In the Matter of the Petition by THE REGENTS OF THE UNIVERSITY OF NEW MEXICO, Albuquerque, New Mexico 87131 Proposed Annulment of Second-Class Mail Privileges for "THE UNIVERSITY OF NEW MEXICO BULLETIN" P.S. Docket No. 3/173 October 23, 1975 William A. Duvall Chief Administrative Law Judge D. Peter Rask, Esq., University Counsel, The University of New Mexico, Scholes Hall, Albuquerque, New Mexico, for Petitioner Arthur S. Cahn, Esq. Law Department, United States Postal Service, Washington, D. C., for Respondent Before: William A. Duvall , Chief Administrative Law Judge
The Regents of the University of New Mexico (Petitioner) filed, as of August 16, 1974, an application for re-entry as second-class mail matter of "The University of New Mexico Bulletin" (hereinafter sometimes referred to as the "Bulletin") because of a planned change of frequency. (Ex. R-1) This application was accompanied by a copy of the July 10, 1974 (Vol. 88, No. 2) issue of the Bulletin.
After examination of the copy of the Bulletin, the United States Postal Service (Respondent), acting through the Manager, Mail Classification Division (now Director, Office of Mail Classification), Finance Department of the Postal Service, sent a letter, dated October 17, 1974, to Petitioner, via the postmaster at Albuquerque, New Mexico, notifying Petitioner that the Bulletin was no longer qualified to be mailed at second-class mail rates. The reasons for the ruling were stated by Respondent, as follows (Ex. R-4-A):
"Section 132.211, Postal Service Manual, provides that only newspapers and other periodical publications may be mailed at the second-class rates. 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. The preceding definition of a periodical is based on a Supreme Court ruling in the case Houghton v. Payne , 194 U.S. 88 (1904).
"Section 132.42c, Postal Service Manual, provides that issues of second-class publications may contain annual reports, directories, lists and similar text as a part of the contents, but the copies may not be distinguished from the regular issues by bearing designations which indicate they are annuals, directories, catalogs, yearbooks, or other types of separate publications.
"We have reviewed copies of the March 15, April 1, April 15, July 10, and August 1974 issues of 'The University of New Mexico Bulletin.'
"These issues include the Summer 1974 Catalog, the General Catalog 1974-1975, and the 1974 catalogs of the School of Medicine, the School of Law and the Community College. These issues include general information, requirements for admission and general rules, regulations, fees and course listings and descriptions. Each of these issues is complete in itself, and separate from and independent of the others. Essentially, each is an annual publication. "Publications of this type are properly ascribed to the third- or fourth-class of mail, depending on the weight of the piece.
"'The University of New Mexico Bulletin' is not a periodical within the meaning of the applicable postal laws and regulations and therefore, the second-class privileges will be annulled in accordance with the closing paragraphs of this letter."
Respondent's letter of October 17, 1974, concluded with the following paragraph:
"If you do not desire to file a statement showing compliance or intention to comply, you may contest this ruling by filing a petition within 15 days from its receipt in accordance with the provisions of Section 954.8 of the attached copy of the 'Rules of Practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class Mail Privileges.'"
Petitioner asked for, and was allowed, an extension of time to indicate changes Petitioner would make in the Bulletin to bring it into compliance with the requirements for second-class mail eligibility. On February 26, 1975, however, Respondent advised Petitioner that the changes proposed by the latter would not achieve the goal of compliance. Petitioner was given 15 days within which to contest Respondent's ruling.
On March 17, 1975, the petition appealing Respondent's ruling was docketed. Subsequently, a hearing was held at which both parties were represented by counsel who examined and cross-examined witnesses and introduced documentary evidence. Briefs were filed on behalf of both parties.
The basic issue to be resolved is whether the Bulletin is a "periodical publication" within the meaning of the postal laws and regulations governing admission of publications to the mail as second-class mail matter.
A number of the issues os the Bulletin were received in evidence, as follows (with an indication of the school or topic to which each exhibit pertains):
Ex. No. Vol. No. School of Topic
P-22 86 3 School of Business and
Administrative Sciences
P-1 87 1 Community College, Fall, 1973
P-2 87 2 Graduate School, 1973-1974
P-3 87 3 College of Pharmacy, 1973-1975
P-4 87 3 Independent Study Through
(Probably should be Correspondence Courses
No. 4)
P-5 87 5 Community College, Spring, 1974
P-6 87 6 Catalog Issue, Summer, 1974
P-7 87 7 Summer Session, 1974
Schedule of Classes
P-8 87 8 Catalog Issue, 1974-1975
P-9 87 9 School of Medicine, 1974-1975
R-12 88 2 Community College, Fall, 1974
R-13 88 4 College of Pharmacy, 1974-1975
The Bulletin meets the formal requirements regarding frequency of publication from a known office of publication and it is formed of printed sheets. It has been mailed continuously at the Albuquerque, New Mexico, post office under second-class mailing privileges since 1928.
Petitioner's first witness was Mr. John N. Durrie, Secretary of the University of New Mexico, whose chief function, insofar as this case is concerned, is to see that the publication schedules, once they have been established for the various numbers of a yearly series, are maintained. Mr. Durrie emphasized the financial importance to Petitioner of retaining second-class mail privileges for the publication. Mr. Durrie is the Petitioner's official by whom liaison is maintained with the Postal Service when matters such as frequency of publication changes arise. (Tr. 34-43)
The next two witnesses for Petitioner were Dr. Adam Makkai, Professor of Linguistics at the University of Illinois, Chicago Circle, Chicago, Illinois, who has distinguished qualifications in the field of linguistics, and Mr. Paul Vassallo, Dean of Library Sciences at the University of New Mexico, who has an impressive background in the field of library science.
Dr. Makkai gave an interesting exposition of the definition of the term "periodical publication" from the point of view of the linguistics specialist, but, from portions of his testimony, it became apparent that his definition would include many publications which, under various provisions of law, clearly do not qualify for second-class mail privileges. (Tr. 63-64; 77-79) Similarly, Dean Vassallo would embrace within the term "periodical publication" many types of publications which may by no means be regarded as eligible for mailing at second-class postage rates. (Tr. 100-103)
Petitioner's last witness was Mr. Robert M. Weaver, Dean of Admissions and Records of the University of New Mexico. Dean Weaver stated that catalogs or bulletins of colleges and universities are used, among other purposes, to evaluate credits of persons who wish to transfer from one institution of learning to another. Students, also, use the various Bulletins for a variety of reasons and purposes. Concerning the Catalog Issue, 1974-1975, of the Bulletin (Ex. P-8) Dean Weaver said that of some 40,000 copies printed approximately 20,000 were mailed to other colleges and universities, high schools, public libraries and to government agencies. Of the remainder, some were given away on request and some were sold "over-the-counter." (Tr. 111-113) Between 10,000 - 12,000 copies were printed of the Catalog Issue, Summer, 1974 (Ex. P-6) and the Summer Session, 1974, Schedule of Classes (Ex. P-7). The witness did not know the number of copies printed of the other numbers in the Volume 87 series of the Bulletin.
No other witnesses were called by Petitioner.
Ms. Cheryl Beller, a mail classification specialist in the Office of Mail Classification who examined and is familiar with the Bulletin, and who drafted the notice of revocation, was called as a witness by Respondent. Ms. Beller testified that each issue of the Bulletin is complete in itself; has no continuity with other numbers of the series; does not contain a sufficient proportion of original articles by different authors; and the various numbers in the series of the Bulletin are basically annual publications. The witness stated that for these reasons, it is her view that the Bulletin is not a "periodical publication" within the meaning of the pertinent postal laws and regulations.
In administering the provisions of law codified at 39 U. S. Code 4351, 4354(a) and 4355(a), and the provisions of 132.211 of the Postal Service Manual, the Postal Service and its predecessor, the Post Office Department, have, in determining whether a publication is "periodical publication," applied the definition of that term formulated and expressed by the Supreme Court of the United States in Houghton v. Payne , 194 U.S. 88, at pages 96-97 (1904), where the Court, in pertinent part, said:
"But while section 14 [of the statute then under consideration, and which was very similar to the present statute] 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.
* * * * * * *
"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."
Examination of the Bulletin in the light of the foregoing definition discloses the following features:
1. Ex. P-22, relating to the School of Business and Administrative Sciences - This publication contains a sufficient quantity of written matter classifiable as articles to warrant its being regarded as eligible for second-class mail entry, assuming, of course, that all other requirements are met. There is not available for comparison purposes, for example, an earlier or later issue of the Bulletin of the School of Business and Administrative Sciences. Hence, while no finding on the point may be made, the Publisher has the benefit of the presumption that Ex. P-22 has no disqualifying characteristics.
2. Ex. P-1, relating to the Community College, Fall 1973. There is an insufficient portion of this publication classifiable as articles, and there are other possibly disqualifying features present in this number of the series which will later be mentioned.
3. Ex. P-2, relating to the Graduate School, 1973-74. The comment made concerning Ex. P-22 (Item 1, above) is applicable to this publication.
4. Ex. P-3, relating to the College of Pharmacy, 1973-1975. This publication contains an insufficient number of articles, and the originality of the articles is suspect, as will later appear. In addition, this publication exhibits no "relation with prior or subsequent numbers of the same series."
5. Ex. P-4, relating to Independent Study Through Correspondence Courses. This publication is a discrete entity, and, further, it does not contain a sufficient number of articles.
6. Ex. P-5, relating to the Community College, Spring 1974. This is a discrete issue of the publication, containing an insufficient number of articles. In addition, of such articles as there are in the issue, most area substantially identical to those appearing in Ex. P-1 (Item 2, above).
7. Ex. P-6, being the Catalog Issue, Summer 1974. This issue contains an insignificant number of articles and it is valid for only the stated period to which it relates, with little usefulness after that period.
8. Ex. P-7, being the Summer Session, 1974 Schedule of Classes. This issue consists of the independently issued 30 center pages that are contained in Ex. P-6 (Item 7, above). It contains no articles. Ex. P-8, which is the Catalog Issue 1974-1975. The comment made concerning Ex. P-22 (Item 1, above) may be applied to this publication. It is noted, however, that pages 86-89 with reference to "The 'Three-Two' Program for the Master of Business Administrative Degree" is substantially the same as the matter that appears on pages 23-26 of Ex. P-22.
10. Ex. P-9, relating to the School of Medicine. This publication contains a sufficient quantity of articles, but it relates only to the School of Medicine.
11. Ex. R-12, relating to the Community College, Fall 1974. This publication contains an insufficient number of articles, and, in view of the fact that the articles present are practically identical to, or updates of, the articles appearing in Ex. P-1 (Item 2, above) and Ex. P-5 (Item 6, above) no claim justifiably can be made that they are original articles.
12. Ex. R-13, relating to the College of Pharmacy 1974-1975. This publication consists primarily, insofar as its articles are concerned, of updated repetitions of the material contained in Ex. P-3 (Item 4, above). The similarity is accentuated because of the total of seven photographs appearing in Ex. R-13, six had appeared in Ex. P-3.
In its Brief Petitioner urges that the proper way to determine the meaning of "periodical" is to refer to current dictionary definitions and to the testimony of expert witnesses who testified at the hearing. Petitioner asserts that the word "periodical" is undefined in postal regulations; there is no evidence as to congressional intent as to its meaning; that the Houghton definition is inapplicable; and that, in any event, the Houghton definition is wrong.
In one form or another, each of these arguments has been presented before, and, as here, these arguments have been ably presented. These arguments are not persuasive, however, and they have been rejected for reasons stated, among other places, in Institute for Scientific Information , P.S. Docket No. 2/60, et al.; FLorists' Transworld Delivery Association P.S. Docket No. 1/167 (aff'd. sub nom . Teleflora Inc. v. U.S.P.S. , D.C., D.C., Civ. No. 75-0228, June 25, 1975); and Shepard's Citations Inc ., P.S. Docket No. 1/88. With all due respect, and much is due, to Petitioner's witnesses who offered definitions of "periodical", their definitions are so broad that, if adopted, they would almost make a nullity out of the body of law governing second-class mail eligibility.
Alternatively, Petitioner asserts that the Bulletin has the characteristics specified in the Houghton decision. The composition of the various issues of the Bulletin described earlier herein require that this portion of Petitioner's position be rejected.
Finally, without saying so precisely, Petitioner suggests that the issuance of a second-class mail permit for the Bulletin 47 or more years ago precludes action by Respondent at this time looking toward the revocation of that permit. This contention has been made and rejected in numerous cases, including Houghton v. Payne , supra , at pp. 98-99, 102-103; Dow Jones & Company, Inc ., P.S. Docket No. 1/11 (aff'd. sub nom . Dow Jones & Co. v. United States Postal Service , D.C. Del. 379 F. Supp. 1167 (1974)); and Shepard's Citations , supra .
Based upon consideration of the entire record in this case, including the testimony of the witnesses, the documentary evidence and the matters set forth in the Briefs of the parties, it is concluded that the "University of New Mexico Bulletin" is not a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354 and within the meaning of applicable regulations of the United States Postal Service.
Proposed findings of fact, conclusions of law and reasons in support thereof have been submitted on behalf of both parties. To the extent indicated herein these 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 stated, or because they are unsupported by or contrary to the evidence, or because they are immaterial.
It follows that the decision of the Respondent to revoke the second-class mail permit heretofore in effect for the University of New Mexico Bulletin is correct and, hence, that decision is sustained.