In the Matter of the Petition by ) August 4, 1975 ) NORTHWEST MISSOURI STATE UNIVERSITY ) Maryville, Missouri 64468 ) ) Proposed Annulment of Second-Class ) P.S. Docket No. 3/42 Mail Privileges for "BULLETIN OF ) NORTHWEST MISSOURI STATE UNIVERSITY" ) Larry L. Zahnd, Esq. APPEARANCES: Zahnd and Whan 324 1/2 North Main Street Maryville, Missouri 64468 for Petitioner Grayson M. Poats, Esq. Law Department United States Postal Service Washington, D.C. 20260 for Respondent Lussier, Edward F.
This case involves the proposed revocation of second-class mail entry grant for the publication "Bulletin of Northwest Missouri State University." The proposed revocation was issued by the Manager, Mail Classification Division, Finance Department, United States Postal Service (Respondent in this action), to Northwest Missouri State University, (the Petitioner in this action). The notice of proposed revocation concluded that the publication does not meet the qualifications of a "periodical" within the meaning of Houghton v. Payne, 194 U.S. 88 (1904), and is more appropriately classified as miscellaneous printed matter of the third-class of mail. Petitioner filed a notice of appeal and the matter came on for hearing before Administrative Law Judge Rudolf Sobernheim, whose Initial Decision upheld the Manager's ruling that the publication was not a "periodical" and is not entitled to second-class mail privileges. In accordance with the applicable Rules of Practice in such cases, 39 Code of Federal Regulations Part 954, Petitioner has filed a timely appeal to the Judicial Officer, setting forth its exceptions to the Initial Decision and Respondent has filed a Reply thereto. The exceptions will be taken up in the order presented by Petitioner under two general subheadings, the first concerning the findings of fact, and the second concerning the conclusions of law.
Finding of Fact 3. Petitioner objects to the finding that it published as many as twelve issues in 1972 on the basis that the record is not clear on the point and that the finding is not relevant or material to the present proceeding in view of changes in frequency of publication since 1972. The record is unclear as to exactly how many issues were published. Judge Sobernheim's finding was statedly, and reasonably, based upon Respondent's Exhibit 3 which is the Bulletin for October 1972 and is identified as "Vol. LXVI October 1972 No. 12." Petitioner's Exhibits C through F which consist of an exchange of correspondence between the parties in 1972 indicate that there were thirteen issues for 1972 submitted by Petitioner to Respondent as of November 1972 and one issue, number 8, was never published. the finding therefore has reasonable support in the record. The fact is relevant to the background of the case. It need not be found to be of material weight in the ultimate issue to be decided in order to be properly included in the Findings of Fact. This exception is disallowed.
Finding of Fact 4. Petitioner wants added to this Finding that the Studies referenced therein were discontinued as second-class matter in response to a letter from the Postal Service (Petitioner's exhibits E, F; Tr. 105). Respondent does not object but considers this additional finding of fact unnecessary to a determination of this case. The record supports the finding and it is hereby made.
Finding of Fact 6. Petitioner objects to the finding as being unsupported by the transcript citations. Other than that the transcript citation to page 105 appears to relate to page 107 the finding appears accurate. This exception is disallowed.
Finding of Fact 7. Petitioner takes exception to the finding that the mailing list consists of "mainly other universities and public agencies" in that the testimony indicates that state educational agencies, several governmental agencies, libraries, various businesses and industries and high schools are on the mailing list. The finding of fact to which exception is taken is not inconsistent with, and does not preclude, the inclusion of the additional specific categories mentioned in the testimony. This exception is disallowed.
Finding of Fact 8. Petitioner objects to the finding that "the actual publication times of the issues do not follow an exact schedule" contending that the transcript does not show the schedule that has been followed in the times of publication of issues and "for the further reason that the actual publication time is not relevant to show what has been done." It further objects to the use of the term "exact" as being "not meaningful" and contends that the record supports a finding that the 1973 and 1974 issues were published quarterly. In support of the finding objected to, Respondent makes a general reference to the record as a whole and also points to the testimony of the local postmaster (Tr. 53) that Petitioner makes weekly mailings. Since the record reveals that only a small number of the total printings are mailed out to the permanent mailing list and the majority are mailed on request, the testimony on weekly mailings is not helpful here. However, the President of the University testified, in response to a question of what time of the year the catalog appears, that "we try to get it out, usually by September, August or September" (Tr. 81) and also that the 1974 issues did not come out in any specific intervals (Tr. 86). The record thus supports Judge Sobernheim's finding of fact and the exception is disallowed. It is to be noted in this connection that the Initial Decision did not conclude that the publication failed to comply with the specific requirement for regular issuance although Respondent's Proposed Findings of Fact and Conclusions of Law requested that this be determined a basis for upholding the Manager's proposed revocation action. Respondent took no exception to the Initial Decision on this or any other point, apparently on the basis that the result was reached on other issues. I see no compelling reason on appeal to reopen this issue or modify or add to the Decision in respect thereto.
Finding of Fact 9a. Petitioner objects to the finding that the origins of the present controversy go back to November 1972. Its basic objection is that the Manager's letter to the Petitioner in November 1972 did not apply to the particular publications in issue in this case. This is true. The letter did, however, apply to the Bulletin and the fact that the issues were different does not remove the fact from being a part of the history of this case, nor does Judge Sobernheim's finding purport to be any more than general background. This exception is accordingly disallowed.
Finding of Fact 10a(2). Petitioner excepts to the finding that Respondent's Exhibit 4, which is the Bulletin issue for Winter 1974 is an "updated reprint" of the Bulletin issue for October 1972, Respondent's Exhibit 3, and to the characterization of the changes as "minor". The findings are clearly supported by reference to the Exhibits. In the context of comparison between the earlier and later editions of the publication, the changes are minor. This is not to say that the information conveyed by a particular change, for example, an increase in tuition, is unimportant as a factual matter to the reader. This exception is disallowed.
Finding of Fact 10b(2). Petitioner excepts to the finding that the General Catalog Supplement for 1974, Respondent's Exhibit 1, is an updated version of the General Catalog Supplement for 1973, Respondent's Exhibit 2, for the same reasons it expressed in taking exception to finding of fact 10a(2). For the same reason that the previous exception was disallowed this exception is disallowed.
Finding of Fact 11. Petitioner takes exception to this finding of fact for the reason it is based upon an affidavit submitted after the hearing of this case by the mail classification specialist who drafted the official revocation letter. The affidavit was requested by Judge Sobernheim as a result of a line of inquiry pursued by Petitioner at the hearing (Tr. 49) not only without objection from Petitioner but with apparent agreement (Tr. 49, line 18). A copy was furnished Petitioner and was referred to, and replied upon, by Petitioner in its Brief prior to Judge Sobernheim's Initial Decision (Brief, p. 6). Not only is the objection untimely but it is immaterial for the additional reason that the issues of the Bulletin which are properly in evidence without objection, are appropriate for consideration in deciding the issue of whether the Bulletin meets the requirements for being a periodical, whether or not the affiant had reviewed these or similar issues from previous years. The result in this case is not governed by the extent of the review of the publication prior to issuing the notice of proposed revocation but rather by all of the evidence introduced in this proceeding. This exception is disallowed.
The Petitioner also excepts to the failure of the Initial Decision to make specific findings on Petitioner's proposed Findings of Fact paragraphs 4, 5, 6, 8, 9, 10, 11 and 12.
Proposed Findings 4 and 5 are one sentence descriptions of all of the publications and are overbroad. Judge Sobernheim's findings of fact adequately and properly describe the publications involved. Proposed Finding 6 is that the Bulletin consists of public information distributed to anyone interested in the educational services with a more detailed listing of who that might be. The Initial Decision adequately covers this proposed finding. Proposed
Finding 8 relates to the receipt of a large number of publications from other universities and colleges mailed to Petitioner under the second-class privilege. The Initial Decision made the finding in substance without finding the exact number, which is immaterial to the decision in this case. Proposed Findings 9 and 11 relate to the originality of each issue in the sense of its being edited and containing current information at the time of its issuance. The underlying facts were found in the Initial Decision. The requested conclusion of originality, in the very limited sense indicated, is encompassed in the Initial Decision description of the issues and their updating. Proposed Finding 10 that all of the issues of the Bulletin comprise one publication entitled "The Bulletin of Northwest Missouri State University" is likewise unnecessary in that the Initial Decision makes quite clear what issues were published as constituent parts of the Bulletin for 1973 and 1974. Proposed Finding 12 that Petitioner had not been advised prior to the April 26, 1974, letter that the Bulletin was not considered a periodical publication is too broad unless understood to relate to those issues of the Bulletin which are in evidence in this case and the subject matter of the instant decision. That such is the case is readily deducible from the Initial Decision.
The exceptions to the failure to make the requested findings are disallowed as all of the requested findings are either covered by, implicitly rejected by, or immaterial to the Initial Decision and no basis is found for reversing or adding to the Initial Decision in this respect.
Conclusion of Law 3. Petitioner takes exception to this conclusion of law as being incomplete in that it should conclude that publications which were originated and published for dissemination of information of a public character were recognized as qualifying as periodical publications if they met the other requirements. A fair reading of conclusion of law 3 makes this quite clear and this exception is disallowed.
Conclusions of Law 4 through 8. Petitioner's exceptions to these conclusions are premised upon the contention of the inapplicability of Houghton v. Payne, supra, to publications devoted to the dissemination of public information,. Judge Sobernheim considered this argument in reaching his conclusions and his treatment thereof, including applicable case citations, needs no elaboration. Petitioner's contention that the best statement of the reasoning why the Bulletin is a periodical is found in the original Judicial Officer decision in Florists' Transworld Delivery Association, P.S. Docket No. 1/167(decided May 24, 1974, is best answered by the fact that particular decision was reversed by an Amended Postal Service Decision on September 17, 1974. The Amended Postal Service Decision was subjected to judicial review and upheld by the federal court which granted a Postal Service motion for summary judgment. Teleflora Incorporated v. United States Postal Service, Civil Action No. 75-228, (U.S.D.C., D.C., order June 25, 1975).
The separate treatment of transportation guides within the second class, commented upon in Houghton v. Payne, and referred to in Petitioner's appeal has been unique. Any extension at this late date would represent a substantial departure from the test of Houghton v. Payne applied over the years in the formal decisions of the Postal Service and its predecessor, the Post Office Department. If publication of information of a public character alone suffices, then the statutory requirement that the publication be a newspaper or periodical becomes meaningless and endless possibilities of candidates for second-class privileges emerge. Each case must be judged on its own merits and adherence to the test laid down by the Supreme Court affords the only sound basis for resolving the issue in the absence of new case law or a change in the statute or regulations. The Administrative Law Judges of the Postal Service, as upheld by the Judicial Officer of the Postal Service, have consistently followed this course over the years. See the Amended Postal Service Decision by Acting Judicial Officer William A. Duvall in Florists' Transworld Delivery, supra, for a detailed statement of the litigation history of adherence to Houghton v. Payne in case after case which has come through the administrative litigation process for final agency decision.
In the thousands of instances where second-class mail privileges have been granted, it is not unusual that some are later determined not to have been properly within the "periodical" requirement of existing law. It is also not extraordinary that such a revocation proceeding involves an entirely worthwhile publication which serves a beneficial purpose but this is not now, and has never been, the legal basis for second-class mail privilege. Likewise, the fact that the particular privilege has been enjoyed over a long period, as in the instant case, does not serve to legalize the grant. If such were the case the correction of a mistake in the vast numbers of grants of second-class mail privileges could never be permitted.
The financial strain upon our higher educational system is well known even to the casual reader of the daily newspaper. Any action taken by a governmental agency which has the effect of adding, even slightly, to such costs is in a sense regrettable. The same can be said, however, for untold numbers of organizations mailing publications which serve a useful purpose and need all the financial help they can get. If public policy considerations dictate a change in the law as interpreted by the United States Supreme Court, such a result is better left to those who enact law and regulation than those who are charged with rendering judgment on existing law. Accordingly, I am compelled to reject Petitioner's argument and its exceptions to the conclusions of law are disallowed.
The foregoing rulings on the exceptions to the Initial Decision having been made, it follows that the Initial Decision of Administrative Law Judge Sobernheim is hereby upheld.