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

APPEARANCES:                                                     John A. Stover, Esq.
                                                                                Malott, Pedder & Stover
                                                                                3445 Golden Gate Way
                                                                                Lafayette, California 94549

                                                                                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 before the undersigned on appeal by the Petitioner, Pacific Union College, from the Initial Decision issued by Chief Administrative Law Judge William A. Duvall sustaining the decision of the Respondent proposing to revoke second-class mail privileges for the "Pacific Union College Bulletin." Petitioner has raised two exceptions to the Initial Decision, both to the legal conclusion portion thereof.

Petitioner's first exception is to Judge Duvall's application of the definition of a periodical publication found in the case of Houghton v. Payne, 194 U.S. 88, (1904). Its second exception is to the failure to find that the Postal Service is barred from now taking revocation action by virtue of the fact that the publication has enjoyed the privilege without objection for 49 years. Judge Duvall considered, and rejected, both points in the Initial Decision, and properly so, in my opinion.

Section 132.8 of the Postal Service Manual, formerly 39 U.S.C. § 4352(b) expressly grants to the Postmaster General the right to revoke the entry of a publication as second-class mail whenever he finds, after a hearing, that the publication is no longer entitled to be entered as second-class mail. The docket books of the Judicial Officer Department of the Postal Service and its predecessor, the Post Office Department, are filled with revocation cases all involving lesser or greater periods of enjoyment of a grant of second-class mailing privileges found after review ot have been unjustified, and consequently revoked. That such cases have been more numerous in recent years in indicative of more vigorous enforcement of the law by those charged with reviewing the thousands of outstanding grants rather than any change in the legal standard employed in adjudicating cases once brought to the hearing stage. The definition laid down by the U.S. Supreme Court in Houghton v. Payne, supra, has consistently over the years been used as the basic test in deciding whether a particular publication is a "periodical publication." See the Amended Postal Service Decision in Florists' Transworld Delivery Association, P.S. Docket No. 1/167 (September 1974), affirmed sub nomine Teleflora Inc. v. USPS, U.S.D.C. for D.C., Civil Action No. 75-228 (June 25, 1975), for a detailed statement of the litigation history of adherence to Houghton v. Payne. Its application to publications such as those in issue here was affirmed most recently i Northwest Missouri State University, P.S. Docket No. 3/42 (Aug. 1975), and University of Oregon, P.S. Docket No. 3/110 (Jan. 1976), wherein arguments similar to those made by Petitioner were considered and rejected.

Judge Duvall's findings fully support his conclusion that the publications here in issue are not "periodical publications" within the meaning of Houghton v. Payne, supra. Accordingly, I am compelled to uphold his conclusion that the publication is not entitled to continued second-class mail privileges and hold that the Respondent's decision to revoke those privileges was correct. The Initial Decision is hereby affirmed.