In the Matter of the Petition by

THE UNIVERSITY OF AKRON
Akron, Ohio 44325,

Proposed Revocation of Second-Class Mail Privileges for
"THE UNIVERSITY OF AKRON BULLETIN"

P.S. Docket No. 4/95

Rudolf Sobernheim Administrative Law Judge

APPEARANCES:
Ted A. Mallo, Esq.
The University of Akron
302 E. Buchtel Avenue
Akron, Ohio 44325 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 the petitioner pursuant to 39 CFR, Part 954, to contest the ruling of respondent, represented by the Manager of the Mail Classification Division, Finance Department, U. S. Postal Service (hereinafter sometimes referred to as the "Manager") which, on 16 September 1975, proposed to annul, subject to the outcome of this proceeding, petitioner's second class mail privileges in respect of The University of Akron Bulletin (hereinafter sometimes referred to as the "publication" or the "Bulletin").

The reasons for this ruling were given by the Manager in his ruling a copy of which is appended to the complaint. He concluded:

"'University of Akron Bulletin' is not a periodical publication within the meaning of the applicable postal regulations. (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.)

We have reviewed the contents of a letter dated June 27, 1975 from Mr. James Oswald, Director of University Publications at The University of Akron. In his letter Mr. Oswald states why he feels that the 'University of Akron Bulletin' is a periodical publication within the meaning of postal regulations. He has not proposed any major changes in the content of future issues of the publication to bring it into compliance with the applicable regulations."

Thereafter, a hearing was held, and both parties presented testimony and documentary evidence. Petitioner presented written proposed findings of fact and conclusions of law, and respondent presented oral arguments which were read into the record. The parties agreed on petitioner's proposed Findings of Fact 1 through 11 and they are incorporated in the findings set forth below.

FINDINGS OF FACT

1. Petitioner is a regularly incorporated institution of learning within the meaning of Section 132.231 of the Postal Service Manual. Petitioner is an institution of higher education and a state university duly created under the laws of the State of Ohio, O.R.C. 3359.01, November 11, 1965, and operated as a state university for the promotion of education within Akron, Ohio.

2. On or about September 10, 1962, petitioner was granted second-class mail privileges by the United States Post Office Department, Bureau of Operations Classification and Special Services, Washington, D. C., for mailing of its publication, "The University of Akron Bulletin", and petitioner has enjoyed second-class mail privileges since said date.

3. "The University of Akron Bulletin" meets the mailability criteria established in 39 CFR, Part 123, and the relevant part of the Postal Service Manual.

4. "The University of Akron Bulletin" is currently published eight times a year, usually in January, April, September, October, November and December, with two publications occurring in April and September, bears a date of issue and is numbered consecutively.

5. "The University of Akron Bulletin" is issued and mailed by The University of Akron, Department of University Publications, 225 South Forge Street, Akron, Ohio 44325.

6. "The University of Akron Bulletin" is formed of printed sheets.

7. "The University of Akron Bulletin" is originated and published for the purpose of disseminating information of a public character.

8. "The University of Akron Bulletin" is not designed primarily for advertising purposes.

9. "The University of Akron Bulletin" has a legitimate list of subscribers to whom issues are regularly mailed, including, but not limited to, state educational agencies, governmental agencies, libraries, various businesses and industries, high schools, universities and libraries and high school counselors.

10. The present "University of Akron Bulletin" is substantially the same in format and content as was the case when second-class mail privileges were granted in 1962.

11. The present "University of Akron Bulletin" includes current programs and fields of study, current baccalaureate degrees, current graduate programs, current admissions requirements and procedures, current fee requirements, current statistics about the University, the current year calendar and what is otherwise current and public information about the University's programs, degrees, courses, requirements, and the educational resources available.

12. The record contains a complete set of Volume 12 of the University of Akron Bulletin, covering the year 1973-74, and Volume 13, No. 7, published in September of 1975.

a. (i) Volume 12, No. 1 is entitled "Schedule of Classes winter-spring 1974 - day and evening credit courses". Of its 76 numbered pages 65 list in computer print-out style the courses given by petitioner in 9-column tabulation by course number, title, prerequisites and credit hours; days, hours and place when and where given; and the instructor. The only interruption of the list is the insertion as a subtitle of the segment of the university where the course is given. The course list is preceded by six pages of information on registration procedures, fee structure, general information on university rules and the Evening College.

(ii) Volume 12, Nos. 4 and 5, providing schedules of classes for the summer sessions of 1974 and the day and evening courses for the fall of 1974 and winter-spring 1975 are in the same format as Volume 12, No. 1 except that the summer session volume contains a 9-page section announcing workshop institutes with pictures of the instructor and a summary of the workshop-institute objective.

b. Volume 12, Nos. 2 and 3, are the respective catalogues of the Law School and the Graduate School of petitioner.

(i) The School of Law Edition, dated October 1973, consists of a two page statement on the University and a 10-page statement on the School of Law, followed by a sample curriculum, course descriptions and a faculty directory (13 pages). Except for being designated and numbered as part of "The University of Akron Bulletin" this edition of the Bulletin appears to be a separate and complete publication in itself. For time and place as well as instructor the current schedule ( e . g . Vol. 12, No. 1) must be consulted.

(ii) The graduate school bulletin is similar in scope and format except that course descriptions take a greater space than in the law school edition.

c. Volume 12, No. 6 is the University 1974-1975 general bulletin, a volume of close to 350 pages.

(i) It provides some 50 pages of general information on the University, its history, student service procedures, and requirements, financial aid and academic programs.

(ii) The introduction is followed by separate sections for each school or college which is part of the school or college and sample curricula for obtaining a degree.

(iii) The third and fourth major sections list and briefly describe courses of instruction and provide the University Directory. An index concludes the volume.

13. The general bulletin for 1975-1976 (Vol. 13, No. 7) furnishes in about 360 pages the same information as the 1974-1975 general bulletin (Vol. 12, No. 6), with such changes in, for example, fees, courses, or faculty as may have occurred since the prior year.

14. The issues, entitled "Schedule of Classes" differ from those found in other university bulletins and provide a greater degree of continuity than is found in other like publications.

15. As a whole the individual issues of petitioner's Bulletin consist in their great majority of directories of class schedules, lists of courses offered by petitioner, directories of its faculties and staffs and indices. Such materials are almost half of the materials published even in that issue of petitioner's publication, called the general bulletin, which contains a maximum of text material.

16. The great majority of the material published in petitioner's Bulletin does not consist of articles. Such material as can be considered to be in article form, especially in the general bulletin, is repeated from volume to volume (compare the 1974-5 and the 1975-6 general bulletins) or from issue to issue (compare the general information sections in Vol. 12, Nos. 1, 4 and 5, and the evening college sections in Vol. 12, Nos. 1 and 5), except for such limited updating as may be required where, for instance, the amount of fees has changed.

17. Basically, petitioner's publication consists of three disconnected parts: a comprehensive general bulletin, special school editions (graduate and law), and class schedules.

CONCLUSIONS OF LAW

1. The only question presented here is whether petitioner's Bulletin qualifies as second-class mail matter under the applicable postal regulations (Postal Service Manual (PSM) 132.2; for the predecessor statutes see 39 USC 4351 et seq .), as interpreted in Houghton v. Payne , 194 U.S. 88 (1904) and in subsequent decisions of the Judicial Officer and the Administrative Law Judges of the U. S. Postal Service.

2. Houghton v. Payne , supra , to summarize briefly, held that a periodical was a publication appearing at stated intervals, each number of which contained original articles by different authors and was incomplete in itself, indicating a relation with prior or subsequent numbers of the same series. Loc. cit. , supra at pp. 96-97. No narrow interpretation of Houghton v. Payne can be countenanced and none is adopted here. See The Northwest Missouri State University , P.S. Docket No. 3/42 (1975).

3. Here, the record clearly discloses that petitioner's Bulletin, although containing some textual material, is predominantly composed and published as successive directories of class schedules (3 issues) and catalogs of courses of instructions (2 issues and one in major part), each valid for a set future period and deprive of nearly all usefulness thereafter. Such directories and catalogs are third- or fourth-class mail and do not constitute second-class mail matter, however dressed up.

4. There exists in the instant case also substantial doubt that the Bulletin can be considered a periodical publication at all. For the class schedule directories, the special school editions and the general bulletin from separate and complete series of, or separate and distinct, publications without continuity or connection. What cross-references from one issue to another exist are so minor as not to affect the basic character of the publication.

5. On its facts, petitioner's Bulletin is thus in the end not materially different from the publications of other institutions of higher learning which have lost their second-class mail privileges therefor. Accordingly, the Postal Service decisions upholding revocation or denial of second-class mail privileges in respect of such publications apply here and require that the Manager's action be upheld. The Northwest Missouri State University , supra ; California Institute of Technology , P.S. Docket No. 3/166 (1975, 1976); University of Oregon , P.S. Docket No. 3/110 (1975, 1976); Pacific Union College , P.S. Docket No. 3/178 (1975, 1976). That minor cross-referencing between different issues of a publication does not affect the result here reached is shown by the Initial Decision in The George Washington University , P.S. Docket No. 3/142 (1975). For other recent Initial Decisions on university publications see T 62.

6. Petitioner is also not helped by the fact that it has enjoyed undisputed second-class mail privileges for its Bulletin for some 13 or 14 years. The argument that long-continued exercise of such privileges creates estoppel against correction of error was early rejected in Houghton v. Payne , supra , and has not been accepted by Postal Service decisions. See Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974).

7. The Manager's revocation action was correct and is upheld.

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*/ The Initial Decision was originally rendered orally at the end of the hearing in this proceeding. It is herein reduced to writing with such corrections as to form and style as appear appropriate.