August 23, 1971
In the Matter of the Petition by
Anthony E. Whyte, Publisher
AMR INTERNATIONAL, INC.
280 Park Avenue
New York, New York 10017
from the Proposed Revocation of Second-
Class Mail Privileges of "AMR NEWS"
P.O.D. Docket No. 3/66
APPEARANCES:
Laurence I. Hewes, III, Esq. And
John M. Burzio, Esq.
Hydeman and Mason
1225 19th Street, N.W.
Washington, D. C.
for the Petitioner
Arthur S. Cahn, Esq.
Law Department
United States Postal Service
for the Respondent
INITIAL DECISION OF HEARING EXAMINER
Petitioner, AMR International, Inc., was granted a second-class mail permit by the Acting Director, Office of Mail Classification, U.S. Post Office Department,[1]/ on August 5, 1970, for the publication AMR News. The permit, which was made effective June 22, 1970, was granted to Petitioner as a regularly incorporated institution of learning under Section 4355 (a) (1) of Title 39, United States Code.
The present incumbent of the last-named position in the Postal Service, the Respondent, by letter dated November 27, 1970, notified Petitioner that the second-class permit previously issued for AMR News was to be annulled because, in substance, (1) AMR International, Inc., is a corporation organized and operated for profit, while only non-profit institutions of learning are eligible for second-class mail permits under 39 U.S. Code 4355(a)(1); and (2) AMR NEWS is not a periodical publication within the meaning of 39 U.S. Code 4351 and 4354.
A timely appeal was taken by Petitioner from Respondent's ruling.
The matter came on for hearing before the undersigned on March 31, 1971. Both parties were represented at the hearing by counsel who participated in the introduction of exhibits and the examination of witnesses. Counsel have also filed proposed findings of fact, proposed conclusions of law and supporting briefs.
After consideration of the entire record, it is concluded that the second-class mail permit applicable to AMR NEWS should be revoked.
THE STATUTES
Applicable to this proceeding are certain statutes, the pertinent portions of which are:
(1) 39 U.S. Code 4351
"Second class mail embraces newspapers and other
periodical publications when entered and mailed in accordance with
Sections 4352-4357 of this title."
(2) 39 U.S. Code 4354
"(a) Generally a mailable periodical publication is entitled to
be entered and mailed as second-class mail if it--
(1) is regularly issued at stated intervals as frequently
as four times a year and bears a date of issue and is numbered
consecutively;
(2) is issued from a know office of publication;
(3) is formed of printed sheets;
(4) is originated and published for the dissemination
of information of public character, or devoted to literature, the
sciences, arts, or a special industry; and
(5) has a legitimate list of subscribers.
***"
(3) 39 U.S. Code 4355
"(a) Mailable periodical publications meeting the first three
conditions of Section 4354(a) of this title are entitled to be entered
and mailed as second-class mail when they do not contain
advertising other than that of the publisher and if they are--
(1) published by a regularly incorporated institution of
learning; ***"
THE BUSINESS OF PETITIONER
Petitioner is engaged in providing advanced education and training in the fields of general management, information management, finance and marketing. (AMR Ex. 7) Typically, a need for a certain type of training in one of the foregoing areas is identified and persons and businesses to whom such training would be useful are contacted with a view to having such persons or businesses pay a fee for the training (Tr. 63, 64) The training is provided in seminars lasting generally for two or three days of six--or eight hour sessions per day. Instruction is provided by persons of recognized stature in the particular subjects to which the seminars are devoted. The seminars are conducted in cities in various regions of the country. (AMR Ex. 4) The instruction provided at the seminars is at a level comparable to the usual graduate school level, but it is given in more concentrated form in the seminars and some of the more elementary or introductory material used in graduate school is omitted. (Tr. 63, 71, 84, 85) It has been stipulated by and between the parties that Petitioner is an institution of learning organized for profit. (Tr. 4, 5) The stock of the corporation is in the hands of eight stockholders. (Tr. 60)
"A REGULARLY INCORPORATED INSTITUTION OF LEARNING"
There are two know court decisions in which the phrase "a regularly incorporated institution of learning" is discussed. These cases, both of which were cited and quoted by the parties, are United States ex rel Chicago Business College v. Payne, 20 App. D. C. 606 (1902) and Columbian Correspondence College v. Wynne, 25 App. D. C. 149 (1905).
In the Chicago Business College case, it is pointed out that the Chicago Business College is a joint-stock company, composed of three persons, incorporated under the laws of the State of Illinois. Among other things, the court stated at pp. 613-614:
"The expression 'institution of learning' is somewhat uncertain in
itself; for every establishment from the lowest school wherein the
rudimentary elements of education alone are taught up to the highest and
most advanced of universities, is an institution of learning; and yet we
know very well that, in the ordinary use of language, we restrict the
meaning to those organizations of a permanent nature wherein the higher
branches of education only are those in which instruction is given. The
lower education, when it is not given by the State, or through some public
agency, or by some religious organization as a matter of benevolence, is
usually left to individuals to be conducted as a business; while instruction
in the higher branches of human knowledge is generally disseminated
through those institutions of learning, popularly known as such, which owe
their origin to private or public munificence and are established solely for
the public good and not for private gain. That in this popular and ordinary
sense the expression 'institution of learning,' used in the act of Congress
of July 16, 1894, is to be understood, we think admits of no reasonable
doubt. All the other organizations mentioned in the act to which the
benefit of classification in the category of second-class mail matter is
extended, are of a charitable, fraternal, or benevolent character, and none
of them is conducted for individual gain."
In the Columbian Correspondence College case, one issue was stated as
follows:
"Is an incorporated joint-stock company conducting a
correspondence college for the gain and profit of its shareholders, a
regularly incorporated institution of learning within the meaning of the act
of July 16, 1894."
On this question the court held (p. 153):
"The court below correctly ruled that the appellant was not a
regularly incorporated institution of learning within the meaning of the act of July 16, 1894, and the question raised must be answered in the
negative."
The Respondent testified that it is the present policy of his office and, so far as he is aware, it consistently has been the policy of that office, to apply the pertinent statutes in a uniform manner and in consonance with the decisions quoted above. Respondent stated that if there has been any deviation from that policy it would be the result of some inadvertence and not an intentional act. (Tr. 42) Petitioner was allowed to search Respondent's records of institutions of learning to which second- class mail permits have been issued. From all information put at its disposal, Petitioner reported only two other institutions of learning organized and operated as profit-making institutions to which second-class permits had been issued. Respondent promptly issued notices of proposed revocation of second-class permits in regard to these other institutions. These later proposed revocations have not been adjudicated and, of course, no opinion is held by the undersigned as to the merits of those cases since the facts have not been brought forth. However, the issuance of such proposed revocations clearly confirms the diligence of Respondent's efforts to adhere strictly and impartially to the pre-existing administrative interpretation and policy.
Petitioner concedes that Respondent's current interpretation of 39 U.S. Code 4355(a) (1) would preclude its entitlement to second-class mail privileges. Petitioner insists, however, that because of the changes that have occurred in educational methods, processes and institutions, and because Petitioner's activities contribute to the public good by enhancing the dissemination of information, Respondent's construction and application of 39 U.S. Code 4355(a) (1) should be altered in such way as to permit the continued existence of the second-class mail permit for AMR NEWS.
When an administrative construction of statute has withstood the test of so many years, it should be set aside only for the most persuasive and compelling occasions. Established administrative interpretations of a statute are entitled to great weight in interpreting the statute. United States v. Public Utilities Commission of California, 345 U.S. 295 (1953). Neither should there be blind adherence to a course of action simply because "that's the way it has always been done." In this case, however, Petitioner has presented no persuasive or compelling reason for altering the long-settled application of the statutes relating to the issuance of second-class mail permits to "regularly incorporated institution/s/ of learning." In fact, the adoption of Petitioner's point of view would serve to create a chaotic state in a field already fraught with numerous complications. The portion of the second-class laws relating to publications "designed primarily for advertising purposes" would be seriously affected. Schools might spring up as adjuncts to hardware stores, radio stations and all sorts of enterprises. In any event, the meaning of the statute has been enunciated by the courts and adhered to by Respondent and his predecessors and no valid reason for imposing a change has been presented.
Is AMR NEWS a "Periodical Publication
AMR NEWS is a publication printed on relatively heavy stock. It usually sets forth the subject to which a particular seminar will be devoted, biographical data and, sometimes, pictures of the course director and the persons who will speak. There are seminar outlines, registration information, such as fees and hotel information, and a registration blank. At least one issue consists solely of an advertisement for and solicitation of sales of audio tape recorders and cassettes. (AMR Ex. 4 and POD Ex. 1)
Enough has been said to indicate clearly that AMR NEWS fails, by a wide margin, to meet the recognized prerequisites of a periodical publication. (Houghton v. Payne, 190 U.S. 88 (1904); Smith v. Hitchcock, 226 U.S. 53 (1912)
CONCLUSIONS OF LAW
1. AMR International, Inc., is not "a regularly incorporated institution of learning" within the meaning of 39 U.S. Code 4355(a) (1).
2. The publication "AMR NEWS" is not a periodical publication within the meaning of 39 U.S. Code 4351, 4354 and 4355.
3. The action of Respondent in proposing to revoke the second-class mail permit applicable to AMR NEWS was correct and is sustained.
4. The second-class mail permit previously issued to AMR International, Inc., for the publication AMR NEWS should be revoked.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. Such proposed findings and conclusions have been adopted to the extent herein indicated. Otherwise, such proposed findings and conclusions are rejected because of their immateriality or because they are not supported by, or contrary to, the weight of the evidence.
______________________
William A. Duvall
Chief Hearing Examiner