P.S. Docket No. 1/88
February 19, 1974
In the Matter of the Petitions by
SHEPARD'S CITATIONS, INC.,
420 North Cascade Avenue,
Colorado Springs, Colorado 80902
Revocation of Second-Class Mail Privileges for "SHEPARD'S CITATIONS"
P.S. Docket No. 1/88
Rudolf Sobernheim Administrative Law Judge
APPEARANCES:
Ernest H. Land, Esq.
Denning & Wohlstetter
1700 K Street, N.W.
Washington, D.C. 20006 for Petitioner
Arthur S. Cahn, Esq.
D.Scott Railsback, Esq.
Law Department U.S. Postal Service
Washington, D.C. 20260 for Respondent
INITIAL DECISION
This is a proceeding initiated by Petitioner pursuant to 39 C.F.R. Part 954 to contest the ruling of Respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter sometimes referred to as the "Manager"), issued on 23 February 1972 and authorized under the applicable regulations1/ which annulled, subject to the outcome of this proceeding, Petitioner's second-class mail privileges in respect of the 47 publications cited in Respondent's ruling. The list of the publications affected by this ruling is attached hereto as Appendix A.
The reasons for the decision were stated by the Manager as follows:
"Sections 4351 and 4354, Title 39,1 United States Code, (Section 132.22, Postal Service Manual), provide that only 'newspapers and other periodical publica- tions' constitute mailable matter of the second- class. Publications must be originated and published for the purpose of disseminating information of a public character, or they must be devoted to literature, the sciences, arts, or some special industry.
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. (See Houghton v. Payne , 194 U.S. 88 (1904)).
The various Shepard Reporter Citations are lists of code or key numbers which are citations to court cases. The quarterly Citations update the basic text with reference to court cases decided subsequent to the publication of the last text and prior to the publishing of a new basic text. The quarterly series like the permanent citations is merely a reference and update service, it is not a 'periodical' publication within the meaning of the law. The publications are used solely as an updating service to provide reference of new court cases to its readers. .
1 These statutes are provisions of old Title 39, United States Code, carried forward by Section 3 of the Postal Reorganization Act, P.L. 91-375, August 12, 1970, and remaining unchanged. See also the attached copies of Postal Service Orders Nos. 71-9, 71-10, June 21, 1971."
At the hearing, held in July and August 1972, the parties agreed that the appeal from the Manager's revocation of second-class mailing privileges of Petitioner's 47 publications should be determined on the basis of the propriety of his action in regard to Shepard's Federal Citations (hereinafter also sometimes referred to as "the publication") and that the decision reached thereon would apply to all publications named in the Manager's revocation notice (T 4). To effectuate this agreement volume 61, No. 2 of July 1971 and volume 62, No. 2 of July 1972 were admitted in evidence as representative of the publication the mail classification of which is in issue (Jt. Ex. 1; Resp. Ex. 4).
The parties further agreed at the hearing (T 8) that the only issue was whether the publication called "Shepard's Federal Citations" is a periodical within the meaning of applicable regulations and decisional law and that this publication meets all other legal requirements for second-class mail privileges.
In connection with the framing of the "periodical" issue a dispute arose as to the relevancy of evidence on the cumulative character2/ of the various issues of Shepard's Federal Citations. In essence, Respondent, while agreeing that cumulativeness was not as such a separate issue, took the position that evidence of cumulation would tend to indicate that Petitioner's publication was not a periodical (T 21-22). Petitioner, on the other hand, asserted that cumulativeness was an independent issue of which the Manager's revocation notice had not apprised it and that evidence of cumulation, such as the 1972 issue of Shepard's Federal Citations (Res. Ex. 4), should not be admitted in evidence (T 19-20). After hearing counsel the Administrative Law Judge rejected Petitioner's position (T 23-24).
In its brief Respondent thereafter proposed as a conclusion of law that Shepard's Federal Citations was not a periodical within the applicable statutory provisions because (i) it was a reference book;
(ii) each issue was not composed of a variety of original articles;
(iii) it was not devoted to general literature or a special branch of learning nor to a special class of subjects; (iv) each issue was complete in itself (Res. Br., p. 4).
In response to this proposed conclusion and simultaneously with its reply brief Petitioner filed in February 1973 a motion to dismiss the entire proceeding for non-compliance with the notice provision of section 9(b) of the Administrative Procedure Act (5 U.S.C. 558(c)).
In support of its motion Petitioner asserted that Respondent, without giving Petitioner advance notice thereof, in its brief had shifted its argument from a description of the publication in issue as "lists of code or key numbers which are citations to court cases" and "merely a reference or update service" to primary emphasis on (i) the "cumulation of material from preceding issues" and (ii) "lack of devotion to a special branch of learning". It also asserts that Respondent at the hearing conceded that cumulativeness was not in issue. By order of 2 March 1973 the presiding Administrative Law Judge allowed the motion and all further statements of the parties either in support thereof or in opposition thereto to be received and considered as part of the briefing of the issues.
Administrative Law Judge Lewis who had presided at the 1972 hearings retired in 1973 without issuing an initial decision. The matter was re-assigned to the undersigned whose decision is rendered herewith. In reaching this decision, the undersigned found that his decision does not rest on determining the credibility of the witnesses presented by the parties. Hence, the question of reopening the hearing does not arise. See Gamble-Skogmo, Inc. v. F.T.C. , 211 F.2d 106 (8th Cir., 1954); Brooklyn Eastern District Terminal v. U.S. , 302 F. Supp. 1095 (E.D.N.Y., 1968); cf . Utica Mutual Insurance Co. v. Vincent , 375 F.2d 129 (2d Cir., 1967) as to constitutional implications.
FINDINGS OF FACT
1. Frank Shepard Company began to publish its citators in New York City in 1873. In 1948 it transferred its headquarters to Colorado Springs, Colorado and in 1951 it adopted its present name Shepard's Citations, Inc. (T 44-45).
2. Among other publications Shepard's Citations, Inc. publishes the 47 publications the second-class mail privileges of which Respondent is seeking to revoke. These publications were granted second-class mail privileges at various time beginning in July 1914, either in New York, New York, or in Colorado Springs, Colorado. Some of the publications were granted re-entry in Colorado Springs after the transfer of the business from New York City (Pet'r Ex. 1).
3. Shepard's Federal Citations was granted second-class mail privileges in New York on 23 July 1914 and re-entry as second-class matter in Colorado Springs on 6 October 1948 (Pet'r Ex. 2).
4. Shepard's Federal Citations consists of three parts: a basic permanent four volume edition going from the beginning to 1969, to be supplemented by further bound volumens;3/ a publication appearing quarterly in April, July, October and January (Jt. Ex. 1; Resp. Ex. 4); advance sheets issued quarterly in the month following the issuance of the quarterly volumes, i . e . in May, August, November and February (Res. Ex. 3).
5. Of the three parts, the permanent 1969 edition and its supplemental volumes are plainly books. They are mailed, if need be, at the fourth class book rate (T 12, 34-35). The advance sheets are mailed by Petitioner as third class mail (T 12, 82).
6. The quarterly publication is the only part of Shepard's Federal Citations in issue in this proceeding and all further references in this initial decision to "Shepard's Federal Citations" shall be understood to apply to the quarterly publication only, unless otherwise indicated.
7. Each quarterly number of Shepard's Federal Citations bears a consecutive volume and subpart number, Joint Exhibit 1 being volume 61, number 2. Each volume starts with the April and ends with the January number. Each number comes in a flexible red cover of heavy paper and may comprise from over 100 to over 500 pages. The size of the volume is about 7 by 10 inches.
8. It is the purpose of Shepard's Federal Citations to provide references to those later court or administrative decisions ("citing cases") which cite earlier federal decisions ("cited cases").
9. Each issue of the publication, apart from some advertising for other legal publications or law-related services, contains a title page, a list of volumes of reports containing opinions citations in which are included in the particular number, a table of contents, a brief explanatory preface, two lists of abbreviations, a table of reports in Shepard's United States and related editions, and a more detailed table of the report volumes or other publications in which references to particular series of "cited cases" appear. Altogether Joint Exhibit 1 has 171 numbered and unnumbered pages which comprise 16 pages of introductory material (three of which are blank), 9 pages of advertising (including three on the covers) and 146 pages of reported citations.
10. The series of "cited cases" reported in Shepard's Citations are: Federal Cases; Federal Reported; Federal Reporter, 2d series; Federal Supplement; Federal Rules decisions; Devereux's Reports; Court of Claims Reports.
11. The citations are arranged consecutively on each page in eight vertical columns beginning, for instance, on page 25 of Joint Exhibit 1 with volume 1 of Federal Reported, 2d Series. It is there shown that a case reported at "1 F2d 99" was cited in "435 F2d 263" and a raised tiny figure "2" after "F2d" indicates that the citation is to the matter covered in the Federal Reporter's second headnote to the cited case. Code letters placed in front of some of the citing cases indicate, for instance, that the cited case was affirmed, reversed or modified on appeal ("a", "r", "m") or that the prior holding was followed, distinguished or explained ("f", "d", "e") or cited in a dissenting opinion ("j").
12. None of the foregoing information is conveyed in the form of ordinary sentences4/ composed of words and constituting articles or literary compositions as these phrases are commonly understood. All of the information, except prefatory material and tables of abbreviations, consists of figures, code letters or numbers and abbreviations of words which do not form connected sentences or a story but are presented as tabulations intended to inform the reader at a glance of the fact that a particular earlier case has been subsequently cited or, if not mentioned, has not been cited, and the nature of the citation in the citing case or other publication (general, specific or qualified). The entire 146 pages of references to "cited cases" in "citing cases" runs on in tabular form, as described, interrupted only as a volume heading is inserted in the column of citations or as a new series of cited cases commences.
13. Each number of Shepard's Federal Citations reports all citations of a particular case since the appearance of the last publication in book form. Thus the citations in the July 1971 number (Jt. Ex. 1) are repeated in the July 1972 number (Resp. Ex. 4). To use the example given in Finding 11, the reader learns from the July 1972 number that the only citation of 1 F2d 99 until July 1972 is still 435 F2d 263. The July 1972 number adds, however, citations of new cases as well as citations of earlier cases in the report volumes (publishing "citing cases") which have appeared since July 1971. Thus each subsequent number of the publication contains an increasing amount of material published in the earlier numbers of Shepard's Federal Citations or, for that matter, in the Advance Sheets. This cumulation of material will continue until the next permanent supplement volume to the 1969 edition or a new permanent edition appears.
14. Shepard's Federal Citations can be used by itself as long as the user is willing to forego the information now contained in the 1969 four-volume book-form edition or has access to a set of the quarterly publications prior to 1969. A user who began to subscribe to Shepard's Federal Citations with the first issue appearing after the 1969 book-form edition can obtain the complete information, published in the quarterly volumes, by preserving all quarterly volumes which are published immediately prior to issuance of a book-form supplement. If the user is willing to accept the inconvenience of having to consult a number of volumes instead of a single book, he need not purchase the book-form editions. The testimony of Petitioner's president indicates that a number of users subscribe only to the quarterly editions without purchasing the bound volumes of Petitioner's citators (T 62).
15. While Shepard's Federal Citations can be used by itself without either the book-form 1969 edition or the Advance Sheets, subject to the limitations indicated in Finding 14, each number of Shepard's Federal Citations stands independently by itself only until the next quarterly number is issued. It brings the preceding issues up-to-date and is in turn updated by those that follow. In that sense no issue of the publication is complete in itself.
16. Shepard's Federal Citations and the other 46 publications of Petitioner which are involved in this proceeding serve as an important, if not indispensable, research tool to legal practitioners, researchers and writers in keeping themselves informed of the latest references to the decisions of interest to them in any field of law as well as to the earlier history of such decisions. The publications in issue are thus originated and published for dissemination of information of a public character, i . e . what transpires in the transactions of the courts or other public agencies as a matter of public record. The law is also clearly a field of study connected with the social sciences (see 9 INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL SCIENCES (1968), s . v . the science of law.
In a narrower sense the publication can also be viewed as serving the "special industry" of the practice of law or, more narrowly, of litigation in the courts and before administrative agencies and tribunals.
17. Petitioner has introduced into the record copies of other publications which were at the time of the hearing permitted to be mailed as second-class matter and which were deemed by it comparable to its own publications. These were:
a. National or regional transportation guides for buses (Pet'r Ex. 10, 11), airlines (Pet'r Ex. 12, 13) and steamship lines (Pet'r Ex. 14, 15) . As to each publication two successive issues to show that these guides contain in each issue basically the same information with only such changes as in the interval have occurred in the schedules reported therein. The largest part by far of the information published in the guides is in the form of timetables showing arrival and departure times at the points covered by the route. The information in the airline guide in particular is presented in highly coded form in four vertical columns for each page.
b. The Consumer Magazine and Farm Publication Rates and Data service, published by Standard Rate and Data Service, Inc. (Pet'r Ex. 8, 9). This publication provides a listing of about 900 consumer magazines, 100 international and 220 farm publications, classified according to editorial content and providing information on their readership characteristics and circulation as well as their advertising rates. While much of the information provided in this publication is in tabular form it contains a great deal of descriptive material in words and sentences of the kind commonly encountered in articles and similar reading material.
c. The Federal Reported and Federal Supplement advance sheets published by the West Publishing Co. (Pet'r Ex. 16, 17).
These volumes publish judicial decisions of the federal appellate or district courts and other federal courts at weekly intervals with the pagination and volume designation later followed in the bound volumes of these series when they appear. Each volume consists of court opinions, preceded by headnotes prepared by West Publishing Co. and coded into its key number digest system. They do not contain material in tabular form as in Petitioner's publications except for some prefatory pages with material in the nature of tables of contents and indices. In a sense each issue of these advance sheet reporters stands complete by itself in that none of the decisions published in one issue is republished in a subsequent issue, except for the bound volume. They resemble Petitioner's publications only in that the subscriber to these reporter systems need not purchase bound volumes for a complete set if he has enough shelf storage space and tolerates the inconvenience of consulting a rapidly proliferating number of pamphlets to which he is subject.
ON PETITIONER'S MOTION TO DISMISS
18. The notice of revocation of Petitioner's second-class mail privileges stated clearly that these were revoked because its publications were not deemed periodical publications under 39 U.S.C. 4351 and 43545/ and the U. S. Supreme Court decision of Houghton, Mifflin & Co. v. Payne , 194 U.S. 88 (1904). In arriving at this conclusion Respondent's Manager described Petitioner's publication as "lists of code or key numbers which are citations to court cases" and as an "update" of "the basic text with reference to court cases decided subsequent to the publication of the last text and prior to the publishing of a new basic text." This language is purely descriptive of Petitioner's publications and by no means incorrectly so. It does not state the issue of which Petitioner was plainly notified. That issue was that a publication, such as Petitioner issued in the form of Shepard's Federal Citations, was not a periodical publication as a matter of postal regulations and related decisional laws. Hence, Petitioner knew or should have known that any failure to meet the tests of Houghton v. Payne , supra , and its pregeny could be invoked to support the revocation of the second-class mailing privileges in respect of the 47 publications cited by the Manager in his decision.
19. These included emphasis on appellant's publications as an "update" service, i . e . publications which cumulate additional material generated after the basic text was published. Since this involved here the periodic republication of the prior additional material so that there was always only one current volume of Shepard's Federal Citations in existence, Petitioner was put on notice that such republication may have a bearing on the mail classification of Shepard's Federal Citations and the other publications named by the Manager. Thus Petitioner was fully notified of the facts and conduct which warranted the Postal Service action (5 U.S.C. 558(c)(1)).
20. The H. W. Wilson Company , P.O.D. Docket No.s 2/123, 2/124, 2/125 and 2/126 (1965), relied on by Petitioner, does not support its position. The Departmental Decision of the Judicial Officer in Wilson did not set forth the text of the revocation notices or the respects in which it failed to advise The Wilson Company of the facts or conduct warranting revocation of its second-class mail privileges. A close comparison of the facts in that and in the instant case is, therefore, impossible. The revocation notice given here does not, however, justify the description, given by Wilson's counsel, of the notices received by his client:
"That they failed to call to the attention of The Wilson Company any facts or conduct which would warrant revocation of second-class mail permits." The notices here, in my view, adequately advised Petitioner of such facts and, therefore, the strictures of the Wilson decision are inapplicable.
21. Petitioner has adduced no evidence to show that it was deprived by the nature of the Manager's notice from showing compliance or demonstrating an intention to achieve compliance - a right guaranteed by 5 U.S.C. 558(c)(2) and vouchsafed in the notice of revocation.6/ Hence, this part of 5 U.S.C. 558(c) also does not create a basis for dismissal of this proceeding.
22. The Motion to Dismiss is denied.
CONCLUSIONS OF LAW
23. Petitioner raises a twofold contention:
a. that Shepard's Federal Citations and the other 46 publications named by the Manager in his decision are periodical publications entitled to second-class mail privileges under 39 U.S.C. 4351 and 4354 (see 39 C.F.R. 132.2(a)(1) and 132.2(b)(1)-(6)); and
b. that the Postal Service is estopped from revoking Petitioner's second-class mail privileges by the grant thereof in 47 instances between 1914 and 1970 and the length of time for which Petitioner's publications have enjoyed such privileges.
24. The cited regulations and former statutes grant second-class mail status to "newspapers and other periodical publications" (39 U.S.C. 4351; see 39 C.F.R. 132.2(a)(1)), provided that in the case of a mailable periodical publication it is published at least four times a year from a known office of publication, bearing date of issue and consecutively numbered (39 U.S.C. 4354(a)(1), (2)),7/ formed of printed sheets (id., (3)),7/ has a legitimate list of subscribers ( id ., (5))7/ and is published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or a special industry ( id ., (4)).7/
25. On the record before me I find that Petitioner's publications meet the terms of 39 U.S.C. 4354(a),8/ including those of subsection (a)(4).9/ For the underlying facts see Finding 16. A periodical publication need not be devoted to a narrow field within an industry to be "devoted 9/ to some special industry." See generally Little, Brown and Company (Inc.), P.O.D. Docket No. 2/86 (1962). <
26. It is, however, well established that a publication meeting the requirements of 39 U.S.C. 4354(a)10/ and avoiding the limitation of 39 U.S.C. 4354(c)11/ is, nevertheless, not automatically a periodical publication within the scope of 39 U.S.C. 4351.12/ Houghton v. Payne , supra ; Smith v. Payne , 194 U.S. 104 (1904); Bates & Guild Co. v. Payne , 194 U.S. 106 (1904); Smith v. Hitchcock , 226 U.S. 53 (1912). As the court stated in Houghton v. Payne , supra , a "periodical publication" must "not only have the feature of periodicity, but it shall be a periodical in the ordinary meaning of the term" (194 U.S. at p. 96).
27. In this ordinary meaning a periodical was defined as "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." (194 U.S. at p. 97)
The Court also noted that under the statute newspapers were included within the class of periodical publications although they are not so regarded in common speech. It added:
"By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.' A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals and entitled to the privileges of second class mail matter. Payne v. Railway Pub. Co. , 20 D.C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class." (194 U.S. at pp. 96-97)
28. Both the Courts and the Post Office Department and Postal Service have consistently followed the tests of Houghton v. Payne , supra , in legal proceedings involving either denial or revocation of second-class mail privileges.
(a) Publications appearing at regular intervals but each issue of which was devoted to a story or topic complete in itself have been refused second-class mail status. Houghton v. Payne , Smith v. Payne ; Bates & Guild Co. v. Payne ; Smith v. Hitchcock , all supra ; Gilbertson World-Wide Publications, Inc. , P.O.D. Docket No. 1/158(1959); same v. Summerfield , U.S.D.C. D.C. (Civ. No. 1373-60; Publication Management Corp. , P.O.D. Docket No. 1/280 (1961); Phyllis Johnson , P.O.D. Docket No. 3/59 (1971).
(b) Publications not composed of a variety of articles by different authors have also been refused second-class mail privileges. Dell Publishing Co., Inc. v. Summerfield , 198 F. Supp. 843 (U.S.D.C. D.C. 1961), aff'd. same v. Day , 303 F.2d 766 (D.C. Cir., 1962) (paperbound cross-word puzzle magazine); T.V. Reporter, Inc. , P.O.D. Docket Nos. 1/229, 1/273 (1961) (same); Essex Editors , P.S. Docket No. 2/52 (questions and answers on public affairs); American Chemical Society , P.O.D. Docket No. 3/90 (1973) (magazine reprinting tables of contents of periodicals); American Bibliographical Center , P.S. Docket No. 2/106(1973) (same).
(c) Publications which are in effect merchandise catalogues or lists of items in a particular field of business activity recently brought into the market have been refused second-class mail privileges in formal administrative proceedings by the Post Office Department or Postal Service. Zulch & Zulch , P.O.D. No. 3/46 (1970) (eyeglass frame catalogue); One-Spot Publishers, Inc. , P.O.D. Docket No. 1/231 (1960) (weekly lists of recordings); R. R. Bowker Company , P.O.D. Docket No. 2/97 (1964) (periodic lists of paperbound books). But cf . Surveys for Business, Inc. , P.O.D. Docket No. 3/37 (1970) (advance business reports on store openings and relocation in retail food business) where the main issues were whether petitioner's publication was publishing information of a public character or was designed primarily for advertising purposes; the question of whether the absence of articles by various authors deprived it of the status of a periodical publication was not raised. The issue was raised more recently and decided adversely to petitioner in Florists' Transworld Delivery Association , P.S. Docket No. 1/167(1973), presently on appeal to the Judicial Officer of the Postal Service (lists of florist shop available for inter-city transactions).
(d) Petitioner relies on Hannegan v. Esquire , Inc. , 327 U.S. 146 (1946), for the proposition that a periodical need not present its information in a prose format (Pet'r Br., p. 29), as Houghton v. Payne , supra , seemingly required. But the Esquire case did not involve this issue. It rejected an attempt at postal censorship in the guise of enforcing the requirement that a periodical publication be devoted to literature or the arts (39 U.S.C. 4354(a)(4); see 39 C.F.R. 132.2(b)(4)) but in so holding did not in any way limit the requirement of Houghton v. Payne , supra , that such publication be composed of articles on a variety of topics by different authors as Esquire magazine was. See also American Art Agency, Inc. , P.O.D. Docket No. 2/269 (1968). But pure photographic magazines, lacking in sufficient textual material, are, nevertheless, not entitled to a second-class mail status. Fizeek Enterprises, Inc. , P.O.D. Docket No. 1/235 (1960); Publishers Development Corporation , P.O.D. Docket No. 2/247 (1967).
29. Based on the record herein and the Findings of Fact regarding the physical set-up and nature of Shepard's Federal Citations and on the court and administrative decisions considered hereinabove I conclude that Shepard's Federal Citations in fact and law is not a periodical publication entitled to second-class mail privileges in that it is not composed of a variety of original articles by different authors. The treatment of each "cited case" in figures and code letters and abbreviations does not constitute an article as understood in Houghton v. Payne , supra , and the numerous decisions which follow it. The foregoing conclusion, by virtue of the stipulation of the parties, applies to all publications of Petitioner named in the Manager's letter of revocation. In the light of this conclusion it is unnecessary to consider separately the issue of "cumulativeness" raised by Respondent.
30. Houghton v. Payne , supra , recognized that "a few other nondescript publications" were being treated as periodicals and entitled to second-class mail status. 194 U.S. at p. 97.
(a) Railway guides were given as the only example. See Payne v. Railway Publishing Co. , 20 App. D.C. 581 (1902), a decision preceding and cited with apparent approval in Houghton v. Payne , supra , and in which the second-class mail status of railway guides was upheld. The principle of Payne v. Railway Publishing Co. , supra , has been extended to transportation guides for other means of public transportation. National Publishing Company, Inc. , P.O.D. Docket No. 3/5 (1969). It also had support in 39 U.S.C. 4352(c)13/ which excluded publication of transportation schedules, fares and related information from treatment as advertising in determining whether any publication was to be excluded from second-class mail status because of high advertising content. For transportation guides enjoying second-class mail privileges see Pet/r Ex. 10 through 15.
(b) Except for National Publishing Company, Inc. , supra , I am not aware of any ruling which applies this branch of the ruling in Houghton v. Payne , supra .
Certainly, the public policy underlying the transportation guide status, that widest possible dissemination of information on transport and travel scheduling is a desideratum of high order is not applicable to Petitioner's publications. The information provided by it, while of a public character, serves only a small segment of the population. From a policy viewpoint no need is discernible which requires that the general public subsidize by lower mail rates the dissemination of this kind of information. Nor do Petitioner's publications resemble in legally relevant fashion the other publications copies of which it has introduced into the record. See Finding of Fact 17(b) and (c); Pet'r Ex. 8, 9, 16 and 17.
(c) I, therefore conclude that Petitioner's publications do not fall within the category of "nondescript publications", adverted to in Houghton v. Payne , supra , as entitled to treatment as second-class mail matter.
31. (a) Petitioner's second argument that Respondent is bound by its long-standing grant of second-class mail privileges to Petitioner's publications comes 70 years to late. For the argument was made and firmly rejected in Houghton v. Payne, supra . There the Riverside Literature Series had been mailed at second-class mail rates from 8979 to 1902 when revocation proceedings were started. Nevertheless, the Supreme court, over the dissent of Mr. Justice Harlan (194 U.S. at pp. 100 et seq .), found unpersuasive plaintiff's argument that the earlier grant of second-class mail privileges had been approved by Congressional re-enactment of the 1897 statute without relevant change and that the Post Office Department should be bound by its rulings under the doctrine of contemporaneous statutory interpretation. It held, to the contrary, that the grant of second-class mail privileges created no vested right in the publisher, that principles intended to promote administrative consistency and stability could not prevent inquiry into the correctness of the original administrative ruling and that the language of the statute should prevail over incorrect departmental interpretations (194 U.S. at 98-100).
(b) The Post Office Department and the Postal Service have followed in their administrative proceedings the lead of Houghton v. Payne , supra , and have refused to apply the rule of stare decisis in any form in reviewing actions denying or revoking second-class mail privileges. Gilbertson World-Wide Publications, Inc. ; One-Spot Publishers, Inc. ; T.V. Reporter, Inc. , all supra . Cf . Candar Publishing Co., Inc. v. Summerfield , U.S.D.C. for the District of Columbia (Civ. No. 3227-58).
(c) It is not necessary to discuss in exhaustive detail the cases cited by counsel on the right of an administrative agency to modify its prior rulings. For persuasive examples upholding this right see New Castle County Airport Commission v. CAB , 371 F.2d 733 (D.C. Cir., 1966); Evans v. Watson , 269 F.2d 775 (D.C. Cir., 1959); State Airlines, Inc. v. CAB , 174 F.2d 510 (D.C. Cir., 1949), rev'd. on other grounds 338 U.S. 572 (1950). Especially is it proper to correct prior administrative action which was unauthorized. West v. Standard Oil Co. , 278 U.S. 200 (1929); compare Zuber v. Allen , 396 U.S. 168 (1969) and U.S. v. Leslie Salt Co. , 350 U.S. 383 (1956).
Petitioner's reliance on the statutory re-enactment doctrine has no application in the premises. Certainly it requires evidence that Congress had actual knowledge of the contested administrative rulings when it re-enacted the governing statute unchanged. United States v. Calamaro , 354 U.S. 351 (1957); see also Com'r. v. Glenshaw Glass Co. , 348 U.S. 426, 431 (1955). No evidence was presented here from which the conclusion might be drawn that in re-enacting 39 U.S.C. 4351 and 4354 at various times Congress intended to protect the second-class mail status of publications such as Petitioner's.
(d) In the light of the established rule of Houghton v. Payne , supra , I see no persuasive ground from preventing Respondent from revoking the erroneous grant of second-class mail privileges for Petitioner's publications. If other publications similar to Petitioner's still improperly enjoy that privilege the Postal Service should take prompt action to put an end thereto.
32. The decision of Respondent of 23 February 1972, revoking the second-class mail privileges of the publications listed in Appendix A hereto is affirmed.
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1/ 39 C.F.R. 132.8 (Postal Manual, sec. 132.8), formerly 39 U.S.C. 4352(b).
2/ i.e. that a later issue includes all or a very large portion of the material published in one or more earlier issues.
3/ At the time of the hearing a temporary 1969-1971 supplement volume had been issued (Res. Ex. 2). I take judicial notice of the fact that since then a permanent supplement volume 1969-1973 has been published and is available in publicly accessible law libraries.
4/Petitioner has referred to the booklet "A Uniform System of Citation" (11th ed., 1967) (Pet'r Ex. 5) which states on page 90:
"28. Joining Citations
Each string of citations is a 'sentence' - to begin with a capitalized letter and end with a period." In Shepard's Federal Citations (Jt. Ex. 1, Resp. Ex. 4) none of the cited and citing cases reported therein are set forth as a lineal string of citations in "sentence" form, none begin with a capital letter and none end with a period. The use of the word "sentence" in the paragraph is purely analogical or metaphorical and the exhibit does not contribute in any way to the resolution of the dispute which gave rise to the instant proceeding.
5/ See 39 C.F.R 132.2(a)(1), 132.2(b)(1)-.2(b)(6); Postal Manual, sec. 132.211, 132.221-.226.
6/The last paragraph of the notice read:
"If you do not desire to file a statement showing compliance or intention to comply, you may contest this ruling by filing a petition within 15 days from its receipt in accordance with the provisions of Section 954.8 of the attached copy of the 'Rules of practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class Mail Privileges.'"
7/ See 39 C.F.R. 132.2(b)(1)-(5).
10/ See 39 C.F.R. 132.2(b)(1).