P.S. Docket No. 4/153
June 07, 1976
In the Matter of the Petition by
THE UNIVERSITY OF NORTH CAROLINA, AT CHAPEL HILL,
Chapel Hill, North Carolina 27514,
Proposed Revocation of Second-Class Mail Privileges for the
"RECORD OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL"
P.S. Docket No. 4/153
June 7, 1976
William A. Duvall Chief Administrative Law Judge
Hon. Rufus L. Edmisten, Attorney General and
Hon. Andrew A. Vanore, Jr.,
Senior Deputy Attorney General, Department of Justice,
Raleigh, North Carolina, 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
The Petitioner in this proceeding is The University of North Carolina at Chapel Hill, Chapel Hill, North Carolina. The Respondent is the United States Postal Service, acting through the Director, Office of Mail Classification, Bureau of Finance, Washington, D. C.
On or about September 18, 1975, Petitioner filed an application for re-entry into the mails as second-class mail matter of the "Record of the University of North Carolina at Chapel Hill" (hereinafter sometimes called the "publication" or the "Record"). Re-entry was sought because of a change in the frequency of publishing. (Ex. R-4)
Respondent notified Petitioner on or about December 31, 1975, that, subject to Petitioner's right to show either (1) compliance or (2) how it intended to comply with the requirements governing second-class mail eligibility, the second-class mail privileges previously in effect in respect to the Record would be revoked within 15 days from Petitioner's receipt of the notice. Alternatively, Petitioner was advised that it could contest the ruling by filing an appeal within 15 days, as provided in Section 954.8 of the pertinent Rules of Practice, a copy of which was transmitted with the notice. In the notice it was stated that the reasons for the ruling are as follows:
"Section 132.211, Postal Service Manual, provides that only newspapers and other periodical publications may be mailed at the second-class rates. 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 a periodical, as there is no connection between the subjects and no literary continuity. The preceding definition of a periodical is based on a Supreme Court ruling in the case Houghton v. Payne , 194 U.S. 88 (1904).
"We have reviewed copies of the December 24, 1974, and the February 13, April 25 and December 10, 1975 issues of 'Record of the University of North Carolina at Chapel Hill.'
"These issues are bulletins for the following schools or sessions, respectively: Department of Statistics 1974-1976, School of Journalism 1975-1976, 1975 Summer Session, School of Nursing 1975-1976 and School of Medicine 1976-1978.
"Each issue contains general and academic information and regulations and course listings and descriptions for the particular school or session shown on the front.
"Each issue is devoted to a different school or session and is complete in itself betraying no need of continuation in subsequent issues and suggesting no relationship to prior issues. These are each essentially separate and independent publications which would be more appropriately ascribed to the classification scheme providing for the mailing of books and printed matter.
"'Record of the University of North Carolina at Chapel Hill' is not a periodical publication and is not entitled to retain second-class mail privileges. (See Northwest Missouri State University, Postal P.S. Docket No. 3/42, March 6, 1975 and University of Oregon, Case P.S. Docket No. 3/110, May 6,
1975.)" (Ex. R-6)
Petitioner took an appeal and, in due course, the matter came on for hearing. At the hearing both parties were represented by counsel who participated in the introduction of evidence and in the examination and cross-examination of witnesses. Oral proposed findings of fact, conclusions of law and reasons in support thereof were submitted by counsel for both parties.
The basic issue in this proceeding is whether the Record of the University of North Carolina at Chapel Hill is a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354; within the meaning of applicable postal regulations; and within the definition of the term "periodical publication" as that phrase has been defined and applied by the Postal Service and by the Courts.
In an Opinion and Recommended Decision in Docket No. MC73-1, Phase I, issued April 15, 1976, the Postal Rate Commission transmitted to the Board of Governors of the Postal Service a recommended Domestic Mail Classification Schedule. The following portion of the definition of second-class mail is set forth in Section 200.1 of the proposed classification schedule:
"200.1 Definition
a. Second-class mail consists of properly prepared newspapers and other periodical publications (hereafter 'publications') entered as second-class mail in accordance with section 200.3 which: [meet certain, specified prerequisites.! (Emphasis added)
Insofar as the issue in this case is concerned, this language is substantially the same as the language of 39 U. S. Code 4351, 1962 edition, which was brought forward by section 3 of the Postal Reorganization Act, approved August 12, 1970. Further, the conditions which "newspapers and other periodical publications" must meet in order to come within the definition of second-class mail under Section 200.1 are substantially the same as those set forth in 39 U. S. Code 4352 and 4354, 4355, 4356, 4359(a) and Postal Service Manual sections 132.228 and 132.232.
Under § 3625 of the Postal Reorganization Act the Board of Governors of the Postal Service may, among other things, approve, allow under protest, reject, or modify the Commission's Recommended Decision in accordance with the provisions of this section. As of the date this decision is being written, the Board of Governors has taken no action with respect to the Recommended Decision.
The foregoing facts merit mention since, in regard to the provisions of § 200.1 of the Commission's proposed classification schedule, the Board of Governors may at any time exercise any or all of the powers granted to it by 39 U. S. Code 3625. Furthermore, in Phases II and III of the classification case, which Phases are not yet even scheduled for the pleading stage, there may be modifications of the definition of second-class mail which will render this, and earlier Postal Service decisions in similar cases, obsolete or partially so. The purposes of the different phases of the classification case are specified at page 5 of the slip copy of the Recommended Decision.
As of this writing, however, the Recommended Decision of the Postal Rate Commission has no impact upon this proceeding. Accordingly, the issue in this case is to be resolved by resort to the criteria set forth in Houghton v. Payne , 194 U.S. 88, wherein the Supreme Court of the United States construed and applied statutes which were the predecessors of those codified at 39 U. S. Code 4351 and 4354, but which contained language very similar to that contained in the later enactments.
Received in evidence, but not in the following sequence, were the following exhibits:
GROUP I
Subject-Matter of the Issue of the
Resp. Ex. No. Ser. No. Record
7 807 The Graduate School, 1974-1975
20 821 The Graduate School, 1975-1976
8 808 The School of Law, 1974-1975
21 822 The School of Law, 1975-1976
9-A 810 The School of Business Administra-
tion, 1975-1976
26 826 The School of Business Administra-
tion, 1976-1977
10 811 The Graduate School of Business
Administration, 1975-1976
25 825 The Graduate School of Business
Administration, 1976-1977
11 812 The School of Library Science,
1975-1976 dated January 3, 1975
27 827 The School of Library Science
dated January 2, 1976
13 813 The School of Social Work,
1975-1976
28 828 The School of Social Work,
1976-1977
14 814 1975 Summer Session
29 830 1976 Summer Session
16 816 The School of Education, 1975-1976
30 831 The School of Education, 1976-1977
GROUP II
Subject-Matter of the Issue of the
Resp. Ex. No. Ser. No. Record
9 809 Extra Department of Statistics, 1974-1976
12 812 Extra The School of Journalism, 1975-1977
15 815 The School of Pharmacy, 1975-1976
17 817 The School of Dentistry, 1975-1976
18 819 The School of Public Health, 1975-1976
19 820 The School of Nursing, 1975-1976
22 823 The Undergraduate Bulletin, 1975-1976
23 823 Extra Department of City and Regional
Planning, 1975-1977
24 824 The School of Medicine, Division of
Physical Therapy, 1976-1978
The exhibits in Group I may be dealt with collectively in view
of the fact that they have so many characteristics in common. The
exhibits have been listed out of their chronological and numerical
sequence, but, as is shown, they have been listed in pairs by
subject-matter. The exhibits in each pair have the following
features:
1. In the main, the narrative material in the earlier
issue is repeated verbatim, or substantially so, in the later
issue;
2. Such changes as occur are of a minimal nature,
including, but not limited to, the elimination or addition of
a course or courses; the changing of a date or other figure;
the elimination or addition of the names of administration
officers or faculty members; certain small items, such as the
regulations regarding firearms, that appear in the earlier
issues are omitted in the later issues; the transposition of
subjects to different locations in a later issue without
making any change, or any substantive change; and in many
instances the use in later issues, but in different locations
within such issues, of the same photographic material as
appeared in earlier issues -- although sometimes the same
photographs appear on the same page numbers of the companion
issues.
3. In a number, but not in all, of the issues there are
incidental references to issues relating to other schools or
departments of the university, but each issue preponderantly
is devoted to the school or department stated on its cover.
In Group II, above, the issue which comes closest to having
attributes which, if other conditions were met, would permit it to
be recognized as part of a periodical publication is Exhibit 19,
relating to the School of Nursing. While this issue does contain
the ever-present articles "The University of North Carolina -
Sixteen Constituent Institutions" and "Residence Status for
Tuition Payment", the remainder of the contents and the manner of
their presentation in this issue come closer to meeting the
necessary standards than those found in any other issue. Since
there is no Record for the Nursing School for another academic
year available for comparison, the amount of duplication is not
known. The presence, absence or degree of duplication would, of
course, have an important bearing on the question.
On the other hand, for the period it covers this exhibit
contains all, or nearly all, of the information needed by one
interested in attending the School of Nursing for the particular
academic year. It is, therefore, substantially complete and bears
little, if any, "relation with prior or subsequent numbers of the
same series." Further, since it is devoted predominantly to the
School of Nursing, there is but slight, if any, connection, except
for the duplication previously indicated, between this issue of
the Record and other "numbers of the series in the nature of the
articles appearing in them."
The contents of Exhibits 15, 17 and 23 are comprised in the
amount of 35, 41, and 56 per cent, respectively, of matter other
than articles. Exhibit 15, School of Pharmacy, and Exhibit 17,
School of Dentistry, are devoted entirely to the professions to
which they relate, and the materials classified as articles
consist to a significant extent of material repeated from year to
year, and can not, therefore, be regarded as original.
The remaining five exhibits fail to meet the qualifications
for periodical publications because, among other reasons, they are
composed of material that is other than articles to the following
extent:
Ex. No. Portion of contents other than articles
9 (Statistics) 62%
12 (Journalism) 74%
18 (Public Health) 61%
22 (Undergraduate) 74%
24 (Medicine-Phys. Ther.) 71%
The above-indicated character of the contents of these
exhibits is, alone, sufficient to disqualify them as periodical
publications, even if they otherwise could be regarded as eligible
for second-class entry - which they may, and can, not. In
addition to the character of the contents of these exhibits,
however, there is the fact that each one is a discrete
publication, unrelated to the others and bearing little, if any,
relation to other numbers in the series. Furthermore, for the
period each covers, it contains all the information needed
concerning the school or department to which it relates.
That the Record covers such a diversity of subjects that "It
could scarcely be supposed that ordinary readers would subscribe
to a publication devoted to such an extensive range of subjects"
is strongly suggested, if not established, by the numbers of
copies printed of the various issues of the record, ranging from
800 (Resp. Ex. 9) to 26,000 (Resp. Ex. No. 22).
The testimony of the witness for the Petitioner bears out many
of the comments made above in respect to both groups of exhibits.
Concerning the course descriptions, this witness said:
"You are not going to get much originality in course
descriptions since we give a certain number of words that they
have to fall into to describe the course, and the nature of
the Faculty Council is such that they don't want you to be too
original in something that is going to be in the Record over a
period of time." (Tr. 34)
* * * * *
"Our mailings are largely exchange mailings rather than
mailings to students." (Tr. 34)
"Q Does it also contain any articles concerning how an
applicant, how a prospective student might qualify for
in-state or the lower rate of tuition?
"A Yes, we are now required to put in those regulations.
The residence status, I suppose, has been with us for about
three years." (Tr. 36)
"Q Although the format is similar from year to year,
each and every one of the publications which comprise the
record do change from year to year, don't they?
"A Yes. For example, if you have a new degree program,
or you have a new faculty member who comes in and has a course
that they want to teach; you suddenly get the money to get an
electron microscope, and they start going into ultra structure
cells as one of the graduate programs that advanced
undergraduates could take, they can write a 25-word
description of it, and put it in the catalog, and if you go
into the degree requirements and be listed as such, and the
degree requirements and the degrees change from time to time.
They seemed to have opened them up in the last few years and
they now permit students to spread themselves not in one
department but in several departments." (Tr. 38-39)
"Q Generally, what type of changes are made in these
catalogs from year to year?
"A Well, there are usually deletions of courses, and new
courses put in their place. We haven't had much of that, as I
said, in the last two years; new programs come in; and I think
I have even mentioned some regulations that have changed;
there are regulations for behavior of students on campus which
change from time to time; just an update of general
information in the front of the book, the pages here;
sometimes a change in format; some people, well, I guess that
would be cutting down on it; there may be some mention, update
in a department which would add some special study, or some
special emphasis in their department." (Tr. 48)
"Q In other words, what you do is you take a previous
issue like the School of Law issue and you update it for the
current academic year, is that right?
"A It is changed, that's right." (Tr. 49)
These exhibits and the testimony of the witnesses in this case
serve to disclose the characteristics of the publication under
consideration.
The Petitioner contends:
1. That the "Record" is a "periodical publication"
within the meaning of 39 U. S. Code 4351 and 4354 as those
provisions of law have been adopted and implemented within the
regulations of the United States Postal Service;
2. That "periodical" means "anything which is published
or appearing with a fixed interval of more than one day
between the issues or numbers, as a weekly magazine," etc., as
defined in Webster's New International Dictionary, 2nd
Edition, Unabridged, 1944;
3. That undue emphasis has been placed upon
Houghton v. Payne , and that the requirements of 39 U. S. Code 4354
have
been misconstrued and misapplied;
4. That in Houghton v. Payne the Court was
considering a
book and not a publication like the "Record"; and
5. That if Houghton is to be followed, the
"Record"
should be held to be a "nondescript publication".
These contentions will be discussed in the order in which they are
stated.
From the descriptions of the publications that have heretofore
been given, it is apparent that the "Record" is not composed of a
"variety of original articles by different authors". There is
article content in the publications but there is so much
repetition from year to year that no serious claim can be made as
to originality with respect to those articles. In addition,
examination of the publications discloses that most of the changes
that occur from one year to the next are changes in dates, amounts
of money, the names of faculty members, and other changes brought
about by the addition or deletion of courses or other brief
information.
The contention that mere regularity of publication is
sufficient to qualify a publication as second-class matter was
disposed of many years ago in Smith v. Hitchcock , 226
U.S. 53
(1912), at page 58, where the Court, speaking through Mr. Justice
Holmes, said:
"It must be taken as established that not every series of
printed papers published at definite intervals is a periodical
publication within the meaning of the law, even if it
satisfies the conditions for admission to the second class set
forth in § 14 [of the Act of March 3, 1879!. Houghton v. Payne , 194 U.S. 88, 96."
The foregoing excerpt from Smith v. Hitchcock , and
other statements appearing on the same page in that decision (226 U.S.
58), make it clear that the Supreme Court, in 1912, was still
emphasizing its holding in the Houghton case, and there has
not been pointed out a single indication of any lessening of that
emphasis by the Court in the intervening years. In the cases
which have been decided administratively it has been held that to
be eligible for second-class entry, publications must meet the
specific requirements of 39 U. S. Code 4354, and that, in
addition, the criteria established in Houghton v. Payne
must be met. This emphasis on Houghton , and this construction and
application of 39 U. S. Code 4354, were upheld by the U. S.
District Court for the District of Columbia in Florists'
Transworld Delivery Association , P.S. Docket No. 1/167
(affirmed sub nom . Teleflora, Incorporated v. USPS ,
Civ. Action No. 75-228, Order dated June 25, 1975).
It is true that in Houghton v. Payne the Supreme
Court was
considering a book. That fact, however, is only incidental. What
is important is the fact that the Court was considering,
construing, and applying a statute, the provisions of which are
strikingly similar to the provisions of the statute governing
second-class mail eligibility today.
Finally, the term "nondescript publications" has been used, so
far as second-class mail eligibility is concerned, only in respect
to transportation guides. This record provides no justification
for the extension of the scope of that interpretation of the term.
Florists' Transworld Delivery Association , P.S. Docket No.
1/167
(Sept. 12, 1974) ( aff'd sub nom . Teleflora,
Inc. v. USPS ), supra ;
New York University , P.S. Docket No. 4/81 (Init. Dec. March
1,
1976); Syracuse University , P.S. Docket No. 3/197 (Init.
Dec.
April 28, 1976); Shepard's Citations , P.S. Docket No. 1/88
(1974).
Based upon examination of the exhibits in evidence, the
testimony of the witnesses, and the application of pertinent
provisions of law and regulation, it is found that the Record of
the University of North Carolina at Chapel Hill is not a
periodical publication within the definition of Houghton v. Payne ,
supra , and within the meaning of 39 U. S. Code 4351 and 4354
and
within the meaning of Section 132.211, Postal Service Manual for
the following reasons:
1. The publication is not composed of a variety of original
articles by different authors since ...
a. An issue of the publication is prepared for one year
by updating the related issue for the previous year;
b. Articles, in many instances, are carried forward
verbatim from one year to the next;
c. The bulk of the content of most issues is comprised
of material that can not be classified as "articles".
2. Preponderantly, each issue is devoted to a particular
school and indicates little, if any, relation to other numbers in
the series.
3. For the period indicated in each issue, the publication
contains substantially, if not absolutely, all the information
needed by one interested in a particular school and thus each
issue is complete in itself.
4. The range of subjects is so great that the record fails to
reveal any individual to whom an entire year's production is sent.
Complete sets are sent on an exchange basis to libraries,
colleges, high school counselors and the like, but this fact does
not indicate that anyone is interested in, or reads, all of the
issues for one year.
Proposed findings of fact and conclusions of law have been
submitted by both parties. To the extent indicated, those
proposed findings of fact and conclusions of law are adopted.
Otherwise, such proposed findings of fact and conclusions of law
are rejected for the reasons stated or because they are contrary
to, or unsupported by, the evidence of record in this proceeding,
or because they are immaterial.
From all of the foregoing considerations, it is concluded that
the University of North Carolina is not entitled to retain
second-class mail privileges for its publication, "Record of the
University of North Carolina at Chapel Hill." Accordingly, the
decision of Respondent to revoke such privileges was correct, and
that decision is sustained.