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

APPEARANCES:                                                    Maurice L. Brundige, Esq.
                                                                              Office of the General Counsel
                                                                              California Institute of Technology
                                                                              4800 Oak Grove Drive
                                                                              Pasadena, California 91103
                                                                              for Petitioner

                                                                              Arthur S. Cahn, Esq.
                                                                              Law Department
                                                                              United States Postal Service
                                                                              Washington, D.C. 20260
                                                                              for Respondent

Lussier, Edward F.

POSTAL SERVICE DECISION

The subject case is on appeal by Petitioner to the undersigned from the Initial Decision of Chief Administrative Law Judge William A. Duvall sustaining Respondent's proposed revocation of second-class mail privileges for the publication "CALTECH". Petitioner has taken exception to certain findings in the Initial Decision as well as failure to adopt two Conclusions of Law proposed by it.

Petitioner's exceptions to Judge Duvall's findings relate primarily to findings with respect to Exhibits R-15, R-16, and R-17, these being Annual Reports respectively for the Divisions of hemistry and Chemical Engineering, of Engineering and Applied Sciences and of Biology. Quoting that portion of the Initial Decision which finds:

"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 for 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." (page 11, Initial Decision) Petitioner states, "We agree completely with this characterization but take issue with the implication that a summary, sketch or thumbnail sketch is not an article." While some of these "thumbnail sketches" are a page long, many are two and three sentences and hardly could qualify under any definition of an "article." Most fall into what might be classed very brief paragraphs.

Even if the Petitioner was given the benefit of a considerable doubt and a certain percentage was classified as "articles," it would not change the result in this case for as Judge Duvall pointed out at page 12 of the Initial Decision:

"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 the 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." Petitioner takes exception to this finding of a lack of continuity but it seems to me clearly supported on the record and from a review of the issues of the publication in question. As was indicated in the Initial Decision, the only point suggesting continuity which was found by Petitioner's 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.

The Supreme Court in Houghton v. Payne, 194 U.S. 88 (1904) addressed itself specifically to the question of the need for continuity in holding "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 character of the publication "CALTECH" is one of a series of annual publications each separate and distinct from the other. That a certain number of people might ask for and receive the entire series, indicating an interest in the whole spectrum of activities at the Institute, does not indicate the necessary continuity between the separate issues. Accordingly, Petitioner's exceptions to the findings of fact must be disallowed.

Petitioner takes exception to the failure to adopt the following proposed Conclusion of Law:

"The Petitioner has, under a long-established legal principle of law, a right to rely upon a practice of the Postal Service, and the United States Post Office Department, that has been continued for 70 years, until the practice is changed either by Congressional action or in accordance with existing postal statutes." Its contention here is based upon the rule of contemporaneous construction. This contention was considered and rejected by Judge Duvall. It was rejected also by the Supreme Court in Houghton v. Payne, supra. It has been raised and decided adversely to Petitioner in proceedings similar to the instant proceeding. Pacific Union College, P.S. Docket No. 3/178; University of Oregon, P.S. Docket No. 3/110; Northwest Missouri State University, P.S. Docket No. 3/42. See also Shephard's Citations, Inc., P.S. Docket No. 1/88. It must likewise be rejected in this case.

Petitioner's last exception is to the failure to adopt the following Conclusion of Law:

"With the enactment of the Postal Reorganization Act of 1970 (Public Law 91-375, 84 Stat. 719) the Congress enunicated clearly its intention that the publications of certain qualified non-profit organizations would be entitled to the same mailing rates as applied on the effective date of the Act, with the proviso however, that such rates could be adjusted in accordance with the guidelines stated in Section 3626 of the Act. Briefly stated, the guidelines were, that such rates could be adjusted only by the Postal Rate Commission, and then only if the Congress failed to appropriate sufficient moneys to offset the difference between revenues and the actual costs attributable to expenses of handling certain specified classes of mail; and further, that any such adjustments were to be prorated over a period of five years for certain classes of mail, and ten years for other classes of mail. The ten-year adjustment period specified under subparagraph 1 of Section 3626 is applicable to non-profit educational institutions." Judge Duvall's discussion at pages 14-17 of the Initial Decision adequately disposes of the matter in my view. Recent Postal Service Decisions in Pacific Union College, P.S. Docket No. 3/178, and University of Oregon, P.S. Docket No. 3/110, rejected like contentions. This exception is accordingly disallowed.

Petitioner's exceptions on appeal having been considered and disallowed, it follows that the Initial Decision is hereby affirmed.