In the Matter of the Petition by                                )
                                                                               )
THE AMERICAN UNIVERSITY                                 )
Washington, D. C. 20016                                       )    P.S. Docket No. 4/7
                                                                               )
                                                                               )
Proposed Revocation of Second-Class                 )
Mail Privileges for "THE AMERICAN                        )
UNIVERSITY BULLETIN"                                         )

APPEARANCES:
                                                                               Anthony C. Morella, Esq.
                                                                               Luiz R. Simmons, Esq.
                                                                               American University
                                                                               Washington, D. C. 20016
                                                                               for Petitioner

                                                                               Grayson M. Poats, Esq.
                                                                               Law Department
                                                                               United States Postal Service
                                                                               Washington, D.C. 20260
                                                                               for Respondent

Lussier, Edward F.

POSTAL SERVICE DECISION

The instant appeal is taken by the American University, the Petitioner in these proceedings, from the Initial Decision of Chief Administrative Law Judge William A. Duvall holding that the publication, "The American University Bulletin," does not meet the legal test of being a "periodical publication" entitled to second-class mail privileges. He thus sustained the decision of the Office of Mail Classification to revoke the second-class mail privileges previously in effect for the publication. Petitioner has taken exception to the legal conclusion but not to the findings of fact in the Initial Decision.

Petitioner's first two exceptions are stated in the form of its positive assertions of what constitutes a periodical publication. Thus Petitioner summarizes its first two exceptions, which may be treated together, as follows:

"I. The Classification of A Publication as a Periodical Within The Meaning of 39 U.S. Code 4351 and 4354 and Applicable Postal Regulations is Determined by the Character of The Publication.

II. A Periodical is a Publication Wherein The Object is The Dissemination of Information of a Public Character, The Subject Matter Is a Changing One, and The Publication Satisfies The Basic Requisites of Postal Service Manual Section 132.22. "The arguments are basically the same made to Judge Duvall. Their starting point is the contention that Houghton v. Payne, 194 U.S. 88 (1904), does not limit periodicals to publications composed of a variety of original articles by different authors. As the Initial Decision pointed out (p. 12) the Petitioner's criteria is correct insofar as it goes but it does not go far enough. Two elements of the Houghton v. Payne definition of a periodical, namely, original articles by different authors and a continuity of literary character were found lacking in "The American University Bulletin."

Contending that the Houghton v. Payne definition was not intended to set forth a comprehensive definition, Petitioner points to the particular facts in that case, certain language of the court in Smith v. Hitchcock, 226 U.S. 53 (1912), and the recognition of second-class privileges for transportation guides. The argument, although ably presented, has been considered in previous cases and rejected in previous cases for the reasons stated therein. See University of Oregon, P.S. Docket No. 3/110 (Jan. 1976); Northwest Missouri State University, P.S. Docket No. 3/42 (1975); Institute for Scientific Information, P.S. Docket No. 2/60 et al.; Florists' Transworld Delivery Association, P.S. Docket No. 1/167 (aff'd sub nomine Teleflora, Inc. v. USPS, U.S.D.C., D.C. Civil Action No. 75-228, June 25, 1975). It must likewise be rejected in this case and Petitioner's first two exceptions insofar as they would substitute a legal standard different than that set forth by the Supreme Court in Houghton v. Payne must accordingly be disallowed.

Petitioner's next exception is summarized as follows:

"III. The Summary Judgment Denied To Teleflora Delivery Service and Granted to The United States Postal Service In United States District Court For The District of Columbia Civil Docket No. 75-0228 on June 25, 1975 Was Not a Reaffirmation of Houghton v. Payne, 194 U.S. 88 (1904)."

Petitioner's disagreement with the Initial Decision on this point is based upon the contention that the decision of the District Court was silent as to its basis and presumably could have been based upon the issue of whether the publication there in issue was properly denied continuation of its second-class mail privileges for the reason that it was primarily devoted to advertising rather than because it did not meet the Houghton v. Payne test for a periodical publication. I believe this contention is based upon a misunderstanding of the District Court case. It is true that Florists' Transworld Delivery Association, P.S. Docket No. 1/167, found that the publication there involved, "FTD News," did not meet the requirements for second-class mail eligibility because it was not a periodical publication and because it was designed primarily for advertising purposes. The Petitioner in Florists' Transworld Delivery Association did not seek judicial review of the final agency decision. However, the parties in a companion case, Teleflora Delivery Service, Inc., P.S. Docket No. 1/206, had stipulated that the decision in the "FTD" case, insofar as it related to the "periodical" issue, but not insofar as it related to the advertising, or any other, issue, would be applicable to Teleflora Delivery Service. Thus the sole issue before Judge Hart in the Federal District Court in Teleflora, Inc., v. USPS, U.S.D.C., D.C. Civil Action No. 75-228, was the "periodical" issue as decided in the Amended Postal Service Decision in Florists' Transworld Delivery Association, supra (Sept. 17, 1974). It is this issue which was litigated and upheld in the District Court. Accordingly, Petitioner's exception to the portion of the Initial Decision so finding must be disallowed.

Petitioner summarizes its last exception as follows:

"IV. Petitioner's Definition of A Periodical Within The Meaning of 39 U.S. Code 4351 and 4354 and Applicable Postal Regulations Would Not Permit The Sears Roebuck and Company Catalog To Become Eligible For Second-Class Mailing Privileges." This exception has reference to the statement found at page 12 of the Initial Decision that "If one were to be governed solely by the two elements urged by the Petitioner, then the Sears Roebuck and Company catalog would be eligible for second-class mailing privileges because, certainly, it disseminates information of a public character, and, due to the changing of the seasons and the changing of styles, the information that it contains changes from time to time." Petitioner takes issue with the implication that its definition of what constitutes a "periodical publication" would permit the Sears catalog to qualify for second-class mail privileges pointing out that the restriction against publications devoted primarily to advertising would bar that result. Indeed there may well be other regulatory factors prohibiting such entitlement, but none really disturb the point, which it seems to me Judge Duvall was making, that Petitioner's proposed criteria for meeting the "periodical" test, if adopted, would be met by such a catalog. So construed this portion of the Initial Decision does not stand for the broad proposition Petitioner attributes to it and the exception based thereon is disallowed.

Conclusion

Petitioner's appeal brief and exceptions to the Initial Decision have been fully considered and for the reasons stated disallowed. Accordingly, the decision to revoke second-class mail privileges for the publication "The American University Bulletin" as sustained by Judge Duvall is hereby affirmed.