In the Matter of the Petition by

NEW YORK UNIVERSITY,
Main Building,
100 Washington Square East,
New York, New York 10003

Proposed Annulment of Second-Class Mail Privileges for

"NEW YORK UNIVERSITY BULLETIN"

P.S. Docket No. 4/81

Rudolf Sobernheim Administrative Law Judge

APPEARANCES:
William C. Porth, Esq.
Stanley Yaker, Esq.
Assistant General Attorney
1 Washington Square Village
New York, New York 10012
for Petitioner

Arpad de Kovacsy, Esq.
Law Department U.S. Postal Service
Washington, D.C. 20260 for Respondent

INITIAL DECISION

This is a proceeding initiated by petitioner pursuant to 39 CFR Part 954 to contest the ruling of respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter sometimes referred to as the "Manager") which on 16 September 1975 annulled, subject to the outcome of this proceeding, petitioner's second-class mail privileges in respect of "NEW YORK UNIVERSITY BULLETIN" (hereinafter sometimes referred to as the "Bulletin").

The reasons for this ruling were stated by the manager as follows (Att'mt to Pet'n):

"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)."

After referring to each issue of the Bulletin reviewed by him or his staff, the Manager continued:

"Each of the publications which we have reviewed, with the exception of the 1975 Commencement Issue, contains general and academic information and regulations and course listings and descriptions for the particular school or program listed on the front. The Commencement issue contains a list of persons who received degrees or special awards from New York University in 1975.

Each of the publications which we have reviewed 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 schemes providing for the mailing of books and printed matter.

'New York University Bulletin' is not a periodical publication within the meaning of applicable postal regulations and is not entitled to retain second-class mail privileges. (See Northwest Missouri State University, Case P.S. Docket No. 3/42, March 6, 1975 and University of Oregon, Case P.S. Docket No. 3/110, May 6, 1975.)"

Petitioner promptly sought review of the Manager's ruling. A hearing was thereafter held at which both parties offered documentary and testimonial evidence. Both parties also filed post-hearing briefs. In transmitting petitioner's brief, its counsel asked (Ltr to Pres. Adm. Law J., dtd 21 Jan. 1976) that respondent be given a reasonable opportunity to reply to petitioner's memorandum. Petitioner sent a copy of this letter to respondent's counsel but the latter made no application for permission to respond in any way to petitioner's memorandum although time for such purpose was amply available. Accordingly, the matter now stands ready for initial decision.

FINDINGS OF FACT

1. Petitioner New York University is one of the large private universities centered in New York City and enjoys the special tax status accorded by law to educational institutions.

2. It maintains 13 colleges and schools at five major centers in the Borough of Manhattan in the City of New York. It had in 1974 a student body of close to 40,000 students, a teaching staff of about 5,000 and more than 20 different degree programs.

3. a. The Bulletin began publication with the current century in 1901 as "a new form of public announcement" and appeared bi-weekly between August and December of each year (T 50).

b. Its purpose, as stated at the outset, was to supersede the "circulars of schools and the general catalog issued heretofore without any fixedness of dates" (T 51). Hence, petitioner proposed to publish a "bi-weekly bulletin which shall comprise in its 12 numbers the general catalog, the circulars in succession of the ten schools, the report of the library, and the report of the chancellor, with such additional information as may seem important to be published in the interest of the university.

"The present number presents the annual university announcement and general catalog. The second number will be devoted principally to the university graduate school. The third number to the summer school. The subjects of the remaining numbers will be announced hereafter" (T 51).

c. The Bulletin was to be sent to various schools, colleges and libraries, to students and graduates, and to all residents of the United States requesting the Bulletin and "remitting in postage stamps the sum of 50 cents as the annual subscription" (T 51).

4. The number of issues of the Bulletin appears to have expanded over the years and its appearance modernized in the early years following World War II. In any event in 1974 the Bulletin's frequency according to the second-class mail permit therefor was weekly for 42 consecutive issues beginning in January. On 7 March 1975 petitioner applied for re-entry of the Bulletin with a frequency of 30 consecutive issues (Resp. Ex. 1).

5. The record shows that in 1973 at least 38 issues of the Bulletin were published (Resp. Ex. 4). In 1974 only 27 issues appeared instead of 42 (Vol. LXXIV, Pet. Ex. 2) and in 1975 only 20 instead of 30 issues (Vol. LXXV, Pet. Ex. 1).

6. Petitioner's application for re-entry led to an examination of the Bulletin's status as a periodical publication for which petitioner was entitled to second-class mail privileges (Resp. Ex. 2, 3) and ultimately to the proposed annulment thereof.

7. The 27 issues of the 1974 volume of the Bulletin comprise the following:

seven (7) announcements of seminars, conferences, symposia or institutes:

6th National Mortgage Conference E.S.P. Special One Day Symposium "Doing Business in Mexico" (Int'l Inst. on Tax and Bus. Planning) Esalen/NYU - Focusing New Energies Computer Programming The Real Estate Institute 33d Annual Institute of Federal Taxation

six (6) announcements of special programs of the School of Continuing Education (Foreign Languages; the American Language; College Preparation).

thirteen (13) announcements of courses in the University's schools or colleges for a session, one year or two years:

Summer Session (1974)

School of Education (1974-5)

School of Law

School of the Arts (1974-5, 1975-6)

School of Medicine Postgraduate Medical School

School of Continuing Education (summer and fall 1974, spring 1975)

Washington Square and University College

College of Business and Public Administration

Graduate School of Arts and Science

Graduate School of Public Administration

Graduate School of Business Administration

one (1) special issue for the 142d Commencement.

8. The announcements of seminars, conferences, institutes and symposia vary in format from single folded sheets to 24-page 8 1/2 by 11 inch pamphlets but their content is basically the same: the program of lectures or courses forming the event, information on the event's organizers, purpose or scope and teaching staff, and the "nuts and bolts" of the event: time, place, application blank and like information.

10. The special program announcements contain brief explanations of the program, information on registration, a description of courses and faculty, and sometimes an application blank.

11. a. The school or college catalogs are volumes running from about 80 to 300 pages for annual or biennial volumes and 30 to 200 pages for session volumes.

b. The catalogs issued by the University's schools and colleges for an entire year uniformly contain:

(i) an identical statement about New York University, rosters of university trustees, administrators and faculty, an academic calendar, and maps and other information on the location of the school or college and how to reach it.

(ii) More detailed information in short textual sections about the school, courses of study, degree programs, fees and expenses, financial assistance and student life topics.

(iii) A description of courses which normally is the most substantial section of the catalog and may take up between 40% and 80% of the volume ( e . g ., Pet. Ex. 2, Vol. LXXIV, Nos. 2 (169 out of 200 pages); 3 (192 out of 277 pages); 7 (16 out of 31 pages); 16 (66 out of 174 pages)).

12. The Commencement issue (Pet. Ex. 2, Vol. LXXIV, No. 23) consists of 96 pages of lists of graduating students by college or school, preceded by rosters of university trustees, administrative officials and cognizant committees (4 pages), table of contents and program and the recipients of honorary degrees and awards with the presentation and award citations (28 pages).

13. The 1975 Bulletin (Pet. Ex. 1, Vol. LXXV) is composed of five (5) announcements of special events, three (3) special program announcements, eleven (11) school catalogs and the commencement volume. All of these follow the pattern detailed in Findings of Fact 8 through 12 for the 1974 volume. Three of the issues (Pet. Ex. 2, Vol. LXXV, issues 3, 5, 6) are supplemental issues to biennial catalogs published as part of volume LXXIV (Washington Square and University College, Graduate School of Arts and Science, College of Business and Public Administration) and are reproduced in imitation of typewriting.

14. Petitioner's Bulletin is composed of disparate segments: announcements of spot events, special programs, catalogs of its schools or colleges, and a commencement memorial issue. All of these segments together represent a significant portion but by no means all of petitioner's activities (see P.S. Docket No. 4/19 "CONTINUING EDUCATION") and may be meaningful in the aggregate to those who seek to follow a portion of the university's life. But the record, as represented by the testimony of petitioner's Director of Public Relations and the Operations Manager of the Office of Creative Services, is equally clear that the various segments of the Bulletin are primarily addressed to-day to different publics, to wit: those interested in the particular event, program or school.

15. Each issue of the Bulletin, being thus prepared to inform those interested in a particular course of study or opportunity for study and learning, is seen in this perspective as standing by itself and complete for the period covered, without continuity or connection in content with other issues of the same volume.

16. This view of petitioner's publication is reinforced by the fact that each issue repeats certain standard information about the university which petitioner wishes all recipients thereof to possess and otherwise furnishes all information needed by the reader either to register as a student, to participate in the university's life, or to select or help another to choose a course of study.

17. On the basis of the foregoing detailed Findings of Fact and the record as a whole I, therefore, find that petitioner's Bulletin is composed of complete and separate books, booklets or flyers which are not converted into a periodical publication by being called the NEW YORK UNIVERSITY BULLETIN and being consecutively numbered and designated as annual volumes of such Bulletin.

18. In addition, the Commencement issue is nothing but a listing of the persons upon whom earned or honorary degrees or awards are being conferred and lacks articles within the ordinary intendment of the term.

CONCLUSIONS OF LAW

1. Petitioner raises the same arguments in defense of its second-class mail privileges for the Bulletin which it argued for their retention in respect of "CONTINUING EDUCATION" (P.S. Docket No. 4/19 (1975; Final Order 10 Feb. 1976)). The arguments are no more persuasive now than in the earlier case.

2. Petitioner asks (Br., p. 17) that a decision herein be withheld in the light of pending legislation, referring to H.R. 7735 and S. 2015, introduced on 9 and 25 June 1975 respectively, and not yet passed by the Congress. See also H.R. 8603, 94th Cong., 1st Sess. which would establish second-class mail privileges for "any catalog or other course listing issued by any institution of higher learning" (H.R. 8603, sec. 10, amending 39 USC 3626 by adding a new subsection (b)). This bill also has not yet become law. Until it does the law as it presently exists governs. Nothing authorizes or empowers the administrative law judges of the United States Postal Service to preserve by their inaction second-class mail privileges heretofore improperly granted if that be the case. To do so would also give petitioner a preference over those institutions of higher learning who as a result of final Postal Service decisions have lost their second-class mail privileges for similar publications. Northwest Missouri State University , P.S. Docket No. 3/42 (1975); University of Oregon , P.S. Docket No. 3/110 (1976); California Institute of Technology , P.S. Docket No. 3/166 (1976); Board of Supervisors of Louisiana State University , P.S. Docket No. 3/191 (1976); The American University , P.S. Docket No. 4/7 (1976); Pacific Union College , P.S. Docket No. 3/178 (1976). Hence, petitioner's request that a decision on its appeal be withheld while the outcome of legislative developments is being awaited cannot be granted.

3. Petitioner further requests (Br., pp. 16-17) time to refashion its publication so as to bring it within the scope of existing regulations as they are now understood as a matter of law. While a brief delay to attain such goal might be administratively granted by cognizant authority, nothing in the regulations governing second-class mail privileges (PSM 132.2) or this appeal (39 CFR Part 954) authorizes the presiding administrative law judge in deciding an appeal to issue such an order without concurrence of the parties. None here exists and petitioner's request must be denied.

4. Nor is it true that the proposed annulment of petitioner's second-class mail privileges exceeds the powers of respondent. Houghton v. Payne , 194 U.S. 88 (1904). There is nothing in U.S. ex rel. Milwaukee Social Democratic Publishing Company v. Burleson , 225 U.S. 407 (1921) which would abridge respondent's right to revoke second-class mail privileges improvidently granted to publishers of publications which fail to meet the tests for the granting of such privileges laid down by statute, regulation or authoritative court decision ( loc. cit. , supra , at pp. 410-11, 415). Nor does Mr. Justice Brandeis' celebrated dissent deny such powers to the Postmaster-General. 225 U.S. 417, at pp. 426-7. To the same effect, see the dissent of Mr. Justice Holmes, 225 U.S. 436, at p. 437. Hannegan v. Esquire Magazine , 327 U.S. 146 (1946) dealt with the use of postal powers to effect censorship and has no application here. The issue here is not whether petitioner's publication publishes "information of a public character" nor whether its content is "good" or "bad" as was argued in Hannegan . See loc. cit. , supra , at p. 151, cited in petitioner's brief at page 14.

5. The issue here is, on the contrary, the simple one whether petitioner publishes a publication which meets the terms of the applicable regulations (see in particular PSM 132.221) and within the meaning of the decision of the United States Supreme Court in Houghton v. Payne , 194 U.S. 88 (1904). This meaning, as applicable under former and present postal laws and regulations (PSM 132.2, 132.211), was there defined ( loc. cit. , supra , at p. 97) 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."

6. To the extent that petitioner's Bulletin consists of spot announcements of future events such items have been held not to form a periodical publication even when labelled as issues of a periodical publication and consecutively numbered as such. New York University , supra .

7. School or college or special program catalogs, although labelled and numbered as such, also have been held not to form a periodical publication in Northwest Missouri State University and other Postal Service decisions, cited above. Such catalogs are independent volumes, each complete in itself and without connection with each other notwithstanding occasional cross-references. See also the initial decisions in University of Akron , P.S. Docket No. 4/95 (1976); The Cleveland State University , P.S. Docket No. 4/98 (1976); The George Washington University , P.S. Docket No. 3/142 (1975). Petitioner's bare assertion (Br. p. 9) that the Northwest Missouri and Oregon cases and, presumably, similar decisions do not apply is wholly unsupported and cannot be accepted.

8. Petitioner has failed to comply with the terms of its second-class mail permit (see Findings of Fact 4, 5). Such patent failure to meet its permit terms, while not cited by respondent or used herein as the basis for annulment or revocation of petitioner's permit (see PSM 132.221) ill behooves those who seek to retain the benefits which such privileges confer.

9. In the light of the cited decisions and the considerations set forth herein petitioner is not entitled to second-class mail privileges for its publication.

10. Accordingly, the appeal of petitioner from the Manager's ruling of 16 September 1975 is denied. His ruling was correct and petitioner's second-class mail privileges for "New York University Bulletin" should stand annulled.