In the Matter of the Petitions by ) October 2, 1975 ) INSTITUTE FOR SCIENTIFIC INFORMATION, ) INC. ) 325 Chestnut Street ) Philadelphia, Pennsylvania 19106 ) ) ) P.S. Docket Nos. 2/60; Revocation of Second-Class Mail ) 2/61; 2/62; 2/63; Privileges for "CURRENT CONTENTS -- ) 2/64; 2/70; 2/82; PHYSICAL & CHEMICAL SCIENCES; LIFE ) and 2/114 SCIENCES; ENGINEERING & TECHNOLOGY; ) BEHAVIORAL, SOCIAL & MANAGEMENT ) SCIENCES; AGRICULTURE, BIOLOGY & ) ENVIRONMENTAL SCIENCES"; and Denial ) of Application for Second-Class Mail ) Privileges for "CURRENT CONTENTS - ) PHYSICAL & CHEMICAL SCIENCES INCLUDING ) WEEKLY SUBJECT INDEX and CLINICAL ) PRACTICE" and "CURRENT CONTENTS-LIFE ) SCIENCES INCLUDING WEEKLY SUBJECT INDEX" ) APPEARANCES: Kimber E. Vought, Esq. Robert L. Kendall, Jr., Esq. John E. McKeever, Esq. Schnader, Harrison, Segal & Lewis 1666 "K" Street, N.W. Washington, D.C. 20006 for Petitioner Cecil W. Marr, Esq. Arthur S. Cahn, Esq. Law Department U.S. Postal Service Washington, D.C. 20260 for Respondent Lussier, Edward F.
These cases are on appeal by the Institute for Scientific Information, Inc., the Petitioner, from an Initial Decision by Chief Administrative Law Judge William A. Duvall upholding the revocations and denials of second-class mail privileges for eight publications published by Petitioner. The history of the proceeding is set forth in the Initial Decision and need not be repeated here, except to state, as Petitioner's Appeal Brief does at page 2, that the principal issue is whether the publications involved in this proceeding are "periodical publications".
Petitioner's Appeal Brief raises six formal exceptions to the Initial Decision which may best be consolidated into two basic arguments as in fact Petitioner's Appeal Brief treats them in its argument portion. This decision will follow the same approach. One preliminary matter must be addressed before doing so and that is a motion by Petitioner requesting oral argument on the basis that "should the Judicial Officer deem it desirable, oral argument may be helpful in revealing for the Judicial Officer -- who, of course, did not preside at the hearing in these matters -- the major points of contention between the parties." The major points of contention appear quite clear from the written Briefs on file. Petitioner's Appeal Brief is especially thorough and explicit in stating its position and no useful purpose would be served by oral argument. Accordingly, the motion for oral argument is denied.
Petitioner takes exception to the application of the definition of a periodical set forth by the United States Supreme Court in the case of Houghton v. Payne, 194 U.S. 88 at page 97, to the effect that:
"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."
Petitioner would distinguish the Houghton case on the basis that the Court was there attempting to differentiate books from periodicals rather than to lay down a definition of general application. The argument, while ably presented by Petitioner, has been regularly made, and just as regularly rejected, over a long history of administrative decisions by Administrative Law Judges, and the Judicial Officer, of the Postal Service, and its predecessor, the Post Office Department. See the Amended Postal Service Decision in Florists' Transworld Delivery Association, P.S. Docket No. 1/167, and Shepard's Citations, Inc., P.S. Docket No. 1/88, and citations contained therein. Petitioner's reference to cases in which transportation guides were granted second-class privileges is of no avail in this case. The treatment of transportation guides as "nondescript" publications entitled to second-class privileges based upon Payne v. Railway Publishing Co., 20 App. D.C. 581 (1902), a decision preceding and referenced in Houghton v. Payne, has consistently been recognized as unique as more fully explained in the Postal Service Decisions cited above. Thus I find no support for Petitioner's contention that the true test of a "periodical" publication to be drawn from Houghton v. Payne is "inherent periodicity", that is, whether the publication must by its very nature be issued periodically.
The cases cited by Petitioner in support of a definition different than that found in Houghton v. Payne are not persuasive authority for reaching that result. In American Art Agency, P.O.D. Docket No. 2/269, and Publishers Development Corp., P.O.D. Docket No. 2/24, the decisions, insofar as the issue of "articles" was concerned, centered upon the volume of photographs as compared to the written word. In Little, Brown & Co., Inc., P.O.D. Docket No. 2/86, the publication held to be a periodical was a medical quarterly, found to contain a variety of original articles by different authors. In Surveys for Business, Inc., P.O.D. Docket No. 3/37, the issue was neither argued by the parties nor discussed in the decision. In light of the overwhelming precedent recognizing and applying the definition in Houghton v. Payne, these cases do not afford a sound basis for adopting the definition of a periodical which Petitioner here proposes.
Petitioner also takes exception to the conclusion that the publications are "reference books" and the further conclusion that reference books do not qualify for second-class mail privileges. The Initial Decision did not find that the publications are "books". It found that they were "directories or indexes" (page 20); that they serve as a "reference device" (page 26), and that "they are, in essence, very sophisticated indexes and reference tools" (page 27). Judge Duvall's findings are supported by the record. Moreover, it is not a lack of continuity or a lack of periodicity which renders the publications ineligible for second-class privileges but a lack of qualifying content within the definition of Houghton v. Payne. See American Chemical Society, P.O.D. Docket No. 3/90, and American Bibliographical Center, P.S. Docket No. 2/106, both cited in the Initial Decision.
Petitioner's final exception is to the conclusion that the Director of the Mail Classification Division did not rely upon unpublished standards in deciding to revoke or deny second-class privileges to the publications in issue here. This contention was adequately disposed of by Judge Duvall on pages 16-20 of the Initial Decision and nothing further need be added.
Petitioner's exceptions to the Initial Decision are disallowed and that decision is hereby affirmed.