In the Matter of the Petition by

SCIENTIFIC MEETINGS PUBLICATIONS,
16336 Orchard Bend Road,
Poway, California 92064,

Denial of Application for Second-Class Mailing Privileges for
"SCIENTIFIC MEETINGS"

P.S. Docket No. 6/10

December 21, 1977

Rudolf Sobernheim Administrative Law Judge

APPEARANCES:
Irving Wasserberg General Partner
Scientific Meetings Publications
16336 Orchard Bend Road
Poway, California 92064
for Petitioner

Arthur S. Cahn, 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 Director of the Office of Mail Classification, Rates & Classification Department, U. S. Postal Service (hereinafter referred to as the "Director"), which on 9 May 1977 denied, subject to the outcome of this proceeding, petitioner's application for second-class mail privileges in respect of the publication "SCIENTIFIC MEETINGS".

The reasons for the ruling were stated by the Director as follows:

"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. The preceding definition of a periodical is based on a Supreme Court ruling in the case Houghton v. Payne, 194 U. S. 88 (1904).

Copies of the April, July, October 1976, and the January 1977 issues of "Scientific Meetings" have been examined. All of the issues reviewed consist of listings of meetings of scientific, technical, medical, health, engineering, management organizations, and universities and colleges that are sponsoring future national, international, and regional meetings, symposia, colloquia, and institutes.

The listings are separated into four sections: a listing of association meetings, a listing of addresses to obtain additional information where not indicated in the listing of association meetings; a chronological listing of organizations; and, a subject index.

This publication consists entirely of listings. There are no original articles by different authors.

"Scientific Meetings" is not a periodical within the meaning of the applicable second-class laws and regulations, and therefore, the application for second-class mail privileges is denied."

Petitioner filed a timely petition seeking to overturn the Director's ruling on the ground that (i) its publication met the criteria established in Houghton v. Payne , 194 U. S. 88 (1904) and Payne v. Railway Publishing Co. , 20 D.C. App. 581 (1902) for periodicals mailable as second-class matter and (ii) the publishers of similar publications, referred to by name, enjoyed second-class mail privileges for them. Petitioner attached to its petition a copy of the Director's ruling and copies of excerpts from the publications listed in its petition as similar ones mailable as second-class matter. Subsequently, petitioner added the argument that under the decision in Institute for Scientific Information, Inc. v. United States Postal Service , 555 F.2d 128 (3d Cir., 1977) it was clearly entitled to the grant of second-class mail privileges for its publication.

Respondent in its answer pleaded that petitioner's publication lacked articles as required for publications mailable as second-class matter in Houghton v. Payne , supra , that accordingly petitioner was not entitled to a grant of second-class mail privileges therefor, and that the Director's ruling should be upheld. Respondent also furnished to the presiding administrative law judge the copies of the publication (April through October 1976; January 1977) on which the Director's ruling was based. They are hereby made part of the record.

FINDINGS OF FACT

1. Petitioner is the publisher of "SCIENTIFIC MEETINGS", a quarterly publication appearing in January, April, July and October of each calendar year. It has between 1,000 and 1,100 subscribers, over 90% of whom are universities and libraries. The publication thus reaches a readership beyond its actual subscribers.

2. The individual issues of "SCIENTIFIC MEETINGS", 8 1/2 by 11 inches in size, contain from 35 to 50 pages, regularly divided into four parts:

Part I                                  Associations

Part II                                 Meetings (covering a period of
                                            about 12 months in advance)

Part III                                Chronological Listing (of
                                            meetings)

Part IV                               Subject Index

3. a. The content of each of the four parts of the individual issues of petitioner's publication is a list of items: associations, meetings, subject matter titles in the index.

b. The four parts are preceded by a statement, unchanging in its structure and general content, describing the publication as "a listing of scientific, technical, medical, health, engineering, management organizations, and universities and colleges that are sponsoring future national, international, and regional meetings, symposia, colloquia, and institutes." The information given on each meeting in parts II and III of each issue is stated to come from the sponsoring organization or published notices. The introductory note also informs the reader of frequency of publication, subscription price and similar matter.

4. Petitioner's publication does not contain "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." ( Houghton v. Payne , supra , at 97)

5. Petitioner's publication meets the requirements which section 132.2 of the Postal Service Manual (PSM) (39 CFR 132.2) imposes as qualifications for the grant of second-class mail privileges.

6. The publishers of the publications, excerpt copies of which petitioner has submitted, have been granted second-class mail privileges therefor and the publications are mailable as second-class matter.

7. Some at least of these publications do not contain a variety of original articles by different authors as a substantial component of their content. Only one, "WORLD MEETINGS: UNITED STATES AND CANADA", published by Macmillan Information, a division of the Macmillan Publishing Company, Inc., is similar in purpose and set-up to petitioner's publication. The other publications are subject indices to periodicals or compilations of abstracts of writings in the field covered therein.

8. Respondent has ordered the revocation of the publisher's second-class mail privileges for one of the publications cited by petitioner, to wit: "Applied Science Technology Index", published by The H. W. Wilson Company (P.S. Docket No. 2/66 upholding the Director's revocation action). This matter is currently in litigation. See Concl. of Law No. 7, infra .

9. Based on the detailed findings of fact and the record as a whole I find:

a. Petitioner's publication is an indexed listing of associations and of meetings sponsored by them and is devoid of article content.

b. If the introductory page to each of the issues of its publication is deemed to be an "article" such single article does not constitute article content for the publication sufficient to meet in fact the requirement that publications for which their publishers seek second-class mail privileges be composed in substantial part of articles.

c. Petitioner has not made a showing of discrimination against it. Assuming the correctness of the basis on which petitioner was denied second-class mail privileges for "SCIENTIFIC MEETINGS" the record at most shows that in some instances second-class mail privileges may in the past have been improvidently granted. Indeed, in one instance respondent has already taken action to revoke second-class mail privileges heretofore erroneously granted.

CONCLUSIONS OF LAW

1. It is well established that a publication, in order to be mailable as second-class matter, must be a periodical in the ordinary meaning of the term besides complying with the specific requirements formerly found in 39 USC 4351 and 4354 and now set forth in PSM section 132 or 39 CFR 132. Houghton v. Payne , supra ; Smith v. Payne , 194 U.S. 104 (1904); Bates & Guild Co. v. Payne , 194 U.S. 106 (1904); Smith v. Hitchcock , 226 U.S. 53 (1912). As the court stated in Houghton v. Payne , supra , a "periodical publication" must "not only have the feature of periodicity, but it shall be a periodical in the ordinary meaning of the term" (194 U.S. at p. 96).

2. This ordinary meaning of a periodical was defined as

"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." (194 U.S. at p. 97)

The Court also noted that under the statute newspapers were included within the class of periodical publications although they are not so regarded in common speech. It added:

"By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.' A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals and entitled to the privileges of second-class mail matter. Payne v. Railway Pub. Co. , 20 D.C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class." (194 U.S. at pp. 96-97)

3. Whenever petitioned to reverse the revocation or denial or grant of second-class mail privileges in respect of a publication the Judicial Officers acting on behalf of the Postmaster General and the administrative law judges of the Post Office Department and of the United States Postal Service have consistently interpreted Houghton v. Payne , supra , to require that a publication, to be mailable as second-class matter, have a substantial article content and have upheld revocation of, or denial of applications for, second-class mail privileges in respect of publications found wanting therein.

a. P.O.D. Decisions . Fizeek Enterprises, Inc. , POD Docket No. 1/235 (1960); One-Spot Publishers, Inc. , POD Docket No. 1/231 (1960); Dell Publishing Co., Inc. , POD Docket Nos. 1/141, 1/147, 1/155, 1/156 (1960); Publication Management Corp. , POD Docket No. 1/280 (1961); T.V. Reporter, Inc. , POD Docket Nos. 1/229, 1/273 (1961); R. R. Bowker Company , POD Docket No. 2/97 (1964); Publishers Development Corporation , POD Docket No. 2/247 (1967); Zulch & Zulch , POD Docket No. 3/46 (1970); American Chemical Society , POD Docket No. 3/90 (1973).

b. USPS Decisions . Essex Editors , P.S. Docket No. 2/52 (1973); Innovations Associates , P.S. Docket No. 2/57 (1973); American Bibliographical Center , P.S. Docket No. 2/106 (1973); Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974); Soundings Northwest , P.S. Docket No. 3/97 (1975); National Auto Research Publications, Inc. , P.S. Docket No. 2/131 (1975); National Automobile Dealers Used Car Guide Company , P.S. Docket No. 2/183 (1975); Standard Rate and Data Service, Inc. , P.S. Docket No. 4/20 (1976); Institute for Business Planning, Inc. , P.S. Docket No. 4/79 and Prentice-Hall, Inc. , P.S. Docket No. 4/80 (init. dec. 1976); The Geological Society of America , P.S. Docket No. 4/150 (1976); William F. Honer , P.S. Docket No. 5/140 (init. dec. 1977).

4. The same rule was applied to the catalogues of universities and colleges whose second-class mail privileges therefor were revoked or denied in 1975 and 1976. See e . g . Northwest Missouri State University , P.S. Docket No. 3/42 (1975); New York University , P.S. Docket Nos. 4/19 (1975) and 4/81 (1976); Yale University , P.S. Docket No. 4/107.

5. Except for the cases which reached the United States Supreme Court (Concl. of Law No. 1, supra ) few disputes arising out of Houghton v. Payne , supra , appear to have reached the courts before 1960. An exception is U.S. ex rel. Reinach v. Cortelyou , 28 D.C. App. 570 (1907) where Post Office Department denial of second-class mail privileges for a fashion pattern publication was upheld. In 1960 Post Office Department action was upheld on a different aspect of Houghton v. Payne , regarding the need for a variety of subject-matter. See Gilberton-World-Wide Publications, Inc. v. Summerfield , Civ. No. 1373-60, U.S.D.C., D.C. The Post Office Department interpretation of Houghton v. Payne as requiring "article content" for publications mailable as second-class matter was upheld in a detailed opinion in the U. S. District Court for the District of Columbia in Dell Publishing Co. v. Summerfield , 198 F. Supp. 843 (1961), and this decision in turn was affirmed by the Court of Appeals for the D.C. Circuit in Dell Publishing Co. v. Day , 303 F.2d 766 (1962). More recent decisions of the federal courts in the District of Columbia have followed the same tack and have upheld the Postal Service interpretation of Houghton v. Payne which in turn rested on Post Office Department precedent. National Auto Research Publications, Inc. v. USPS , Civ. Action No. 76-766, U.S.D.C., D.C. (30 Dec. 1976); The Reuben H. Donnelley Corp. v. USPS , Civ. Action No. 76-1336, U.S.D.C., D.C. (20 May 1977). In addition, Judge Gesell of the United States District Court for the District of Columbia held on 20 July 1977 in Standard Rate and Data Service, Inc. v. USPS , Civ. Action No. 77-0299, U.S.D.C., D.C. (20 July 1977), that the interpretation of Houghton v. Payne adopted by the Postal Service, even if not compelled by that decision, was well within the scope of Postal Service discretion to adopt and upheld the revocation of second-class mail privileges of the publisher of the Standard Rate and Data publications.

6. On the other hand, the federal Court of Appeals for the Third Circuit has held in Institute for Scientific Information, Inc. v. USPS , 555 F.2d 128 (1977) that Houghton v. Payne should not or should no longer be interpreted as requiring "article content" for publications mailable as second-class matter. That decision has become final.

7. In the United States District Court for the Southern District of New York different judges have reached opposite results. Compare Aspen Communications, Inc. v. Hayden , Civ. Action No. 71-5067 (14 Dec. 1971) with The H. W. Wilson Co. v. USPS , Civ. Action No. 76-3200 (13 Oct. 1977), the latter rejecting the USPS interpretation.

8. It is apparent that the most recent court decisions are split, with those in the District of Columbia upholding the Postal Service position. On the other hand the Postal Service has adhered to its prior interpretation of Houghton v. Payne without wavering.

9. In this situation and in the absence of arguments which are novel and convincing, I find no reason why I should deviate from and reject the Postal Service interpretation of Houghton v. Payne or deviate from the Postal Service rulings based thereon. The fact that Administrative Law Judge Grant has in William F. Honer , supra , arrived at the same conclusion, while not determinative of the issue, is also persuasive.

10. Accordingly, the ruling of respondent's Director, denying petitioner's application for second-class mail privileges for "SCIENTIFIC MEETINGS", is upheld.