In the Matter of the Petition by

PACIFIC UNION COLLEGE
Angwin, California 94508,

Proposed Annulment of Second-Class Mail Privileges for
"PACIFIC UNION COLLEGE BULLETIN"

P.S. Docket No. 3/178

July 3, 1975

William A. Duvall Chief Administrative law Judge

John A. Stover, Esq.,
Malott, Pedder & Stover,
3445 Golden Gate Way,
Lafayette, California
for Petitioner

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

INITIAL DECISION^1/

The Director of the Division of Mail Classification of the United States Postal Service, who is the Respondent in this proceeding, issued a notice to Pacific Union College, Angwin,

California, the Petitioner, that the Respondent proposed to revoke the second-class mail permit which theretofore had been in effect for the Petitioner's publication, known as "Pacific Union College BUlletin."

The Petitioner took a timely appeal and in due course this matter came to hearing.

The reason stated by the Respondent for the action which it proposed to take was that in Respondent's view the "Pacific Union College Bulletin" is not a periodical publication within the meaning of the applicable laws and regulations and, therefore, second-class privileges would be revoked in accordance with the closing paragraphs of the notice, which paragraphs indicate the Petitioner's right either to come into compliance with the applicable laws and regulations or to appeal the proposed revocation, which, as previously indicated, was the step eventually followed by the Petitioner in this case.

As part of its ruling, the Respondent quoted a portion of the opinion in the case of Houghton v. Payne reported at 194 U.S. 88, wherein at page 97 the court made the following statement:

"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 as a periodical, as there is no connection between the subjects and no literary continuity."

The court went further with its definition, but the portion that has been quoted is that which is believed to be pertinent to this proceeding.

During the course of the hearing, there were received into evidence Respondent's Exhibits 11 through 19, which are samples of the bulletin issued by the Petitioner in this case.

It was stated by the witness appearing on behalf of Pacific Union College that certain of these exhibits are similar and fall within certain common descriptions. For example, Exhibits R-11, R-16 and R-19 are the General Bulletins of Pacific Union College. Exhibits R-12 and R-17 are the Graduate Bulletins of that institution. Exhibits R-13 and R-18 are designated as Mini-Bulletins and Exhibits R-14 and R-15 are the Summer Bulletins.

Now, different people read Houghton v. Payne in different ways an reach many different conclusions. As I read Houghton v. Payne , I regard it, in the first place, as the landmark case in the field of classification of second-class mail matter. The court in that case was construing a statute which had been fairly recently passed and which is very much like the statute which is in effect today. There are really two statutes which are foremost in my mind at this time and one is codified at Title 39, United States Code, Section 4351, which defines second-class mail matter as being newspapers and other periodical publications, and Section 4354, which sets forth the conditions for entry of publications. This section starts off with the language "Generally a mailable periodical publication is entitled to be entered and mailed as second-class mail if it" and the conditions are separately stated.

To begin with, to be eligible for second-class mail privileges, the material that is being offered for mailing must be a mailable periodical publication. Now, the court was confronted with that same or similar language at the time it decided Houghton v. Payne . The court in its definition gave as the second of the requirements for a periodical publication the necessity that it contain a variety of original articles by different authors. It set forth further requirements in that decision by stating in the definition that there must be a connection between the different numbers of the series in the nature of the articles appearing in them. Therefore, it seems to me that that which is most necessary in a publication in order to make it eligible for second-class mail privileges is the presence, in some significant amount, of articles.

In light of this interpretation of the court's decision in Houghton v. Payne , let us now consider the Bulletin of Pacific Union College. No real purpose would be served by looking at each and every one of these exhibits, R-11 tnrough R-19, in view of the fact that they have been classified by the witness for the Petitioner as being similar in their own fields and being in substance an update of previous Bulletins of the same character.

In order to get a look at the production of an entire year for Pacific Union College, those exhibits have been chosen which are for the year 1974 and 1975. R-16 is the General Bulletin for that year. The first pages of this issue are composed of such items as the table of contents, the calendar for the year and the personnel of the institution. This material takes up 23 pages. Then there have been inserted sever photographs which depict life at the college. These photographs are presented in seven pages.

There is next a section, entitled "The College," three and one-half pages in length, which I would regard as an article. This is followed by a section, entitled "Student Life and Services," which comprises three and one-half pages, which, again, i would regard as an article. This is followed by a section, entitled "Admission to the College," and this I would regard as an article consisting of three pages.

Another item that appears to me to be an article is entitled "The Academic Program," and it is nine pages in length, followed by another article, entitled "Academic Information and Policies," which is sixteen pages in length.

The next division in the publication is entitled "Courses of Instruction." This section is exactly what the title suggests. The different courses in the different fields of instruction, such as agriculture, art, education, history, home economics, mathematics, music, and so forth, are set forth with thumbnail descriptions of each course. This section consumes 118 pages. I don't think that by any stretch of any known definition the material in this section could be classified under the name article.

Giving the college the benefit of a considerable doubt, the information contained in eight pages under the title "Professional Curricula," may be designated as an article. The matter under the title of "Professional Curricula" is followed by seven pages of photographs of just a general nature and not related to anything in particular except perhaps to life at college. There is, then, a section entitled "Financial Information," which is not regarded as being an article. Finally, there is a three-page index.

This review of the publication produces the following total.s Of the entire 208 pages of the publication, 35 pages are what may be called articles and 173 pages are composed of material other than articles.

Moving on to Exhibit R-17, which is the Graduate Bulletin for the 1974-75, we find the following: The first five pages of this publication consist of such matters as title page, contents page, a calendar, and, then, the academic calendar on the following page, consuming the first four pages.

Beginning with page 5 through 34, there are discussions on the following subjects: The college history and objectives, the college setting, accreditation, campus, citizenship. There is a discussion of the graduate division taking up such subheadings as administration, graduate counsel, the graduate office advisors for graduate students and committees on studies. There is a section on admission to graduate study. Then there is a heading "Advancement to Candidacy," another section on the graduate program, and, finally, "Academic Information and Policies." all of this material between pages 5 and 34 would, in my opinion, logically and properly be classified as articles.

The next section of this publication is entitled "Courses of Instruction," and, again, this is just what the title suggests. This section is comprised of 21 pages. The next section, consisting of seven pages, is entitled "Financial Information" and this appears to constitute an article, in my opinion. The last two pages is a type of chart, which is supposed to be the progress record of a candidate for the degree of Master of Arts. That, of course, is not an article.

In this publication, the Graduate Bulletin, there are 41 pages that contain material which I would classify as articles and 23 pages of material which cannot be classified as an article or articles. It follows that if all of the publications were of the same pattern as the Graduate Bulletin, and if the other qualifications were present, that, at least in my opinion, the Bulletin of Pacific Union College would be entitled to second-class mailing privileges.

The next Bulletin issued by the college which is to be considered is the Summer Session Bulletin (R-15). This is a folder presentation which, because of the manner in which it is folded, consists of 16 sections, eight on each side of a two-sided folder. An examination of this Bulletin discloses that of the material printed on this Bulletin, only three of the 16 sides could, by any generous stretch of the definition of an article, be considered to be articles. Therefore, since only 3/16 of this publication is comprised of articles, that publication would not be considered to be material that is eligible for second-class mailing privileges.

Finally, there is the publication which is known at the college as the Mini-Bulletin (R=18) and this is the type of publication that makes me happy that I am not a mail classification specialist because I wouldn't know what to call it. It is an attractively prepared bulletin that contains photographs of the school, it contains brief presentations of the academic programs, and a form by which the reader may request application forms for admission to Pacific Union College or the reader may ask for the nursing application or for the student employment application.

To go back for a moment to Section 4354 of Title 39, we find that in order to be eligible for entry into the mail as second-class matter, a publication must be regularly issued at stated intervals as frequently as four times a year, but primarily it must be ba periodical publication. In order to be a periodical publication, it must have as its dominant characteristic, without stating any precise percentages, but its dominant characteristic must, as I construe Houghton v. Payne , be that it contains articles. It has been determined that of the four issues of the "Pacific Union College Bulletin" only two might be considered to be eligible for second-class mailing privileges, if they were typical of the entire series. It follows that the other two are not so eligible and, therefore, the publication as a whole does not meet the requirements of Section 4354 that it be regularly issued at stated intervals as frequently as four times a year. Hence, it is not such a periodical publication.

Now, because counsel for the Petitioner has raised some interesting points in his trial memorandum, I will address a few comments to some of these points.

I think what was said earlier addresses itself to the point raised by Petitioner's counsel that the book that was under consideration at the time the Supreme court decided Houghton v. Payne is entirely different than the publications which are under consideration in this case. From that fact, counsel reasons that what the Court had to say back in 1904 about the Riverside series is not applicable today to the "Pacific Union College Bulletin." I have to respectfully differ with what counsel had to say on that point. The fact of the matter is that the Supreme Court was construing a statute which had substantially the same language the present statute contains.

The fact that that decision was issued 70 years ago does not necessarily mean that it is obsolete, that it s outdated and that it should or must be discarded. It is entirely possible, and I adhere to this view, that that decision is so correct that it has proved itself over the years to be unassailable. It is a fact that the courts and the Postal Service have relied on this for the period since it was handed down in 1904. In that interval of time, the Congress has had ample opportunity to amend the statute which the Court was construing, but the Congress has not seen fit to amend that portion of the statute. We can not presume that the Congress proceeds in ignorance of what the Court does, so it must know of this decision and it must find it to be acceptable.

Counsel for the Petitioner also alluded to the fact that the second-class mailing permit for the "Pacific Union College Bulletin" has been in effect for a number of years. That was also a point raised in Houghton v. Payne and the Court disposed of that point in these words, beginning at page 99 of the decision:

"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."

Counsel made reference to the dissenting opinion in Houghton v. Payne , and even in the dissent by Mr. Justice Harlan, there is the following sentence:

"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."

Of course, in Houghton v. Payne the dissenters felt that the original interpretation of the statute by the Post Office Department in granting the second-class mail privileges to the Riverside series was correct, but the majority held the opposite view.

Counsel for the Petitioner suggests that the purpose of this proceeding and the purpose of the review of outstanding second-class mail privileges by the Postal Service, about which subject testimony was given by the Respondent's witness, is for the purpose of raising revenues. Looking at what I read in the newspapers about the anticipated deficit, that may not be a bad idea, but, so far as I am aware, that is not the purpose of this, or related proceedings.

To begin with, this is not a rate proceeding. This is an examination of a publication to determine into which of the four classes of mail this publication should fall. This is not even a classification proceeding as such. A classification proceeding would encompass all of the publications within a particular class or, perhaps, all of the classes of mail for the purpose of realigning the classes. This is a particularized investigation with respect to one publication to determine whether it is proper that it is now placed in one category of mail.

It is true that other publications of this type are being examined and the purpose of that inquiry is to avoid being discriminatory in the administration of this statute. If it is determined that one college publication is not entitled to be carried in the mails, then it is not unfair to look at the rest of them to see whether they are being improperly carried at a reduced rate of postage. To single out one or a few would clearly be improper and would clearly not withstand the test of litigation, which most certainly would follow.

In conclusion, I find that as a matter of law, the publication which is designated as "Pacific Union College Bulletin" is not a periodical publication within the meaning of the applicable Postal Service laws and regulations. It follows that, in my opinion, the decision of the Respondent to revoke Petitioner's second-class mail privileges was correct and is sustained.

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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.