In the Matter of the Petition by

CENTRAL WASHINGTON STATE COLLEGE,
Ellensburg, Washington 98926,

Proposed Annulment of Second-Class Mail Privileges for
"QUARTERLY OF THE CENTRAL WASHINGTON COLLEGE"

P.S. Docket No. 4/6

July 23, 1976

William A. Duvall Chief Administrative Law Judge

Steven D. Milam, Esq.
Assistant Attorney General,
Central Washington State College,
Ellensburg, Washington, 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/

On or about May 14, 1975, the United States Postal Service, the Respondent in this proceeding, acting through the Manager of the Mail Classification Division of the Finance Department, notified Central Washington State College, the Petitioner, that it was proposed to revoke the second-class mail privileges theretofore in effect for the publication known as the "Quarterly of the Central Washington College."

The reasons for the proposed revocation were 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 of Houghton v. Payne , 194 U.S. 88 (1904).

"We have reviewed copies of the May and July 1974 and March 1975 issues of 'Quarterly of the Central Washington College'.

"The May 1974 issue is designated on the front as the 'Quarterly Undergraduate Catalog 1974-75'. This issue contains general information about the College, information about admissions and finances, academic regulations, course listings and descriptions for the undergraduate programs, and a faculty and administration directory.

"The July 1974 issue is designated on the front as the 'Quarterly Graduate Catalog 1974-75'. This issue contains general academic information and regulations and graduate program descriptions and course listings.

"The March 1975 issue is the 'Summer School Issue 1975'. This issue contains admissions and registration information, a description of special summer programs and a schedule of classes for the summer session.

"The dominant characteristic of each publication is that of naming and describing a course of instruction that is available in a particular discipline. There is no continuity between these publications and each one of them is complete within itself. These are each essentially annual catalogs which would be more appropriately ascribed to the classification scheme providing for the mailing of books and printed matter.

"'Quarterly of Central Washington College' is not a periodical publication within the meaning of the applicable postal regulations and is not entitled to retain second-class mail privileges."

A timely petition was filed appealing the ruling of the Respondent and the matter came on for hearing on June 25, 1976. In the petition the bases for the proposed denial were disputed and it was said that the publication does possess the qualities which the notice said were lacking. In addition, it was alleged in the petition that the publication is issued at stated intervals and as frequently as four times a year.

In an order issued on April 2, 1976, it was stated that the issue in this proceeding could be defined as follows:

"Is the Quarterly of Central Washington State College a periodical publication within the meaning of 39 U. S. Code 4351 and 4354 and as provided in section 132.211 of the Postal Service Manual (39 C.F.R. 132.2(a)(1))?"

uring the course of the hearing it was stated again that the issue is whether the publication which is the subject of this proceeding is a periodical publication within the meaning of applicable Postal laws and regulations. Both statements of the issue in this proceeding, to which Petitioner made no timely objection, are sufficiently broad to encompass the issue with respect to whether the publication meets the technical requirements set forth in Section 4354 of Title 39, United States Code, including the requirement of being published at stated intervals and as frequently as four times a year.

The basic position of the Respondent in this proceeding is that the publication is not entitled to the benefit of continued second-class status because it is not a periodical publication and it is not a periodical publication because, in the view of the Respondent, it is not composed of a variety of original articles by different authors; there is no continuity between the different numbers of the series; each issue is complete in itself; and each issue is a separate publication not part of a series.

These points which were raised by the Respondent in its testimony and in its notification are based upon the definition of the term "periodical" as it was set forth in the case of Houghton v. Payne , 194 U.S. 88, at page 97, when the Supreme Court was considering and construing a provision of law which was very similar to the provision of law which is currently in effect with respect to second-class mail publications. That definition reads as follows:

"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. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects."

It may be just as well at this juncture to dispose of the question of the frequency and regularity of issuance of the publication. As previously indicated, 39 U. S. Code 4354 requires that a publication, among other things, be issued at stated intervals as frequently as four times a year in order to be eligible to be mailed at second-class postage rates. The testimony of the witness for the Petitioner in this proceeding was to the effect that the publication which is designated as "The Quarterly Central Washington State College Catalog" is issued three times a year. The Continuing Education Division of the institution issues a publication that is called "Correspondence Courses." The witness was uncertain as to the number of times that publication has been issued since he became associated with the University in 1971. The possible number, according to his recollection, was from six to ten issues of the publication called "Correspondence Courses," that may have been issued in that period of time.

On the other hand, there was no hesitation, and no uncertainty, on the part of the witness when he stated that the publication is not issued at a given time each year; therefore, there cannot be, with respect to that publication, a regularity of issuance which is a necessary ingredient that a publication must possess in order to be eligible to be mailed at second-class mail rates. Therefore, since that is the fourth publication on which the Petitioner relies for its eligibility for second-class privileges, the entire application must fail, since it does not meet one of the basic, mechanical requirements, namely regularity of issuance at stated intervals as frequently as four times a year. This deficiency is, alone, sufficient to warrant the revocation of the second-class mail permit previously issued.

Moving on, however, the various issues of the remaining publication, namely the Quarterly, have been examined. It is not necessary to dwell at length upon a detailed description of these publications. They will be identified, however, as follows: Respondent's Exhibit 7-A is the Quarterly Graduate Catalog for 1974-75; Respondent's Exhibit 7-B is the Quarterly Graduate Studies Catalog for 1975-76. The first 16 to 20 pages of both of these publications might be considered to be composed of material that could be regarded as articles, but there is so much repetition in the latter publication of material that appeared in the earlier publication that there is no reasonable claim that could be made for originality of the material appearing in the second or later issue.

In addition, the great bulk of material appearing in both of these publications consists of a listing of the different departments or divisions of the institution and the statements of the courses that are required of candidates for Master's Degrees. After these portions of the publication there follows another sizable section in which individual courses are listed by number and name and they are listed under different topics or subjects within the different divisions of the institution. These course descriptions and course listings cannot be regarded as articles and, again, even if they could be so regarded, they are not original articles in view of their frequent repetition. It is true that there are instances in which new courses are added, old courses are dropped, but, by and large, the courses remain pretty much the same and, in any event, the descriptions of them do not rise to the level of an article or articles.

Following the listing of the course descriptions there are lists of the trustees of the college, the officers of the college administration, the index and some of the faculty members, not necessarily in the order stated. None of the latter items can be regarded as articles.

The other publications received in evidence were: Respondent's Exhibit 7-C, which was the Undergraduate Catalog for 1974-75; Respondent's Exhibit 7-D, which is called Undergraduate Studies for 1975-76; Respondent's Exhibit 7-E, which is the catalog for the Summer Session, 1975; and Respondent's Exhibit 7-F, which is the catalog for the Summer Session, 1976.

As testified by the Petitioner's witness, the college has adhered to the same format over a number of years. The exhibits received in evidence certainly bear out that statement with respect to the period of years covered by the exhibits. The description given with respect to Respondent's Exhibits 7-A and 7-B is applicable to Respondent's Exhibits 7-C through 7-F.

In summary, it is clear upon examination of these exhibits that they do not consist of, or contain to any significant degree, a variety of original articles by different authors. In view of the lack of regularity of issuance at stated intervals as frequently as four times a year, and in view of the obvious fact that they do not contain a variety of original articles by different authors as their dominant characteristic, the other issues are rendered moot and need not be explored or reached at this time.

Counsel for the Petitioner submitted 26 proposed findings of fact and conclusions of law, some of which require some comment.

First in order of its significance is the assertion by the Petitioner that the Postal Service is estopped at this time from revoking second-class mail privileges which have been in effect with respect to the publication of Central Washington State College since 1891 or 1892. This question was also disposed of by the Supreme Court in the Houghton case when it was pointed out that the second-class mailing permit of the publication that it had under consideration at that time had been in effect for a number of years. The Court said, in disposing of this argument:

"Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute."

hat was a statement by the author of the majority opinion in that case. And even in the dissenting opinion by Mr. Justice Harlan there is the following statement:

"Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it would be the duty of the court to so adjudge."

It also has been said as follows:

"Detrimental reliance is an essential ingredient of estoppel."

n view of the fact that Central Washington State College has been mailing its publication at second-class mail rates from 1891 or 1892 up to the present time, it is difficult to see how the institution can claim detrimentally to have relied upon that ruling, because it has enjoyed low postage rates for that entire period of time. But even if there had been detrimental reliance by the institution on the improvident granting of second-class mail privileges by the Postal Service and its predecessor, it has been held that:

"The doctrine of equitable estoppel does not prevent the [agency in that case] from changing its position to correct an error of law." Bornstein v. United States , 345 F.2d 558, 563; Automobile Club of Michigan v. Commissioner of Internal Revenue , 353 U.S. 180.

ence, the doctrine of estoppel and the companion doctrine of contemporaneous construction are not barriers to the revocation that is proposed by the Respondent in this proceeding.

Petitioner also has taken the position that since it is a regularly established state institution of learning, supported in whole or in part by public taxation and, since it publishes in these Quarterlies information of a public character, it is entitled to have its second-class mail privileges continued. Section 4355 of Title 39, United States Code, as it previously existed and as it has been carried over, provides that in order to be eligible for this benefit, the matter to be mailed must be mailable periodical publications and since that term has not been re-defined since the decision in the Houghton case, the Houghton definition is still applicable.

The Petitioner has asserted that the revocation of its second-class mail permit would be discriminatory with respect to the institution of learning. As a matter of fact, quite the contrary would be true, because to permit Central Washington State College to continue to mail its Quarterly publication at second-class postage rates would be to accord to that institution privileges which are denied other institutions similarly situated and other publishers similarly situated.

Based upon the examination and review of the exhibits that were received in evidence, and based upon a review of the testimony of the witnesses and the application of pertinent provisions of law and regulations, it is found that the Quarterly of the Central Washington College is not a periodical publication within the definition of Houghton v. Payne , and within the meaning of 39 U. S. Code 4351-4354, and within the meaning of Section 132.211 of the Postal Service Manual.

The proposed findings of fact and conclusions of law that have been submitted by both parties have been carefully considered. 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.

Based upon all of the foregoing considerations, it is concluded that Central Washington State College is not entitled to retain second-class mail privileges for its publication, "Quarterly of the Central Washington College." The decision of the Respondent to revoke such privileges was correct and that decision is sustained.

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1/ Transcribed from oral decision as rendered at close of hearing held June 25, 1976. Minor language changes have been made, but the substance of the decision is unchanged.