In the Matter of the Petition by

CALIFORNIA INSTITUTE OF TECHNOLOGY,
1201 East California Boulevard,
Pasadena, California 91125,

Proposed Annulment of Second-Class Mail Privileges for "CALTECH"

P.S. Docket No. 3/166

July 7, 1975

William A. Duvall Chief Administrative Law Judge

Maurice L. Brundige, Esq.,
4800 Oak Grove Drive,
Pasadena, California,
for Petitioner

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

INITIAL DECISION ^1/

This case involves the proposed annulment of second-class mail privileges by the Director of the Division of Mail Classification, the United States Postal Service, Respondent, heretofore in effect for the publication known as "Caltech,' a publication of the California Institute of Technology, Pasadena, California, Petitioner.

Petitioner is a private, nonprofit educational institution, authorized and existing under the laws of the State of California. It was originally founded in 1891 as the Throop Polytechnic Institute, but thereafter changed its name to the California Institute of Technology. It is officially classed as a university carrying on graduate and undergraduate instruction and research, principally in the various fields of science and engineering.

Sometime before May 22, 1905, the Petitioner made application for entry of the publication, entitled "Throop Institute Bulletin," which publication is the predecessor of the publication now known as "Caltech." Such application was approved by the United States Post Office Department on or about May 22, 1905, and the Petitioner has thereafter enjoyed second-class mail privileges for the publication, which has been known by several titles, including "Throop Institute Bulletin," and the "Bulletin of the California Institute of Technology," and presently, "Caltech."

On June 26, 1972, the Petitioner filed an "Application for Reentry of Second-Class Publication," which application requested approval for reentry of "Caltech" as second-class matter, with a change in frequency of publication from four to five times a year, and with a change in the name of the publication from "Bulletin of the California Institute of Technology" to "Caltech." Said application was approved by the United States Postal Department in a letter to the Petitioner from the Postmaster, United States Post Office, Pasadena, California, on October 6, 1972.

Thereafter, on August 24, 1973, the Petitioner filed an application for reentry of second-class publication requesting a change in frequency of publication from five times a year to six times a year, once in the spring, once in the summer, and four times in the fall. Said application for reentry was thereafter approved by the United States Postal Service on September 17, 1973.

In 1974, the Petitioner published six issues of Volume 83 of "Caltech," subtitled "Facts About Caltech," "Information for Students," "Chemistry & Chemical Engineering Annual Report 1974,"

Division of Engineering and Applied Science Annual Report 1973-74," "The President's Report 1973-1974," and "1974 Biology Annual Report."

The present controversy began approximately October 1, 1974, at which time the Manager, Mail Classification Division, United States Postal Service, notified the Postmaster at Pasadena, California, inter alia , as follows:

"As presently prepared, 'Caltech' is not a 'periodical' publication within the meaning of the applicable postal laws and regulations in Houghton v. Payne and second-class privileges for the publication may be revoked."

At sometime thereafter, a copy of said letter was transmitted informally by the Postmaster, Pasadena, California, to the Petitioner. On November 15, 1974, the Petitioner replied to Respondent, stating its belief that the publication "Caltech" did meet the requirements for entry as second-class matter, and requesting that the Manager, Mail Classification Division, reexamine the publication in the light of the statements made in that letter.

On January 13, 1975, the Respondent advised the Petitioner by letter that the second-class mailing privileges for "Caltech" would be annulled, and advised that Petitioner could neither file a statement showing compliance or intention to comply, or could file a petition for appeal from the ruling in accordance with Title 39, Code of Federal Regulations, Section 954.8.

On March 4, 1975, the Petitioner submitted its Petition for an Appeal from the ruling of the Postal Service, which petition was duly received and entered as Postal Service Docket No. 3/166.

At the hearing, two witnesses were called by the Petitioner. The first witness was Miss Kay Walker, who described in considerable detail the manner of preparation of the various volumes. It was the testimony of this witness that the volumes are not complete in themselves, but that they are interrelated and dependent, one upon the other.

Also presented as a witness was Mr. James B. Black, who is the Director of Public Relations and Publications of California Institute of Technology.

Mr. Black gave testimony about the various audiences at which the different issues of the publication are directed. With respect to Exhibit R-9, which is the President's Report for the year 1973-1974, Mr. Black testified that it was directed primarily to donors and prospective donors, but that it also has as part of its intended audience prospective students in the undergraduate and graduate schools, and also the alumni of the Institute.

With respect to Exhibit R-10, which is an issue of the "Caltech" publication with a subtitle of "Facts About Caltech," Mr. Black indicated that the primary audience at which this publication is directed consists of prospective students.

Exhibit R-11 is the issue of the publication which bears the subtitle of "Information for Students," and is the issue of September 1974. Mr. Black stated that this publication is addressed primarily to the faculty, to students and to prospective students, but that, in addition, it was hopeful that it might be inspirational to donors or prospective donors.

Exhibit R-15 is the issue of the publication subtitled "Chemistry and Chemical Engineering." Exhibit R-16 is the issue of the publication that is subtitled "Division of Engineering and Applied Sciences, Annual Report 1973-74." Exhibit R-17 is the issue of "Caltech" which bears on the cover of it the subtitle "1974 Biology Annual Report."

With respect to each of the three publications last named, Mr. Black indicated that they are directed to prospective graduate students and prospective faculty members, as well as to prospective donors upon whom it was hoped that the publications would have a beneficial effect.

In describing the contents of these publications, Mr. Black stated that they contain summaries of research projects that either have been completed or are in progress at the Institute. It was stated by Miss Walker that while there is interdisciplinary research on the part of certain personnel at the Institute, each of the latter three publications, namely, Respondent's Exhibits 15, 16 and 17, consists of material that primarily is within the discipline indicated by the title of each of the separate issues of these publications.

In determining whether a publication is entitled to obtain or to retain second-class mail privileges, there are certain statutes, regulations and decisions which form the framework within which this determination must be made. The statutory framework consists primarily of Sections 4351 and 4354 of Title 39 of the United States Code wherein it is made clear that the requirements for entry into second-class mail begin with the necessity that a publication be either a newspaper or a periodical publication. It has never been asserted or alleged in this proceeding that the publication under consideration is a newspaper, so that matter will not be further discussed. The question is whether the publication is a periodical publication within the meaning of the applicable laws and regulations.

The Postal regulations governing eligibility of second-class mail matter are set forth in Section 132 of the Postal Service Manual and the subsections to that section. The decisions of the courts and of the agency administering the statutes have as their point of beginning the case of Houghton v. Payne , which is reported at 194 U.S. 88. This case was decided by the Supreme Court of the United States in 1904.

In this case, the Supreme Court discussed the statute which was then in effect and which, parenthetically it may be stated, was very similar to the statute as it exists today. The Supreme Court pointed out the fact that while the statutes indicated that in order to be eligible for second-class entry a publication had to be a "periodical" publication, the statute did not define that term. Noting this absence of a definition, the Court proceeded to define the term as follows:

"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, fo 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 as a periodical, as there is no connection between the subjects and no literary continuity."

From this definition, two important matters stand out. One, a primary characteristics of a publication in order for it to be eligible for second-class mail privileges is that it must consist, at least in part, of articles. Secondly, there must be in the nature of the articles appearing in these publications such a connection as to constitute a continuity of literary character.

Looking at the various issues of this publication in light of the decision in Houghton v. Payne , it is clear that Respondent's Exhibit 9, "The President's Report," is comprised almost entirely of articles. Similarly, Exhibit R-10, "Facts About Caltech," appears primarily to be one lone article, or two at the most, about Caltech.

Exhibit R-11 is subtitled "Information for Students." This publication, or this issue of the publication, is divided into five sections. Section 1 is entitled "California Institute of Technology," and this contains general information about the school, various people associated with the school in different capacities, the staff of the school, and other miscellaneous matter for the first 96 pages, none of which constitutes an article.

Beginning with page 97 and running to page 102, there is a section, entitled "General Information," which is an article within the meaning of Houghton v. Payne . This is followed by a four-page division called "Buildings and Facilities," which does not constitute an article.

Beginning at page 107 and running through 139 there are different short articles about the various courses of study and fields of research.

From page 149 to page 168 there are 27 pages of information and regulations for the guidance of undergraduate students. This material is presented in the form of articles.

From page 169 to page 200, this is made up of material which is regarded as a series of articles.

Section 4 is entitled "Information and Regulations for the Guidance of Graduate Students." This section runs from page 203 to page 211. It consists of eight pages of articles followed by 46 more pages of articles in the same section, for a total of 54 pages of articles in this section of the publication.

Section 5 is entitled "Subjects of Instruction." This section consists of 91 pages of thumbnail descriptions of courses offered during the pertinent time period and this material cannot be regarded as being articles.

The book concludes with a five-page index, which, of course, is not an article.

In summary, in this portion of the overall publication series for 1974, there are 359 pages in R-11, of which 150 pages contain articles and 209 pages contain no articles. If it were possible, which it is not, to look at one issue of a publication in a vacuum and say that it is or is not eligible for second-class mail privileges, the inclination would be to say that this is comprised sufficiently of articles to bring it within the classification of those publications eligible for second-class mail privileges, but many, many circumstances can be brought to bear on this situation which would alter that judgment.

Respondent's Exhibit 15, 16 and 17 will be dealt with as a group. Examination of these issues of the publication reveals how accurate was Mr. Black's description when he said that these publications contain "incomplete summaries," of research work done or in progress at the Institute. These summaries are in effect sketches of the most brief kind about the great variety of work that is ongoing at the Institute. The word thumbnail sketch has been used before. I can think of no other word that so accurately describes the nature of the contents of Exhibits R-15, 16 and 17.

In reviewing the entire series for the year 1974, and keeping in mind the contents of each of the various issues, and keeping in mind the statement of the witness for the Petitioner as to the audience to which each publication is directed, it becomes clear that there is no such connection between that different issues of the series that they could be said to have continuity within that series. Particularly with respect to Exhibits R-15, 16 and 17, these are esoteric publications which are designed to attract men in a particular discipline and the fact that they are prepared by people of various disciplines does not alter the fact that these are articles that are within a particular field of thought.

Mr. Black testified that the number of issues of these publications that are printed each year vary from a low of about 1,000 to a high of approximately 23,000, but of the different issues that are printed each year, only about 1,500 persons ask for and receive the entire series for a particular year. A striking fact with respect to these 1,500 people is that they are in some way connected with, attached to or attracted by the California Institute of Technology. This fact indicates that there is no broad range of appeal for the contents of any of these various issues of the publication, which further indicates that the publication lacks that continuity which the Supreme Court in Houghton v. Payne said was essential.

In oral argument at the close of the hearing, and in his proposed findings of fact and conclusions of law, Petitioner's counsel has presented a number of points which will be addressed at this time. The Petitioner insists that the publication under consideration in this case complies with the definition of the Supreme Court in Houghton v. Payne . For the reasons which have been indicated heretofore, this proposed finding is rejected.

The Petitioner insists that there is that continuity between the issues of the various publications which the Court in Houghton v. Payne said is necessary. The testimony of the witness Walker in this case was that she was assigned to review these publications with the objective of discovering where continuity exists. The only point suggesting continuity which was found by this witness was the fact that in some half a dozen instances persons from one particular discipline had contributed to work done in research in another discipline, which work was summarized in one of the publications received in evidence as Respondent's Exhibits 15, 16 and 17. Miss Walker did say that the fact a person from another discipline did do some work in a particular discipline does not alter the fact that the research itself was related to and within the field of the particular discipline in which the article was published, as indicated by the title of the publication. For this reason, the proposed finding that the Petitioner's publications contain the requisite continuity is rejected.

The Petitioner raises the question again with respect to the long-standing fact that this publication has enjoyed second-class mailing privileges. He alluded to the fact that the publication under consideration in Houghton v. Payne had been published only 16 years prior to the Court's approval of the revocation of privileges in that case, and that in the instant case the Petitioner has had second-class mailing privileges for a considerably longer time, 70 years. In connection with this point, it is pointed out that the Postmaster General has been charged by Congress with the duty of administering and enforcing the Postal laws. Under the interpretation of the Petitioner in this case, if the Postal Service, or its predecessor, the Post Office Department, made a mistake in the assignment of a piece of mail to a mail category and maintained that assignment over a period of time, an extended period of time, and later discovered that a mistake had been made, the Postmaster General would then be bound to perpetuate that mistake. His hands would be tied.

He could not change his decision and he would then be required, under the Petitioner's interpretation, to disobey the mandate of Congress by continuing the carrying of that piece of mail at the wrong classification.

When analyzed in that light, I think it becomes clear that the Postmaster General, under all times and circumstances, must take such steps as he can to try to competently and carefully administer the mail statutes, including those statutes regarding mail classification, and, if a mistake is made, it becomes his duty, his sworn duty, to correct that mistake. Any other result is incongruous.

On this point the majority opinion in Houghton v. Payne contains this statement:

"Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute."

In the dissenting opinion, which was written by Mr. Justice Harlan, there is the following statement:

"Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it would be the duty of the court to so adjudge."

Petitioner's counsel discussed various provisions of the legislative history of the Postal Reorganization Act. The legislative history to which counsel refers relates to the question of rates to be paid under the various classes of mail. It does not readjust the classes of mail itself. Those classes of mail are continued in effect by that legislation until they are changed either by regulation of the Postal Service or by action of the Postal Rate Commission. This proceeding is not a rate case, but it is a proceeding to inquire into the question of the proper classification for the publication "Caltech," which is published by the California Institute of Technology. As an expansion of its position, Petitioner's counsel insists that the review presently being undertaken of the bulletins and catalogues being published by various colleges and universities in the United States, while it may not be labeled a restructuring of the mail classification, it is, nevertheless, a device to achieve that effect. If that be the purpose, it is strange that, as testified by the witness for the Respondent, approximately 10 to 20 per cent of the colleges whose publications have been reviewed were found to be publishing in compliance with the Postal laws and regulations governing second-class mail matter.

Petitioner's counsel referred to some correspondence received by the American Council on Education from Congressman James M. Hanley and he referred, also, to some correspondence from Senator Eagleton to the Postmaster General with reference to the continuation of second-class mail privileges for catalogues and bulletins of colleges. This correspondence is interesting, but so far as I can perceive, it has no effect on the course of this litigation. The laws have not been amended, the regulations have not been amended, there have been no changes in the court decisions and it remains only to consider each case as it is presented and to make a judgment on the facts as they appear.

Based on the considerations as they have been stated earlier in this decision, it is concluded that the publication "Caltech" is not a periodical publication within the meaning of the Postal laws and regulations and that it is, therefore, not entitled to continue to enjoy second-class mailing privileges. It follows that the decision of the Respondent to annul those second-class mail privileges was correct and it is sustained.

The proposed findings of fact and conclusions of law submitted by the parties have been carefully considered and they are adopted to the extent indicated herein. Otherwise such proposed findings of fact and conclusions of law are rejected for the reasons that they are not supported by the evidence in this case, because they are contrary to the evidence that has been found in this case or because they are immaterial.

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1/ Transcribed from oral decision as rendered at close of hearing held June 10, 1975. Minor language changes have been made, but the substance of the decision is unchanged.