In the Matter of the Petitions by

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ON BEHALF OF THE UNIVERSITY
OF CALIFORNIA, IRVINE

Proposed Revocation of Second-Class Mail Privileges for
"CONTINUING EDUCATION", THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ON BEHALF OF THE UNIVERSITY OF CALIFORNIA, SANTA BARBARA, Proposed Revocation of Second-Class Mail Privileges for "QUEST"

P.S. Docket No. 4/102; P.S. Docket No. 4/114

July 23, 1976

William A. Duvall Chief Administrative Law Judge

Norman I. Lustig, Esq.
Office of the General Counsel
2200 University Avenue,
Berkeley, California, for Petitioner

Arpad de Kovacsy, Esq.
Law Department
United States Postal Service
Washington, D.C., for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION

^1/This proceeding involves appeals by the Regents of the University of California on behalf of the University of California at Irvine and Santa Barbara institutions from notices of proposed revocation of second-class mail privileges for the publication of the Irvine institution, known as "Continuing Education," and for the publication of the Santa Barbara institution, known as "Quest." ^2/ The notices of proposed revocation sent to the respective institutions are attached to this decision as Appendices A, with respect to the Irvine institution, and B, with respect to the Santa Barbara institution.

Basically, the Respondent, the Postal Service, which sent out the notices of proposed revocation, has taken the position that the two publications fail to meet the qualifications for retention of their second-class mail privileges because they are not periodical publications within the meaning of the provisions of law formerly set out in 39 U. S. Code 4351 and 4354, within the meaning of Postal regulations relating to the subject; and as the term "periodical publication" has been defined by the Supreme Court of the United States in Houghton v. Payne , 194 U.S. 88.

There were received in evidence 21 issues, being the entire number of issues in Volume IX, of the publication "Continuing Education," and a greater number of issues of the publication "Quest." The various issues are specified for each publication in the transcript of the hearing, and it is not necessary at this time to particularize their identities.

All 21 issues of the publication of the Irvine branch of the University of California have been reviewed in detail. What I am about to say does not relate to an issue in this proceeding, but someone has written on the outer surface of some of these exhibits the words, "no advertising, 100 percent." How the individual could reach that conclusion with respect to some of these publications is beyond me. But I repeat, that this feature is not an issue in this proceeding, and that consideration does not enter into the disposition of this case.

I think that the matter may be best handled by describing these publications and disposing of the rest of the questions after the publications have been described. In describing the publication, it is not necessary to dwell at length on each individual one.

Generally speaking, the publications of the University of California at Irvine divide themselves into several groups as follows: there are certain of the publications which are intended to be for a quarter of the school year. And there are certain other of the publications which are to cover a period of time, either of from one day to five days, or for one day a week for as much as 10 weeks during a quarter of the academic school year.

These publications further divide themselves into those which are addressed to from one to three topics, and those publications which concern a greater number of topics. The quarterly publications contain very little, if any, material in them that could be regarded as an article within the meaning of Houghton v. Payne which will be cited and quoted from later. These publications are comprised primarily of descriptions of courses. The descriptions are short. And by that, I mean that they may consist of from four or five to perhaps ten sentences. The sentences are not really sentences, because they do not consist of a subject and predicate. They are expressed in telegraphic language, but it is true that they do convey information. There is very little printed matter that does not convey information of some sort.

Nothing that is said in this proceeding should be regarded as being critical of he institutions by which these publications are issued, nor of the publications themselves. But these things that are pointed out are pointed out because they bear directly, importantly, and critically on the question of the eligibility of the publications for second-class mail status.

The publications are related to a particular subject. For example, Volume IX, No. 21 of "Continuing Education" has as its topic, "Out-Group Writers." It describes itself in somewhat more detail in these words: "Racial, Ethnic, and Sexual Voices in American Literature." That indicates what the course is about, and this course did meet for 11 Thursday evenings from 7:00 to 10:00 p.m. from January 9 to March 20, and two Saturdays, February 8 and March 22, all 1975.

There is some narrative textual material in this exhibit, but this type of material is not of sufficient volume to form the dominant characteristic of the publication. There is textual material of a general nature, and there is additional textual material which discusses each of the subdivisions of the over-all subject, "Out-Group Writers."

Others of these publications are addressed to persons in particular professions. Some of them are addressed to those in the world of business, and they relate to the general subject of management. There are two or three in this group which do relate to those topics and, to that extent, there is a connection between these issues. But insofar as second-class eligibility is concerned, each one of these issues is complete in itself because the entire topic that is to be discussed on each of several evenings is described and each one gives the dates on which the discussions are to take place. The particular exhibit that I am referring to now is No. 18 of Volume IX which describes a three-day seminar. The seminars do not meet on consecutive days, but they meet on consecutive Saturdays.

There is no relationship shown here between these courses and any other seminars that are to be held. It is a fact that there are other seminars which are in the field of management, but there is no relationship shown between this exhibit and the other exhibit or exhibits in which the general topic of management is to be the subject under consideration.

Generally speaking, each of these issues of the publication, "Continuing Education," does not consist of a variety of original articles by different authors. There are articles in some of them and, presumably, according to the testimony of the witness, those articles were prepared by different individuals who made contributions to the article or articles appearing in the publication. But there is no variety of articles, since most of them contain only one article.

In addition, there is no continuity from one issue to the next, except in the instance that I mentioned, except insofar as one may say that generally these publications relate to the subject of continuing education. But each is directed to its own particular audience and this fact was attested to also by the testimony of Petitioner's witness when he said that there are from 10,000 to 20,000 in some instances, up to 100,000 in other instances, of these publications that are mailed and that in determining the group to which each issue is to be mailed, the University consults its computer address lists and has that computer deliver those names of persons it believes to be interested in the particular issue of the publication.

It is obvious, therefore, that the University is aware of the fact that not all persons to whom it mails these publications are interested in receiving all of the issues for a particular year.

After looking through in considerable detail the publication issued by the Irvine institution, I went through with less detail, because a less detailed examination was more than adequate, the publication of the institution located at Santa Barbara, the name of that publication being "Quest." Again, the entire group of the exhibits published by the Santa Barbara institution consisted, in the main, of announcements of seminars or particular courses, or meetings of one session or several session, and each separate issue is devoted to the particular subject or subjects which appear on one side or the other of the issue.

Each one is complete in itself, since it tells all that one needs to know to determine whether he will be interested in taking the particular course or attending the particular seminar. There is no continuity between one of these announcements and another of the announcements, except occasionally there will be a reference to material that would be of interest to teachers.

Basically, the same reasons which apply to one of these publications apply to the other as to why it is not eligible to retain its second-class status. And in recapitulation, those reasons are, first and most importantly, that they do not contain a variety of original articles by different authors. If they do contain an article or articles, those portions of the publication do not comprise the dominant characteristic of any issue of the publication.

Each of the issues is complete in itself, in that it conveys all the relevant information for the period of time, or for the subject matter, to which it relates, and there is no need to refer to other sources for supplemental information with respect to the time and place that the course or the seminar is to be held, and the persons who are to be in charge, or who are to act as instructors or coordinators.

Most of these publications are addressed to a particular audience, as has already been indicated, and has been recognized by the particular branch of the University. The existence of different audiences for the different issues persuasively supports the proposition that, except in the most general terms, there is no continuity between the various issues of the series.

This brings us to the definition that is relied upon by the Postal Service in making its determination with respect to this case. It is the definition also which has been used for a number of years by the Postal Service in making similar determinations in similar cases.

In the Houghton case, cited above, the Court said:

"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."

If that definition is applied to the publications here under consideration, as it has been and as it must be, it is manifest that the publication is not entitled to be classified as second-class mail.

The Petitioner has raised a number of objections to this proceeding, and they will now be dealt with.

The Petitioners object to reliance upon the definition of a periodical found in Houghton v. Payne . The Petitioners indicate that that is an outmoded definition which has seen the time of its usefulness come and go. In addition to the fact that the Postal Service has relied on this decision for a number of years, the decision has recently received affirmation in the United States District Court for the District of Columbia in the case of Teleflora Spirit v. United States Postal Service , Civil Action No. 75-0228, decided June 25, 1975. The case under consideration by the Court at that time was one in which the decision of the Postal Service rested specifically on the decision heretofore read from the Houghton case, and the Court affirmed the action of the Postal Service in its reliance on that definition from Houghton .

In another recent case, Institute for Scientific Information, Inc. v. United States Postal Service , Civil Action 75-3528, U.S.D.C., E.D. Pa., decided June 15, 1976, District Judge Weiner said:

"We reject the plaintiff's contention that the Houghton opinion applies only to books and does not apply to periodicals. It is our view that Houghton clearly determined that publications are not 'periodical publications' unless they 'contain 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.'"

The Petitioners state that the definition of a periodical is, and has been for some time, a publication of which the issues appear at stated or regular intervals. As has been pointed out many times, a telephone directory appears at more or less regular intervals. A Sears Roebuck catalog appears at regular intervals. Neither of these could, under any reasonable interpretation of the Postal laws, be regarded as second-class matter.

The Petitioners assert that even if the Houghton standards control classifications pertaining to literary-type matter, Houghton is inapplicable to this and similar cases where the topic disseminated is current news, which must constantly be updated and revised. And in support of this statement, Petitioner cited Smith v. Hitchcock , 226 U.S. 53 at pages 59-60.

I do not regard the Smith v. Hitchcock case as leading to any such conclusion. Mr. Justice Holmes wrote the decision in the Hitchcock case, and he had this to say on the subject:

"Thus a question of law is raised, although as suggested in Bates & Guild Co. v. Payne , 194 U.S. 106, 108, we should not interfere with the decision of the Postmaster General unless clearly of opinion that it was wrong. Ibid. 110. American School of Magnetic Healing v. McAnnulty , 187 U.S. 94, 106. Public Clearing House v. Coyne , 194 U.S. 497, 509. We have no such clear opinion, as the decision is pretty nearly if not wholly sustained by Houghton v. Payne , 194 U.S. 88, and Smith v. Payne , 194 U.S. 104. Indeed the latter case dealt with The Medal Library, which was a periodical publication of several issues of the Tip Top Weekly bound together; so the principal plaintiff now puts it, in book form, and it is true, reprinted in a different size and shape. Some attempt was made to reargue the law of the decisions just cited, but we do not feel called upon to reopen the discussion in that part of the appellants' brief."

These remarks indicate that Mr. Justice Holmes was fully aware of the decision in the Houghton case, and that he was perfectly content to let that decision remain as it was, and not disturb it, although the opportunity was presented squarely in the Smith v. Hitchcock case, had there been any inclination on the part of the Court to disturb the Houghton case.

Petitioners assert that the revocation of the second-class mailing permits for these publications is an unconstitutional denial of due process and equal protection of law, in that many similarly-situated, non-university publications are allowed unchallenged use of second-class permits without any reasonable distinction, although such publications are no more or less in conformity with any regulation or alleged regulation than are these publications.

That statement is a rather broad conclusion, which, so far as this record is concerned, is lacking in support for the reason that the witness for the Respondent in this case testified that she and others have as their duties the review of the whole gamut of second-class publications. There is an emphasis, at this time, on the publications of colleges and universities because it came to the attention of the Postal Service that some of these publications were being mailed at second-class rates when they were not entitled to do so. On the other hand, they do review other publications, of which there are, according to the witness, approximately 33,000 with second-class mail permits. With the limited staff on hand in the Office of the Manager of Mail Classification, only a very limited number of them can be taken up at any one time.

As a further part of the functions of the people assigned to positions like that of the witness for the Respondent, there is the review of the eligibility of mailers for the various classes of mail. The review function, therefore, is not limited only to second-class mail, but it includes any and all of the four classes of mail. There does not come out of this entire discussion a picture of any great oppression or any discrimination with respect to colleges and universities. In the final analysis, it is the obligation of the Postmaster General to enforce the laws relating to the Postal Service, and if it has come to the attention of the Postal Service that some group is mailing at rates less than those to which they are entitled, it is the obligation of the Postal Service to see that the situation is corrected.

The Petitioners assert that if the publications under consideration in this proceeding are not periodical publications as that term has been defined herein, the publications should be regarded as "nondescript" publications, which were casually mentioned by the Court in the Houghton case. The only exception, as previously has been pointed out, to the rule with respect to periodical publications is that under which transportation guides are permitted to be mailed as "nondescript" publications. Since the time when those transportation guides were given that preferred status, no other types of publications have been so recognized, and there is nothing in this record which would warrant or permit the broadening of the definition of "periodical publication" to include the publications at issue in this proceeding.

I have considered the arguments of counsel for both sides, and I have adopted their proposed findings of fact and conclusions of law to the extent heretofore indicated. Otherwise, those proposed findings of fact and conclusions of law are denied as being contrary to the evidence, or unsupported by the evidence of record in this proceeding, or because of their immateriality.

Upon the basis of the entire record in this proceeding, it is concluded that the publications "Continuing Education," issued by the University of California at Irvine, and "Quest," issued by the University of California at Santa Barbara, are not periodical publications within the meaning of applicable Postal law and regulations, and therefore they are not entitled to retain their second-class mail permits.

The decision of the Respondent to revoke the existing second-class mail privileges of the publications which are the subjects of this proceeding was correct, and that decision is hereby sustained.

1/ Transcribed from oral decision as rendered at close of hearing held June 21, 1976. Minor language changes have been made, but the substance of the decision is unchanged.

2/ All offered issues of "Continuing Education" were received in evidence as a group as Respondent's Exhibit No. 10. All offered issues of "Quest" were received in evidence as a group as Respondent's Exhibit No. 12. Where reference is made to an individual copy of a publication, such reference is made by title, volume number and number in the series.