In the Matter of the Petition by

 TULANE UNIVERSITY OF LOUISIANA,
 New Orleans, Louisiana 70118

 Proposed Revocation of Second-Class Mail Privileges for
 "TULANE UNIVERSITY BULLETIN"  

 P.S. Docket No. 3/156

 August 20, 1975

 William A. Duvall Chief Administrative Law Judge

 C. Manly Horton, Jr., Esq.,
 Chaffe, McCall, Phillips, Toler & Sharpy,
 1500 First National Bank of Commerce Building,
 New Orleans, Louisiana, for Petitioner

 Arpad de Kovacsy, Esq.,
 Law Department,
 United States Postal Service,
 Washington, D. C., for Respondent  

 

The issue to be considered may be stated as follows: Is the Tulane University Bulletin a "periodical publication", within the meaning of applicable Postal laws and regulations, and within the meaning of governing decisions of the Courts.

Particular emphasis has been placed in this proceeding on the decision of the Supreme Court of the United States in Houghton v. Payne , a 1904 decision reported at 194 U. S. 88. In this case the Court was construing a statute that was very similar to the provisions of law now codified at 39 U. S. Code Section 4354. The Court noted that the Congress had used the term "periodical", but that the Congress had not defined that term.

The Court then proceeded to supply the following definition, which has been followed for many years in the Postal Service:

"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. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects."

Petitioner's Counsel has raised the question in this proceeding as to whether that definition is applicable to publications such as the one under consideration today. The question is raised because of the provisions of law found in 39 U. S. Code Section 4355, wherein it is provided that the publications that are published by a regularly incorporated institution of learning are entitled to be entered and mailed as second-class mail, even though they may not be originated and published for dissemination of information of a public character, and even though they may not have a legitimate list of subscribers. Section 4355, however, starts with language "Mailable periodical publications meeting the first three conditions of section 4354(a) of this title are entitled to be entered," etc. Section 4354 of Title 39 begins with the language "Generally a mailable periodical publication is entitled to be entered and mailed," etc.

In the Houghton case, the words "periodical publication" were the very words that the Court was construing, and the Court then prescribed a definition by which the Postal Service and its predecessor, the Post Office Department, have regarded themselves as being bound, and I don't think there can be much question about that. Therefore, until some comparable authority issues a different definition or provides a more specific exemption for certain types of publications it would appear that there is no alternative to the continuation of the application of the definition that was established by the Supreme Court in 1904 in the Houghton case.

It is recognized that the Houghton case is not a recent case, and it has been criticized as being obsolete and inapplicable because of its age. On the other hand, the view has been expressed, and I adhere to this view, that by virtue of the fact that it is still the applicable definition, the definition of the Supreme Court has established its validity, in spite of the fact that it has been previously attacked over this long period of years.

Referring to the definition established by the Supreme Court, it is now necessary to compare or to measure the publications under consideration in this case against the requirements of that definition.

Petitioner's Exhibit 1 is the Tulane Universtiy Bulletin that is devoted to the subject of Undergraduate Studies. This publication appears to me to be comprised primarily of articles. If it has that characteristic, and if it should meet the other requirements of the various statutes, regulations, and decisions, and if it could be considered alone, which it cannot be, then it would appear to me that a publication of this type might be considered as eligible for second-class mailing privileges - given all of those circumstances, which by their own recital are recognized as being impossible of co-existence.

Petitioner's Exhibit 2 is the Tulane University Bulletin which is devoted to the Graduate School of Business Administration. Here, again, for about the first 31 pages of this publication, it appears that if one uses a liberal interpretation of the word, the material could be described as articles. The contents of the remainder of the publication, it seems to me, consisting of about 41 pages, could not be classified as an article or articles. Thus, the majority of the contents of this publication is material that is other than articles.

Petitioner's Exhibit 3 is the Tulane University Bulletin, 1973-1974 for the School of Law. And, in connection with this Exhibit, a comparison has been made with Respondent's Exhibit 14, which is the Tulane University Bulletin for the period 1974-1976 for the School of Law. I don't think it is necessary to describe in detail the contents of these Exhibits. Suffice to say that there are some differences in the language appearing in these publications. Those differences, however, are of a rather minute nature, and very difficult to find. The publications are so similar that even the same photographic material is used in each one. And, there again, there may be certain exceptions but by far the majority of the photographs appearing in one exhibit appear also in the other.

Moving now to Petitioner's Exhibit 4, this is the Tulane University Bulletin, 1973-1974, for the School of Social Work. This Exhibit is comprised in large measure of material that could be classified as articles, although there are portions of it, such as the listing of courses of instructions, and the listing of administration and officers of administration, and the Board of Advisors, and so forth, which are not articles. These latter materials, however, are not the major portions of this publication.

Petitioner's Exhibit 5 is the Tulane University Bulletin, 1973-1974, for the School of Engineering. This has been compared with the Respondent's Exhibit 15, which is the comparable Bulletin for the years 1974-1976. Whoever prepared these Bulletins did see fit to use different pictures to illustrate the narrative part of the publication. And, in looking through both publications, I see that the room rent for the various residence halls has been increased a little, with everything else, for the years 1974-1976, over the year 1973-1974. Other items have been changed, such as the increasing of the premium on insurance policies of the students from $25.00 to $30.00. There have been various changes of that type made in which the changes consist in alterations of a figure, or perhaps the dropping of the name of a member of the faculty, or the addition of the name of a new faculty member. Other than items of which these which have been specified are typical, the publications are substantially identical.

Petitioner's Exhibit 6 is the Bulletin for the Tulane University Medical Center, the School of Medicine and the Division of Graduate and Postgraduate Medical Studies. There are 148 numbered pages in this book, and of that number, approximately 56 pages are matters that could be classified as articles. The remainder would not come within that classification, and the publications therefore predominantly consist of materials that would not be regarded as articles.

Petitioner's Exhibit 7 is the Tulane University Bulletin for the period 1974-1976 with respect to the Graduate School. There are 177 numbered pages in this book, of which 36 are comprised of material that could be regarded as articles, leaving the balance of 141 pages of material which would not be so regarded. And, of course, then, the publication is predominantly composed of material other than articles.

Petitioner's Exhibit 8 is the Tulane University Bulletin for 1974-1975, devoted to the University College. Considered with this publication, is Respondent's Exhibit 5, which is the Tulane University Bulletin for 1973-1974, with respect to the same college of the University. One of Petitioner's witnesses testified with respect to these two Exhibits, and his testimony is adequate to disclose the character of these publications. He testified that the photographic material is the same, the narrative material is the same, except for minor changes in figures or dates or amounts and perhaps changes in membership of the faculty, or officers of administration, or other information of that type. By far, the vast majority of material included within these publications is repeated from the early issue in the latter issue.

Petitioner's Exhibit 9 is the Summer School Bulletin for 1974. This publication is divided about halfway between articles and material that could not be classified as articles. But, for other reasons, which will be discussed later, this publication could not be considered to come within the Houghton v. Payne definition.

Petitioner's Exhibit 10 is the Tulane University Bulletin for the years 1974-1976, devoted to the College of Arts and Sciences. There are 136 numbered pages in this publication, of which approximately 50 could be regarded as being composed of articles, with the remaining 86 pages being material which is other than articles.

Petitioner's Exhibit 11 is the Tulane University Bulletin for the period 1974-1976, devoted to the Center of Teacher Education. Of 64 numbered pages, 26 are composed of articles, and the remaining 38 pages are not matters to be regarded as articles.

Petitioner's Exhibit 12 is the Tulane University Bulletin for the period 1974-1976, devoted to the Newcomb College. Of the 168 numbered pages of this publication, the portion which can be said to be composed of articles amounts to 40 pages, leaving 128 pages of materials other than articles as making up the content of that issue of the Bulletin.

What has been said thus far has been a somewhat limited description of these various numbers in this 1974 series of publications. However, in addition we have testimony from the first of the Petitioner's witnesses, Mr. Raymond F. Bollinger, who is the Manager of Publications for the Petitioner. It is Mr. Bollinger's testimony that with respect to each of the numbers in the series, the material from the various schools comes to him; he looks through it and he makes changes in figures, dates, names; and then he does whatever he has to do in order to see that it is ready to go to the printer. But, it is his testimony with respect to all of these publications that, in substance, what has been done with each of them is an update procedure. The Houghton definition requires that, in order to be classified as a publication entitled to be mailed at second-class rates, not only must the publications contain articles, but the articles must be original articles. It is indisputable that at some time the articles that have been identified in these various issues were original. But, when those same articles are reprinted year after year with only an update in the form of change of names of faculty members, names of boards of trustees, names of administrators, and dates, various fees and expenses, and changes of courses of instruction, those issues cannot be regarded as containing original articles.

Examination of the various numbers in this series, which were introduced in evidence by the Petitioner as its Exhibits 1 through 12, discloses that each is, in fact, with the exception of one or two in the series, devoted to the particular discipline which is indicated on the cover. For example, the Bulletin with respect to the School of Medicine has little, if any, connection or relation to any of the other Bulletins. The same could be said of the Bulletin for the Law School.

Each of these publications with the few exceptions which must be allowed, is addressed to a different audience, based upon the testimony of the Petitioner's witnesses. When an inquiry is received from a prospective student, that student invariably is sent the Tulane University Bulletin devoted to the subject of Under- graduate Studies, which provides the student with an over-view of the instruction available at Tulane University. Then, presumably, upon further inquiry from this student, there is sent to him or her as the case may be, only the Bulletin of that school in which an interest has been expressed, which certainly bears out the thought of the Supreme Court in the Houghton case, when it said publications devoted to such a wide range of subjects, would not find a ready audience.

This face, further, demonstrates the completeness of each issue of this Bulletin, also keeping in mind the few exceptions, and it also illustrates the fact that there is little or no connection between the various numbers in the series, a feature which the Supreme Court said was important and necessary.

For all of these reasons, I conclude that the Tulane University Bulletin is not a periodical publication which is entitled to be entered and mailed as second-class mail matter. It follows that the decision of the Director of the Office of Mail Classification to revoke the mail privileges previously in effect for that publication was correct.

There have been presented on the record this morning, interesting and persuasive proposed findings of fact and conclusions of law. To the extent heretofore indicated, those proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons indicated, or because they are contrary to the evidence in this proceeding, or because they are immaterial.