In the Matter of the Petitions by INSTITUTE FOR SCIENTIFIC INFORMATION, INC. 325 Chestnut Street, Philadelphia, Pennsylvania 19106 Revocation of Second-Class Mail Privileges for "CURRENT CONTENTS -- PHYSICAL & CHEMICAL SCIENCES; LIFE 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" P.S. Docket No. 2/60; P.S. Docket No. 2/61; P.S. Docket No. 2/62; P.S. Docket No. 2/63; P.S. Docket No. 2/64; P.S. Docket No. 2/70; P.S. Docket No. 2/82; P.S. Docket No. 2/114 May 22, 1975 William A. Duvall Chief Administrative Law Judge Kimber E. Vought, Esq., Schnader, Harrison, Segal & Lewis , 1666 K Street, N.W., Washington, D. C., for Petitioner Cecil W. Marr, Esq. and Arthur S. Cahn, Esq., Law Department, U.S. Postal Service, Washington, D. C., for Respondent
The Institute for Scientific Information, Inc., 325 Chestnut Street, Philadelphia, Pennsylvania (Petitioner) is the publisher of the following eight publications (hereinafter referred to as the "publication" or the "publications"):
Current Contents - Physical and Chemical Sciences
Current Contents - Life Sciences
Current Contents - Engineering and Technology
Current Contents - Behavioral, Social and Management
Sciences
Current Contents - Agriculture, Biology and Environ-
mental Sciences
Current Contents - Physical and Chemical Sciences
Including Weekly Subject Index
Current Contents - Clinical Practice Including Weekly
Subject Index
Current Contents - Life Sciences Including Weekly
Subject Index
Beginning on May 14, 1971, and on various dates thereafter, the Director, Mail Classification Division, Bureau of Finance, United States Postal Service (Respondent) advised Petitioner, on the one hand, that existing mail privileges for the first five of the publications listed above were to be annulled and, on the other hand, that applications for second-class mail permits for the last three of the publications listed above were denied. The reason for the proposed action in each case was the Respondent's view that the publication was not a "periodical publication" within the meaning of former 39 U. S. Code 4351 and 4354 and Section 132.2 of the Postal Service Manual.
These notifications of annulment or denial were followed by a period of discussion and negotiation between the parties. The negotiations were terminated, and by letter dated march 16, 1973, Respondent advised Petitioner that, after reviewing the matter, his earlier decision to deny or revoke second-class mail privileges of the publications remained unchanged. Petitioner took a timely appeal from this notification.
The various proceedings which had been the subjects of individual action were, by Order dated August 22, 1973, consolidated for hearing purposes.
A prehearing conference was held on March 8, 1974, at which time the parties agreed that the issue to be tried at the hearing could be stated as follows:
"Are the publications 'periodical publications' within the meaning of 39 U. S. Code 4351 and 4354 and Section 132.2 of the Postal Service Manual."
At the prehearing conference the parties also entered into a stipulation of certain facts, a copy of which stipulation is attached to the Report of the Prehearing Conference dated March 8, 1974.
The matter came on for hearing on March 12 and 13, 1974. Both parties were represented by counsel who participated in the examination and cross-examination of the witnesses. Counsel for both parties have filed initial and reply Briefs, the last of which was filed on July 1, 1974. A request for oral argument was made by Petitioner's Counsel, but the Briefs of both parties are so clear and well presented, a fact for which the presiding officer is grateful to both Counsel, that oral argument was unnecessary.
At the opening of the hearing two matters were agreed upon as follows:
1. All of Petitioner's publications which are the subjects of this proceeding are used by, and useful and valuable to, the representatives of the professions to which they are addressed; and
2. "Current Contents - Life Sciences" and "Current Contents - Life Sciences Including Weekly Subject Index", considered together, are typical of all of Petitioner's publications involved in this proceeding;1/ testimony and evidence to be adduced relating to these two publications may be deemed to be applicable to all of Petitioner's publications involved herein; and the decision in this proceeding,
while it is based on the evidence related primarily to the two previously mentioned publications, will be applicable to all of Petitioner's publications which are the subjects of this consolidated proceeding. This matter was also discussed at the Prehearing Conference.
II. THE PUBLICATION, INCLUDING SOME DESCRIPTIVE TESTIMONY BY THE PUBLISHER
The issue of the publication which has been chosen for description and discussion is "Current COntents - Life Sciences Including Weekly Subject Index." (Ex. P-1) It is approximately 8 1/4 inches by 5 1/4 inches in size and it contains approximately 312 pages devoted to a number of features or departments, not all of which appear in every issue.
The contents of the publication may be tabulated as follows:2/
Number of
Subject Matter Description Pages
"In This Issue" A listing of the 1
journals cited in
the publication, and
categories under
which they are cited.
Number of
Subject Matter Description Pages
"Journal Coverage A listing of journals 1
Changes" added and deleted with
issue, and notification
of change of title of a
journal.
"Current Comments" Editorial comment by 2
Petitioner's President.
"Press Digest" Capsule summaries of 5
stories of news and
topical events and
subjects appearing in
popular and nontechnical
journals.
Table of Con- As the language under 1903/
tents of Various "Subject Matter" sug-
Journals gests.
"Weekly Subject Subject index of 38
Index" articles listed in
publication, together
with page numbers showing
when in the publication,
where in the listed
journals, they may be
found.
Author Index and As the title implies. 224/
Address Directory
Number of
Subject Matter Description Pages
Triannual Cumulative As the title implies. 14
Journal Index,
Complete List of
Journals Covered and
Publishers Address
List
Publishers Addresses As the title implies. 9
In addition to the foregoing items there are several pages, numbering probably not over 10, devoted to notices concerning Petitioner's services to subscribers and Petitioner's other publications.
One such service is referred to as "OATS", which is the acronym for "Original Article Tear Sheets." For each journal the contents of which are listed in the publication, there is a number appearing in an oval near the name of the journal. There is an order blank in the publication by means of which a subscriber may order, at stated prices, tear sheets of any article appearing in the publication by inserting the number adjacent to the journal title, and adding the journal name, volume, number, date, pages and the name of the author.
Dr. John Garfield, the publisher of the publications under consideration, was the principal witness for Petitioner. His testimony appears at pages 62-82 and 108-147 of the transcript.
Dr. Garfield discussed many features of the publication, and much of the remainder of this section of this decision is based on his testimony.
In the publication used as a model in this proceeding (Ex. P-1) the number of journals the contents of which are shown exceeds a thousand and for all of Petitioner's publications the aggregate number exceeds four thousand. (Tr. 64) Selection of journals for coverage is based, in part, on the quality of the journal which, in turn, is determined by editorial boards comprised of individuals who are recognized experts in the appropriate fields. Subscriber demand also forms a basis for including coverage of certain journals. Timeliness is an important consideration in the selection process (Tr. 66), as are the presence or absence of abstracts by the authors, multi-lingual abstracts, format, and the frequency with which a journal is cited. (Tr. 69) Similarly, there are considerations which lead to decisions to stop coverage of certain journals.
Once the selection has been made, there is the question of the manner of presentation of the contents of each one. Some journals do not have tables of contents, while others may have them on the front or the back cover. Some publishers supply Petitioner with page proofs of contents pages. The contents page as it appears in the publication is different in appearance in many, if not most, instances from the way it appeared in the original. Some extraneous information is deleted and other information is added, examples of the latter being, if it is not present in the original, the volume, number, date and year of the journal; the different languages, if any, in which the journals are published; and whether the journal contains abstracts. (Tr. 71) According to Dr. Garfield, there is no such thing as a "mere reproduction" of a contents page because of changes such as those just mentioned or because of technical reasons such as the problem of reducing the contents pages to the required size or the problem of reproducing colors. (Tr. 80; Ex. P-2 and sub-exhibits)
There are other important editorial efforts that go into the production of the publication. For example, about a million addresses must be processed each year in order to produce the "Author Index and Address Directory," Other important features which require editorial skill and effort are the maintenance of the "Triannual Journal Index and Publishers Address List," and the preparation of the Subject Index, a feature not contained in all of Petitioner's publications at the time of the hearing but which is to be incorporated in all of them by the end of 1975. (Tr. 120)
Two features or departments of the publication, namely, "Current Comments" and "Press Digest", both of which are prepared by Petitioner's President, are identical in each of the different publications issued by Petitioner, although at the time of the hearing it was contemplated that "Press Digest" may in the future be different in the different publications. (Tr. 134) Dr. Garfield stated that it is difficult to abbreviate news and other items and present them in the form in which they appear in "Press Digest" and still give the essential crux of the item. (Tr. 127)
III. THE TESTIMONY OF THE OTHER WITNESSES
Dr. Edward G. Feldman, Associate Executive Director for Scientific Affairs, American Pharmaceutical Association, Washington, D.C., was called as a witness for the Petitioner. Dr. Feldman's educational background includes a Ph.D. degree from the University of Wisconsin, with a major in pharmaceutical chemistry and a minor in biochemistry, and he is a member of a number of professional, scientific and honorary societies. (Tr. 82)
Dr. Feldman has used the publication for about 14 years. When it arrives, Dr. Feldman scans the contents page, headed "In This Issue", after which he scans the listing of journals - particularly those in the field of drugs, pharmaceuticals and related matters. He then goes to the page numbers at which those journals appear and he notes the articles that are of interest to him as indicated by the titles, which he regards as being small abstracts. He stated that from looking at the contents pages of the various journals of interest to him he can at least judge if there is nothing in the particular journals to which he should pay special attention. He said that the titles listed in the publication are identical to the titles listed in the journals. (Tr. 104) In cases in which the titles make him realize that he will need to get more information, or in which he feels that he needs greater depth of information, he will then obtain the entire article. (Tr. 95) Dr. Feldman said that the "Author Index", also, is helpful in that it helps one to keep advised as to what various individuals are publishing. He said that he can't imagine that anybody using the publication would not at some time go to the back-up journal because in the case of every individual, there will be times when he wants more than the information that is in Petitioner's publication. (Tr. 99)
Another witness called by Petitioner was Mr. Leonard Stoloff, mycotoxin expert for the Office of Technology in the Bureau of Foods of the Food and Drug Administration, Washington, D. C. Mr. Stoloff's testimony was, in substance, much like that of Dr. Feldman. Soon after he receives the publication he scans it for material in his area of interest in order to maintain his "current awareness", a term which was used repeatedly by Mr. Stoloff and the witnesses who followed him, as well as by Drs. Garfield and Feldman. At one point there was the following colloquy between Mr. Stoloff and Petitioner's Counsel:
"Q Do you get information by merely scanning the titles or do you find it necessary, after you look at a title, to go to the journal itself?
"A We always go to the journal itself. The title gives us a hint as to the content of the article. If there is a title of interest, we always get the hard copy of the particular article.
"Q Do you always gets the article? "A We always get the hard copy. The tear sheet service is invaluable in this regard, that is, being able to have a source of hard copy of articles that we can't retrieve from our library." (Tr. 155-156)
Mr. Stoloff said, however, that he does not use the publication as a reference tool "for back reference; no, except for the Science edition index [sic]." (Tr. 156) He said that a single issue would be valueless to him because he requires continuity. He continued that when he has finished with the publication, it goes to his assistant, "who picks up the articles I've checked off from the journals in the library. If we don't have the journal in the library, a tear sheet request goes out to ISI for a piece of hard copy." (Tr. 157) He added that if he had the title pages of all the journals in which he is interested, he would have the same information that is in the publication because "Current Contents' is a replication of a title page." (Tr. 159)
Also testifying on behalf of Petitioner were Charles John Vincent Scanio, Ph.D in chemistry from Northwestern University, who is a staff chemist in the Medicinal Chemistry Department of Phizer, Incorporated, Draughton, Connecticut (Tr. 166-182); and Milton Ernest Stephenson, M.S. in library sciences from Columbia University and who is the librarian of the Bureau of Foods Library, Food and Drug Administration, Washington, D.C. (Tr. 182-198)
Dr. Scanio's testimony was very much like that of the witnesses whose testimony has been summarized above. For example, he uses the publication for the purpose, among others, of maintaining his "current awareness" of literature in a particular field and, with regard to other areas, he is made aware of current trends. He would never, in a paper written by him, refer to or cite a title of an article without as a bare minimum being at least aware of the abstract of the article. The obvious implication is, of course, that it is far preferable to go to the body of the original article.
Mr. Stephenson stated that his library subscribes to five of Petitioner's publications, some of which are kept in the current journal collection. The library retains issues of "Current Contents" for six months. The use to which the publication is put is the maintenance of "current awareness" in the readers' particular areas of interest. All of the people who use Mr. Stephenson's library would go to the basic article in a journal if the title in the publication suggests that the subject is in their field of particular interest.
The first witness called by Respondent was Mr. Darwin Sharp, Manager, Mail Classification Division, United States Postal Service, Washington, D. C. (Testimony on direct examination, Tr. 13-27)
Mr. Sharp described Petitioner's publications, as exemplified by "Current Contents - Life Sciences Including Weekly Subject Index" (Ex. P-1), as being something other than a periodical publication because the major part of its content consists of reproductions of tables of contents of various publications. Some of the tables are reproduced precisely as they appeared in the publications from which they were taken; some have been subjected to editorial changes; some have been translated; but, essentially, the content of the publication (Ex. P-1) consists of the reproduction of the substance of the tables of contents of the journals which are covered by the particular exhibit. Petitioner's publications would be classified as miscellaneous printed matter, which, because of their weight, would be third-class mail matter.
One issue of the publication (Ex. R-11) contains a 1 1/2 page reprint of an article from the Washington Post , but the addition of this reprint to the other material contained in the publication does not change Mr. Sharp's view as to the appropriate mail classification of the publication.
While some of the publications properly have second-class appear in Petitioner's publications properly have second-class mail entry, this fact has no bearing on the eligibility for second-class status of Petitioner's publications.
The May 5, 1971, issue of the publications (Ex. R-11) has an "Author Index and Address Directory" in the back. Similar features are contained in publications otherwise qualified for second-class mail privileges, but the portion of those other publications which do meet the second-class mail requirements form the dominant characteristic of those publications. Such indexes may be carried as part of second-class mail publications, but the indexes, themselves, do not have the characteristics of second-class mail.
On cross-examination (Tr. 28-61) Mr. Sharp repeated his view that Petitioner's publications do not qualify for second-class entry because they are not "periodical publications" within the meaning of applicable law. The characteristic that prevents Petitioner's publications from being eligible for second-class mail privileges is the fact that it is predominantly composed of tables of contents which have been reproduced from various journals.
There was a tangential colloquy between the witness and Petitioner's Counsel about the meaning of the word "insignificant" as used by the witness in quantifying the amount of material in Petitioner's publication which would, it contained in sufficient amount, qualify the publications as being second-class mail. The substance of the witness's testimony is that in an appropriate case, that is, one in which, presumably, the decision is a close one, he would apply a test derived from the language of 39 U. S. Code 4352(c) in which the Postmaster General is forbidden to "accept for mailing as second-class mail any publication having more than 75 per centum advertising in more than one-half of its issues during any twelve-month period***." It is apparent from the testimony of the witness that this test was not applied in this case because of the nature of the publication and because of the finding by the witness that the amount of the "qualifying" matter in Petitioner's publications is "insignificant." (Tr. 33)
IV. THE STATUTES AND THE REGULATIONS
The authority cited for the proposed revocation actions is found at 39 U. S. Code 4351 and 4354 and in Section 132.2 of the Postal Service Manual, as follows:
4351, Title 39, U. S. Code--
"Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title."
4354, Title 39, U. S. Code--
This provision of law specifies the particular conditions which must be met by publications in order to render them eligible to obtain or retain second- class mail status. Except for the fact that this section further emphasizes the requirement that such a publication must be a "periodical publication," this section is not here pertinent, since it was agreed between the parties to this proceeding that the specified formal requirements are met by the publications.
132.2, Postal Service Manual--
The regulations contained in this section of the Postal Service Manual, generally, adopt, paraphrase and explain the provisions of law found at 39 U. S. Code 4351 and 4354. Their repetition here would serve no useful purpose.
While discussing the subject of Postal Service regulations, it is appropriate to consider Petitioner's argument, skillfully and forcefully urged, that Respondent, in seeking to revoke second-class mail privileges for Petitioner's publications, has improperly applied an unpublished standard. That standard, according to Petitioner, is that a publication may not be admitted to second-class status, or permitted to retain such status, unless it contains at least 25 per cent of material properly cognizable as "qualifying" material, i . e .
"a variety of 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 , 194 U.S. 88, at 97 (1904).
This argument, though artfully presented, must fall for several reasons. In the first place, Petitioner did not rely on the 75/25 per cent rule in this case. Mr. Sharp, in his letter notifying Petitioner of the proposed revocation action, stated (ex. R-8) that the publication is not a newspaper or other periodical publication; gave a definition of a "periodical"; stated that the publication is "more appropriately categorized as a directory or index of publications" which is properly classified as third-class mail; and pointed out that the only feature that the publication shares with second-class mail matter is periodicity, which, by itself, is insufficient to bring a publication into the second-class of mail.
Secondly, while on the witness stand, Mr. Sharp stated with respect to the May 5, 1971, issue of Current Contents - Life Sciences (Ex. R-11) that it contained only one article (a reprint from the Washington Post ) which occupied "a very insignificant portion of the publication." He added: "The publication is characterized by the preponderant material in it which is the reproduction of tables of contents pages." The witness later indicated that the addition of "Weekly Press Digest" to the March 6, 1974, issue (Ex. R-14) did not qualify the publication as second-class mail because that feature is such "an insignificant part of the total publication."
In neither of the two foregoing situations is there any indication that Respondent relied on, or had any need to rely on, any yardstick such as the 75/25 per cent rule based upon 39 U. S. Code 4355. The nature of the publication is so apparent upon examination that the application of such a criterion would have been superfluous.
If Respondent had relied on an unpublished standard, the proposed revocation action would be set aside as being contrary to the provisions of the Administrative procedure Act, specifically the publication requirements of 5 U. S. Code 552(a) (1). (See H. W. Wilson Co. , P.O.D. Docket No. 3/123, et al. (9165); George W. Schultz, Publisher , P.S. Docket No. 2/111(1974)). Respondent's witness was correct in his view that examination of Petitioner's publications reveals, without reference to any yardstick, that they are directories or indexes and, as such, they are not eligible to be regarded as second-class mail matter.
V. DISCUSSION OF OTHER POINTS URGED BY PETITIONER
Petitioner asserts in his Brief that Petitioner's publications meet each of the specific requirements contained in 39 U. S. Code 4354(a)(1) - (5) and, therefore, the publications qualify for second-class mailing privileges. It was stipulated at the hearing that the publications do meet the specific requirements of 39 U. S. Code 4354(a)(1) - (5), but that fact is, by no means, dispositive of this case.
Next, Petitioner asserts that Petitioner's publications contain the requisite continuity and inherent periodicity and, therefore, they qualify as "periodical publications."
It has been recognized for over 70 years that while 39 U. S. Code 4354 sets forth specific conditions which a "periodical publication" must meet in order to be eligible to obtain or retain second-class mail classification, there is no definition in the law so codified of the term "periodical publication." The case of Houghton v. Payne, supra, arose under the 1879 mail classification statute in which there was language substantially the same as that found in 39 U. S. Code 4354. In deciding that case the Supreme Court stated, intera lia (194 U.S. 96):
"But while section 14 lays down certain conditions requisite to the admission of a publication as to mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites. Under section 10 the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term.
After thus noting the absence of a definition of the term "periodical publication", the Court formulated its own definition which has been consistently followed by the Courts and by the Postal authorities through the years. That definition follows (194 U.S. 97):
"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."
A little later in the same decision the Court added (id., p. 98):
"It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical."
Under the Court's definition, major points of which were expressly stated in the July 6, 1973 notice of proposed revocation sent by Respondent to Petitioner (Ex. R-8), Petitioner's publications are not "periodical publications" because they do 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." Furthermore, the argument that the periodicity with which Petitioner's publications are issued qualifies them for second-class mail status was thoroughly negated.
Petitioner's reliance on the feature of continuity is similarly misplaced. If, for example, the Sears Roebuck and Company Catalog were published four times per year instead of the three times which is its actual frequency of publication, this publication would certainly have the attributes of continuity and periodical issuance. No one would seriously insist, however, that such a publication should be accorded second-class mail status. It is recognized that there are differences between Petitioner's publications and the Sears Roebuck and Company Catalog, but the example serves to point up the futility of urging that continuity and regular issuance are enough, by themselves, to warrant the issuance, or the continuation in effect, of second-class mail privileges.
Petitioner also makes the argument, heard before, that (A) the definition of "periodical publication" found in Houghton is (1) wrong and (2) inapplicable to Petitioner's publications, and (B) that the manner of application of the Houghton definition to Petitioner's publications is wrong. There is, in addition, the argument that transportation guides "have been held to be entitled to second class mailing privileges."
There is nothing that has been presented by Petitioner that is convincing that the Houghton definition of a "periodical publication" is invalid or that it is inapplicable to the publications under consideration in this case. The definition has been applied in this case in the same manner as it has been applied for years in the Post Office Department and the Postal Service ( Florists' Transworld Delivery Association , P.S. Docket No. 1/167, Sept. 17, 1974, pp. 35-36).
Contrary to what otherwise might be believed, the Railway Guide and Bus Guide which were the subjects of Payne v. Railway Publishing Co ., 20 App. D.C. 581 (1903) and National Publishing Company, Inc. , P.O.D. Docket No. 3/5 (1969) were not held to be "periodical publications." In the Houghton case, the Court stated that the railway guides "have been treated" as periodicals and granted second-class mail privileges. The decision in regard to the bus guides was based squarely on the Railway Publishing Co . case supra. These two transportation publications clearly are exceptions to the general rule which the Court and the Postal authorities, for reasons of public policy, saw fit to make. There is no such wide, general use of Petitioner's publications as there is in the case of the transportation guides and, hence, the rulings with reference to the latter are not precedents for rulings in regard to the former.
Webster's New World Dictionary (1962) contains the following definition, among several others, of the word "reference":
"the directing of attention to a person or thing";
"a mention or allusion"; "an indication as in a book or article, of some other work or passage to be consulted";***. Although each of Petitioner's witnesses stoutly denied that "Current Contents" is a reference work or took their testimony describing the use they make of the publication makes it clear that, regardless of the name they give to the publication, the function it serves for them is that of a reference device. Each witness reads the publication in which he is interested in order to maintain "current awareness" of new writings in the field of his interest. Not a single one of them, however, if he were investigating in a particular area, would be content simply to read the titles of works by others as they are found in Petitioner's publications. Rather, the article listed in Petitioner's publication is obtained, either from Petitioner, or from the publisher of the basic publication, or from the author, or from a library, or elsewhere, and the article, itself, is studied. Nothing short of that procedure will suffice.
There have been two proceedings in which publications very similar to Petitioner's publications were considered. In both cases proposed annulment action was upheld. These cases are American Bibliogaphical Center, et al. , P.S. Docket No. 2/106(1973) and American Chemical Society , P.S. Docket No. 3/90 (1973). The Initial Decision in neither of these cases was appealed and both, therefore, became final Postal decisions in these matters. In the latter case, the Administrative Law Judge stated (Init. Dec., p. 11):
"It is absurd to suggest that a mere listing of articles in publications which have second-class entry is itself a periodical publication entitled to second-class entry."
In the instant case, it is recognized that the publications serve a most useful and practical purpose for students and scholars in a variety of disciplines. Giving full weight to the high caliber of the publications does not alter the fact that they are, in essence, very sophisticated indexes and reference tools. Except to a minimal or insignificant degree, they are devoid of "a variety of original articles by different authors."
VI. CONCLUSIONS OF LAW
1. Petitioner's publications are not "periodical publications" within the meaning of 39 U. S. Code 4351 and 4354, and within the meaning of Section 132.2 of the Postal Service Manual.
2. Petitioner's publications, since they are not "periodical publications" within the meaning of applicable Postal laws and regulations, are not eligible for carriage in the mails as second-class mail matter.
3. The decision by Respondent (1) to annul or revoke the second-class mail permits previously in effect for certain of Petitioner's publications and (2) to deny the applications for second-class mail permits for the remainder of petitioner's publications was correct and it is sustained.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. To the extent indicated herein, those proposed findings and conclusions have been adopted: otherwise, such proposed findings and conclusions are rejected for the reasons herein indicated, or because they are contrary to or unsupported by the evidence, or because they are immaterial.
____________________
1/ As pointed out by Petitioner's Counsel (Tr. 11-12), the
inclusion of the "Weekly Subject Index" in one of the publications is the only difference between the two publications and this difference is of
minimal significance in the ultimate decision on the issue in this
case. Accordingly, unless otherwise indicated, attention will be
confined to "Current Contents - Life Sciences Including Weekly
Subject Index" (Ex. P-1).
2/ The inside and outside of the front and back covers are
disregarded here because their contents do not contribute toward 2nd-class mail
eligibility for the publication as this issue has been defined.
3/ In a tabulation accompanying Respondent's Brief as Appendix
A, the figure for this feature is shown as 189. The difference is of no
significance.
4/ Appendix A to Respondent's Brief shows 23 pages. The
difference is insignificant.