In the Matter of the Petition by

AMERICAN CHEMICAL SOCIETY, Publishers
1155 16th Street, N.W.
Washington, D.C.  20036

Denial of Application for Second-Class Mail Privileges for “ACS Single Article Announcement”

P.O.D. Docket No. 3/90

INITIAL DECISION

Ralph N. Albright, Jr., Esq., of Hanson, O’Brien, Birney and Stickle, Washington, D.C. for Petitioner

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

Before:  John Lewis, Administrative Law Judge

STATEMENT OF PROCEEDINGS

            This proceeding was initiated by the filing of a petition, pursuant to §954.8, 39 C.F.R. (Rules of Practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class Mail Privileges), by the above-named publisher (referred to herein as Petitioner), appealing a ruling of the Director, Office of Mail Classification, United States Postal Service (referred to herein as Respondent), denying Petitioner’s application for second-class mail privileges for the above-named publication.  The ground of said denial was that said publication is not a periodical within the meaning of §§4351 and 4354 of 39 U.S. Code and §132.22 of the Postal Service Manual.

            Following the filing of an answer by Respondent, and pursuant to notice duly given, a hearing was convened before me on the issues raised by the pleadings.  Both parties participated in the hearing and were afforded full opportunity to be heard and to examine and cross-examine witnesses.  At said hearing, testimony and documentary evidence were offered by Petitioner, through (1) its Director of Public Affairs and Communications, and (2) the head of its Business Operations Division.  No witnesses were called by counsel for Respondent, the latter restricting himself to the cross examination of Petitioner’s witnesses.  At the close of said hearing the record was kept open to afford Petitioner an opportunity to file an application to take the deposition of Respondent on written interrogatories.  Such an application was thereafter filed by Petitioner and was granted by me over objection of counsel for Respondent.  Subsequently, by agreement of the parties, the testimony of Respondent was taken by Petitioner at an open hearing, in lieu of written interrogatories.  Following the close of said hearing, proposed findings of fact and conclusions of law were filed by the parties, including a supporting brief by Petitioner.

            After having carefully reviewed the evidence in this proceeding, and the proposed findings and conclusions submitted by the parties,[1] and based upon the entire record, including his observation of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

            1.  Petitioner is a nonprofit scientific and educational membership corporation.  Its membership consists of 110,000 chemists and chemical engineers (Tr. 17).[2]  It ws chartered by Congress in 1938 with the object, among others (PX 1);

“[T]o encourage in the broadest and most liberal manner the advancement of chemistry in all its branches; the promotion of research in chemical science and industry; . . . the increase and diffusion of chemical knowledge; and, by its meetings, professional contacts, reports, papers, discussions, and publications, to promote scientific interests and inquiry. . . .”

            2.  Petitioner derives its revenues from membership dues, subscriptions to various professional journals which it publishes, the sale of advertising in these publications, and the performance of cost-type, nonprofit contracts with the Government and other organizations (Tr. 19).

            3.  Petitioner publishes 20 scientific journals which are issued on a quarterly, monthly, bi-monthly, weekly or bi-weekly basis.  Some report new, original scientific information emanating from research carried on by chemists and chemical engineers.  They also review and summarize scientific information related to existing knowledge, or carry general news of scientific progress which is of interest to chemists and chemical engineers.  Petitioner also publishes, on a weekly or bi-weekly basis, nine additional scientific journals, consisting of abstracts from chemical literature and information throughout the world.  It also publishes a number of books on chemical subjects annually (Tr. 20-22).

            4.  The publication here at issue, entitled “ACS Single Article Announcement” (herein referred to as the “Announcement”), is issued on a bi-monthly basis.  It consists principally of the table-of-contents pages from various of Petitioner’s 15 primary journals, the number and identity of the journals represented in a particular issue varying from issue to issue.  Each page of the Announcement is an exact copy of the table-of-contents page or pages of each of the journals represented in a particular issue.  It consists of the title of the article, the name of the author and the page number on which the article appears in the basic journal.[3]  The only thing that is added to the title page other than what appears in the original journal is an “Order” number to be used in ordering a particular article.  In addition to the table-of-contents pages taken from the various journals (each portion of the Announcement being headed by the name of the journal from which it is taken), some issues of the Announcement contain a section entitled “Research Results”.  This consists of the names of articles which have been submitted for review in one of Petitioner’s quarterly journals, but which may or may not later appear in a journal.  In addition to the title of the article and the name of the author, the “Research Results” section of the Announcement contains a brief synopsis prepared by the author of the articles or by a member of Petitioner’s staff with the author’s approval.  The last page of each issue of the Announcement contains an order blank for ordering copies of the article listed in the publication (Tr. 25-34; PX 2-5).

            5.  The publication of the Announcement was begun in early 1971, after Petitioner had conducted a survey to determine the need for a publication and service which would make available to the profession copies of individual articles on relevant scientific research.  The information explosion caused by the rapid growth in the amount of scientific literature had created a problem of making such information available promptly and inexpensively to the scientific community.  Petitioner concluded that a publication containing the table-of-contents pages of each of its principal journals and a section on selected unpublished articles would be a useful tool to the profession.  It felt that merely providing the titles and the names of the authors of scientific articles would be sufficiently helpful, and would be less expensive than a service providing fuller synopses of the articles referred to in the table-of-contents pages (Tr. 22-24, 27, 32-33, 37-43; PX 6).

            6.  Petitioner made application for second-class mail privileges for the Announcement on February 5, 1971.  On April 7, 1971, Respondent notified Petitioner that its application was denied for the reason that the Announcement did not constitute a periodical publication within the meaning of 39 U.S.C. 4351 and 4354, and Section 132.22 Postal Service Manual, inasmuch as:

“The publication is comprised mainly of a list of sources of information on given subjects and does not itself constitute a periodical within the meaning of the above law.”  [Ex. C to Petition]

CONTENTIONS AND CONCLUSIONS

            1.  Petitioner contends that in denying second-class entry for the Announcement, Respondent has drawn “an arbitrary distinction between [it] and other indices or sources which have second-class privileges” (Pet. Brief at 2).  Petitioner sought to show at the hearing, through the interrogation of Respondent, that certain so-called indices had been granted second-class mail permits.  It contends that there is no significant difference between these other publications and the Announcement.

            2.  Respondent contends that the announcement is not a periodical publication since it contains no editorial comments, original articles, or original material, and each issue is complete in itself.  It further contends that the publication differs from those with which Petitioner seeks to compare it on the ground that the other publications contain editorial comment and that the exercise of editorial judgment is involved in their compilation.

            3.  Although Petitioner was permitted, over objection of counsel for Respondent, to explore into the status of other publications which had been granted second-class entry, I do not consider the Announcement’s similarity or lack of similarity with other publications to be the basic issue in this proceeding.  The Postal Service and its predecessor have from time to time granted second-class status to certain publications, which has later been revoked upon further consideration of the matter.  Respondent testified at the hearing that certain so called indices which had previously received second-class permits had recently been notified of the proposed revocation thereof (Tr. 69).  While no action has yet been taken to revoke the permits of certain others which Petitioner contends are similar to its own, there is no assurance that this will not occur.  In any event, the basic issue in this case is whether the Announcement meets the affirmative requirements of a periodical publication, not whether it differs from other publications which have second-class status.

            4.  Section 4351 of 39 U.S. Code provides that:  “Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title.”  However, the statute does not specifically define what is a “periodical publication” other than to state, in Section 4354(a), that a “periodical publication” may be entered as second-class mail if it:

            “(1)  is regularly issued at stated intervals as frequently as four times a year and bears a date of issue and is numbered consecutively;

            (2)  is issued from a known office of publication;

            (3)  is informed of printed sheets;

            (4)  is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; and

            (5)  has a legitimate list of subscribers.”

            5.  It has long been recognized that while the statute lays down certain requirements which a periodical publication must meet in order to be entitled to second-class entry, it does not define what is a “periodical publication”.  It is also well established that merely having the attribute of periodicity does not make a publication a “periodical” within the meaning of the statute.  As stated by the Supreme Court in Houghton v. Payne< 194 U.S. 88, 96 (1903), in interpretating the original mail-classification statute (which was substantially the same as the present statute);

            “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 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 terms.”

         6.  The Court, in Houghton v. Payne, found the ordinarily accepted meaning of the term “periodical” to be as follows (at 97);

            “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 them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature.”

         7.  Under this definition the Announcement clearly is not a periodical since it fails to meet the basic requirement thereof, viz., that it “contain a variety of original articles by different authors, devoted either to general literature of (sic) some special branch of learning or to a special class of subjects.”  While Petitioner’s basic journals may meet this requirement, the  Announcement does not.  It is absurd to suggest that a mere listing of articles in publications which have second-class entry is itself a periodical publication entitled to second-class entry.

         8.  Petitioner appears to recognize that under the definition laid down in Houghton v. Payne its Announcement could not be considered a periodical.  However, it contends that the Court did not intend to lay down an inflexible definition of a periodical, but was merely defining that term “as ordinarily understood” at the time of its decision.  Accordingly, Petitioner argues that:  “It needs little emphasis. . . to recognize that what was ‘ordinarily understood’ in 1904 may not remain so in 1971.  (Brief at 4.)  Petitioner suggests that certain changes in technology, e.g. the use of computers, may require a redefinition of what is a periodical.

         9.  I find nothing in Petitioner’s argument to persuade me that the definition of a “periodical” in Houghton v. Payne is still not basically valid.  The statute itself has remained basically unchanged over the years, despite various amendments in the law.  The courts and this Agency have continued to interpret the term “periodical” in basically the same manner.  Thus, in Smith v. Hitchcock, 226 U.S. 53, 58 (1912), the Court reaffirmed the Houghton v. Payne definition, despite an argument by the Appellant there similar to that urged by Petitioner here.[4]  In Dell Publishing Co. v. Summerfield, 198 F. Supp. 843 (D.D.C. 1961), aff’d. as Dell Publishing Co. v. Day, 303 F.2d 766 (D.C. Cir. 1961), there was upheld this Agency’s decision denying second-class entry to bi-monthly paper-bound pamphlets containing crossword and other puzzles on the ground that the publication did not meet the basic tests established by Houghton v. Payne, including the requirement that it “contain a variety of original articles by different authors”.  More recent Agency decisions have reaffirmed the currency and applicability of the Houghton v. Payne test defining a periodical publication.  R.R. Bowker Company, P.O.D. Docket No. 2/97 (1964); American Art Agency, P.O.D. Docket No. 2/269 (1968); and Phyllis Johnson, P.O.D. Docket No. 3/59 (1971).

         10.  By no stretch of the imagination can the Announcement be said to contain “a variety of original articles by different authors”, as Petitioner apparently recognizes.  Its argument as to the publication’s entitlement to second-class entry is based mainly on its purported similarity to other so-called indices which have received second-class entry permits.  Two of these were the subject of testimony at the hearing, and official notice was taken of the contents of several issues thereof, viz., “Index to Legal Periodicals”, and “Readers’ Guide to Periodical Literature”.  In his testimony, Respondent distinguished such publications from Petitioner’s Announcement on the ground that they involve editorial judgment and effort in the selection, preparation and arrangement of the material indexed.  Thus, Respondent noted that in the case of “index to Legal Periodicals”, which contains information from law review journals and other legal periodicals, the editors do not merely insert the title headings from the original articles, but set up their own subject-matter headings and arrange the material from the original articles in accordance with these subject-matter classifications.  In addition, the original articles are referred to not merely by their original titles, but in many instances a further synopsis or breakdown of the articles appears.  In the case of the Announcement, the original title pages of the basic journals are lifted in toto, and are inserted in the Announcement without any further reclassification or editorial effort by the publishers (Tr. 71-72, 76-79).

         11.  I find it unnecessary to determine the eligibility, for second-class entry, of the other indices referred to in the record, since there is no proceeding involving their eligibility before me.  For purposes of this proceeding, I accept Respondent’s testimony concerning their contents, and the features which he regarded as entitling them to second-class entry, and as distinguishing them from Petitioner’s publication.  On this basis, I conclude and find that they involve substantial editorial effort and content which is not present in the preparation of Petitioner’s publication.[5]

         12.  Petitioner has suggested that the reason for the limited editorial effort involved in its own publication is that the use of title headings alone is sufficiently meaningful to its readers, without the need for further rearrangement and synopsis of articles (Pet. Prop. Finding No. 11).  In point of fact, the record establishes that the principal reason for the publication’s simple format is that of minimizing the time and expense required to make the information available to subscribers (Tr. 42).  More importantly, however, the fact that there may have been legitimate business or other substantive reasons for not using a format which would involve substantial editorial effort does not convert the publication into one which is comparable to those that do involve substantial editorial effort in their preparation.

         13.  Petitioner has placed great emphasis on the nonprofit nature of its organization and the public service which it is rendering in making scientific information more readily available to chemists and other scientists.  While these purposes are admirable, they are irrelevant to any issue in this proceeding.  To the extent that the nonprofit or public-service character of a publisher entitles it to special consideration, Congress has taken cognizance thereof in Section 4355 of 39 U.S. Code, by granting it exemption from certain of the requirements for second-class entry which are otherwise applicable under Section 4354.  Petitioner makes no claim that its publication qualifies under Section 4355.

         14.  In addition to the fact that the Announcement does not consist of original articles by different authors devoted to general literature, or to some special branch of learning or class of subjects, Respondent contends that the publication does not qualify for second-class entry for the further reason that each issue is complete in itself, and that it therefore lacks a continuity of literary character, as required under Houghton v. Payne.  In view of the fact that the publication basically lacks the character of a periodical, I find it unnecessary to determine the merits of the completeness or continuity issue.

FINAL CONCLUSIONS OF LAW

         1.  “ACS Single Article Announcement” is not a periodical publication, within the meaning of Sections 4351 and 4354 of 39 U.S. Code, and Section 132.22 of the Postal Service Manual.

         2.  The decision of Respondent dated April 7, 1971, to deny second-class mail privileges for said publication was correct and is, accordingly, affirmed.

John Lewis

Administrative Law Judge

[1] Proposed findings not herein adopted, either in the form proposed or in substance, are rejected as not supported by the evidence or as involving immaterial matters.

[2] The following abbreviations are used in referring to the evidence in the record:  “Tr.” for the transcript of testimony; and “PX” for Petitioner’s exhibits.  No exhibits were offered in evidence by Respondent.

[3] In the case of a few of the journals, the title page thereof contains a brief synopsis (one to three sentences) of the article, immediately below the title of the article.  In those instances, the title page as it appears in the Announcement also contains this synopsis, as well as the specific title of the article.

[4] Appellant in Smith v. Hitchcock argued that the Court’s use of the language “as ordinarily understood”, in defining a “periodical”, did not mean “uniformly or necessarily” so understood.  It also questioned the authority of the Assistant Attorney General of the then Post Office Department to lay down a test for second-class entry which included the requirements set forth in Houghton v. Payne, viz., that the publication contain  “a variety of original articles”, that “such articles be by different authors”, and that “they be devoted either to general literature or some special branch of learning, or to a special class of subjects”.

[5] Petitioner suggested at the hearing that the other indices contained merely the title headings of the law review articles indexed, but it failed to offer any evidence in support thereof although given an opportunity to do so (Tr. 80-81, 106-107).