In the Matter of the Petition by                                )
                                                                               )
THE GEOLOGICAL SOCIETY OF AMERICA            )
3300 Penrose Place                                               )
Boulder, Colorado 80301                                       )    P.S. Docket No. 4/150
                                                                               ) 
Proposed Revocation of Second-Class                 )
Mail Privileges for "BIBLIOGRAPHY                        )
AND INDEX OF GEOLOGY"                                    )

APPEARANCES FOR PETITIONER:                          Frank H. Shafroth, Esq.
                                                                                Shafroth and Toll
                                                                                Denver, Colorado

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

Lussier, Edward F.

POSTAL SERVICE DECISION

The subject proceeding is before the undersigned on appeal from the Initial Decision of Administrative Law Judge Quentin E. Grant upholding the proposed revocation of second-class mail privileges for the Petitioner's publication "Bibliography and Index of Geology."

The only issue in the case is whether the publication is a "periodical" within the meaning of the applicable law and regulations. Petitioner lists eight exceptions to the Initial Decision. The last two exceptions are simple statements that the decision was in error in finding Petitioner not entitled to second-class mail privileges and in upholding the decision of the Manager of Mail Classification in this regard.

The other exceptions are as follows:

"1. The Administrative Law Judge erred in finding that 'Bibliography and Index of Geology' lacks a variety of original articles and in finding that it is not a periodical within the Houghton v. Payne, supra, definition.

2. The Administrative Law Judge erred in determining in effect that only articles written in prose come within the legal definition of a periodical.

3. The Administrative Law Judge erred in determining that the definition of 'a periodical' as contained in Houghton v. Payne is still the law of the land.

4. The Administrative Law Judge erred in determining that the publication's citations do not in all cases give the conclusions or results arrived at in the articles cited.

5. The Administrative Law Judge erred in determining that the articles 'do not constitute complete abstracts, because a user, to be certain of conclusions or results arrived at by the author must obtain and read the original article.'

6. The Administrative Law Judge erred by failing to conclude that the publication was embraced by the 'non-descript publication' for purposes of second class mail privileges."

Exceptions 4 and 5 will be considered first as they relate to the factual findings, the remaining exceptions being to the legal conclusions. In this connection Petitioner's Appeal Brief in its argument on its exceptions does not expressly address itself to these two exceptions. Respondent's Reply Brief on appeal contends that a perusal of the physical exhibits supports these two findings. That the publication's citations do not in all cases give the conclusions or results arrived at in the abstracted article is obvious from the exhibits. This being so, as Judge Grant pointed out, the abstract is not complete in this respect and the user must obtain and read the original article to ascertain the conclusions or results reached therein. Therefore, these two exceptions must be disallowed.

Exceptions numbered 1 through 3 all relate to the interpretation and applicability of the landmark case of Houghton v. Payne, 194 U.S. 88 (1904), to the instant case. Petitioner introduces its argument on these exceptions by a brief preface to the effect that:

"The Law Judge in his Conclusions of Law stated:

'although the entries therein convey information helpful to users, they do not individually, or collectively, constitute articles as that term is commonly understood.'

"Yet in his Findings of Fact, he found that the publication is unique (Finding 13) and that it covers articles written by different authors and in a variety of fields of interest (Findings 15-18)." The implication of inconsistency in the findings is without foundation since it is clear that the distinction is being made between the nature and content of the publication in issue and the publications, not in issue, which it indexes.

Petitioner's major contention with respect to the first three exceptions is, because of its brevity, more suited to quotation than summarization.

"Now there is no point in unduly lengthening this brief with argument since the only matter that need be considered, other than the one later advanced in the next paragraph, is whether qualification for the privilege of second-class mail privileges is met only when the publication is in the form of literary composition or nonfictional prose. The Post Office has now followed this tired argument for almost 3/4ths of a century, having mistakenly determined that such was a requirement of Houghton v. Payne, supra. This blind commitment to a position is an anachronism. We do not put man on the moon with a horse and buggy, nor do research scientists read each and every article published by their peers. Therefore, how can a requirement of prose or literary composition be considered necessary to meet Houghton v. Payne, supra. If such is found necessary then said case is so antiquated that it can no longer be good law today."

The answer to the argument was stated with equal brevity by Judge Grant in the Initial Decision with supporting legal authorities, based upon which it is clear his decision was correct and this exception must be disallowed. The argument against the present day application of Houghton v. Payne, supra, consistently made, and just as consistently rejected, in proceedings such as these, has not found any greater favor upon judicial review when Petitioners have elected to seek such review. ^1/

Petitioner's reason for its sixth exception is to the fact that the position limiting nondescript publication status to transportation guides is a "fixed position." This is hardly a basis for reversal and this exception, accordingly, must be disallowed.

As previously pointed out the seventh and eighth exceptions are to the ultimate conclusions reached which I find correct under the factual circumstances and prevailing law. Accordingly, the Initial Decision is affirmed.

1/ e.g., Teleflora Incorporated v. USPS, Civil Action No. 75-228, (U.S.D.C. D.C., order dated June 25, 1975); Institute for Scientific Information, Inc. v. USPS, Civil Action No. 75-3528, Memorandum Opinion and Order, dated June 15, 1976 (U.S.D.C. E.D. Pa.)