exceptions, being untimely, have not been considered.
General Matters
The Hearing Examiner concluded that "Aspen is not a periodical publication 'within the meaning of 39 U.S. Code 4354'." (underscoring supplied). It is clear that not all publications that may be considered "periodical publications" in the broadest sense are admissible into the second class. By express terms of applicable statutes "periodical publications" cannot be admitted as such to second-class mail, unless they meet certain formal requirements established by 39 U.S.C. 4354 such as dating, numbering, being formed of printed sheets, and having a legitimate list of subscribers. Likewise, publications must meet the test of "periodicity" as it was established by the Congress.
On the other hand, the Petitioner argues that unless all publications are admitted to the second-class category the First Amendment is offended and further that the words "periodical publications" should be given an expansive reading so as to comprehend material that would not have been considered as "periodical publications" in 1879, but would in her view be so regarded today.
Insofar as the Constitutional question is concerned, the simple answer is that it proves too much. Congress has established four different categories other than second-class mail specifically in whole or in part for printed matter. Each requires the printed matter to have special characteristics to be mailable within that category. 6/ In addition rates within the second-class mail category vary in accordance with the characteristics of the publication. 7/
Unless all matter of a communicative character is placed in a single postal class, some forms of expression will be more favored and others will be less favored, i.e., will be discriminated against. Even within a single class or rate category, the product that uses heavier materials or uses more pages than another product pays more postage and is therefore discriminated against. The First Amendment has not been regarded as prohibiting all classifications that favor one medium communication over another less favored medium, but only unreasonable discrimination.
Denial, or as in this case, revocation of a second-class permit on the grounds that the publication does not meet the requirements of a periodical publication within the meaning of 39 U.S.C. 4354 is not an unreasonable discrimination. The Initial Decision does not, as the Petitioner argues it does, find "the form of expression" merits exclusion of Aspen from second-class mail. Rather the Decision finds a lack of conformity to the "periodical" aspect required by 39 U.S.C. 4354 as construed in Houghton v. Payne, 194 U.S. 88.
Petitioner argues that the words "periodical publication" as used in the law should not be limited to the definition existing at the time the law was originally enacted, but, should be held to comprehend definitions that come into use from time to time. The Petitioner would have the Judicial Officer take "a human and humanistic approach" in order to give "life and content to the words 'periodical publication' put into the law on March 3, 1879".
It is pleasant to the Judicial Officer to contemplate substituting his views of a desirable public policy over that which the Congress established in 1879, re-enacted in 1960 and continued in 1970. 8/ However, a postal classification statute is not a Federal Constitution. It must be presumed that the terms used in the law mean what the language meant when it was enacted. Accordingly, as tempting as is the appeal to rewrite the second-class law, I must decline the invitation and leave any rewriting to be accomplished as provided in revised title 39 U.S.C. Chapter 36. I do not believe it to be my function to expand the language to include in the second-class mail category, that which the Congress originally enacting the legislation did not. I would not be warranted in adopting the expansive view of the law that the Petitioner urges.9/
Exceptions
The Petitioner takes seven specific exceptions to the Initial Decision of the Hearing Examiner. These are:
1. That Aspen "may also be considered as a nondescript publication."
2. That Aspen is not a periodic publication within the meaning of 39 U.S. Code 4354.
3. That each issue of Aspen is complete unto itself and bears no relation to the prior or subsequent issues.
4. That each issue of Aspen could be considered to be an independent work, capable of standing alone.
5. That periodicity is not an element of the character of Aspen.
6. That Aspen is in that group of publications which cannot be positively categorized as periodical publications.
7. That the action of the Respondent in proposing to revoke the second class mailing permit previously issued for the publication of Aspen was correct.
The Initial Decision explores in detail the characteristics of "Aspen" insofar as they are pertinent to the issues raised under 39 U.S.C. 4354. Upon review of the record in this case, including a study of the issues of "Aspen", I find no error in findings covered by Exceptions 3-6. Consequently, I also find no error either in the finding covered by Exception 2 or in the conclusion covered by Exception 7. The Initial Decision discusses these matters fully. No purpose would be served in repeating or restating that discussion in detail here.
With respect to Exception 1 the Hearing Examiner did not place particular reliance on a conclusion that "Aspen" is a nondescript publication, but appears to have used this designation only to suggest that it was one of the publications "which do not lend themselves easily to such identification", i.e., as periodicals or books. 10/ That "Aspen" is such a publication is clear. I find no error in the characterization of the publication as being within the nondescript group. Moreover, I do not consider this characterization to have substantial legal significance.
The supplemental brief of the Petitioner is devoted to a discussion of the One Spot case (P.O.D. Docket No. 1/231). In the discussion Petitioner emphasizes her view that this decision is not authoritative since the Initial Decision cited by the Hearing Examiner was not appealed. My review of the Initial Decision in the instant case, however, leads me to the conclusion that the Hearing Examiner cited it, not to indicate that he was bound by it, but because it contained discussions of the second-class mail laws with which he continues to agree. The factual situation here, of course, is different from that presented in One Spot. 11/ However, the legal conclusions are sound.
Conclusion
The exceptions to the Initial Decision are denied. Accordingly, the annulment of the second-class mail permit for "Aspen" by the Acting Director, Office of Mail Classification, under date of November 6, 1970, is affirmed.Most publications presented for second-class entry probably can readily be identified as periodicals or books, as the case may be, but there are some which do not lend themselves easily to such identification. Publications in this gray area bear enough characteristics of periodicals and enough characteristics of books or perhaps enough characteristics of other publications which are neither newspapers nor periodicals to make the task of identification difficult. Such publications may well include those which have been referred to by high authority as 'nondescript publications.'" Initial Decision, p. 12.
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1/ "Sec. 3. The classes of mail, the rates of postage, and fees for postal services prescribed by law or regulation made or adopted prior to the effective date of subchapter II of chapter 36 of title 39, United States Code, as enacted by section 2 of this Act, shall be in effect according to the terms of such law or regulation until changed in accordance with such subchapter."
2/ "(f) Provisions of title 39, United States Code, in effect immediately prior to the effective date of this section, but not reenacted by this Act, shall remain in force as rules or regulations of the Postal Service established by this Act, to the extent the Postal Service is authorized to adopt such provisions as rules or regulations, until they are revoked, amended, or revised by the Postal Service."
5/ "(b). The provisions of this Act shall not affect any proceedings pending at the time this section takes effect before any department or agency (or component thereof), the functions of which are transferred by this Act; but such proceedings shall be continued before the Postal Service. Orders shall be issued in such proceedings, appeals shall be taken therefrom, and payments shall be made pursuant to such orders, as if this Act had not been enacted; and orders issued in any such proceedings shall continue in effect until modified, terminated, superseded, or repealed by the Postal Service (in the exercise of any authority vested in it by this Act), by a court of competent jurisdiction, or by operation of law." justification for reopening the proceeding. If the matter were remanded and reheard, it could be that other counsel reviewing the proceeding on remand might develop additional factors not used by present counsel.
6/ Controlled circulation publications, 39 U.S.C. 4421; Third class books and catalogues, 39 U.S.C. 4452; Special rate fourth class mail (books), 39 U.S.C. 4554; Catalogues, 39 U.S.C. 4557.
7/ e.g., regular rate publications, 39 U.S.C. 4359; classroom publications, 39 U.S.C. 4358(e); and agricultural publications, 39 U.S.C. 4358(f); preferential rates are also given to publications of certain organizations. See 39 U.S.C. 4358(d) and (j).
9/ Publisher's argument may be based in part on the unexpressed premise that the loss of revenue in classifying "Aspen" as second-class mail, rather than another class requiring a higher postage rate would be made up from the general fund of the U.S. Treasury. But under the Postal Reorganization Act, it appears that to an increasing extent revenue losses by reclassification must be made up from increased revenues from other mail. See 39 U.S.C. 2401, 3621, and 3626(2).
10/ "Most publications presented for second-class entry probably can readily be identified as periodicals or books, as the case may be, but there are some which do not lend themselves easily to such identification. Publications in this gray area bear enough characteristics of periodicals and enough characteristics of books or perhaps enough characteristics of other publications which are neither newspapers nor periodicals to make the task of identification difficult. Such publications may well include those which have been referred to by high authority as 'nondescript publications.'" Initial Decision, p. 12.
11/ While not conclusive here, it is interesting to note One Spot has been cited with approval by a predecessor Judicial Officer (R. R. Bowker Company, p. 7, P.O.D. Docket No. 2/97). cf. Departmental Decision in American Art Agency, Inc., P.O.D. Docket No. 2/269.