In the Matter of the Petition by                                )
                                                                               )
AMERICAN CHEMICAL SOCIETY                            )
1155 16th Street, N.W.                                           )
Washington, D.C. 20036                                        )
                                                                               )
Revocation of Second-Class Mail                          )
Privileges for "CHEMICAL ABSTRACTS                 )
SERVICE SOURCE INDEX"                                      )    P.S. Docket No. 3/59

APPEARANCES FOR PETITIONER:                          Ralph N. Albright, Jr., Esq.
                                                                                Hanson, O'Brien, Birney,
                                                                                Stickle and Butler
                                                                                888 17th Street, N.W. Washington, D.C.

APPEARANCES FOR RESPONDENT:
                                                                                Arpad de Kovacsy, Esq.
                                                                                Law Department
                                                                                United States Postal Service
                                                                                Washington, D.C.

Lussier, Edward F.

POSTAL SERVICE DECISION

Petitioner, the American Chemical Society, has appealed the Initial Decision of Chief Administrative Law Judge William A. Duvall which concluded that its publication "Chemical Abstracts Service Source Index" was not a periodical publication within the meaning of 39 U.S. Code § 4351 and § 4354 and Postal Service Manual § 132.2. No reason is perceived to repeat or summarize the detailed findings of fact in the Initial Decision, as Petitioner's appeal addresses itself principally to areas of law. However, there is attached hereto a copy of Petitioner's Exhibit 4 showing a typical page of the publication.

Petitioner's first exception is to the failure to find that "in the field of library science the term 'periodical' means a publication which is published in sequential fashion with sequential numbering, proposing to exist for an indefinite period of time, each issue of which contains new information." It is Petitioner's position that this definition given by its witness expert on library science should be followed rather than the definition of a periodical publication found in Houghton v. Payne, 194 U.S. 88 (1904). Petitioner's proposal is essentially the "inherent periodicity" definition rejected in Institute for Scientific Information, Inc., P.S. Docket Nos. 2/60 et al. See also Predicasts, Inc., P.S. Docket No. 3/66; Proceedings in Print, Inc., P.S. Docket No. 2/189. The exception is accordingly disallowed.

Petitioner's second exception is to the finding that the publication does not consist of a variety of original articles by different authors in keeping with the Houghton v. Payne definition. Petitioner contends in effect that the lack of a prose format is unimportant and that it is sufficient that the format conveys information. The extent of abbreviation is best shown by reference to Petitioner's Exhibit 4, appended hereto. The Initial Decision correctly found this to be simply a listing, in abbreviated form, of numerous items of information concerning other publications and containing none of the characteristics of literary compositions or nonfictional prose compositions which the term "article" is commonly defined to mean. Petitioner's exception, attempting as it does to eliminate the concept that written articles are necessary, was rejected for reasons fully set forth in the Initial Decision, along with Petitioner's further contention, made the basis for its third exception on appeal, that editorial effort establishes entitlement to second-class mail privileges. Judge Duvall's reasoning and the case precedent given in support thereof need no further amplification here and these exceptions are accordingly disallowed.

Petitioner's fourth exception is to the failure to find that its publication was entitled to second-class mail privileges on a "non-descript" publication. The Initial Decision's citation to Florists' Transworld Delivery Association, P.S. Docket No. 1/167 (Amended Postal Service Decision, September 17, 1974) disposes of that exception. See also Shepard's Citations, Inc., P.S. Docket No. 1/88 and Northwest Missouri State University, P.S. Docket No. 3/42 for examples of cases where similar arguments have been rejected.

Petitioner, as a last point, raises briefly what has the indicia of an estoppel argument based on the fact that it has enjoyed the privilege since 1970. However, the argument has no validity here. See Houghton v. Payne, supra; Shepard's Citations, supra; Northwest Missouri State, supra; University of Oregon, P.S. Docket No. 3/110.

Petitioner's exceptions to the Initial Decision have been considered and are disallowed. The Initial Decision is hereby affirmed.