In the Matter of the Petition by

AMERICAN BIBLIOGRAPHICAL CENTER CLIO PRESS, INC.,
2040 Alameda Padre Serra,
Santa Barbara, California 93103

Proposed Annulment of Second-Class Mail Privileges for "ABC POL SCI"

P.S. Docket No. 2/106

Lloyd W. Garrison,
Executive Vice-President,
ABC-CLIO, Inc., for Petitioner

Donald Engleman, Esq., and
Arthur S. Cahn, Esq.,
Law Department, U. S. Postal Service,
for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

B A C K G R O U N D

By notification dated May 16, 1973, the Manager, Mail Classifica- tion Division, Finance Department, United States Postal Service (the Respondent) advised ABC-CLIO, INc., 2040 Alameda Padre Serra, Santa Barbara, California (the Petitioner) that it was proposed to annul the second-class mail permit previously issued for Petitioner's publication "ABC POL SCI", hereinafter sometimes referred to as "the publication". The grounds stated for the proposed annulment were (1) that the publication is not a periodical publication within the meaning of Sections 4351 and 4354 of Titel 39, United States Code and Section 132.2 of the Postal Manual, and (2) that the publication does not have a legitimate list of subscribers as required by Section 4354(a)(5) of Title 39, United States Code and Section 132.225 of the Postal Manual.

Petitioner was further advised that the proposed annulment would be final unless within 15 days Petitioner (1) filed a statement showing compliance or intention to comply with the above-cited requirements or (2) filed a petition appealing the Respondent's ruling.

Petitioner did appeal the proposed annulment; Respondent filed Answer to the Petition; and on August 2, 1973, the matter came on for hearing. Both parties participated in the examination and cross-examination of witnesses and in the introduction of evidence. After the close of the hearing, proposed findings of fact, conclusions of law, and supporting briefs were filed by both parties.

PETITIONER AND ITS PUBLICATION

The Petitioner is a California Corporation which engages in the publication of various publications of interest to historians, students, researchers, and scholars.

In the masthead of ABC POL SCI, the publication is described as follows:

"ABC POL SCI is a guide to current periodical literature (foreign and domestic) which serves the fields of political science and government. Serial publications in related disciplines such as law, sociology, and cultural anthropology are also included. The Table of Contents pages from about 300 journals currently appear in ABC POL SCI. Most of the participating journal editors provide page or galley proofs of their contents pages in advance of their own publication dates. The editors of ABC POL SCI delete references to necrologies, letters to the editor, book reviews, unsigned notes, anecdotes, fiction, poetry, and similar material prior to publication."

A more detailed examination of the publication (Vol. 4, Number 1, March, 1972) reveals the following characteristics:

1. Inside the front cover there are, principally, the masthead and a listing of the members of the Advisory Board;

2. On page ii there is an explanation of the Article Copying Service (ACS), and the ACS form by means of which subscribers may order copies of articles appearing in journals whose publishers have given Petitioner permission to copy. The cost for this service is 5 per page, plus postage and handling charge;

3. The next item is the table of contents setting forth an alphabetical listing of publications, the year of their publication, and the volume and number in which one or more articles are cited, together with the page of ABC POL SCI where each citation may be found;

4. Next in order are shown the titles of the various journals listed as described in 3, above, arranged in alphabetical order, with a list of the cited articles appearing in each journal and the page number where each article is to be found in the respective journal;

5. The inside back cover contains a listing of Petitioner's publications;

6. On the outside back cover there is a "Selection of Articles Cited in this Issue" and space, presumably, for the name and address of the subscriber;

7. The foregoing description applies to Part I of the March, 1972, issue of the publication. Part II, The INDEX, is a separate document which is comprised in the main of a "Subject Index", "Law Index, Court Decisions and Case Notes", "Author Index" and "List of Periodicals", (Exhibits R-1 and R-2); and

8. Commencing with Vol. V, Part I and Part II are combined to form one issue of the publication (e.g., Exhibit R-15; Tr., pp. 6-7). In the combined document, the "List of Periodicals" formerly carried in the separate INDEX is omitted because it is unnecessary in view of the alphabetical listing of the periodicals in the table of contents. .

9/ ABC POL SCI is published nine times a year.

SUBSCRIBERS AND
THE SUBSCRIPTION
RATES

The number of subscribers to the publication is not constant, but the number varies from month to month. Invoices from the concern that does Petitioner's mailing indicate mailings as follows, for the first four issues, respectively: 1245, 1161, 1412 and 1460 (Ex. P-3).

The subscription rates are based on what Petitioner designates as the "service rate principle". For an individual, the subscription rate is $10.00 per year. The remainder of the rate schedule is explained by Petitioner as follows:

"*** when a bibliograph of this kind is subscribed to by an institution, a library, that the institution is receiving the benefits of a comprehensive index, to the periodical[s! that it holds, the whole catalog of periodicals that the library might hold.

"The service rate principle then goes on the basis of the larger the library the larger the number of periodicals indexed, and this is the service to the library that is independent to the service given to the individual scholar in using the publication. So the service rate principle is such that libraries that have a large collection of periodicals pay a higher rate than institutions which have a lower or smaller collection of periodicals, and so on. ***." (Tr. 56, 57)

The subscription rates to the publication for libraries and similar institutions are as follows (Ex. P-3):

Rate Annual Book Fund              Cost per Vol .
1                Under $100,000                                  $50
2                $100,000 - $200,000                           $80
3                Over $200,000                                    $105

Of the approximately 1,250 subscribers to the publication, about 750, or roughly 60 percent are individuals for whom the annual subscription rate is $10.00.

THE STATUTES AND
REGULATIONS

Respondent cited as authority for the proposed annulment Sections 4351 and 4354 of Title 39, United States Code and Sections 132.2 and 132.225 of the Postal Manual. Except as otherwise stated, the pertinent parts of these provisions read:

§ 4351, Title 39, U. S. Code.

"Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352 - 4357 of this title." § 4354, Title 39, U. S. Code.

"(a) Generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it--

***

(5) has a legitimate list of subscribers.

***" § 132.2 of the Postal Manual is quite long and its reproduction here would serve no useful purpose. Generally speaking, in that part which is here pertinent, it undertakes to paraphrase and explain the provisions of law quoted above. § 132.225, Postal Manual.

"Publications must have a legitimate list of persons who have subscribed by paying or promising to pay at a rate above nominal (see 132.228) for copies to be received during a stated time."

DISCUSSION

As previously indicated, there are two issues in this proceeding and they may be stated thus:

1. Is ABC POL SCI a periodical publication within the meaning of Sections 4351 and 4354 of Title 39, United States Code; and

2. Does ABC POL SCI have a legitimate list of subscribers?

In order to retain second-class mail privileges for the publication, Petitioner must prevail on both of these issues.

The second issue stated above, concerning whether there is a legitimate list of subscribers for the publication, will be considered first. Because of the manner in which this requirement is stated in § 132.225 of the Postal Manual, quoted above, it is a two-pronged affair. That is to say there must be the "list of persons" and those persons must have paid or promised to pay "a rate above nominal rate for copies to be received during a stated time."

This requirement appears to be based on the decision in Myrick v. United States , 219 F.1, C.C.A. 1 (1915) where it was said (p. 4):

"The phrase 'a legitimate' list of subscribers evidently means a list of subscriptions taken at more than a nominal price, and the price must have been paid, or the subscriber, or someone in his behalf, be under obligation to pay the agreed price; and that subscriptions taken at a nominal price, or without price, do not answer the requirements of the statute in this particular and cannot be counted in making up a legitimate list."

Research has failed to disclose a case, and no case has been cited by either party, in which the foregoing definition has been modified, and that definition has, in fact, been regarded as controlling in a long line of administrative cases before the Postal Service. (In the Matter of Conover-Mast Publications, Inc. , H.E. Docket No. 5/178 (1958); In the Matter of Channel Northwest, Inc. , H.E. Docket No. 5/178 (1958); In the Matter of Pool PUblications, P.O.D. Docket No. 1/143 (1959); In the Matter of Gilberton World-Wide Publications, Inc. , P.O.D. Docket No. 1/158 (1960); In the Matter of Publishers Development Corporation , P.O.D. Docket No. 2/247 (1967); In the Matter of National Publishing Company , P.O.D. Docket No. 3/5 (1969); and In the Matter of Anne Arundel Times , P.O.D. 3/33 (1970)).

The approximately 1,250 subscribers to the publication in this case clearly constitute the required "list of persons". The rates previously set forth herein for libraries do not on their face appear to be nominal, and additional evidence on this point was given by Petitioner's Vice-President when he said in regard to the ten dollar per year subscription rate for individuals:

"I hasten to add we believe that is more than a nominal rate." (Tr. 56; see also pp. 33-35.)

On the basis of this record, therefore, it is found as a fact that the publisher does have a legitimate list of subscribers to the publication as required by 39 U. S. Code 4354(a)(5).

The remaining question is whether the publication is a "periodical" publication within the meaning of 39 U. S. Code 4351 and 4354.

Respondent asserts that the publication is simply a reference book and that it is not a periodical publication.

Petitioner insists that the publication is published for the purpose of "the dissemination of information of a public character". Further, Petitioner asserts that the publication is an education periodical designed for use in academic, public and special libraries, and that it is an information service for scholars, researchers, students and teachers of political science and government.

While the governing statutes which have been quoted use the term "periodical publication", and while certain pre-requisites for eligibility for second-class mail entry are set forth, there is no definition of "periodical publication" in the statutes. The fact that a publication is issued periodically does not, alone, make the publication a "periodical publication" as contemplated by the statute. The Supreme Court in Houghton v. Payne , 194 U.S. 88, at page 96 (1903), in a case involving the 1879 statute which was quite similar to the present one, stated:

"But while section 14 lays down certain conditions requisite to the admission of a publication as to mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites. Under section 10 [a predecessor of 39 U.S. Code 4351! the publication must be a 'periodical publication' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term."

The Court then proceeded to state its understanding of the "ordinary meaning of the term" as follows: "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 the, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature." (id., p. 97)

***

"It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. ***" (id., p. 98).

As in the case of the Myrick decision, supra , the foregoing pronouncements by the Supreme Court have remained undisturbed, and they have been followed by the Postal Service and its predecessor through the years and to the present. (See, e.g., In the Matter of the American Chemical Society , P.O.D. Docket No. 3/90 (1973).)

Petitioner concedes that the publication does not contain original articles by different authors (Tr., pp. 43, 44, 65). Petitioner insists, however, that the publication does contain "information of a public character" and that it does result, particularly as regards the Index, from original editorial work. Thus, Petitioner concludes, the publication is eligible for second-class mail entry.

Viewing the position of the Petitioner in the light most favorable to Petitioner and acknowledging the high quality and the usefulness of the publication, there is, nevertheless, insufficient basis in this regard to permit one to stretch the long-standing definition of "periodical publication" sufficiently to include ABC POL SCI which, in substance, consists of a mere listing of the contents of various periodicals, less such features as necrologies, book reviews, and similar items, together with an index to such contents. The foregoing considerations lead to the finding that the publication is not a "periodical publication".

CONCLUSIONS OF LAW

1. There is a legitimate list of subscribers to the publication ABC POL SCI as required by U. S. Code 4354(a) and the postal regulations issued pursuant thereto.

2. The publication ABC POL SCI is not a "periodical publication" within the meaning of 39 U. S. COde 4351 and 4354 and the postal regulations issued pursuant thereto.

3. The decision of the Respondent to revoke second-class mail privileges previously held for the publication ABC POL SCI is hereby affirmed.