In the Matter of the Petition by

WILLIAM F. HONER, Publisher,
369 Main Street,
Old Saybrook, CT 06475,

Denial of Application for Second-Class Mail Privileges for "CARRIER REPORTS"

P.S. Docket No. 5/140

August 25, 1977

Quentin E. Grant Administrative Law Judge

APPEARANCES:
William F. Honer, pro se
369 Main Street
Old Saybrook, Connecticut 06475
for Petitioner

Gerald E. Cerasale, Esq.
Law Department U. S. Postal Service
Washington, D. C. 20260
for Respondent

INITIAL DECISION

This proceeding was initiated by petitioner pursuant to 39 C.F.R. Part 954, to contest the ruling of respondent, represented by the Director, Office of Mail Classification, Finance Group, U. S. Postal Service (hereinafter referred to as the "Director") which on February 16, 1977 denied, subject to the outcome of this proceeding, petitioner's application for second-class mail privileges for his publication, "Carrier Reports."

The Director's denial of the application was based on his finding that the publication contains no original articles, hence is not a periodical publication eligible for second-class mail privileges within the meaning of the applicable postal regulations and the definition of periodical contained in Houghton v. Payne, 194 U.S. 88 (1904).

Petitioner claims that each issue of the publication does contain a variety of original articles written by different authors, such authors being the officers or employees of the carriers supplying the information set forth in digested or condensed form therein. Petitioner also claims that the publication meets all the other criteria for second-class mail privileges as to which there is no issue in this proceeding.

FINDINGS OF FACT

1. "CARRIER REPORTS" is published quarterly by Carrier Reports, 369 Main Street, Old Saybrook, Connecticut.

2. An application for second-class mail privileges for the publication was filed by petitioner on December 16, 1976.

3. On February 16, 1977, respondent through the Director, Office of Mail Classification, issued a notice of denial to petitioner based on the reasons set forth above.

4. Petitioner took a timely appeal from such notice by filing his petition alleging compliance of the publication with the applicable statute and regulation.

5. Subsequently a hearing was held before the undersigned in New Haven, Connecticut, at which both parties presented evidence.

6. Copies of the publication were received in evidence (RX-3, RX-4). On the inside of the front cover of each issue appear the following statements relating to the purpose and character of the publication:

"CARRIER REPORTS is a quarterly publication designed to report the financial experience of the nation's leading carriers. *** CARRIER REPORTS publishes four editions each year. The first three issues cover the first three quarters of the year. The fourth quarter issue reports the cumulative annual experience of each carrier ***. Information shown in CARRIER REPORTS is extracted from public file copies of the various reports required to be filed by the carriers with the Federal regulatory bodies***."

7. Each of the first three issues of each volume of the publication covers financial reports for the quarter to which it relates. The fourth issue reports the cumulative annual information for each carrier (RX-3).

8. The January, 1977 issue (Volume 17, No. 3), offered as a typical issue, reports on data filed in the third quarter of 1976. It contains 74 numbered pages, the last 2 pages containing an explanation of the various columns contained in the preceding 72 pages. Pages 1 through 72 contain information in column form concerning carriers, a sample page being attached hereto as Exhibit A.

9. Petitioner contends that the content of the publication is comparable to that of "Traffic World," a publication in the field of transportation which has second-class mail privileges. Respondent placed in evidence a copy of "Traffic World." I find that the two publications are not comparable in the context of the issue for decision here in that the content of "Traffic World" is principally in the typical form of articles, that is nonfictional prose compositions, covering a wide variety of matters relating to transportation, while "CARRIER REPORTS" is essentially a listing of financial data in numerical form.

CONCLUSIONS OF LAW

1. Only "newspapers and other periodical publications" are eligible for second-class mail status under the postal laws and regulations (former 39 U.S.C. 4351; 30 C.F.R. 132.2(a)(1) and 132.211, Postal Service Manual).

2. The only issue for decision is whether "CARRIER REPORTS" is a periodical, all other requirements for second-class mail status having been conceded by respondent (Tr. 11).

3. The term periodical is not defined by statute or regulation. For the past several years, however, the Postal Service, its Administrative Law Judges and Judicial Officer have uniformly applied in proceedings of this kind the definition of periodical given by the Supreme Court in the case of Houghton v. Payne , 194 U.S. 88 (1904). ^1/ The application of the definition, including the element of "a variety of original articles," has been upheld in a number of recent federal district Court decisions in the District of Columbia: Teleflora, Inc. v. United States Postal Service, No. 75-228 (D.D.C. June 25, 1975); National Auto Research Publications, Inc. v. United States Postal Service , No. 76-766 (D.D.C. Dec. 20, 1976 (appeal pending)). See also Standard Rate and Data Service, Inc. v. United States Postal Service, No. 77-0299 (D.D.C. July 20, 1977) upholding the application of the "variety of original articles" requirement on other grounds.

In light of the prior practice of the Postal Service and the cited decisions upholding it, I conclude that it should be applied in this case.

In so holding, I am mindful of a contrary holding in Institute for Scientific Information, Inc. v. United States

Postal Service, et al. , No. 76-2055 (CA 3, May 5, 1977). However, since that decision is contrary to the several cited decisions of the U. S. District Court for the District of Columbia, one of which is on appeal to the Circuit Court of Appeals for the District of Columbia, it lacks controlling authority.

4. "CARRIER REPORTS," as found by the Director, does not contain a variety of original articles. It is simply a listing of carriers and related financial data in numerical form. Taken individually or in toto , the contents of the publication possess none of the characteristics of literary compositions or non-fictional prose composition which the term "article" is commonly defined to mean (American Chemical Society, P.S. Docket No. 3/59, Postal Service Dec. May 20, 1976).

5. Petitioner argues that each entry in the publication is an "exciting story of the financial failure or success of each company, and the magazine deserves a second-class permit as a disseminator of extremely valuable information with literary merit and available from no other source at such an extremely low cost." Although I cannot agree with petitioner's characterization of the entries as exciting stories with literary merit, I recognize the fact that the information contained therein is valuable to subscribers and others and that it has other merits none of which are in dispute in this proceeding. Unfortunately for petitioner, however, this does not alter the fact that the publication does not meet the "variety of original articles" test required for second-class mail privileges.

6. The ruling of the Director, dated February 16, 1977, was correct. The appeal therefrom must be and hereby is denied.

1/ "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."