In the Matter of the Petition by MICHIGAN STATE UNIVERSITY, 212 Administration Building, East Lansing, Michigan 48824 Denial of Application for Second-Class Mail Privileges for "MICHIGAN STATE UNIVERSITY BULLETIN" P.S. Docket No. 3/180 November 28, 1975 William A. Duvall Chief Administrative Law Judge Leland W. Carr, Jr., Esq., 2401 East Grand River, Lansing, Michigan, for Petitioner Gerald Cerasale, Esq., Law Department, United States Postal Service, Washington, D.C., for Respondent Before: William A. Duvall , Chief Administrative Law Judge
On or about October 25, 1973, Michigan State University, the Petitioner in this proceeding, applied for a second-class mail permit for the publication "Michigan State University Bulletin" because there had been a substantial revision in the format of the publication.
On or about March 24, 1975, the Petitioner appealed from a ruling issued on March 7, 1975, by the United States Postal Service, the Respondent in this proceeding, acting through the Manager of the Mail Classification Division of the Finance Department.
In that ruling the Respondent referred to the case of Houghton v. Payne , reported at 194 U.S. 88, and indicated that the publication, as presented, did not comply with the provisions of the definition of the term "periodical publication" as that definition was stated in the cited case.
The definition relied upon by the Respondent 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."
The comment of the Court continued, but that is so much of the definition as is pertinent to this proceeding.
It has been stated by Counsel for both parties that the grounds upon which the Respondent bases its conclusion that the Michigan State University Bulletin is not a periodical publication are:
1. That the publication does not contain a variety of original articles by different authors; and
2. That each issue of the publication is complete in itself. The Petitioner takes the position that the definition of Houghton v. Payne is not appropriate to apply to this publication for the reason, among others, that the publication involved in this proceeding conveys information of a public character. Petitioner distinguishes this type of publication from the publication that was involved in the FTD case, which is an administrative proceeding decided some months ago, and it is cited as PS Docket No. 1/167, the amended Postal Service decision in which was issued in 1974. It is true that the publication involved in FTD was restricted in its circulation to members of the Florists Telegraph Delivery Association, and, therefore, to that extent it was not public in its nature. But that case did not hold that the Houghton decision should be restricted only to publications that were private in nature.
Petitioner refers to the decision of Mr. Justice Holmes in the case of Smith v. Hitchcock , in which the Justice said, "It hardly would be an exception if, where the object is information and the subject matter is a changing one, a publication periodically issued giving information for the time would be held to fall into the second-class." Petitioner asserts that the publication under consideration in this proceeding falls well within the type of publication contemplated by Mr. Justice Holmes when he made this statement in the Hitchcock case, which is reported in 226 U.S. 53.
It is true that that statement was made by the Court in the particular case. However, there is no place in that case where Justice Holmes said that the other portions of the definition found in Houghton need not be met by publications seeking to qualify for second-class mailing privileges.
It is not enough that a publication contain information of a public character. It is difficult to think of any material that is published openly that is not information of a public character. Reference has previously been made at times to the Sears Roebuck catalog. Certainly that is information of a public character. In addition, it is periodically issued, and the information and subject matter found in that publication change. But under no circumstances that I can envisage at this time would the Sears Roebuck catalog be eligible for transportation in the mail as second-class mail matter. Thus, the fact that the information that is conveyed in the publication is of a public character does not, in and of itself, qualify the publication as second-class mail matter.
Petitioner points to the fact that this matter has been under consideration by the Congress, and this statement is made in the brief submitted by Petitioner's Counsel:
"Congress is presently moving favorably toward assuring this result." (That is, the result which would recognize the eligibility of publications similar to the Michigan State University Bulletin for second-class entry.)
And Counsel continues by saying:
"Conceivably this case may be rendered moot when the written law codifies the prior common law understanding."
First, I can only say that I look forward with eager anticipation to that happy day when the matter is resolved.
It may be worth a comment, though, to suggest that Congress must at this time be under the belief or the impression that the interpretation by the Postal Service and the application by the Postal Service of the Houghton v. Payne case are correct. If that were not so, then remedial legislation would not be necessary. If and when the Congress does enact that legislation it is my belief that the Postal Service will be happy to apply whatever the provisions of that legislation may be, and I think the lives of a number of us will be made a lot less complicated.
Against the foregoing background the various issues of the publication which have been received in evidence have been examined. It is not necessary to dwell at length on these various issues, but some mention must be made in order to provide a basis for the conclusions that will be reached in this decision.
Exhibits R-1 and R-2 can be considered together, because they are so nearly alike. They both contain 143 pages, and of this 143 pages, 28 are pages that contain material which could be regarded as articles. The remainder of the publication consists of a listing of descriptions of courses, when they will be given, by whom they will be taught, where they will meet, and information of that nature, which would not meet any definition of "article" of which I am aware.
R-2 is the bulletin for Spring 1974. With respect to the narrative material that appears in R-2, changes have been made in the matter of dates, or figures, or sometimes the arrangement of the same information, but there is no real change of substance between these two publications.
Incidentally, on the inside front cover of all of the issues of the publication which are in evidence there is a legend which states that a black arrow will indicate significant changes or new information appearing in the particular issue. Examination of the different issues of the publication indicates that the publisher does not think that there are many instances in which significant changes or new information appear, because the black arrows are notable primarily for their scarcity.
Exhibit P-1 is the bulletin for the Summer Session, 1974. There are 111 pages in this publication, of which 25 contain material that could be called articles. It contains practically the same information as appears in Exhibits R-1 and R-2 with some added materials and a few deletions, and it has some relocation of the same material on different pages than the page numbers on which the information appeared in R-1 and R-2.
It is noted, and I suppose that it is natural that it be so, that there is a rather marked degree of similarity between Exhibit P-1 and Exhibit R-6, which is the issue for the Summer Session of 1975. Both of these are for summer sessions, and therefore I suppose it follows that in this system of publication the issues should bear strong resemblance to each other. That is not criticism. It is a comment.
Exhibit R-3 is the issue for Fall 1974. It contains a total of 151 pages, of which 27 could be said to be made up of articles.
Exhibit R-4 contains a total of 95 pages, of which 27 pages contain material which could be classified as articles. There's one interesting feature about this particular issue which may be worthy of notice. Information under the heading CHANGE OF ENROLLMENT has a black arrow pointing to it indicating that it is a significant change or new information. The language under this heading, however, is identical with the language that appeared under the same heading in the previous issue, R-3. So I assume this must be the result of some inadvertence or oversight. But clearly the information in the later issue, since it is verbatim with the language in the earlier issue, is not a significant change or new information.
Exhibit R-5 is the issue for Spring 1975. Twenty-six pages out of a total of 95 pages can be said to contain material which could be called articles. There is a slight bit of new information on certain pages, specifically pages 83 and 88, and possibly others. But otherwise the material in this issue is practically identical with the information appearing in Exhibit R-4.
Exhibit R-6 is the issue for Summer 1975. Some comment has been made with respect to this issue, but it is noted that out of a total of 79 pages, 30 pages contain material that could be regarded as articles.
R-7 is the issue for Fall 1975. Twenty-nine pages out of a total of 95 pages contain material which could be regarded as articles.
Exhibit P-2 is the bulletin for the Winter of 1976. There are 94 pages of this publication, and of those, 31 pages contain material that could be classified as articles.
It is true throughout this entire series of exhibits, and it need be stated only once with respect to all of them, that one has to look with some degree of care to find the differences. There are differences. I don't wish to indicate that there are none. But some of the differences consist in updates, there are some additions of new material, there are some deletions, and there are a number of instances in which material is taken from page 98 and put over on page 95, or a similar transposition. But basically the content of these publications, in the portion that could be classified as articles, consists in the main of repetition. Certainly when material is repeated as often as this material is, it no longer can lay claim to being a variety of original articles by different authors. The originality long since has past.
There remains the question now of whether each of these issues is complete in itself.
There are instances, based upon the testimony of Petitioner's witnesses, when reference is made to prior issues of the bulletin by students who are pursuing a certain program of education. But in the main the purpose of each issue is to disseminate information of a public character with respect to enrollment at Michigan State University for a particular term. The student is told how to enroll; he is given a map to show where the different buildings are located; he is given a calendar for an academic year, or perhaps more; he is given enrollment and registration procedure information; he is given even the capacity of the classrooms; the final examination policy; instructions for use in the schedule of courses; and he is given, of course, a schedule of courses; and he is also given a section called the ACADEMIC HANDBOOK, which appears to consist in an appreciable degree of regulations of the institution.
So that everything that a person needs to know about the instructional, the educational program of Michigan State University for the particular period covered by a bulletin is in that bulletin. And so far as that particular purpose is concerned, each issue of the publication is complete in and of itself.
Michigan State University is a constitutional corporation supported through legislative appropriations. And that is an additional basis on which the Petitioner claims to be eligible for entry of this publication as second-class mail matter. This position is based upon the provisions of Section 4355 of Title 39 of the United States Code. But before the language on which Petitioner relies is reached in that section of Title 39, there is the requirement that the publication be "a mailable periodical publication." And that brings us right back to Houghton v. Payne .
It is claimed by the Petitioner, and it has not been disputed by the Respondent, that the Michigan State University Bulletin has been published and mailed as second-class matter for more than 60 years. The statement of frequency adopted by the bulletin is quarterly, with mailings designated Winter, Spring, SUmmer, Fall.
The bulletin is composed in very slightly differing formats, but all of the issues contain information regarding education services, including degree requirements, history of the institution, objectives of the institution, course descriptions, major and minor requirements, fees and tuition, registration procedures, student rights, and similar information.
In light of the record in this case, including the exhibits, the testimony of the witnesses, and the able arguments and presentations by Counsel, it is found that the Michigan State University Bulletin is not a periodical publication within the meaning of applicable postal laws and regulations and that, therefore, it is not entitled to be carried in the mail as second-class mail matter.
Proposed findings of fact and conclusions of law have been submitted by the parties. These findings of fact and conclusions of law have been carefully considered and they are adopted to the extent herein indicated. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons stated, or because they are contrary to the evidence and the law applicable to this proceeding, or because they are immaterial.
In view of all of the foregoing considerations it follows that the decision of the Respondent in this proceeding to deny the application of Michigan State University for entry into the mail as second-class mail matter of the publication Michigan State University Bulletin was correct and that decision is sustained.
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