P.S. Docket No. 1/88
October 04, 1974
In the Matter of the Petition 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
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
United States Postal Service
Washington, D.C. 20260
for Respondent
Duvall, William A.
POSTAL SERVICE DECISION
This case involves the proposed revocation of second-class mail entry grants for forty-seven different publications comprised of legal citations published by Shepard's Citations, Inc., (Petitioner). The proposed revocation was issued by the Manager, Mail Classification Division, Finance Department, United States Postal Service (Respondent). In the notice of proposed revocation, language from Houghton v. Payne, 194 U.S. 88 (1904) was quoted, and Petitioner was advised that because the quarterly Citations constitute a reference and update service, the publication is not a "periodical" publication within the meaning of applicable law. Petitioner was offered the alternative of (1) filing a written statement showing compliance with postal laws or how it intended to comply therewith or (2) contesting the ruling by filing an appeal therefrom. The latter course was follows.
The matter was heard in July and August, 1972, and the parties agreed at the hearing that the only issue was whether the publication called "Shepard's Federal Citations" 1/ is a periodical publication within the meaning of applicable laws, regulations and decisions.
Subsequent to the hearing the case was thoroughly briefed by both parties and an Initial Decision adverse to Petitioner was issued by the Administrative Law Judge on February 19, 1974. Petitioner has appealed from that Initial Decision.
Petitioner's exceptions are discussed in the order in which they are presented by Petitioner, and they are numbered in accordance with the numbering in the Initial Decision, which numbering system was also adopted by Petitioner in its Exceptions and Brief.
13. Petitioner excepts to the statement that "Each number of Shepard's Federal Citations reports all citations of a particular case since the appearance of the last publication in book form." Petitioner says that this finding is related to the issue of "cumulation" of material from preceding issues. Petitioner, itself, states that this finding, among other things, is irrelevant. If Petitioner is correct on this point, and I am inclined to agree with Petitioner, then the exception to an irrelevant finding is also irrelevant. The finding does mention "cumulation", but this feature of the publication is not a pivotal point in the decision, nor is it a matter on which the decision rests. Finally, the finding to which this exception is taken is accurate.
For all of the foregoing reasons this exception is disallowed.
17(a). Petitioner excepts to the finding that certain transportation guides were introduced into the record by Petitioner and that these guides were, at the time of the hearing, permitted to be mailed as second-class mail. Petitioner excepts to this finding on the basis that the transportation guides are not identified.
This exception is disallowed because the publications are described in the Initial Decision and, in addition, they are identified by exhibit numbers. Hence, the addition of a name for each such publication is not necessary. It is noted that Petitioner could have, but did not, give the names of the publications in its exception.
17(b). In listing various publications which were deemed by Petitioner to be comparable to its own publications, the Administrative Law Judge gave the name of "The Consumer Magazine and Farm Publication Rates and Data Service, published by Standard Rate and Data Service, Inc." (Pet'r Exs. 8, 9). Petitioner's exception relates to the omission of language from this finding to indicate that the publication reports the current circulation data and advertising rates contained therein in a column or in tabular format and, in part, by code letters and numbers.
As a matter of fact, it is stated in the finding that much information provided in this publication is in tabular form. The effect of the inclusion of the additional language requested by Petitioner would be immaterial.
The exception is disallowed.
Failure of the Administrative Law Judge to
Make Certain Findings Requested by Petitioner
PRF 5. 3/ Petitioner excepts to the failure of the Administrative Law Judge to make the following finding:
"The same format is used for all of the Shepard's Citations publications, including the 47 publications which are the subject of this revocation proceeding; this format has remained unchanged from 1914 to date.***"
Whether the Administrative Law Judge made or did not make the requested finding is immaterial. One view of the question involved in this proceeding is whether there have been administrative errors in the grant of entry and re-entry for Petitioner's publications and, if so, whether those errors should be corrected. (On this point, reference is made to the cases cited and discussed on page 29 of the Initial Decision under Finding No. 31(c).)
The exception is disallowed.
PRF 13. Petitioner excepts to the failure of the Administrative Law Judge to make the finding that the code-letter and code-number format provides a rapid and easy method of conveying information; that the use of prose text would impede the flow of information and would greatly increase the size of the publication from the approximately 12 inches of space presently occupied by Shepard's Federal Citations, for example, to approximately 30 feet of shelf space.
The requested finding is immaterial and the exception is disallowed.
PRF 15. Petitioner excepts to the failure of the Administrative Law Judge to find that the subscription price for the quarterly issues of Shepard's Federal Citations does not cover the purchase price of the bound volumes which are sold separately.
The substance of this requested finding is incorporated in finding of fact No. 14 in the Initial Decision.
The exception is disallowed.
PRF 17. Petitioner excepts to the failure of the Administrative Law Judge to make the finding relating to the fact that a subscriber frequently has no need to use the bound volumes of Shepard's Citations.
Whether or not the presiding officer made this finding as requested is largely immaterial. To the extent that a finding to this effect is material, it is covered by the finding set forth in the Initial Decision as No. 13.
The exception is disallowed.
PRF B-2. This proposed finding of fact relates to the number of entries and re-entries granted in regrd to Petitioner's publications.
There is no particular magic in the mention of any number of group of numbers, but the concept that is embodied in Petitioner's requested finding B-2 is discussed sufficiently in finding No. 31 of the Initial Decision.
The exception is disallowed.
"B. Findings on Petitioner's Motion to Dismiss"
18. Petitioner excepts to the finding of the Administrative Law Judge that Petitioner was put on notice of the precise grounds for revocation by reference in the notice of proposed revocations to 39 U.S.C.A. 4351 and 4354, and to Houghton v. Payne, supra. In support of this exception Petitioner refers to "cumulation" as being the ground for the proposed revocation and the basis of the Initial Decision. The refutation of the first part of this exception is found in the notice of proposed revocations quoted on page 2 of the Initial Decision. The second part of Petitioner's position in this exception is erroneous because of the clear statement in Finding No. 29 in the Initial Decision that the Administrative Law Judge concludes 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." This ground for disqualification was quoted in the notice of proposed revocations, and Houghton was cited.
The exception is disallowed.
19. Petitioner excepts to the finding that these tests of Houghton v. Payne, supra, and its progency "could be invoked to support the revocation fo the second-class mailing privileges in respect of" Petitioner's publications (I.D. Finding No. 18) and that this notice of proposed revocations "included emphasis on appellant's publications as an 'update' service, i.e., publications which cumulate additional material generated after the basic text was published."
For the reasons stated in regard to the exception to finding No. 18 of the Initial Decision, discussed above, this exception is disallowed.
20. Petitioner excepts to the finding that "The H. W. Wilson Company, P.O.D. Docket Nos. 2/123, 2/124, 2/125 and 2/126 (1965), relied on by Petitioner, does not support its position."
this finding by the Administrative Law Judge is correct because the decision in Wilson was based on the failure of the then Post Office Department to give the publisher an opportunity to bring the publication into conformity with postal laws and regulations governing second-class mail eligibility. That opportunity was afforded to this Petitioner in the penultimate and last paragraphs of the notice of proposed revocations.
The exception is disallowed.
21. Petitioner excepts to the finding that "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***". For the reasons stated above with respect to the disallowance of exception to Finding No. 20 of the Initial Decision, this exception, also, is disallowed.
22. Petitioner excepts to and appeals from the Administrative Law Judge's denial of Petitioner's motion to dismiss. The motion to dismiss was separately and fully discussed at pages 16-19 of the Initial Decision.
The denial of the motion to dismiss is hereby affirmed and the exception to such denial is hereby disallowed for reasons stated herein, and for the reasons given by the presiding officer in the Initial Decision.
Failure of the Administrative Law Judge
to Make a Certain Finding of Fact
Requested by Petitioner
PRF 6. Petitioner excepts to the failure of the presiding officer to make the following requested finding, and Petitioner requests the Judicial Officer to include it in his findings:
"6. By letter dated February 23, 1972, the Manager, Mail Classification Division, Finance Department, of the Postal Service, notified Shepard's that the 47 Shepard's Citations publications are not entitled to retain second class mail privileges on the ground that they are not periodical publications because they consist of 'lists of code or key numbers which are citations to court cases' and are 'merely a reference and update service'. (Appendix A to Shepard's Petition herein filed May 4, 1972)."
All of the material portion of the requested finding was made in findings number 18 and 19 of the Initial Decision, and for the reason the exception is disallowed.
"C. Conclusions of Law"
23(b). Petitioner excepts to the conclusion that Petitioner contends that the Postal Service is "estopped" from revoking the entries in issue here. Petitioner suggests alternate language which it requests be substituted for the foregoing conclusion.
The entire question raised by the exception is fully discussed in Finding No. 31 of the Initial Decision.
The exception is disallowed.
28 (Introductory Paragraph) and 28(b). Petitioner excepts to the statement in the introductory paragraph of Finding No. 28 that "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." The Petitioner also excepts to the statement that "publications not composed of a variety of articles by different authors have also been refused second-class mail privileges."
Petitioner denies that the Courts and the Post Office Department have "consistently followed the tests of Houghton v. Payne."
While, as in the instant case, the interpretation of Houghton as expressed and adopted by the Post Office Department or the Postal Service may not be in agreement with the interpretation of the present Petitioner, the effort has been consistently to apply the Houghton definition. Further, the list of cases shown in Finding No. 28(b) must be lengthened to include the Appeal of Florists' Transworld Delivery Association, P.S. Docket No. 1/167(decided September 17, 1974).
The exception is disallowed.
The Petitioner excepts to the finding (28(c)) in the Initial Decision which reads "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." The Petitioner asserts that the foregoing statement is inaccurate because, as Petitioner views it, the issue in these cases turns solely on the question of "cumulation." Petitioner's view is incorrect. The issue in the cases cited at this point in the Initial Decision was whether the publications complied with the definition of a "periodical publication" set forth in Houghton, administrative decisions and postal laws and regulations, and one of the yardsticks used to determine whether there was compliance was the feature of cumulation.
The exception is disallowed.
28(d). Petitioner excepts to the finding that Hannegan v. Esquire, Inc., 327 U.S. 146 (1946), did not involve the issue of whether a publication must present its information in a prose format.
Petitioner asserts that the court, in Houghton, did not attempt to provide a definition of "periodical". On this point, the following excerpt from the Amended Postal Service Decision in the Appeal of Florists' Transworld Delivery Association, supra, is pertinent:
"On the question of whether the Court was undertaking to give a definition of 'periodical' or simply stating why it was reasonable for the Postmaster General to conclude that the publications in question were not periodicals, the language from Houghton quoted above strongly suggests that the former objective, i.e., the formulation of a working definition of 'periodical,' was what the court had in mind. The quotation begins by noting the absence of such a definition in the statute; next, dictionary definitions are given; certain illustrations, and the one exception ('railway guides'), are given; and then the Court proceeds to say--
"'A periodical, as ordinarily understood, is***.'"
"When the Supreme Court of the United States uses that kind of language, one must assume that the Court means what it says, and that it is stating what is in its view the ordinary understanding, or the definition, of the term 'periodical.' If the Court had some other purpose in mind, the Court had the capacity and the opportunity to so state, but it did not. Aside from the foregoing consideration, there cannot be the slightest scintilla of a doubt that in the years since Houghton was decided, it has been the purpose, desire and intent of Postmaster General, and their delegees charged with administering the pertinent postal laws and regulations, to apply the criteria announced in Houghton in determining the eligibility of publications for second class mail entry."
The subject matter of this exception was fully and correctly dealt with by the Administrative Law Judge in the Initial Decision.
The exception is disallowed.
29. Petitioner excepts to the finding in the Initial Decision "*** that Shepard's Federal Citations in fact and in 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 finding to which this exception is taken goes to the very heart of this proceeding. From rulings on previous exceptions, it follows that this exception, also, must be disallowed.
30(a)(Third Sentence). The sentence to which this exception is taken reads as follows:
"It the principle of Payne v. Railway Publishing Co., 20 App. D.C. 581 (1902 also had support in 39 U.S.C. 4352(c) 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."
The Petitioner asserts that this finding is incomplete and misleading.
The language of Payne, supra, together with the language of 39 U.S. Code, Section 4352(c), make it clear that the Courts and the Congress were determined that the public interest required the wide availability of transportation guides -- whatever their form or content -- and that these guides were to be accepted for mailing at second-class postage rates.
The finding to which this exception is taken is sustained, and the exception thereto is disallowed.
30(b). In this exception Petitioner asserts that the Administrative Law Judge issued a "newly-enunciated" public policy that favors the granting of second-class entry to transportation guides because of the desirability of the widest dissemination of the information therein contained.
This statement to which this exception is taken, rather than being a new enunciation, is simply an accurate restatement of the policy announced in Payne, supra, over 70 years ago. Neither is it exceptionable that the Administrative Law Judge found that Shepard's Federal Citations does not require the wide distribution and dissemination which are required for transportation guides.
The exception is disallowed.
30(c). Petitioner excepts to the finding that "*** Petitioner's publications do not fall within the category of 'non-descript publications', adverted to in Houghton v. Payne, supra, as entitled to treatment as second-class mail matter."
As pointed out in another proceeding, 4/ for over 70 years only transportation guides have been recognized as "non-descript publications" which, despite their true character, are to be "treated as" periodicals and granted second-class mail entry. During these more than 70 years, despite frequent opportunity to do so, not the Postmasters General, nor the Courts, nor the Congress have seen fit to broaden the group of publications to which this treatment is to be accorded. In the absence of far greater justification than thus far has been presented, there is sound reason behind the decision to restrict the publications within the category of "non-descript publications" to transportation guides. To do otherwise would distort the laws relating to second-class mail eligibility and it would also subvert the congressional purpose for which these laws were enacted.
The exception is disallowed.
The exceptions are disallowed.
31(d) and 32. Petitioner except sto the findings (1) that there are no persuasive grounds for preventing revocation of the entries for the Citations and (2) that the Manager's decision to revoke those entries should be affirmed. Petitioner asserts that these findings are erroneous for reasons set forth in its brief.
The rulings heretofore made on Petitioner's exceptions require the disallowance of these two exceptions.
Discussion of Petitioner's Brief
In its Brief, Petitioner's legal arguments are focused on (1) the question of whether format is a factor in the qualification of Shepard's Federal Citations for second-class entry; (2) the question of the validity of the "public policy" argument respecting transportation guides; and (3) the alleged failure of the Administrative Law Judge to advance any cogent reason for reversing what Petitioner regards as the prior construction of the postal laws. The first two of the foregoing legal arguments had been urged upon the Administrative Law Judge, who thoroughly analyzed and considered them and, then, decided them adversely to Petitioner.
In regard to the third argument stated above from Petitioner's Brief, the thrust of the Initial Decision is that in the past, second-class entry and re-entry for Petitioner's publications, of which Shepard's Federal Citations is typical, have been improvidently granted. The reason given in support of this finding is that the publications, since they do not meet the standards established in Houghton v. Payne, supra, are not "periodical publications" within the meaning of ??4351 and 4354 of Title 39, United States Code, and postal regulations issued pursuant thereto. The reason why Petitioner's publications do not contain, as required by Houghton, "a variety of original articles by different authors." It is, therefore, the purpose of the effect of the Initial Decision to correct the administrative mistakes thus improvidently committed, and to make the application of the postal laws and regulations in respect to Petitioner's publications consistent with their application in the case of so many publishers similarly situated.
Conclusion
All exceptions to the Initial Decision are disallowed. Accordingly, the Initial Decision of the Administrative Law Judge, that Respondent's proposed revocation of second-class mail privileges of the publications listed in Appendix A thereto was correct, is affirmed.
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1/ It was agreed between the parties that the decision in regard to this publication would apply to all of the publications named in the proposed revocation.
2/ Captions in quotations are those stated as they appear in Petitioner's exceptions. Captions not quoted are those of the Acting Judicial Officer.
3/ Petitioner's Requested Findings will be designated as PRF___, retaining the numbers of the original requested findings.
4/ 31(a), (b) and (c). These exceptions are ruled on together, although one (31(b)) is stated separately. Accepting, arguendo, Petitioner's assertion in these exceptions that its position in regard to stare decisis, res judicata, estoppel, or some variation or combination of them, is not stated in haec verba in the Initial Decision, the entire subject matter of these exceptions is discussed clearly, thoroughly and correctly in findings 31(a), (b) and (c). There is no error of substance in those findings and they are affirmed.