In the Matter of the Petition by

THE GEORGE WASHINGTON UNIVERSTIY,
Office of Academic Publications,
Washington, D. C. 20006

Proposed Revocation of Second-Class Mail Privileges for
"GEORGE WASHINGTON UNIVERSITY BULLETIN"

P.S. Docket No. 3/142

August 28, 1975

William A. Duvall Chief Administrative Law Judge

Kenneth C. Bass, III, Esq.,
Reasoner, Davis & Vinson ,
800 - 17th Street, N.W., Washington, D. C., for Petitioner

Arthur S. Cahn, Esq.,
Law Department, United States Postal Service,
Washington, D. C., for Respondent

INITIAL DECISION

The Petitioner in this proceeding is The George Washington University, Washington, D. C. The Respondent is the United States Postal Service, acting through the Director, Division of Mail Classification, Bureau of Finance.

On or about April 5, 1974, Petitioner filed an application for re-entry into the mail as second-class mail matter of "The George Washington University Bulletin" (hereinafter sometimes called the "publication" or the "Bulletin"). Re-entry was sought because of a change in the frequency of publishing. (Ex. R-1)

Respondent notified Petitioner on or about January 13, 1975, that, subject to Petitioner's right to show either (1) compliance or (2) how it was intended to comply with the requirements governing second-class mail eligibility, the second-class mail privileges previously in effect in respect to the Bulletin would be revoked within 15 days from Petitioner's receipt of the notice.

Alternatively, Petitioner was advised that it could contest the ruling by filing an appeal within 15 days, as provided in Section 954-.8 of the pertinent Rules of Practice, a copy of which was transmitted with the notice. In the notice it was stated that the reasons for the ruling are as follows:

"Section 132.211, Postal Service Manual, provides that only newspapers and other periodical publications may be mailed at the second-class rates. 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. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered a periodical, as there is no connection between the subjects and no literary continuity.

"The preceding definition of a periodical is based on a Supreme Court ruling in the case Houghton v. Payne, 194 U.S. 88 (1904). "Section 132.42c, Postal Service Manual, provides that issues of second-class publications may contain annual reports, directories, lists and similar text as a part of the contents, but the copies may not be distinguished from the regular issues by bearing designations which indicate they are annuals, directories, catalogs, yearbooks, or other types of separate publications.

"We have reviewed the December, 1972, and the January, April (two issues), May, and August, 1974 issues of 'The George Washington University Bulletin.' "The December, 1972 issue is designated on the front and title page as 'The George Washington University Bulletin - School of Medicine 1973-1974.' The issue consists of general information, admission and fees information, course listings and descriptions and a faculty and staff directory for the School of Medicine. "The January, April (Vol. 73, No. 6), May, and August, 1974 issues are, respectively, catalogs for the Summer Session 1974, the School of Engineering and Applied Science 1974-75, the Undergraduate and Graduate Faculties of Arts and Sciences, Education, Government and Business Administration, and Public and International Affairs (1974-75), and finally, the College of General Studies 1974-75. Each issue consists of general information about the University and the specific college or session named on the front or title page, as well as admissions and fees information, general academic regulations and course listings and descriptions.

"The April, 1974 issue (Vol. 73, No. 5) is the Schedule of Classes for the 1974 Summer Session and contains registration and fees regulations as well as the schedule of summer session classes including the course number, title, time, location and instructor.

"The issues which we have reviewed are each complete in themselves betraying no need of continuation in subsequent issues. They are each essentially annual publications which would be more appropriately ascribed to the third- or fourth-class of mail depending on the weight of each piece.

"'The George Washington University Bulletin' is not a 'periodical' within the meaning of the applicable postal laws and regulations and, therefore, the second-class privileges will be revoked in accordance with the closing paragraphs of this letter."

After discussions and correspondence between the parties,

Petitioner took an appeal and, in due course, the matter came on for hearing. At the hearing both parties were represented by counsel who participated in the introduction of evidence and in the examination and cross-examination of witnesses. Briefs and reply briefs have been submitted by both parties.

The basic issue in this proceeding is whether The George Washington University Bulletin is a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354; within the meaning of applicable postal regulations; and within the definition of the term "periodical publication" as that phrase has been defined and applied by the Postal Service and by the Courts.

This issue is to be resolved by measuring the publication against the criteria set forth in Houghton v. Payne , 194 U.S. 88, wherein the Supreme Court of the United States construed statutes which were the predecessors of 39 U. S. Code 4351 and 4354 and which contained language very similar to that contained in the later enactments.

The most nearly complete volume (11 out of 12 issues) of the various series of the Bulletin is for the year 1974, which is Volume 73. The various numbers in this volume which are available from the exhibits introduced by petitioner and Respondent will be discussed in numerical sequence (Petitioner's exhibits indicated as Ex. P ; Respondent's exhibits indicated as Ex. R).

Exhibit P-K. This Bulletin is Volume 73, No. 2 and the title indicates that it contains the "Schedule of Classes, Spring Semester 1974." The first 8 pages contain such general information as a map of the campus, the calendar for the Spring Semester, information about various matters, including admission, registration fees, library hours, parking facilities, room assignments and the like, concluding with a master examination schedule for the Spring Semester of 1974. The remaining 52 pages are comprised of tabular presentations showing course numbers, names of courses and hours of credit, the day and hour on which the courses are taught, the name of the instructor and the location in which the class will be held.

Exhibit R-5-B is entitled, in part, "Summer Sessions Catalogue 1974". (Vol. 73, No. 3) Of the first 52 pages of this Bulletin, more than 20 per cent are comprised of material other than articles. The remaining 80 or so pages contain short, capsule summaries of the various courses offered, the days of the week and the time of day on which the courses are to be taught, and the course prerequisites. The great bulk of this Bulletin is made up of material that can not be categorized as "articles."

Exhibit P-L is entitled "Preregistration Edition Schedule of Classes, Fall Semester 1974" (Vol. 73, No. 4). This issue contains a map of the campus and 6 pages of miscellaneous information, followed by 42 pages of a listing of courses to be offered, the course numbers and titles, the semester hours for each course, the day of the week on which, and the time of day, the classes will meet and the instructors by whom the courses will be taught. This issue clearly contains articles in an insubstantial, if not insignificant, amount.

Exhibit R-5-F is the "Schedule of Classes - Summer Session 1974" (Vol. 73, No. 5). The first 8 pages of this exhibit are comprised of the campus map, the academic calendar, and general information for students. The remaining 33 pages contain the tabular presentation of information about the various classes to be offered in the 1974 summer sessions similar to that described above for Exhibit P-K.

Exhibit R-5-C (Vol. 73, No. 6) is the Bulletin of the School of Engineering and Applied Science, 1974-75. Of 204 numbered pages only about 63 may properly be said to be made up of material that could be classified as articles, leaving 141 pages of material that can not be classified as articles. On this point, more must be said later in this decision. The bulk of this issue consists of course listings and descriptions for the various programs.

Exhibit R-5-D (Vol. 73, No. 7) is the issue of the Bulleting bearing as part of its title the indication that it is the Undergraduate and Graduate Catalogue, 1974-1975. The make-up of this issue is as follows:

Pages                  Contents
1 - 8                     One-page letter from the President of the
                             University; 7 pages containing an August 1974
                             through July 1975 calendar and the academic
                             calendar for 1974-75; and a fact sheet about
                             the institution.
9 - 13                    Narrative information about the history,
                             purposes, objectives, academic status,
                             location, government and libraries of the
                             University.
14 - 20                  Lists of trustees, committees, officers and
                             Faculty Senate of the University.
21 - 193                Descriptions of various schools in the
                             University.
194 - 536              Lists of courses of instruction, faculty and
                             staff of instruction, an Appendix setting
                             forth recently established regulations, and
                             the index.

Less that one-third of this issue of the Bulletin contains material that could be designated articles.

Exhibit R-5-E (Vo. 73, No. 8) is the Bulletin of the College of General Studies. In its general composition and make-up, it is similar to the exhibit just described, except that it contains fewer pages (188 as opposed to 536) of which at least 60 per cent is material other than articles, primarily course listings.

Exhibit P-M (Vol. 73, No. 9) is the Revised Edition of Schedule of Classes for the Fall Semester, 1974. The description of Volume 73, No. 4 (Ex. P-L), above, is applicable to this Bulletin.

Exhibit R-6-A (Vol. 73, No. 10) is the Bulletin for the School of Medicine and Health Sciences, 1974-75. The contents of this exhibit are as follows:

Pages                  Contents
1 - 4                     Title page, campus photograph, table of
                            contents and calendar page.
5 - 7                     History and organization of University and
                            miscellaneous information.
7 - 9                     List of Trustees, Officers, etc.
10 - 61                 Narrative exposition of general information
                            about medical school.
62 - 63                 List of Members of various committees.
64                        Statement about alumni and allied
                            associations.
65                        List of Officers of alumni association.
66 - 260               Lists of courses of instruction, faculty and
                            staff members, assistants in research and
                            instruction, M.D. candidates registered, 1973
                            graduates, new regulations (in an appendix)
                            and the index.

Exhibit P-N (Vol. 73, No. 11) is the Bulletin of the National Law Center for the year 1974-1975. It contains the following items:

Pages                  Contents
1 - 5                     Table of contents, picture of law library,
                            calendars.
6 - 49                   History of the law school and general
                            information for students.
50 - 110               Abbreviated course descriptions, lists of
                            faculty and staff of instruction, new
                            regulations (in an appendix), and the index.
                            Two pages on the history and organization of
                            the University.

It is assumed that no serious contention will be made that Numbers 2, 4, 5 or 9 of Volume 73, being the presentations of classroom schedules, can qualify as periodicals since there is an almost total absence of articles from those issues of the Bulletin. Whatever the contention may be, those issues can not so qualify. The tabulations and summaries previously set forth provide a broad overview of the various issues of the Bulletin. Additional information is gained by a somewhat closer analysis. For example, of the textual material that may be classified as articles for purposes of the Houghton definition, much is verbatim repetition. Illustrative of this statement are the sections in various numbers in Volume 73 devoted to the history and organization of the University. In Volume 73, Nos. 3, 6, 10 and 11 this topic is presented in identical language in each issue, while in Nos. 7 and 8 the language is identical with the language in the numbers previously specified, except that the last 2 paragraphs in Nos. 3, 6, 10 and 11 do not appear in Nos. 7 and 8.

The illustration given above is repeated, in varying degree, many times throughout the entire 1974-1975 series of the Bulletin as shown by the following tabulation, which by no means purports to be a complete presentation of the incidence of repetition:

Topic Verbatim, or Nearly so,            Topic in Vol. 73, Nos.
University Policy on Re-                    3, 6, 7, 8, 10 and 11
     lease of Student Information
Academic Dishonesty                           6, 10 and 11
Cloyd Heck Marvin Center                 3, 6, 10 and 11
Right to Make Changes in
       Program                                          6, 8, 10 and 11
Summer School Credit                           6, 10 and 11
Military Leave                                        6 and 11
Transcripts of Record                           6, 10 and 11
Student Health Services                    3, 6 and 11
Recently Established Regu-               3, 6, 7, 8, 10 and 11
        lations

It is emphasized that the foregoing presentation is illustrative, only, and it does not indicate all the repetition to be found in the various numbers in Volume 73 of the Bulletin. It is not necessary to cite further instances of repetition. Enough has been said clearly to show that, even of the material in the various Bulletins that may be called "articles", appreciable portions are not "original articles by different authors", but such portions are simply the results of copying, or slightly revising, material from one issue and inserting it in another. Petitioner's witness stated that in preparing a new bulletin, an existing bulletin is torn up and the pages are pasted on sheets of paper. This manuscript is sent to deans and chairmen of departments with the request that they "revise, correct, update, et cetera the information they have received by making notations on their copy." (Tr. 130) Furthermore, based on the testimony of Petitioner's witness, there has been a considerable amount of repetition from year to year since the witness was not "aware of any significant changes in the undergraduate catalogue between the publication of Exhibit F / published in 1905/ and the publication of Exhibit 5D / published in 1974/." (Tr. 140) The accuracy of this observation is further borne out by comparison of (1) the Undergraduate and Graduate Catalogue for 1974-'75 with its predecessor for the school year 1973-'74, and (2) the Bulletins for the School of Medicine for the years 1973-'74 and 1974-'75.

Another characteristic which the Supreme Court held to be inherent in a "periodical" is continuity - "a connection between the different numbers of the series in the nature of the articles appearing in them" No such connection exists among the various issues of the George Washington University Bulletin. The Bulletin of each school is devoted to matter related to that school. Even when there is a cross-reference pertains to the program or curriculum of the school in the Bulletin of which the cross-reference is made. The Bulletins of the Law School, the School of Medicine, the School of Engineering and Applied Science are esoteric publications, each of which is primarily intended for, and appeals to, its own audience. As Petitioner's witness stated with respect to the School of Medicine Bulletin: "***they send it out basically on request to individuals." (TR. 154) There is no evidence of a demand by individuals for all numbers in the series.

It will be recalled that in the Houghton decision it is stated that ordinarily a periodical is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series. On this point, a witness called by Petitioner testified, and it is correct, that there are footnotes and statements in the text of various bulletins that refer to information in other issues. This witness also spoke of situations in which, for example, a student selects a course from one Bulletin in which the course is described, but in order to know when, where and by whom the course is to be taught it is necessary to refer to the class schedule for the particular semester. The necessity to use more than one publication and the presence of cross-referencing supports the view that not each Bulletin is complete in itself. The incompleteness of one or more issues and the presence of footnotes and other cross-references are insufficient, of themselves, to convert into matter that is eligible for second-class mail publications which for other, and substantial, reasons fail to possess the required qualifications.

In the post-hearing brief, Petitioner attempted to limit the issue in this case to the question of whether the various issues of the Bulletin are "complete". The issue in this proceeding is not so limited, but includes the questions of compliance of the publication with applicable postal laws and regulations and conformity with the definition of "periodical" which was given in the Houghton case. The notice of revocation gave the citation to Houghton , and the definition set forth therein was repeated practically verbatim.

Petitioner suggests that there is doubt whether the Houghton definition of "periodical" should be applied in this case. There are, at this time, few things that are more clear and certain than the applicability of the Houghton definition when the question is raised as to whether a publication is a "periodical publication" and, therefore, eligible for second-class mail privileges. (See Amended Postal Service Decision, Florists' Transworld Delivery Association , P.S. Docket No. 1/167; Teleflora Delivery Service, Inc ., P.S. Docket No. 1/206, aff'd sub nom Teleflora Incorporated v. United States Postal Service , Civil Action . 75-228, U.S.D.C., D.C. (June 25, 1975); Postal Service Decision, Northwest Missouri State University , P.S. Docket No. 3/42)

Petitioner argues that Congress has implicitly recognized that certain kinds of education publications should be transmitted in the mails at second class postage rates. While this statement is true, as evidenced by the provisions of former 39 U.S.C. 4355(a)(11), no such legislation has been enacted in respect to publications such as that of Petitioner in this case. The legislation embodied in 39 U.S. COde 4355 requires that before a publication is entitled to the benefits of that legislation it must first be a "mailable periodical" publication. If Petitioner is suggesting that the Bulletin be recognized as second class mail matter as a "nondescript" publication, that argument was disposed of in Florists' Transworld Delivery Service, Inc. ., P.S. Docket No. 1/167.

Petitioner has added its own denunciation of Houghton v. Payne to that of others. Petitioner asserts that the definition in Houghton has outlived its usefulness. The Postal Service has rejected this argument time after time and, in the absence of court or legislative action requiring otherwise, it presumably will continue to apply the Houghton definition. (Pp. 11-12, Postal Service Decision, Northwest Missouri State University , P.S. Docket No. 3/42(August 4, 1975)).

Petitioner argues that numerous other publications have second-class mailing privileges when, in Petitioner's view, they do not possess the requisite qualifications. While among the 30,000 or so publications having second-class mail permits there probably are some to which such permits were improvidently issued, or the characteristics of which have changed since the permits were issued, the situation with respect to these other publications has no bearing upon the merits of the present proceeding. Outstanding permits constantly are being reviewed and as discrepancies come to light, corrective steps or revocations are undertaken in which the determinations are, or will be, made upon the basis of the facts as they are found to exist. The instant case is but one illustration of that continuing process.

Petitioner contends that the fact that the Director of the Office of Mail Classification did not personally appear to testify results in a denial of its right to confront and examine an adverse witness and the denial of its right to production of favorable evidence under the Respondent's sole control. A thoroughly competent and capable witness testified on behalf of Respondent and was cross-examined at length by Petitioner's Counsel. Although it was belatedly requested at the hearing, information and documents were supplied to Petitioner's Counsel for his use at and after the hearing. For these reasons, and for the reasons stated in the Order of July 10, 1975, denying a motion to re-open the hearing, Petitioner's present contention is rejected as being without merit.

FINDINGS OF FACT

Upon consideration of the entire record in this proceeding, it is found as follows:

1. The George Washington University Bulletin does not consist in substantial part of articles;

2. Of the portions of The George Washington University Bulletin that consist of articles, there is such an excess of repetition that the articles lack the quality of originality;

3. There is present to an excessive degree the practice of updating, in which the only changes consist of inserting new names for old, different dates, different figures for fees and the like.

4. There is no connection between the different numbers of the series in the nature of such articles as do appear in them.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, it is concluded as a matter of law as follows:

1. The George Washington University Bulletin is not a periodical publication within the meaning of 39 U. S. Code 4351 and 4354, within the meaning of Section 132.211 of the Postal Service Manual, and within the meaning of that term as it has been defined in Houghton v. Payne , 194 U.S. 88 (1904).

2. The decision of the Director, Division of Mail Classification, Finance Department, United States Postal Service, to revoke the second-class mail privileges previously in effect in respect to The George Washington University Bulletin was correct and that decision is sustained.

Counsel for both parties have submitted proposed findings of fact and conclusions of law. To the extent indicated herein, those proposed findings of fact and conclusions of law are adopted. Otherwise, those proposed findings of fact and conclusions of law are rejected because they are contrary to, or unsupported by, the evidence, or because they are contrary to law, or because they are immaterial.