In the Matter of the Petition by THE UNIVERSITY OF ALABAMA, Office of Publications, P. O. Box 6175, University, Alabama 35486 Proposed Annulment of Second-Class Mail Privileges for "UNIVERSITY OF ALABAMA BULLETIN" P.S. Docket No. 3/176 August 18, 1975 William A. Duvall Chief Administrative Law Judge Paul Skidmore, Esq., Margie Searcy, Esq., and Bob Callaway, Esq., Associate University Staff Counsel of the University of Alabama, Box 6233, University, Alabama, for Petitioner Arpad de Kovacsy, Esq., Law Department, United States Postal Service, Washington, D. C., for Respondent Before: William A. Duvall, Chief Administrative Law Judge
The Petitioner in this proceeding is the University of Alabama and the Respondent in this proceeding is the United States Postal Service. The action that precipitated this proceeding was the issuance by the Respondent of a notice in which the Petitioner was advised that it was proposed to revoke the second-class mailing privileges which theretofore had been in effect for the Petitioner's publication known as "Alabama" or the "University of Alabama Bulletin."
The reason for the proposed denial was the allegation that the publication in question did not conform with the requirements which a publication must meet to be eligible for second-class mailing privileges. More specifically, the allegation was that the publi- cation, the "University of Alabama Bulletin", was not a "periodical publication" within the meaning of the Postal Laws and regulations governing second-class mail eligibility, and within the definition of various court decisions, particularly the decision of the Supreme Court in the case of Houghton v. Payne , a case which was decided by the Supreme Court of the United States in 1904 and is reported at 194 U.S. 88. In that case the Court was construing a statute which contained language which is very similar to the language that is in the present group of statutes governing second-class mail eligibility.
The Court focused attention on the words "mailable periodical pubications". The Court noted the fact that although the Congress used those words in establishing what would be second-class mail matter, the Congress did not define the term "periodical". Noting this deficiency, the Court supplied a definition and that definition reads 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. 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."
This definition has been the one which has been followed by the Postal Service and by its predecessor, the Post Office Department, for years, and it is to this definition which we must look in reaching a determination in this case. It is necessary to measure the publication of the University of Alabama by the criteria set forth in the Court's definition.
In general, there has been testimony that the material appearing in the various issues of the publication has a range of change from one year to the next from something of the order of five percent in some of the numbers of the series to the maxi,um of about fifty percent.
In the Bulletin for the School of Arts and Science it was stated that the change are greater than in the other Bulletins for the other schools of the institution, with the possible exception of the school bulletin for the Graduate School. The head of the Graduate School did testify that there were fewer changes in the Bulletin for the Graduate School than there are in the Bulletin for the School of Arts and Sciences.
The witness testifying in regard to the Bulletin for the School of arts and Sciences was Dr. Clark who is the Dean of that school. He went through that publication page by page, and he indicated where changes were made for at least the first 164 pages, and he said the statistics that he gave with respect to those pages would be applicable with respect to the remaining 40 or so pages in that Bulletin. Dr. Clark was asked to indicate, and he did indicate for the record, those changes which in his opinion constituted significant or substantial changes and not mere mechanical changes. In going through the Bulletin for his school, Dr. Clark pointed out a number of instances in which course changes were made, either a course was added or a course was deleted. It is accepted that this type of change is a substantial change from the standpoint of the educator and also from the standpoint of the student, but from the standpoint of the examination which is taking place in this case, that type of change is not such as would change the character of the publication in respect to its mailability at second-class postage rates.
To give some illustrations of the type of situations just described Dr. Clark pointed out that on page 31 of the Bulletin of the College of Arts and Sciences there were several course changes; on page 33 there were changes in the program of physical therapy. Changes in the listing of curriculum appear on page 34. On page 47 there is a change in the course description and then some courses were added. The same kind of a change was made on page 48. On page 49 there were some new course descriptions and some course deletions. This type of change appears from time to time in the remainder of his testimony. There were some changes in the narrative material, and they are the types of changes that do have an impact on the decision as to the class of mail to which this, or any, publication should be carried in the mail.
There are three publications which perhaps ought not to have any consideration in this proceeding, one of which is devoted to the division of continuing education and, it is the Bulletin under the caption of Independent Study. There was only one issue of this publication offered and received in evidence so there is nothing with which to compare it among former or later issues of the same publication but that fact is, in itself, not solely determinative of its character. Examination of this publication fails to indicate whether it is to be published regularly in the future or not.
There is a publication for the School of Communication for the year 1975. It does contain some narrative material which could be classified as articles, and it also contains some material which would not come within that classification. If one could consider this publication in a vacuum without regard to any other publication, it might be considered as eligible for entry into the mail as a second-class publication, but no finding on this question is made at this time. It is pointed out that it appears that this Bulletin is directed primarily, if not solely, at those students who are interested in the communication field. It has nothing that would appeal, for example, to a person who wanted t major in home economics, law, or medicine or chemistry or any of the other fields. It is strictly a communication publication.
There is one copy of the Bulletin which is devoted to the College of Community Health Sciences. Here again this is the only one of its kind in this group of publications, and it is clearly of interest to persons who are interested in medicine, either by way of becoming professionally occupied in the field of medicine or in determining the availability of medical services.
With respect to the remainder of the Bulletin published by the University of Alabama they follow a general pattern rather closely. There is an introduction which consists of the table of contents and then an academic calendar for the year. Next, there is the history of the institution and then each begins to concentrate on the particular school or the particular discipline which is the subject for the publication. The various programs within the school are described in narrative form in what could be called an article, although in some cases it is short and consists of half a page or two paragraphs. This is followed by a few pages of the description to the next, it cannot, in all fairness, be said that the articles appearing in the "University of Alabama Bulletin" are original articles. It has been pointed out that a number of people are called upon each year to contribute to the materials that go into the Bulletin. The important point is not so much how many people are called upon to produce the given work, but the important question is what is the end product brought forth by these people? What have they produced? To a very large measure what they have produced is a rehash of what appeared the year before, and I do want to point out again that in 1975 there appeared to be more extensive revision than appeared in the previous two years. Therefore, on this point, the publication fails to qualify in regard to the originality of its articles.
There was testimony by a witness for the Petitioner that when a request comes in for information about a particular school, the average person eventually receives two and a half of the Bulletins published by the school. This is indicative of the fact that it certainly is not necessary for a person to receive the entire series that is published by the University of Alabama. That indicates that, to a large extent, these Bulletins are self sufficient and they are complete within themselves, and there is no need, certainly, for a reader of one to real all the rest of them. It indicates further that between the various numbers of the series there is no continuity of a literary character because of the lack of demand for the complete series. There are approximately twenty thousand of these addressees who do receive the complete series, but they are libraries, school counselors, military installations, and other institutions of that sort which use the pubications more in the nature of reference material than as a periodical publication in the ordinary sense of the term.
The Petitioner requests that it be found as a fact that the issues of volume 68 of the "University of Alabama Bulletin" appear with certain frequencies, for example, two times a month in April and November and monthly then for certain other months. That finding is adopted.
The finding was also requested that the Bulletin contained a number of original articles by different authors. That finding is rejected for the reason given.
The finding was requested that the "University of Alabama Bulletin" does not approximate or resemble a "Bulletin of Northwest Missouri State University" or the "University of Oregon Bulletin". That request for a finding of fact is rejected, for one reason, I am not acquainted with the "University of Northwest Missouri State Bulletin", and I cannot speak on that subject.
For the reasons which have been stated, mainly the absence in large measure, of original articles by different authors, because of the presence of a predominant amount of material which cannot be classified as articles, and the completeness which is found for the most part in the various issues, it is concluded as a matter of law that the "University of Alabama Bulletin" is not a periodical publication within the meaning of the Postal laws and regulations regarding second-class mailing privileges theretofore in effect for the "University of Alabama Bulletin" was correct and that decision is sustained.
Various proposed findings of fact and conclusions of law have been submitted by the parties. These proposals have been considered and they are adopted to the extent indicated; otherwise, these proposed findings of fact and conclusions of law are rejected for the reasons stated, or because they are contrary to or unsupported by the evidence in this case or because they are immaterial.
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