February 3, 1972
In the Matter of the Petition by
CORPORATE SEMINARS, INC.
575 Madison Avenue
New York, New York 10022
P.O.D. Docket No. 3/84
Denial of Second-Class Mail
Privileges - "C.S.I. News"
INITIAL DECISION OF HEARING EXAMINER
Lloyd Frank, Esq., New York, New York, for Petitioner
Arthur S. Cahn, Esq., Law Department, U. S. Postal Service, for Respondent
Before: John Lewis, Hearing Examiner
STATEMENT OF PROCEEDINGS
This proceeding was initiated by the filing of a petition by the above-named Petitioner on April 23, 1971, appealing from a ruling of the Director, Office of Mail Classifications, U. S. Postal Service (Respondent) made February 22, 1971, denying Petitioner's application for second-class mail privileges for the above-named publication. Respondent filed answer to said petition and a motion for summary judgement on April 27, 1971. Thereafter, the parties entered into a stipulation pursuant to which Petitioner agreed "to be bound by the decision of the Post Office Department in a similar proceeding presently under review entitled 'In the Matter of AMR, Inc.'" Based on said stipulation a hearing theretofore scheduled herein was cancelled by order of the undersigned Hearing Examiner, issued June 11, 1971.
Following a hearing before another Hearing Examiner of the U.S. Postal Service, an Initial Decision was issued on August 23, 1971, in Matter of the Petition by ANTHONY E WHYTE, Publisher, AMR International, Inc. ("AMR NEWS"). P.O.D. Docket No. 3/66, the proceeding referred to in the stipulation entered into by the parties in the instant case. After an appeal by the Petitioner in said proceeding from the Initial Decision of the Hearing Examiner, a Postal Service Decision was issued by the Judicial Officer on October 7, 1971, affirming the annulment of the second-class mail permit for Petitioner's publication, "AMR NEWS". A motion for reconsideration of such decision was denied by order of the Judicial Officer issued November 12, 1971. Thereafter Respondent herein moved that the hearing Examiner issue an Initial Decision in the instant proceeding "consistent with the Postal Service Decision in the AMR case." No opposition to said motion has been filed by Petitioner.
This matter is now before the Hearing Examiner for decision on motion of Respondent and the stipulation of the parties, pursuant to which Petitioner agreed to be bound by the decision in the AMR NEWS case. Based thereon, and on the documents which are a part of the record herein, the undersigned Hearing Examiner makes the following finds, conclusion and decision:
FINDINGS
1. Petitioner filed application with the Postmaster, New York, New York, on December 9, 1970, for second-class mail privileges for its publication "CSI NEWS". Said application was filed under §132.23 Postal Manual (39 U.S.C. 4355 and 4356). Petitioner stated in said application that its publication qualified for second-class mail privileges on the ground that Petitioner is an ""Institution of Learning" and that CSI NEWS is a "Publication Issued by a Regularly Incorporated Institution of Learning" (Ex. "A" to Petition).
2. On February 22, 1971, the Director, Office of Mail Classification, U.S. Postal Service, denied Petitioner's application for second-class mail privileges on the grounds, essentially, that (a) Petitioner is a "profit making corporation in the education field" and, therefore, its publication CSI NEWS "is not entitled to second-class mail privileges as a publication issued by an institution of learning as intended in the law [§4355 of 39 U.S. Code]", and (b) the publication "does not constitute a periodical publication since it is devoted solely to announcing and describing seminars sponsored by Corporate Seminars, Inc." (Ex. "B" to Petition).
3. In its petition filed herein Petitioner concedes that it is a "for profit business corporation", but contends that it is nevertheless an "institution of learning", within the meaning of the postal laws and regulations, since it is "an educational resource for the professional management community devoted to providing continuing adult education for business executives and managers." Accordingly, it contends that its publication, CSI NEWS, is entitled to admission as second-class mail matter under §4355 (inadvertently referred to as §4354 in the Petition) of 39 U.S. Code, since it otherwise meets the first three conditions of §4354(a) of 39 U.S. Code.
4. Respondent contends, in its answer and motion for summary judgement, that Petitioner is not an "institution of learning" within the meaning of 39 U.S. code 4355 since it is, admittedly, a "for profit" business organization, and the courts have interpreted the term "institution of learning", as used in the statute, to be limited to nonprofit educational institutions. Respondent further contends that CSI NEWS is not a "periodical, but simply an advertising publication devoted entirely to announcing and describing seminars conducted by [Petitioner] and various books and records which may be purchased from [it]."
5. The issues involved in this proceeding are substantially identical with those in the AMR NEWS proceeding, by the outcome of which proceeding Petitioner herein has agreed to be bound. In that proceeding the Hearing Examiner found that Petitioner was not an "institution of learning" within the meaning of 39 U.S.C. 4355(a) since it was organized for profit, and the expression "institution of learning" has been interpreted by the courts to exclude for-profit institutions. He further found that the publication in question was not a "periodical publication" within the meaning of 39 U.S.C 4351, 4354 and 355 since it was devoted to advertising seminars which were to be conducted by petitioner therein.
6. In the Postal Service Decision in the AMR NEWS case, the Judicial Officer denied Petitioner's exceptions relating to the question of whether it was an institution of learning within the meaning of the statute. However, while agreeing with the Hearing Examiner that AMR NEWS was not a "periodical publication" within the meaning of 39 U.S.C 354, since it was designed both for advertising purposes and for free circulation, the Judicial Officer found it unnecessary to decide whether AMR NEWS could be considered a periodical publication under §4355 of 39 U.S.C. "since the publisher is not qualified [as an institution of learning] under §4355".
7. Since Petitioner has agreed to be bound by the outcome of the AMR NEWS proceeding, and since the final decision in that proceeding has determined that a "for profit" organization cannot qualify as an "institution of learning" within the meaning of 39 U.S.C 4355(a), it is clear that Petitioner in the instant proceeding cannot qualify for second-class mail privileges under 39 U.S.C. 4355 as an institution of learning inasmuch as it is, admittedly, a "for profit" corporation. Although Petitioner's publication herein is substantially identical with that in the AMR NEWS case, it is unnecessary to determine whether it is qualified as a "periodical publication" under 39 U.S.C. 4355 since Petitioner is not an institution of learning within the meaning of the statute.
CONCLUSION
It appearing that Petitioner is a "for profit" corporation and is therefore not an "institution of learning", within the meaning of 39 U.S.C. 4355, it is concluded that the Director, Office of Mail Classification, correctly denied Petitioner's application for second-class mail privileges for its publication CSI NEWS. Accordingly, the appeal from said ruling of the Director, Office of Mail Classification, is denied and the petition herein is dismissed.
John Lewis
Hearing Examiner