In the Matter of the Petition by INSTITUTE OF COMPUTER TECHNOLOGY, 15800 W. McNichols Road, Detroit, Michigan 48235 Denial of Application for Second-Class Mail Privileges for "ICT ALUMNI NEWSLETTER" P.S. Docket No. 3/38 July 17, 1974 Rudolf Sobernheim Administrative Law Judge APPEARANCES: Mr. Harry M. Borcherding President 15800 W. McNichols Road Detroit, Michigan 48235 for Petitioner Arthur S. Cahn, Esq. Law Department U.S. Postal Service Washington, D.C. 20260 for Respondent
This is a proceeding initiated by Petitioner pursuant to 39 C.F.R. Part 954 to contest the ruling of Respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter sometimes referred to as the "Manager"), which on 17 April 1974 denied, subject to the outcome of this proceeding, Petitioner's application of 31 January 1974 for second-class mail privileges for the "ICT ALUMNI NEWSLETTER" (hereinafter sometimes referred to as the "Newsletter").
The reasons for the decision were stated by the Manager as follows:
"The Institute of Computer Technology has applied for second-class mail privileges for the "ICT Alumni Newsletter" under the provisions of section 132.23, Postal Service Manual, as a regularly incorporated institution of learning. In order for a regularly incorporated institution of learning to qualify for mailing copies of its publication are the second-class rates of postage under section 132.23, Postal Service Manual, the institution must be organized on a nonprofit basis. It is stated in the articles of incorporation of the Institute of Computer Technology that the Institute is a 'Profit Corporation.' (See Columbian Correspondence College v. Wynne, 255 App., D.C. 149 (1905), 206 U.S. 615, United States ex rel Chicago Business College v. Payne, 20 App. D.C. 606 (1902), initial and final decisions In the Matter of AMR International, Inc. P.O.D. Docket No. 3/66)."
A hearing was held herein on 12 June 1974. Petitioner advised the Office of Administrative Law Judges that it would not, and it did not, appear at the hearing. Respondent's mail classification specialist testified thereat on the reasons for his decisions. At the end of the hearing Respondent waived filing of, and Appellant, although given an opportunity to do so, likewise did not submit, proposed findings and conclusions.
1. Petitioner under its Articles of Incorporation (Resp. Ex. 2) was incorporated in December 1971 to own and operate a licensed occupational school offering courses for the training of computer programmers and keypunch operators and in allied subjects.
2. It was incorporated as a "Profit Corporation" ( ibid .) and it does not claim status as a non-profit institution, as shown by the application which the Manager denied (Resp. Ex. 1, item 7).
3. Appellant as part of its school operation publishes the Newsletter, composed of four letter-sized pages, which publishes alumni placement news, current school schedules and other information likely to be of interest to its students, past, present or future.
4. A short item in the January 1974 issue of the Newsletter (Resp. Ex. 3), entitled "ICT to Grant Associate Degrees", reports that Petitioner has applied to the Michigan State Board of Education for approval to grant associate degrees in various fields related to computer and secretarial work, that a liberal arts course is planned with a major in computer science and a minor in one of the liberal arts, and that approval for the granting of degrees would make it "unique among technical and vocational schools." Petitioner also claims in this item to have been ranked as an "institution of higher learning."
5. petitioner's application for second-class mail privileges (Resp. Ex. 1) was made on PS Form 3502, entitled "Application for Second-Class Mail Privileges Under Section 132.23 Postal Manual" which deals with publications of institutions and societies.
6. Petitioner did not apply for, nor does it now claim to be entitled to, second-class mail privileges for its Newsletter as a periodical under section 132.22 of the Postal Service Manual. Respondent's mail classification specialist testified that he had examined Respondent's application from this point of view and found that Respondent would not be entitled to such privileges under section 132.22 because it lacked a legitimate list of paid subscribers, as required by section 132.225 of the Postal Service Manual (T. 8).
1. Petitioner's application for second-class mail privileges was made under section 132.231 of the Postal Service Manual which grants second-class mail privileges to publications which do not have subscribers, do not contain any advertising, except the publishers own, and either are published by "a regularly incorporated institution of learning," by certain state agencies or public or non-profit elementary or secondary schools or are program announcements or guides of certain public or non-profit educational radio or television agencies or stations.
2. The phrase "a regularly incorporated institution of learning", as which Petitioner claims second-class mail privileges for its Newsletter has become a term of art, as far as its meaning in section 132.231 of the Postal Service Manual and its predecessors is concerned. It is understood for more than seventy years to refer to institutions of learning which "are established solely for the public good and not for private gain." U.S. ex rel. Chicago Business College v. Payne , 20 App. D.C. 606, 613 (1902). As the opinion further points out, all other entities named in the statute then in effect1/ together with incorporated institutions of learning were entities of a public character "and none of them conducted for private gain." loc . cit ., supra , at p. 614. The same is true of sec. 132.231 of the Postal Service Manual. Chicago Business College was fully considered and followed in Columbian Correspondence College v. Wynne , 25 App. D.C. 149 (1905), app. dism. for lack of jurisd'n, same v. Cortelyou , 200 U.S. 615 (1906).
3. The foregoing decisions have firmly established that, for purposes of obtaining second-class mail privileges for a publication without subscribers, a regularly incorporated institution of learning must be a non-profit institution. At least, I have not found, nor has any of the parties cited, any later court decisions on the interpretation of the pertinent postal statutes.
4. The Postal Service Chief Hearing Examiner and Judicial Officer were faced with the interpretation of the then section 4355(a)(1) of Title 39 of the United States Code, and held, on the grounds explained in their closely-reasoned opinions, that the Postal Service and its predecessors had consistently followed the cited court decisions and that second-class mail privileges should be denied to publications of regularly incorporated institutions of learning operated for profit. Anthony E. Whyte , P.S. Docket No. 3/66 (1971).
5. Appellant in its petition has argued that the cited decisions rejected second-class mail privileges of the plaintiff institutions of learning because such institutions failed to provide resident courses, offered secondary as well as post-secondary level courses, or were not incorporated as institutions of learning. Petitioner has, however, failed to adduce any evidence as to what kind of training or instruction it provides and only its aspirations may be gleaned from the issue of its Newsletter which Respondent introduced in evidence. But appellant's argument, even if factually sustainable, is mistaken. For an examination of the cited decisions shows clearly that they do not rest on the quality or level of the instruction provided by the institutions operated for profit.
6. Accordingly, since Petitioner is such an institution it is a matter of fact and law not entitled to second-class mail privileges for its Newsletter and the Manager's decision denying the same is affirmed.
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1/ Act of 16 July 1894, 28 Stat. 105, 53d Cong., 2d Sess., c. 137.