In the Matter of the Petition by

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
University of California, Los Angeles,
Los Angeles, California 90024

Proposed Revocation of Second-Class Mail Privileges for "UCLA"

P.S. Docket No. 3/187

July 8, 1975

William A. Duvall Chief Administrative Law Judge

Norman I. Lustig, Esq.,
2200 University Avenue,
Berkeley, California, for Petitioner

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

INITIAL DECISION^1/

This proceeding involves a notice to the Regents of the University of California at Los Angeles by the Director of Division of Mail Classification of the United States Postal Service, the Respondent in this case, of the proposed revocation of second-class mail privileges in effect for the publication UCLA . The Petitioner.

the Regents of the University of California, filed a timely appeal and in due course this matter came on for hearing.

The University of California is a multi-campus university established in 1868 and operated as a public trust pursuant to Article 9, Section 9 of the California Constitution. The University is supported in substantial part by state taxes. The UCLA campus was created in 1919 and today its educational facilities include a broad array of colleges including the College of Letters and Science; the College of Fine Arts; the School of Engineering and Applied Sciences; the School of Nursing; the School of Public Health; The School of Dentistry; the School of Law; the School of Medicine; the Graduate School of Education and the Graduate Division. The University of California at Los Angeles also provides a variety of general and specialized study and research facilities, including libraries, institutes, centers, projects, bureaus, nondepartmental laboratories and museums.

The publication known as UCLA has been published and mailed as second-class mail matter from UCLA since 1960 and prior to that time was sent under the centralized University of California permit. UCLA consists of a series of thirteen administrative publications issued at regular periods. The General Catalog issue of UCLA provides an overview of the programs offered by the institution and is supplemented by the announcements of the various colleges, schools and divisions. There is testimony in this record that the General Catalog issued at UCLA is comprised of the various announcements issued by the different departments in the schools in the institution.

In the notice of revocation sent by the Respondent to the Petitioner, it was stated that the reason for the action proposed to be taken is the fact that the publication UCLA is not a periodical publication within the meaning of the Postal laws and regulations governing second-class mail eligibility, as those laws have been applied and construed by the courts and by the Postal Service. In the notice of revocation reference was made to the case of Houghton v. Payne , reported at 194 U.S. 88, decided by the Supreme Court of the United States in 1904. In that case, the Court was called upon to apply and to construe a statute which contained language very much the same as the language appearing in the statute which is effective today. The Court pointed out that the statute required that to be eligible for second-class mail privileges a publication must be a periodical publication and those words appear in Sections 4351 and 4354 of Title 39 as it exists today by virtue of the provisions of Section 3 of the Postal Reorganization Act and by virtue of regulations issued by the Postal Service, pursuant to the authority granted by the Reorganization Act. The Court went on to point out that the term "periodical," while it appeared in the statute, was not defined in the statute.

The Court then proceeded to supply a definition of the term periodical and that definition reads 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, 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. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects."

This definition has been relied upon by the Courts and by the Postal Service since its pronouncement by the Court in 1904. It has been subject to attack many times over a long period of years. Thus far, it has withstood those attacks. The most frequent allegation hurled at this definition is the fact it is now over 70 years old, and, since it is that old, it must necessarily be obsolete and of no further value. A different, and I think a better, consideration of this definition would be one which recognizes that by reason of the fact it has withstood so many and such vigorous attacks for such a long period of time, that it is quite valid and that its validity has been established and reestablished time and time again.

With regard to the publication which is the subject of this proceeding, it will be necessary to measure the various issues by the yardstick established by the Supreme Court in its definition in Houghton v. Payne . Exhibit R-16 is a booklet, the pages of which are unnumbered but which I would estimate to contain approximately 32 to 36 pages, which describes the University of California in general and the University of California at Los Angeles in particular and in considerable detail. It consists largely of articles and photographs illustrating those articles or related to those articles. Exhibit R-17 is the Announcement for the School of Nursing for the year 1975-1976. This Announcement similarly is composed in large part of material that could be classified as articles. There is a substantial, but not major, portion of the publication that is comprised of the listing of the courses of instruction. These are thumbnail sketches of the different courses and this material would not be classified as articles. All of the material in this publication relates to the School of Nursing, although there may be some very brief reference to the General Catalog which is Exhibit R-15.

Exhibit R-18 is the Announcement of the School of Nursing for the year 1974-1975. The makeup of this publication is practically identical with the makeup of Exhibit R-17. It is so nearly identical that even the photographs used to illustrate the written material are identical.

R-19 is the Announcement of the School of Medicine for the year 1974-1975. About the first seven pages of this publication are taken up with such material as the table of contents, the academic calendar and a list of administrative officers and hospitals and clinic directors and administrators. The next twenty pages are articles generally about the School of Medicine. Beginning with page 31 and continuing to page 119, the contents are comprised approximately 95 per cent of listings of courses and giving thumbnail descriptions of them. There is some textual material which could possibly be construed to be articles but this comprises not more than five per cent of the publication. This section is followed by two sections, one entitled "Biomedical Library" and the other entitled "Continuing Education" for a total of four pages, including both articles, and then there is a list of the students attending the School of Medicine. Everything in this Announcement, or practically everything, relates exclusively to the School of Medicine, although, again, there may be some reference to the General Catalog or some general information.

Exhibit R-20 is the Announcement for the School of Engineering and Applied Science for the year 1975-1976. The first sixteen pages of this publication are material most of which could not be classified as articles, since they consist of the academic calendar and lists of administrative officers and faculty. In that sixteen pages there is one page which could be considered an article. It is an item addressed to the prospective engineering student and it is over the name of R. R. O'Neill, Dean, School of Engineering and Applied Sciences at UCLA. Most of the material between pages 16 and 66 could be regarded as articles and the remaining 30 of the 96 pages are made up of listings of courses of instruction. There can be no question about the audience at which this publication is directed, incidentally, because the first textual material in it is over the signature of the Dean of School and it is addressed to prospective engineering students.

Exhibit R-21 is the 1974-1975 Announcement for the School of Engineering and Applied Science and, again, on page 5 of this issue, there is a letter addressed to the prospective engineering student, signed this time by C. Martin Duke, Acting Dean, School of Engineering and Applied Science UCLA. The makeup of this publication is the same, or substantially the same, as the makeup of the preceding exhibit, although I would hasten to point out the photographs used to illustrate the stories of the articles in this publication are different than the photographs used in Exhibit R-20.

In general, the descriptions given to the earlier exhibits are applicable to the remaining two exhibits, R-22 which is the Announcement of the School of Dentistry for the academic year 1974-1975, and the Announcement of the Graduate Division for the academic year 1974-1975. There is an appreciable volume of material within each of these publications which could be regarded as articles and there are some listings of courses in each of the volumes. Each Announcement is directed to the discipline which is indicated on the cover. It has already been pointed out that the witness on behalf of the Petitioner testified that R-15, which is the General Catalog for the year 1975-1976, is a compendum of the individual Announcements which would apply to the academic year indicated, with such changes as would be indicated with respect to each of the divisions or departments or disciplines represented at the University.

Going back to the definition announced by the Supreme Court in Houghton v. Payne , it is found that in a number of respects the publication of the Petitioner fails to comply with the Court's definition. For example, in the Announcements for the School of Nursing and the School of Engineering and Applied Sciences, the later issues cannot be said to contain original articles by different authors because, for the most part, the material contained in a later issue of the related publication is simply a reprint of material appearing in the earlier issue. It is true that some changes have been made such as instances in which personnel changes occur in the faculty or the administrative officers, or in which a course in a particular school is dropped or a course added, but those occurrences, according to the spokesman for the Petitioner in this proceeding, are few. Between the various issues in the published series for a given year, there is no discernible connection between the different numbers except, as has already been pointed out, there are rare references in some of the Announcements to the General Catalog issue. Other than this, there is no connection between them. Each announcement is directed to the field of study indicated by the designation on the front cover.

In this proceeding, the Petitioner argues that the periodical UCLA conforms to all of the requirements of the Postal Service Manual regulation found in Section 132.2. That section of the Postal Service Manual incorporates, in substance if not in the actual language, the definition of Houghton v. Payne , and it has already been pointed out that the publication does not conform to the definition as set forth in Houghton v. Payne . That being so, the publication does not conform with the requirements of the Postal Service Manual regulation 132.2.

Counsel for the Petitioner asserts that revocation of second- class mail permit for UCLA is an unconstitutional denial of due process and a denial of equal protection of law, in that many similarly situated non-university publications are allowed unchallenged use of second-class permits. Petitioner's counsel asserts that such latter publications are no more or less in conformity with any regulation or alleged regulation than is UCLA .

Not in this proceeding, but in other proceedings similar to this, testimony has been given by representatives of the Postal Service that there are presently in effect some 30,000 second-class mail permits. It is undoubtedly true that among those 30,000 there must be some that have been improperly issued but the fact that there are other publications which may not be entitled to second-class mailing privileges but which nevertheless do have them, is no reason why the Postal Service should not proceed against those publications which it believes are not entitled to retain those privileges as those publications come to its attention.

There has been testimony by the Respondent's witness that in the division in which she is employed there are other mail classification specialists who are, as part of their day-to-day work, reviewing the statute of second-class permit holders to see whether they are properly mailing their publications at the favorable second-class rates. Thus, one of the purposes of this proceeding is to avoid any discriminatory practice. It having been found that the publication of the publication of the Petitioner in this case is not properly entitled to retain its second-class mail permit, it certainly would be discriminatory to permit that publication to continue to be mailed at the second-class rates if the Postal Service is possessed of knowledge that the publication is not eligible to be recognized as second-class mail matter.

There is a statement in Petitioner's brief which is factually incorrect and I think it should be corrected. The statement appears on page 15 of the brief and it reads as follows: "The Postal Service has expressed its intent to revoke second-class privilege for all university catalogs and thus denies an abuse of equal protection." If there has been an expression of such an intent on the part of the Postal Service, I was not aware of it until I read this statement in this brief today. I am aware of the fact that there presently is a review of college and university bulletins and catalogs, but I am also aware that of those which thus far have been examined, between 10 and 20 per cent of them have been recognized as being in compliance with the Postal laws and regulations governing second-class mailing eligibility and that the mailing permits of that 10 to 20 per cent of the institutions are continued in effect.

Petitioner asserts that if it is not entitled to mail its publication as a periodical publication that then it should be regarded as a nondescript publication. This argument is one that has been heard many times before and probably will be heard many times in the future. It arises out of the fact that the Supreme Court said that certain publications which were nondescript publications had been treated as if they were eligible for second-class mail privileges. Those publications are transportation guides, they are the only exception of which this presiding officer is aware to the rule with respect to periodical publications as defined by the Supreme Court. Every publication which is found not to be a periodical publication but for which second-class mail privileges are sought asserts that it is a nondescript publication. If all of those claims were recognized there probably would be another 30,000 mail permits issued to "nondescript" publications. The types of publications that have been termed nondescript publications ought not to be expanded until and unless that expansion is called for either by the Congress or by the Courts. There is no justification in this proceeding for any further expansion of the definition of that term.

The Petitioner asserts that a contemporaneous and long standing construction of an act by the agency charged with administering it is entitled to substantial weight. As a legal proposition that is generally true, but as long ago as the Houghton case that argument in the present context was disposed of. In the majority opinion it is stated, on page 99:

"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.

There was a dissent in the Houghton case written by Mr. Justice Harlan and even in the dissenting opinion of that case, there is this language:

"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."

Assume that an agency of the government for one reason or another applies a statute in a certain way. If it later develops that that method of application was erroneous, it has to be changed. In this situation, the Postmaster General is charged with the duty by Congress and he is bound by his oath of office to enforce the laws relating to the Postal Service. If he permitted a publication to continue to be mailed at second-class postage rates when it had been brought to his attention that such a publication was not eligible, surely there would be no provision of law that would require the Postmaster General to continue to violate the mandate of Congress and his own oath of office.

Based upon all the facts and circumstances in this case, I find and conclude that the publication UCLA is not a periodical publication within the meaning of the laws and regulations governing second-class mail eligibility, and I further conclude that the decision of the Director, Division of Mail Classification to revoke the privileges for that publication was correct and it is sustained.

Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. To the extent indicated, those proposed findings of fact and conclusions of law are adopted.

Otherwise, those proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are contrary to, or unsupported by, the evidence in this proceeding, or because they are immaterial.

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1/ Transcribed from oral decision as rendered at close of hearing held June 11, 1975. Minor language changes have been made, but the substance of the decision is unchanged.