In the Matter of the Petition by

CLEVELAND STATE UNIVERSITY,
Cleveland, Ohio 44115

Proposed Revocation of Second-Class Mail Privileges for
"CLEVELAND STATE UNIVERSITY BULLETIN"

P.S. Docket No. 4/98

Rudolf Sobernheim Administrative Law Judge

APPEARANCES:
William F. Taylor, Esq.
Cox, Langford & Brown 21 Dupont Circle, N.W.
Washington, D. C. 20036 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, U. S. Postal Service (hereinafter sometimes referred to as the "Manager') which on 17 September 1975 annulled, subject to the outcome of this proceeding, petitioner's second-class mail privileges in respect of "The Cleveland State University Bulletin" (hereinafter referred to as the "Bulletin").

The propriety of the status of the Bulletin as second-class mail matter came to respondent's attention when petitioner filed a re-entry application in Cleveland, Ohio, in August 1974 seeking a change in frequency (Resp. Ex. 7). The matter was referred to the Manager who on 28 August 1974 informed the Postmaster in Cleveland, Ohio, that the undergraduate issue of the Bulletin for 1974-1975 (Pet. Ex. 1) was "actually a catalog", that an assortment of catalogs did not constitute a "periodical" publication for second-class mail purposes but that a true periodical publication "may mail a 'catalog issue'" (Resp. Ex. 2). The Postmaster was directed so to advise petitioner and to provide further issues of the Bulletin for review ( ibid. ). Such review and conferences between the parties did not resolve the issues raised by the 28 August 1974 letter as to petitioner's second-class mail privileges for the Bulletin (see Resp. Ex. 3; T 5-6) and led to the annulment action referred to. The reasons therefor were stated by the Manager as follows (see copy of ltr, dtd 17 September 1975, att'd to compl.):

"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 July, August (2 issues), November and December 1973, July and August 1974 and June 1975 issues of "Cleveland State University Bulletin."

After summarizing briefly the content of each of these issues, he concluded:

"The issues which we have reviewed are each complete in themselves, betraying no need of continuation in subsequent issues. These are each essentially annual publications, which are updated from year to year, and would be more appropriately ascribed to the classification scheme that provides for the mailing of books and other printed matter.

'Cleveland State University Bulletin' is not a periodical publication within the meaning of the 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, P.S. Docket No. 3/110, May 6, 1975.)"

Petitioner's petition for review of the Manager's ruling was docketed on 7 October 1975 and a hearing was thereafter held at which both parties introduced documentary evidence, including the 1973, 1974 and part of the 1975 issues of the Bulletin (Resp. Ex. 4; Pet. Ex. 1, 2) and at which the cognizant mail classification specialist of respondent testified. Both parties filed post-hearing briefs.

FINDINGS OF FACT

1. Petitioner Cleveland State University was created by act of the Ohio General Assembly on 17 December 1964 to provide public higher education facilities for Cleveland area high school graduates (Pet. Ex. 1, July 1973 issue, p. 9).

2. Petitioner's Bulletin was first published in 1965 and by 1973 had been granted second-class mail privileges.

3. It is published five times a year. Prior to 1974 issues were published in July, the second and fourth weeks of August, and in November and December. For 1974 the last two issues were changed to September and October (See Resp. Ex. 1, 4; Pet. Ex. 1).

4. The 1975 volume of the Bulletin did not observe the frequency schedule approved in 1974. The first issue appeared in June instead of July and no issues published in the fourth week of August or in September were submitted by petitioner as part of the 1975 issue (Pet. Ex. 2). That exhibit also includes a glossy sixteen-page color picture pamphlet with scant text, entitled "Cleveland State University 1975," which is not anywhere identified as "second-class postage paid" matter or as part of the Bulletin and cannot be treated as such.

5. In 1973 petitioner's Bulletin (volume 9) was composed of the following issues (Resp. Ex. 4):

No. 1 Undergraduate issue

No. 2 College of Graduate Studies issue

No. 3 Information for prospective students issue

No. 4 Student Handbook issue

No. 5 College of Law issue

6. The Undergraduate issue of the 1973 Bulletin is a volume of 344 pages.

a. Its first part includes a correspondence directory, table of contents, university calendar (registration etc. dates for the four quarters into which the school year is divided) and a list of the trustees and officers of Cleveland State University. These pages are followed by about forty-five (45) pages of consecutive text describing the university and the institutions and arrangements of concern to undergraduate students in short chapters. These are: Cleveland State University; degree programs; special educational programs; educational resources; student life and services; admission to the university; academic regulations; expenses and fees; financial aid.

b. Next the undergraduate colleges into which the university is divided are described separately in some detail: the College of Arts and Sciences; First College; the James J. Nance College of Business Administration; the College of Education; the Fenn College of Engineering. Each college is the subject of a separate chapter, altogether covering some 90 pages of narrative text.

c. There follow about 160 pages of course descriptions, covering all colleges, and listing each course by code and number, title, and classroom, laboratory and course credit hours, followed by a three-to-four line description of course content.

d. Next follows a faculty roster, including the emeriti, a roster of the administrative staff and an index, totalling about 35 pages.

7. The College of Graduate Studies issue of the 1973 Bulletin, with 235 pages and smaller size than the Undergraduate issue, follows the latter's pattern except that the text describes the graduate school and its affairs rather than the undergraduate colleges.

8. The Information for Prospective Students Issue is a 44-page pamphlet describing in sixteen brief sections the university as "An Adventure in Learning", its undergraduate degree programs, admission and other requirements, its facilities and educational programs as well as the colleges which compose it.

9. The Student Handbook issue, 8 2/3 inches high and 6 inches wide, is an attempt to put in "one convenient booklet" information about the university and its program for students (Resp. Ex. 4, Stud. Handbk (Nov. 1973), p. 3). Apart from a general introduction about university organization, it sets forth in several sections the provisions made by the university for student life, the student government and its organization and various official documents relating thereto.

10. The College of Law issue of the Bulletin, the final issue for 1973, resumes the format of the graduate studies issue, addressing in 70 pages the law school, its programs, courses and concerns.

11. Volume 10 of the Bulletin (Pet. Ex. 1) consists of five issues with the same subject matters and issue dates as the five issues of volume 9 (Resp. Ex. 4), except as hereinafter noted.

a. The Undergraduate issue is 40 pages longer than its 1973 counterpart, largely because of an expansion in the description of the university's component colleges and the course offerings. There is a minor shift in the order in which the colleges are presented and a change in the title of the student life and services section to "Life on Campus and Student Services". Like text directory and catalog sections maintain their text unchanged except where changes in programs, fees, courses, personnel etc. required updating. There are also some changes in the typographic appearance of the pages.

b. The Information for Prospective Students and Student Handbook issues have been substantially revamped in format. These issues now have a width of almost 9 inches and are 6 inches high, giving the booklets a horizontal rather than the traditional vertical format. The eschew photographic illustrations for which cartoon-type line drawings are substituted. The Student Handbook is also substantially reduced in size from 60 to 38 pages of which over half reproduce the texts of official documents concerning student affairs or conduct.

12. Volume 11 of the Bulletin (Pet. Ex. 2) is represented by three issues only since there is no proof that the color photo pamphlet "Cleveland State University 1975" is part of the Bulletin for 1975.

a. The Undergraduate issue, published in June 1975, is reduced to 331 pages by the use of smaller print. The issue has the same arrangement and basic content as prior issues but the text has been revised where necessary to reflect 1975 facts, e. g. under "Accreditation" (Pet. Ex. 2, Undergr. Issue, p. 7) or "Special Educational Programs" ( id ., pp. 11 et seq. ).

b. The Graduate Studies and Student Handbook issues are unchanged from the 1974 formats but there is no Information for Prospective Students issue and the College of Law issue, though due not later than October 1975, was not made part of petitioner's Exhibit No. 2 (Bull., Vol. 11 (1975)).

13. Each individual issue of the Bulletin, published by petitioner, covers a separate topic which is dealt with fully and exhaustively for the reader to whom it is addressed: the prospective student, the undergraduate, graduate or law student, and the student as a member of the student community and not as a registrant in a particular school or college. Each one of these is furnished a complete booklet or book of information or instruction. Indeed, information common to all readers and subjects, such as the chapter on The Cleveland State University, is set forth anew in each (see Resp. Ex. 4, Coll. of Grad. Stud., Coll. of Law and Undergrad. issues, p. 9). The same is true of the rosters of trustees and officers of the University (see Resp. Ex. 4, cited issues and Student Handbk issue). On the other hand, even mere cross-reference from one issue to another is rare.

14. None of the issues of petitioner's bulletin within each volume show any continuity or connection in content. The issues are not incomplete and related to prior or subsequent issues of the same volume. What connection exists is between a particular topical issue of the Bulletin of one volume and the corresponding updated edition of the same issue in the following year or years.

15. The individual issues of each volume of the Bulletin are thus seen as complete and separate books or booklets, as the Student Handbook is forthrightly called. The fact that they are consecutively numbered and designated as annual volumes and issues of a periodical, i . e . the Bulletin, does not suffice to convert these books or booklets into a periodical publication as a matter of fact.

CONCLUSIONS OF LAW

1. It is established peradventure of any doubt that the publisher of a periodical publication can enjoy second-class mail privileges in respect thereof only if the publication not only meets the terms of the applicable postal regulations but is also a periodical publication within the definition of Houghton v. Payne, 194 U.S. 88 (1904). The decision has been followed by the Judicial Officer and the Administrative Law Judges of the U. S. Postal Service and the predecessor Post Office Department for far too long and far too consistently to be abandoned at this late date. As to college and university bulletins see Northwest Missouri State University , P.S. Docket No. 3/42 (1975); Board of Supervisors of Louisiana State University etc. , P.S. Docket No. 3/191 (1976); The University of Akron , P.S. Docket No. 4/95 (Initial Decision 1976).

2. Nothing presented here leads me to deviate from these decisions even if I felt free to do so. Petitioner's citation of Skidmore v. Swift & Co. , 323 U.S. 134 (1944) is less apposite in this connection than may appear from the quoted sentence. The passage from which petitioner quoted in its brief (Pet. Br., p. 10) reads in its entirety as follows ( loc . cit ., supra , p. 140):

"We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."

Here the body of administrative - judicial rulings from Gilberton World Wide Publications, Inc. , P.O.D. Docket No. 1/158 (1959) to Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974), Florists' Transworld Delivery Association , P.S. Docket No. 1/167 (Amended P.S. Dec. 1974) and the 1975 and 1976 university bulletin decisions, represented by those cited above, constitute the "body of experience and informed judgment" which properly provides the reliable guidance of which the U.S. Supreme Court spoke in the cited passage. See also Teleflora, Inc. v. U.S.P.S. , U.S.D.C. D.C., 25 June 1975 (order dism. Civ. Act. No. 75-228) in which the Postal Service view as to the application of Houghton v. Payne , supra , in regard to mailability of periodical publications at second-class postage rates was summarily upheld.

3. That petitioner's bulletin fails to meet the Houghton v. Payne criteria for a periodical publication can on the facts found not be doubted. The individual issues of each year's Bulletin are not incomplete within themselves and there is no connection between them as these terms are used there. Loc . cit ., supra , 194 U.S., at p. 97. Each issue is in the nature of a book and is complete in the presentation of all data on its subject as of the time of issuance. A rare cross-reference cannot make it otherwise. See The George Washington University , P.S. Docket No. 3/142 (Init. Dec., 1975).

4. Petitioner's argument that long-standing grant of second-class mail privileges to institutions of higher learning for their bulletins by administrative Post Office Department or Postal Service officials ought to be entitled to great weight in determining the validity of the action taken against petitioner, is not a valid one. The argument was first raised in Houghton v. Payne and was rejected by the majority of the Court. Loc . cit ., supra , at pp. 98 et seq . The argument has also been rejected in the administrative adjudications of the U. S. Postal Service. See Shepard's Citations, Inc. , supra ; The University of Akron , supra . Udall v. Tallman , 380 U.S. 1 (1965), cited by petitioner, has no application here. For it rests on the view of the Court that the prior departmental interpretation of a regulation, sought to be altered, was a reasonable one. Here, the Supreme Court's own holding in Houghton v. Payne , supra , shows that such basis in support of petitioner's position is lacking and with that its argument falls. On the contrary, Teleflora, Inc. , supra , shows that the courts support respondent's application of Houghton v. Payne , supra . Brennan v. Occupational Safety and Health Review Commission , 491 F.2d 1340 (1974), also cited by petitioner (Pet. Br., p. 3), reinforces the position here taken that rules and regulations, and court decisions interpreting them, must be enforced so as to effectuate their purpose and that contrary administrative action cannot prevail.

5. Nor is petitioner correct in arguing that it was (Pet. Br. pp. 4 et seq. ) faced with an unpublished rule inapplicable to it unless it is shown to have had actual notice thereof. Cf. Institute for Scientific Information , P.S. Docket No. 2/60 et al. (Initial Decision, pp. 19-20 (1975)). Petitioner here was faced with the application of published regulations (39 CFR Part 132) and their long-standing interpretation in Houghton v. Payne , a U. S. Supreme Court decision of which anyone affected thereby must be deemed to have notice. No right of petitioner under 5 USC 552 was, therefore, infringed. At best it can be said to have joined battle on a losing argument. See Northwest Missouri State University , supra . It must be deemed to have had notice of these and other relevant administrative-judicial decisions for the U. S. Postal Service maintains a public record of the decisions of the Judicial Officer and of its administrative law judges. It has no valid complaint about secret rule-making.

6. The irregularity of publication of Volume 11 of the Bulletin in 1975 has been noted. Even when such publication in violation of petitioner's second-class mail permit is not made the basis for revocation action, holders of permits, such as petitioner, should be careful to abide by the terms of the permit on which they rely.

7. The Manager's decision was correct and is accordingly upheld.