In the Matter of the Petition by PROCEEDINGS IN PRINT, INC., 99 Massachusetts Avenue, Arlington, Massachusetts 02174 Denial of Application for Second-Class Mail Privileges for "PROCEEDINGS IN PRINT" P.S. Docket No. 2/189 October 15, 1975 Mrs. Barbara A. Spence, President, 99 Massachusetts Avenue, Arlington, Massachusetts, for Petitioner Arthur S. Cahn, Esq ., Law Department, United States Postal Service, Washington, D.C., for Respondent William A. Duvall, Chief Administrative Law Judge
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, United States Postal Service (hereinafter sometimes referred to as the "Manager") which on December 5, 1973 denied, subject to the outcome of this proceeding, Petitioner's application, filed October 2, 1973, for second-class mail privileges for a publication entitled "Proceedings in Print" (hereinafter sometimes referred to as Petitioner's "publication"). The reasons for his ruling were stated by the Manager as follows:
"Section 132.2, Postal Service Manual, specifies that only 'newspapers and other periodical publications' which meet the mailability criteria established in Part 124 may be mailed at the second-class rates. Publications must be originated and published for the purpose of disseminating information of a public character, or they must be devoted to literature, the sciences, art, or some special industry. "Issue 3 of 'Proceedings in Print' does not appear to be a newspaper or other periodical publication; this issue appears to be only an index of all subject areas and in all languages of reports or proceedings of conferences, symposia, lecture series, congresses, hearings, seminars, courses, institutes, colloquia, meetings and published symposia. This issue is divided into Current Entries (those published within the last two years), Retrospective Entries (those published previous to the last two years) and an index covering all current and retrospective entries in the issue. "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. The material submitted is not a periodical publication within the meaning of section 132.2, Postal Service Manual. This material fits more appropriately the area of the mail classification scheme which provides for mailing miscellaneous printed matter since the only feature it appears to have in common with newspapers and other periodical publications is that the material is issued in accordance with a schedule. Regular issuance does not change its basic character as miscellaneous printed matter. It is not possible to have miscellaneous printed matter accepted for mailing at the postage rates provided for newspapers and other periodical publications merely by mailing according to a predetermined schedule. (See Houghton v. Payne, 194 U.S. 88 (1904). American Chemical Society case POD Docket No. 3/90, February 16, 1973.)"
On January 24, 1974, Petitioner's complaint in this proceeding was docketed. A hearing was subsequently held at which both parties presented testimonial evidence and at which copies of Petitioner's publication were admitted in evidence. After the hearing both parties presented briefs.
Petitioner publishes "Proceedings in Print," in its eleventh year in 1974, bi-monthly in February, April, June, August, October and December of each calendar year with a cumulative annual index appearing separately as part of the December issue.
Each issue of "Proceedings in Print" contains, apart from a brief one-page description of the publication and a list of acronyms and abbreviations used in the particular issue, three sections: (a) Current Entries of matter published no more than two years ago; (b) Retrospective Entries involving matter published previous to the last two years: and (c) the Index for each issue of the publication referring the reader to the listings of items under each subject-matter, symposium, sponsored or author heading.
The items listed are conference proceedings in all subject areas and in all languages and comprise published reports or proceedings of conferences, symposia, lecture series, congresses, hearings, seminars, courses, institutes, colloquia or meetings. It also includes symposia which were never convened but the contents of which have appeared in a published format (Pet'r Ex. 1, Introd.).
Each listed proceeding receives an accession number by which it is listed in the Index. By the beginning of 1974 the entries had exceeded 27,500 in number (Pet'r Ex. 7). Each listed item includes the name of the proceeding, its date, location and sponsors, and the title of the volume or journal in which the proceedings are published. The areas of interest covered by the proceedings listed in Petitioner's publication are predominantly in the physical sciences but entries also refer to proceedings covering economic questions and other aspects of the social sciences.
The evidence adduced by Petitioner convincingly establishes the importance of abstracting and indexing publications as indispensable research tools. Given the burgeoning mass of materials published and the increasing number of conferences, institutes and symposia held each year, a publication such as Petitioner's is most useful in providing researchers and other interested persons with access to the published proceedings of these conferences, institutes and symposia. Petitioner's publication performs this task by presenting to the public a reference publication the entries in which list and provide data on the published proceedings of scientific conferences, institutes and symposia and which are rendered readily accessible by means of a carefully composed index.
According to the testimony of a member of Petitioner's staff, the major task in publishing "Proceedings in Print" is to obtain information as to what conferences, institutes or symposia are being held and to find out when and where their proceedings, or parts thereof, are being published (Tr. 65-66, 80). Petitioner's publication, except for the annual index, is not cumulative. However, where additional information as to an item already published thereafter comes to the publisher's attention, the added information will be published (Tr. 85-6).
Petitioner's publication does not contain articles on a variety of topics or by different authors (Pet'r Ex. 1 to 7; see also Tr. 39).
Petitioner's witnesses, all qualified experts in library science, testified that they considered "Proceedings in Print" as a periodical publication because it was published more than once annually (see Tr. 77) and because each issue was part of a series published for an indefinite duration (Tr. 12, 36, 65). One of the witnesses also mentioned prepayment of the subscription price, as required by Petitioner, as characteristic of periodical publications (Tr. 62). Hence, in the view of these library experts, Petitioner should be entitled to second-class mail privileges for "Proceedings in Print" since the publications meet - and this is conceded - all specific requirements imposed by the Postal Service regulations for the mailability of periodical publications as second-class matter.
The witnesses also testified that the definition of a periodical publication in Houghton v. Payne, 194 U.S. 88 (1904), if exclusively applied, discriminates (see Tr. 38) against a whole class of publications, marked by periodicity, which since 1904 have assumed a place of vital importance as research aids (see Tr. 45) and, in the opinion of the witnesses, should now be treated as second-class matter, specifically: abstracting and indexing publications. It is interesting to note that no two of Petitioner's witnesses agreed on a definition of the term "periodical publication."
These witnesses, all of whom also had experience as librarians of libraries of private enterprises or Government agencies or of libraries of a specialized character, also were unanimous in asserting that higher subscription prices due to increased mailing cost would limit coverage by abstracting and indexing publications and would force librarians to cut back on other periodical subscriptions and impede the general usefulness of libraries for carrying on research (Tr. 16, 18, 48, 51, 72, 73).
The United States Supreme Court defined a periodical publication entitled to be mailed as second-class mail matter in Houghton v. Payne, supra, as follows:
"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."
This definition has been steadfastly followed in the decisions of the Postal Service whenever presented with the question of whether a particular publication was a periodical publication mailable as second-class matter. For a full discussion of this point see the Amended Postal Service Decision in Florists' Transworld Delivery Association , P.S. Docket No. 1/167(1974). The principles as applied in that case have been recently upheld in Teleflora, Inc. v. United States Postal Service , Civil Action No. 75-228 (U.S.D.C., D.C. 1975).
In that case the Court on June 25, 1975, granted summary judgment to the U. S. Postal Service and denied plaintiff an injunction against revocation of its second-class mail privileges, thus affirming the administrative decision based on Florists' Transworld Delivery Association, supra, applicable to Teleflora by virtue of a stipulation by the parties to the latter case. (P.S. Docket No. 1/206).
In accordance with the foregoing decisions the type of publication called by Petitioner an abstracting and indexing publication, has been found not to be mailable as second-class matter. See American Chemical Society, P.O.D. Docket No. 3/90 (1973); American Bibliographical Center, CLIO Press, Inc ., P.S. Docket No. 2/106 (1973); Shepard's Citations, Inc., P.S. Docket No. 1/88 (1974). It follows that Petitioner's publication is not mailable as second-class matter.
Petitioner's publication also is not a "nondescript" publication of the type said by the Court in Houghton v. Payne to have been "treated" as entitled to second-class mail privileges. This phrase has consistently been limited to transportation guides and it cannot be expanded to comprehend such publications as Petitioner's even if they appear at regular intervals at least four times per year. This point has been fully discussed in Shepard's Citations, Inc . and
Florists' Transworld Delivery Association , both supra , and needs no further discussion here.
To apply the established precedents and follow the definition set forth in Houghton v. Payne, supra, does not discriminate between publications, arbitrarily allowing some publishers to mail theirs at second-class mail rates while denying the same privilege to others. Second-class mail privileges extend only to newspapers, on the one hand, and, on the other hand, to that class of "periodical publications" which can be seen to be of the character described in Houghton v. Payne , supra.
Accordingly, the Manager was correct in denying second-class privileges for "Proceedings in Print" and his ruling is upheld.