In the Matter of the Petition by TENNESSEE TECHNOLOGICAL UNIVERSITY, Cookeville, Tennessee 38501, Proposed Revocation of Second-Class Mail Privileges for "BULLETIN - TENNESSEE TECHNOLOGICAL UNIVERSITY" P.S. Docket No. 4/17 December 18, 1975 William A. Duvall Chief Administrative Law Judge David C. Porteous, Esq., 1161 Murfreesboro Road, Nashville, Tennessee, for Petitioner Grayson M. Poats, Esq., Law Department, United States Postal Service, Washington, D.C., for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was commenced by Petitioner, Tennessee Technological University, pursuant to 39 C.F.R., Part 954, to appeal a determination by the Manager of the Mail Classification Division, Finance Department, United States Postal Service, the Respondent, to revoke the second-class mail privileges of the publication known as "Bulletin-Tennessee Technological University." The decision of the Manager, dated February 5, 1975, was based upon a review of the April 1973, and January (two issues), April and June 1974 issues of the Bulletin and the reason for the decision was stated in pertinent part as follows:
"'Bulletin - Tennessee Technological University' is not a 'periodical' publication within the meaning of the applicable postal laws and regulations ***."
In the letter of February 5, 1975, it was stated, also, that among other reasons for the proposed action was the Manager's view that the publications are complete in themselves, suggesting no relation to prior issues and betraying no need of continuation in subsequent issues. It was stated that the publication would be more appropriately ascribed to the classification scheme providing for the mailing of books and printed matter.
On June 16, 1975, pursuant to extensions of time granted by the Manager, the Tennessee Technological University filed its petition appealing from the ruling of the Manager. In substance, the petition alleges that the publication in question in this proceeding is entitled to second-class entry under the provisions of 39 U. S. Code 4355, which provides that mailable periodical publications meeting certain other requirements are entitled to be entered and mailed as second-class mail when they do not contain advertising other than that of the publisher and if they are published by a regularly-established state institution of learning supported in whole or in part by public taxation. The Petitioner alleges, and it has not been denied, that it is such an institution.
The Petitioner also alleges in its answer that it is a newspaper or other periodical publication as that term is used in Section 4351 of Title 39, United States Code. The Petitioner alleges that the construction placed upon the term "periodical publication" by the Postal Service is erroneous and the Petitioner alludes to the contemporaneous construction placed upon the governing statute at the time the statute was enacted and thereafter, including the time during which the Supreme Court handed down the decision in Houghton v. Payne , which case will be referred to in more detail later in this decision.
In the answer, the Petitioner alleged also that it is entitled to be given the same treatment as is provided in 39 U. S. Code 4355, for program announcements or guides published by an educational radio or television agency of a state or political subdivision thereof. The Petitioner alleges, further, that the law governing admissibility into the mails as second-class matter has been amended several times by the Congress, and that Congress has not enacted any provision of law prohibiting the admission of college and university bulletins into the mails as second-class matter. Therefore, Petitioner reasons, the Congress must be presumed to have known of, and approved, the practice of the former Post Office Department in granting admission to the mails as second-class matter of such publications.
Finally, in the petition, the Petitioner alleges that the action proposed to be taken by the Respondent is in violation of the Administrative Procedure Act, specifically Section 553 of Title 5, United States Code, which governs rule-making procedures.
These matters will be disposed of later. At the present time it is believed to be appropriate to describe the publications which are the subject of this proceeding. There have been introduced in this proceeding a number of publications setting forth a schedule of classes for various periods of time and these exhibits are as follows: Respondent's Exhibit 3, which is the Schedule of Classes for Summer Quarter 1973; Respondent's Exhibit 6, for the Summer Quarter 1974; Respondent's Exhibit 7, for the Fall Quarter 1974; Respondent's Exhibit 9, for the Spring Quarter 1975; Respondent's Exhibit 10, for the Summer Quarter 1975; Respondent's Exhibit 11, for the Fall Quarter 1975; and Respondent's Exhibit 12 which is for the Spring Quarter of 1974. All of these publications just identified can be treated as a group.
For the most part these publications consist of anywhere from five to eight pages, out of totals of 50 to 62 pages, of material that could be regarded as articles, if one is very generous in one's use of that term. Generally speaking, less than 20 per cent of all, and each, of these publications consists of material which under the most liberal interpretation of the word "articles" could be so identified. The rest of the publication is devoted, certainly, to information, but it is presented in tabular form and it gives the number of a particular course, the section number, the title of the course, the quarter hours which will be credited upon successful completion of the course, the hour of the day and the day of the week on which the course will be offered, the room in which it will be taught and the instructor by whom it will be taught.
There is no rational interpretation or approach to these particular exhibits by which they could be regarded as having a place in a series of periodical publications. Their only characteristic in common with "periodical publications" as contemplated by the Postal laws and regulations appears to be their periodicity.
Next considered is a pair of exhibits, identified as Respondent's Exhibit 5 and 13, which are, respectively, the Bulletins of the Graduate School of the Petitioner for the periods 1974-75, on the one hand, and 1975-76, on the other hand. These publications contain, in the case of Respondent's Exhibit 13, 46 pages of material that could be considered to be articles. In the case of Respondent's Exhibit 5, there are 39 such pages, which leave in Respondent's Exhibit 13, 50 pages of material consisting of information presented other than in an article and 45 of such pages in Respondent's Exhibit 5.
Although one may regard the narrative material appearing in a certain number of the pages of these exhibits as articles, when one examines the publication it becomes readily and obviously apparent that they consist primarily either of repetitions, or very minor modifications and updates, in the later issue of the material that appeared in the earlier issue.
The last pair of exhibits to be described is comprised of Respondent's Exhibit 4 and Respondent's Exhibit 8, which are, respectively, undergraduate Bulletins for the years 1974-75 and 1975-76. Respondent's Exhibit 4 contains 351 pages of which 58 contain material that could be regarded as articles, leaving 293 pages composed of material that can not reasonably be regarded as articles. In Respondent's Exhibit 8, there are 332 pages of which 72 pages are, and 260 pages are not, comprised of material that could be regarded as articles.
Here again, as in the pair of exhibits just previously described, the material that may be categorized as articles is in the nature of twice-told tales. There are some additions in the later issue. There are some deletions in the later issue. There are some instances in which material appearing on one page in one exhibit appears on a different page in a different exhibit, but all the bases are touched and most of the same information is covered in both publications.
For the moment, we will leave the exhibits and proceed to the proposed findings of fact submitted by the parties.
The Petitioner's Bulletin is originated and published for the dissemination of information of a public character, providing necessary public information concerning the academic calendar, programs of study, admission requirements, course descriptions, academic regulations and a listing of faculty, which public information is necessary for members of the public to make informed decisions concerning attendance at Petitioner.
The Petitioner is a regularly established state institution of higher education supported by public taxation. Petitioner was established by the Tennessee General Assembly in 1915 and is an institution within the State University and Community College System of Tennessee.
The Bulletin is regularly issued at stated intervals as frequently as four times a year, bears a date of issue and is consecutively numbered, is issued from a known office of publication, is formed of printed sheets, and does not contain any advertising other than that of the publisher.
The Bulletin has been mailed pursuant to second-class privileges for more than 50 years, Petitioner having had a second-class permit since 1918.
The Bulletin describes Petitioner's educational service to the public and it identifies changes in programs, revisions in the requirements for certification of teachers, and alterations of policy with respect to obtaining degrees, and all of the foregoing items are explained. This service is vital for Petitioner's regular fulltime students. It is also important for some students who are not in continuous attendance, and for prospective students. The enrollment at Petitioner for Fall of 1974 was 6,896 students, and the students came from 35 states other than Tennessee and from 29 foreign countries.
In this proceeding, the Petitioner presented three witnesses, the first of whom was Dr. Arliss Roaden, the President of the institution. Dr. Roaden has an extensive background in the field of education, and he testified that the Bulletins of the Petitioner are used in a number of ways, one of which is by deans of graduate schools who use the bulletins of other institutions to determine the eligibility of students who wish to enter the particular graduate school of which the dean has supervision. Another use of college bulletins is by consultants who use them, among other purposes, to determine the rules and regulations of various institutions. Another use of university and college bulletins is by accreditation councils. These councils determine the qualifications of the programs of various institutions of learning to determine whether they qualify for accreditation. Dr. Roaden stated, also, that it would be a mistake for a student to throw away a catalog for a particular term of school, because that catalog might be useful to that student later in determining his qualifications for graduation from the institution because at the time the student enters the school, there comes into existence, in effect, a sort of an understood contract that the regulations in effect at the time the student enters will be applicable to that student during his tenure and at the time of his graduation from the institution.
Another witness for the Petitioner was Dr. Hoyle Lawson, who edits, and is responsible for, the Bulletin. Dr. Lawson stated that in preparation for the production of a new bulletin, the school begins with the current bulletin, or the previous two bulletins, and those bulletins are sent to various department heads who then indicate such changes as are to be made, or such changes as they wish to include, in the new bulletin. That information is gathered under his supervision, edited and published. Dr. Lawson conducted a survey of 683 different colleges and university catalogs, all of which use second-class mail, and in his opinion there was less than 3 per cent difference in the type of information contained in all of those publications.
The final witness for the Petitioner was Dr. Dudley V. Yates, who is the Director of Library Services and the Professor of Library Science at the institution. Dr. Yates testified that the Bulletin of the University is used as a reference tool on a day-to-day basis and it is used additionally as a tool for historical reference. Dr. Yates gave a definition of the term "periodical" as he understands that term to be used today among other members of his profession. One of the questions put to Dr. Yates on cross-examination was whether the Sears Roebuck & Co. catalog would be a periodical publication within his definition, and his answer was in the affirmative. Under the laws governing the Postal Service, there is a special rate category for catalogs, and such a publication as a Sears Roebuck catalog could not be regarded as being eligible for second-class mail entry.
The Respondent's witness testified, and the general tenor of the testimony of the Respondent's witness was in conformity with the statements made in the letters of February 5 and April 29, 1975, setting forth the reasons for the proposed revocation.
The crucial definition which has been discussed in this case is the one found in Houghton v. Payne , which is reported at 194 U.S. 88, at page 97, where the Court said:
"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."
Petitioner took the position that the Postal Service was insisting that in order to be a periodical publication within the foregoing definition publications must contain serialized stories. Respondent's witness testified that such is not the basis for the Respondent's position on this question, rather that, as stated in the Court's definition, the continuity must be indicated by the nature of the articles contained in the publication.
The Petitioner asserts that the Houghton v. Payne definition is obsolete - that it was good for its time but that its time has passed. That type of reasoning is not necessarily convincing. If age alone destroyed the validity of a written instrument, what weight and what force and what effect could then be given to the Constitution of the United States, which was adopted on September 17, 1787. It is true that that document has been subjected to powerful stresses from time to time. Nevertheless, in its overall content if has with the exception of the designated amendments remained as the basis of the government of this country. Thus, the fact that a decision of a court, or any other instrument, is 70 or more years old does not necessarily mean that it is just a piece of paper and no longer of any merit.
The fact of the matter is that there is now legislation pending in the Congress which has as its purpose providing that second-class mail privileges be given to college catalogs and bulletins. The very fact of the existence of this legislation suggests that the Congress is aware of what the Postal Service is now doing in this area, and that the Congress must at least be under the impression or the belief that the present interpretation by the Postal Service of the laws governing second-class mail is legally correct. Otherwise, it would not be necessary to enact legislation providing to the contrary.
With respect to 39 U.S. Code 4355, it is true that certain publications of State educational institutions under certain conditions are to be granted second-class mail entry, but the first three words of that section are "Mailable periodical publications," which, in the eyes of the Postal Service, lead right back to the Houghton v. Payne definition. That is the only known place at which that term has been defined by the highest court of the land, and, clearly, the Postal Service is bound by decisions of the Supreme Court.
In addition to that aspect of the matter, the Postmaster General is obliged by his oath of office to enforce and administer the law pertaining to the Postal Service to the best of his ability. In the absence of some other definition, it is incumbent upon the Postal Service to look to the only definition that the Supreme Court has announced as the basis for the action of the Postal Service. There is no question but that the Postal Service will follow such guidelines in this area as the Courts or the Congress provide.
Petitioner takes the position that if its publication is not a periodical publication within the meaning of the Postal laws and regulations, which include the Houghton v. Payne decision as a part of the law of the land, then the publication should be regarded as a nondescript publication and on that basis granted second-class mail entry. That position has been taken by a number of other petitioners and it has been rejected for the reason that there is not, in the first place, legislation relating to college and university publications as there is with respect to transportation guides, railway guides, and, secondly, there is not the wide, general public interest in the college publications that there is in the transportation guides.
Petitioner takes the further position that it is being discriminated against by virtue of the fact of this proceeding. Efforts have been made by the Postal Service to have consolidated proceedings in matters of this kind, but, for reasons not fully made known, the institutions have been most reluctant to enter into a joint or consolidated proceeding, and each institution has insisted on its right to have an individual proceeding.
With respect to the matter of 97 per cent of the Bulletins being alike, according to Dr. Lawson's survey, that information is somewhat at variance with the experience of the Postal Service. It has been stated of record in previous proceedings that of publications of this type which have been examined, approximately 10 to 20 per cent have been regarded as being eligible to retain or obtain second-class mail permits. That testimony may be a result of the manner in which applications for re-entry come in, and it does not necessarily mean that figures determined by Dr. Lawson are inaccurate. It means only that his study produces different results than have been obtained by the experience of the Postal Service.
The argument presented by the Petitioner in this case with respect to the rule of contemporaneous construction was also presented in Houghton v. Payne , and it was disposed of by the Court in that case in the following language. Incidentally, the publication that was under consideration in the Houghton case had had second-class mail privileges for a period of 16 years, and the publisher in that case insisted that, because of that prior construction of the statute, the Postal Service could not revoke that privilege. On that point, the Court said this:
"Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute."
There was a dissent in the Houghton v. Payne case but the dissent was not on the point covered by the last quotation because in the dissenting opinion Mr. Justice Harlan, beginning on page 102, commented,
"Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it would be the duty of the court to so adjudge."
In view of the legislation as it exists and in view of the duty of the Postmaster General and in view of the facts and circumstances to which reference previously has been made, the rule of contemporaneous construction is no bar to the action proposed to be taken in this case.
When recognition is given to the definition in Houghton v. Payne , it is clear beyond cavil that none of the publications contains a "variety of original articles by different authors" when that phrase is taken as a whole. There are different authors who are represented in the publications, but the articles which they produce are by no means original.
With respect to the schedule of classes, the purpose of these publications is to provide public information to students who are attending, or who wish to attend, Tennessee Tech during the particular quarter for which the Bulletin is applicable. It tells the name of the course and where and by whom it is going to be taught and when it is going to be taught, and any individual who wants to attend Tennessee Tech for that particular quarter certainly gets all the information that he will need with respect to the courses of instruction at that institution for that particular quarter. To that extent, clearly, the schedules of classes are complete in themselves, and the fact that these and other issues of the Bulletin are maintained in various institutions such as libraries and by other schools, colleges and universities for future reference indicates that they are simply, at that stage, reference books. The information that they have in them is historical in nature. It is not continuing. It is not current but one looks to see what was being taught at a certain place at a certain time, and that is a further indication of its completeness because it must contain all of the information about the courses given at that institution at that time.
The Petitioner has asserted that this action is, in effect, a change of policy in regard to mail classification on the part of the Postal Service and that, therefore, since that function has been committed to the Postal Rate Commission, this is an invalid procedure. The difficulty with that argument is that this is not a classification procedure, nor is it a rate-making procedure. This is a procedure to determine which existing classification of mail is proper for the publication of the Tennessee Technological University. Therefore, this is properly an adjudicatory proceeding, and it is not a rule-making proceeding under the Administrative Procedure Act.
In view of the characteristics of the various publications which comprise the Bulletin of the Tennessee Technological University, it is found as a fact and concluded as a matter of law that the publication is not a "periodical publication" within the meaning of applicable postal laws and regulations. Since it is not a periodical publication, it is not entitled to be carried in the mail as second-class mail matter, and the decision of the Respondent to revoke the second-class mail permit heretofore in effect for that publication was correct and it is sustained.
Proposed findings of fact and conclusions of law have been submitted by both parties. To the extent indicated, 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 contrary to, or unsupported by, the evidence of record in this proceeding, or because they are immaterial.
____________________