P.S. Docket No. 4/7
September 25, 1975
In the Matter of the Petition by
THE AMERICAN UNIVERSITY
Washington, D. C. 20016
Proposed Revocation of Second-Class Mail Privileges for "THE AMERICAN
UNIVERSITY BULLETIN"
P.S. Docket No. 4/7
September 25, 1975
William A. Duvall Chief Administrative Law Judge
Anthony C. Morella, Esq. and
Luiz Simmons, Esq.,
American University,
Massachusetts & Nebraska Avenues,
N.W., Washington, D. C., for Petitioner
Grayson M. Poats, Esq.,
Law Department, United States Postal Service,
Washington, D. C., for Respondent
Before: William A. Duvall, Chief Administrative Law Judge
The Petitioner in this proceeding is the American University, Washington, D. C. The Respondent is the United States Postal Service, acting through the Director of the Division of Mail Classification.
This proceeding arises as a result of the issuance by the Respondent of a notice advising the Petitioner that it was proposed to revoke the second-class mailing privileges theretofore in effect for the publication known as the American University Bulletin.
The issue in this proceeding is whether the publication is a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354 and within the meaning of applicable Postal regulations and various decisions of the courts, particularly the decision of the United States Supreme Court in the case of Houghton v. Payne , a 1904 case which is reported at 194 U.S. 88.
In that case, the Court was called upon to construe a statute that contains language which is very similar to the language governing second-class mail eligibility today. The Court noted the fact that Congress, in enacting the statutes which the Court then had under consideration, used the term "periodical", but the Court also noted that Congress did not define that term.
After commenting upon the absence of a definition, the Court then proceeded to formulate a definition which 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."
It has been pointed out previously in numerous administrative cases that this definition has been followed for many years, first, by the Post Office Department and, later and currently, by its successor, the United States Postal Service.
Counsel for the Petitioner have alluded to the fact that the second-class mail permit with respect to the American University Bulletin has been in effect since 1954, and that therefore it is not permissible that the Postal Service undertake now to revoke such privileges. This question, also, was dealt with in the Houghton case when the Court said:
"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." (194 U.S. 99-100)
Language to a similar effect is found in the opinion of the dissenting Justices in the Houghton case. ( id . pp. 102-103)
The Postmaster General is sworn to enforce the Postal laws, and, through his various agents, it appears that he is attempting to do that with respect to the second-class laws. This proceeding and others like it are continuing steps in that process. To permit one class of publishers to continue to mail their publications at the preferential second-class rates when certain ones of them are not entitled to it clearly would be arbitrary, and it would be discriminatory against other publishers who are similarly situated but whose permits are being revoked. Therefore, the fact that American University has had second-class mail permits since 1954 is no impediment, if the character of the publication so warrants, to the revocation at this time of that permit.
Counsel suggested that there is some sort of program that has been undertaken by the Postal Service to revoke the second-class mailing privileges for colleges and universities in the United States. It is true that there has been a program undertaken under which the various university bulletins are being examined in the Office of Mail Classification for the purpose of determining whether those publications presently possess the requirements which they must have to make them eligible to retain their second-class mailing permits. It has been found that in approximately 10 to 20 percent of the cases that have been examined, the publications do conform with the requirements of the laws and regulations governing second-class mail, and for that 10 to 20 percent the second-class mailing privileges are continued in effect.
The decisions in cases coming before the Administrative Law Judges and the Judicial Officer are made on a case by case basis. The effort is made to examine the nature and character of each publication and to arrive at a conclusion by applying the various laws, regulations, and decisions to the particular publications under examination at the time.
In the Petition that was filed by the Petitioner in this case, the suggestion is strongly made that Houghton v. Payne is no longer applicable and should be limited to the facts and circumstances of that case. The definition set forth by the Court in the Houghton case did not refer particularly to the Riverside Series which it had under consideration at that time. What the Court focused on was the word "periodical", and that was the term which the Court defined. To this day there has been no Congressional, or Court, or Administrative action which would modify the definition of the Supreme Court in the Houghton case.
It is true that in the case of Smith v. Hitchcock , 226 U.S. 53 (1912) which was decided some 8 years after the Houghton case, the Court made a statement about a publication which contained information of a public character, which information changes from time to time, but the Court expressly said that it did not undertake at that time to formulate a definition. There was a very simple and perfectly logical reason for indicating that it was not then "attempting a definition" because that bridge already had been crossed in the Houghton case. The definition had been made, and there was no need to redefine that which had been defined 8 years earlier.
In reaching a decision in this case, various issues of the publication have been examined. The first of the publications examined was received in evidence as Respondent's Exhibit 4. It is the American University Bulletin which consists of the Program for the 60th Commencement which took place on May 12, 1974. In this publication there are two pages, pages 13 and 14, which could be considered as containing an article. The remainder of this publication, which has a total of 65 pages, consists of such matters as the statement of the order of the program at the Commencement, a listing of the awards that were given, and then a listing of the graduates in the various schools of the institution.
Not under any definition of periodical publication of which I am aware, or of which I have ever heard, would the publication just described be regarded as eligible for second-class mailing.
The next publications to be examined were Respondent's Exhibits 5 and 9 which are, respectively, the American University Bulletin Catalog Issue for the period beginning July 7, 1974, and September 1975. The first of these publications contains a total of 468 pages. The first 65 of those pages, and, at most, 50 other pages (making a total of 115 pages) could be held to consist of material that could be classified as articles. With respect to Petitioner's Exhibit 9, this publication contains 368 pages in total of which 100 might be considered to be comprised of articles. The remainder of each of these publications consists of such information as a listing of courses, officers of the university, members of the faculty of the university, and similar data. It is obvious that the great preponderance of both of these issues of the American University Bulletin consists of matter that is not classificable as articles.
In addition to the features just discussed, further examination of the contents of these publications makes it obvious that to a significant degree there is repetition from one issue to the other. There may be within the material that is repeated certain instances in which a date is changed or a figure is changed as to the number of students enrolled at a particular time, courses may vary, or there may be different course numbers and things of that nature, but, basically, the material is just repeated from one issue to the other. Sometimes it is verbatim. At other times, those very minor changes are made.
Some, but by no means all, specific examples of the repetition and duplication are those portions in the earlier section of the publications under the captions: "Accreditation," "Alumni Association," "Admission for Undergraduates," "Equivalency Requirements," "Campus Visits," and "Interviews." For some of those items, the particular text may appear on different pages in the publication, but when you find it in a second publication its resemblance to the same material on a different page in the earlier publication is undeniable.
In this connection, there was received in evidence as Petitioner's Exhibit 5 what purports to be a presentation of the changes that have been made in certain issues of the General Catalog for American University. The witness through whom this exhibit was received testified that the changes consist primarily of new courses, courses not previously available at the university, and changes in course descriptions. Examination of Petitioner's Exhibit 5 bears out the accuracy of that characterization made by the Petitioner's witness in that there are instances of pages in the exhibit which are reproductions of pages of one of the bulletins and certain course changes, names of instructors, or certain other brief amendments are simply inserted in lieu of previous words that appear on that page. These changes that appear in this exhibit are of no significance in reaching a conclusion with respect to any change in character of the publication under consideration.
In short, the American University Bulletin which is the General Catalog issue does not qualify for transmission through the mails at the second-class postage rates.
Next considered were Respondent's Exhibit 2 and Respondent's Exhibit 8, which are catalogs of the American University, Washington College of Law, for the years, respectively, of 1973-74 and 1975-76. This publication is comprised for the most part of material that could be classified as articles. The difficulty is that in this publication, as in the General Catalog publication, there is so much verbatim duplication that it cannot reasonably be claimed that the articles that are carried in the publication are original articles as required by the definition of Houghton v. Payne .
For the above reason, the issue of the publication just described is not entitled to be carried in the mails at the second-class postage rates.
Finally, there was examined Respondent's Exhibit 7 which is the Summer Schedule of Classes for the American University, dated March 1975. Fourteen of the pages in this publication could be considered to be articles, but the remaining 58 pages could not. There was no previous or subsequent copy of this publication in evidence so no comparison could be made between this publication, Respondent's Exhibit 7, and a previous or subsequent issue of a comparable publication. However, based upon the testimony of Petitioner's witness, it is not unreasonable to assume although it is not so found, that duplication exists in this publication as well as in the others.
There are at least two of the issues for 1974, namely, the Commencement Bulletin and the General Catalog which cannot be regarded as eligible for second-class mail entry because of the absence of a significant number of articles. (For various other reasons specified herein, none of the issues of the American University Bulletin can be classified as second-class mail matter.) American University mails only four of its bulletins per year. With those two publications eliminated, it follows that the publisher does not meet the requirements which are stated in 39 U. S. Code 4354 which provides that a mailable periodical publication is entitled to be entered and mails as second-class mail if it is regularly issued at stated intervals as frequently as four times a year.
In his proposed findings, and in argument at the conclusion of the taking of testimony, Counsel for the Petitioner urged that the character of a publication is the factor which determines its classification as a periodical. That is proposed as a conclusion of law, and I would adopt that. I would say, however, that the determination of the character of a publication is governed to a large extent by a determination as to whether it complies and conforms with the requirements of the definition set forth in Houghton v. Payne .
The American University Bulletin reports on educational activities and opportunities of the American University. Within one frame of reference, the American University Bulletin reports on a single subject matter...that is the American University. The subject matter, the American University, constantly changes in certain of its aspects. The Petitioner insists that a publication is a periodical within the meaning of the Postal laws and regulations if it disseminates information of a public character and if the nature of that information is a changing one. This has never been the criterion followed by the Postal Service. It is correct so far as it goes, but it is not complete because it leaves out certain elements of the Houghton definition.
If one were to be governed solely by the two elements urged by the Petitioner, then the Sears Roebuck and Company catalog would be eligible for second-class mailing privileges because, certainly, it disseminates information of a public character, and, due to the changing of the seasons and the changing of styles, the information that it contains changes from time to time. But I do not think that it would be seriously insisted by anyone, including the Petitioner, that the Sears Roebuck catalog is a periodical publication entitled to second-class mail status.
Petitioner insists that the Houghton definition did not limit "periodical publication" to those publications which contain a variety of original articles by different authors. The second item in the definition of the Supreme Court is that each number of a publication, in order to qualify as a periodical, contains a variety of original articles by different authors. That is one of the cardinal points of the definition announced by the Supreme Court, and that has been a point that has been followed and applied in the Postal Service.
Based on the entire record in this case, I find that the American University Bulletin does not contain a variety of original articles by different authors.
Petitioner's Counsel argued at length for the reconsideration of the Amended Postal Service Decision in Florists' Transworld Delivery Association , P.S. Docket No. 1/167(Sept. 17, 1974). Based upon a stipulation between the parties, the last-mentioned decision was held to be applicable in Teleflora Delivery Service , P.S. Docket No. 1/206 (1974). In the latter case an action was brought by the publisher in the United States District Court for the District of Columbia to have set aside the ruling of the Postal Service revoking Teleflora's second-class mail privileges. On June 25, 1975, the Court denied Teleflora's motion for summary judgment and granted summary judgment to the Government. The effect of the Court's action was the reaffirmation of Houghton v. Payne and approval of the manner of its application by the Postal Service, since Houghton's definition formed the basis of the FLorists' Transworld Delivery Association decision.
Petitioner's Counsel dwelt at great length on the feature of the completeness, or the lack of completeness of the publication under consideration in this case. In view of the other findings in this case, it is not necessary at this time to make a finding with respect to the completeness or incompleteness of the American University Bulletin, but, while reasonable men may reach different conclusions, it would appear that the publication meets the Houghton v. Payne requirement of incompleteness.
In examining the publications that have been introduced in evidence, there could not be discerned a "continuity of literary character" which the Court expanded to mean "a connection between the different numbers of the series in the nature of the articles appearing in them." Each Bulletin, although there are incidental references to other places in other Bulletins, is devoted overwhelmingly to the discipline of the school to which it relates.
There is no continuity among the publications as contemplated and required by the Houghton definition.
In view of the facts and circumstances herein recited, it is concluded that the American University Bulletin is not a periodical publication and, therefore, it is ineligible to be carried in the mail as second-class mail matter.
It follows that the decision of the Director of the Office of Mail Classification to revoke the second-class mailing privileges previously in effect with respect to the American 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 herein indicated, 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.
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1/ Transcribed from oral decision as rendered at close of hearing held September 5, 1975. Changes have been made, but the substance of the decision is unchanged.