In the Matter of the Petition by NEW YORK UNIVERSITY, Main Building, 100 Washington Square East, New York, New York 10003 Proposed Annulment of Second-Class Mail Privileges for "CONTINUING EDUCATION" P.S. Docket No. 4/19 December 2, 1975 Rudolf Sobernheim Administrative Law Judge APPEARANCES: Stanley Yaker, Esq. Assistant General Attorney 1 Washington Square Village New York, New York 10012 for Petitioner Arpad de Kovacsy, Esq. Law Department U. S. Postal Service Washington, D. C. 20260 for Respondent
This is a proceeding initiated by petitioner pursuant to 39 CFR Part 954 to contest the ruling of respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter sometimes referred to as the "Manager") which on 2 June 1975 annulled, subject to the outcome of this proceeding, petitioner's second-class mail privileges in respect of "CONTINUING EDUCATION" (hereinafter sometimes referred to as petitioner's or as the "publication").
The reasons for this ruling were stated by the Manager as follows (Att'mt to Pet'n):
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. The preceding definition of a periodical is based on a Supreme Court ruling in the case Houghton v. Payne 194 U.S. 88 (1904).
We have examined copies of the July 2, 1973, April 1, 1974, July 3, 1974, and August 14, 1974, issues of "Continuing Education".
All of the issues reviewed contain similar information regarding the seminars or conferences held by the New York University School of Continuing Education; namely, dates and locations of the seminars, seminar contents, comments about the seminars, a brief statement, identical in each issue, about New York University, a brief biography of the seminar faculty, and a registration form.
The issues examined do not contain a variety of original articles by different authors, but are devoted entirely to presenting the programs offered by the School of Continuing Education.
"Continuing Education" is not a periodical publication within the meaning of a periodical as defined in the Houghton v. Payne case.
Additionally, the Postmasters at New York, New York, and at Brooklyn, New York have indicated that you have not been maintaining the "semi-weekly" authorized frequency of issue. Section 132.221, Postal Service Manual, states that issues must be published regularly as called for by the statement of frequency.
According to a report submitted no copies of the publication were mailed after the August 21, 1974 issue except back issues and at least eight issues between July 30, 1973 and August 21, 1974 were not mailed or a copy filed as required by section 125.511, Postal Service Manual.
For the above stated reasons, "Continuing Education" is not considered qualified to retain second-class mail privileges.
The petition was docketed on 20 June 1975 and a hearing was held thereafter at which evidence was presented by both parties. As part of the record petitioner introduced in evidence newsletters which formed part of volumes VI through IX of its publication (PX 3) and respondent submitted four different announcements of events which formed part of volumes VIII and IX of the publication. In order that the record better reflect the actual nature of petitioner's publication, the latter at the request of the presiding administrative law judge presented after the hearing a complete copy of volume IX of its publication as an exhibit herein. The exhibit is hereby designated for convenience as petitioner's exhibit (PX) No. 4. Both parties also filed briefs setting forth their respective positions on the facts and the law.
1. Petitioner New York University is one of the large private universities centered in New York City and enjoys the special tax status according by law to educational institutions.
2. One of its branches is the School of Continuing Education which provides in major part non-credit courses for non-matriculated students. The largest non-credit instructional segment of the School of Continuing Education is the Division of Business and Management (T 29).
3. It is through this division of the School of Continuing Education that petitioner's publication is published.
4. The present character of the publication is exemplified by volume IX (PX 4) the first number of which bears the date of 1 April 1974 and the last of which bears the serial number "98" and the printed date of 5 March 1975 (see Finding 15, below).
5. Of these 98 numbered issues actually only numbers 1 through 56, 79, 97 and 98 were published. Numbers 57 through 78 and 80 through 96 were not published.
6. Of the 59 numbers of volume IX actually published, fifty-five (55) numbers were announcements of conferences or seminars, organized by the School of Continuing Education's Division of Business and Management together with the New York Management Center. The latter was established in 1971 to provide technical assistance to petitioner and other universities in preparing, marketing and conducting seminars on plastics, metals, packaging and various other business and industrial activities.
7. The seminars and conferences announced in the non-newsletter numbers of volume IX of "CONTINUING EDUCATION" deal with the subject matters mentioned in Finding No. 6.
8. The 55 numbers of volume IX representing seminar or conference announcements consist in their large majority of a single sheet, about 17 by 22 inches in size and folded twice in half into an 8 1/2 by 11 inch size piece of paper.
9. a. Fully opened, No. 1 of volume IX (RX 4; PX 3) gives on the inside the title of the conference "Plated Printed Circuits" and its date "December 16-17" or approximately nine months away from the announcement's issue date of 1 April 1974. The inside page shows the program of the two-day event and the panel of speakers with photos and brief biography.
b. The lower half of the outside sheet contains more details of what the attendee at the conference can learn and comments on an earlier conference on the same topic by attendees thereat.
c. The lower half of the outside sheet also contains two standard sections, one "A Word about New York University", the other "A Word about New York Management Center" (see Finding 6). These two sections appear in all announcements practically unchanged.
d. The upper half of the outside sheet contains a title page for the folder on the right hand side and general information as well as a registration form on the left.
10. About a fourth of the announcements are on smaller sheets and in smaller print but fifty-three (53), regardless of size, reflect the same arrangement of the announcement as described in the preceding finding.
11. Two of the 55 announcements differ from the format described above. They are Nos. 11 and 53 of volume IX of 6 May and 30 September 1974, respectively. They are 16-page stapled pamphlets, 6 x 8 1/2 inches in size which lists seminars to be held during a longer period, between January and June 1975 in the case of No. 11 and between September and November 1975 in the case of No. 53.
12. The events announced in the 55 numbers informing the reader thereof are set generally for dates months ahead of the date of the particular number.
13. The number of copies of each announcement mailed by petitioner is large but the number varies depending on the mailing list or lists used to reach an interested audience (T 16, 57). There does not exist a single list of addressees and it is unlikely that any recipient would receive all announcements automatically (T 58).
14. Four of 59 numbers of volume IX were newsletters, published as follows:
No. 41 dated 19 August 1974
No. 79 " 30 December 1974
No. 97 " 3 March 1975
No. 98 " 5 May 1975
15. Actually, the date of No. 98 is printed as "5 March 1975" but the editor of the newsletter testified that the actual and intended date of publication was 5 May 1975 (T 68) and I accept the correction to which she testified.
16. The newsletter is published four times per year on a sheet 12 by 17 inches in size, twice folded over. It contains news of school activities of likely interest to former students who have left the School of Continuing Education in the last two years and others who have expressed interest in the School and to whom the newsletter is mailed (T 48).
17. The editing of the newsletter is entirely separate from the preparation of the announcements which constitute the bulk of petitioner's publication.
18. The newsletter forming part of volumes VII, VIII and IX of petitioner's publication has been published four times annually as part of each volume but not at regular intervals. The record (PX 3, 4) shows publication as follows:
Vol. Aug. Sept. Oct. Nov. Dec. Jan. Mar. May VII X X X X VIII X X X X IX X X X X
19. Petitioner was granted second-class mail privileges for its publication on 4 February 1953, effective 19 January of that year (PX 7). Publication was originally monthly except from June through September and on 18 November 1968 was changed to semi-weekly April through March ( ibid .).
20. In accordance with Postal Service Manual (PSM) section 132.221 the postmaster-manager of the Brooklyn-Staten Island District, Brooklyn, New York 11201, within the confines whereof the post office of additional entry for petitioner's publication was located (RX 7), brought petitioner's failure to maintain regular issuance in accordance with stated frequency to its attention and cautioned it that "[f]ailure to abide the regulations and maintain your frequency of issue may jeopardize your second-class status" (RX 2).
21. In January 1975 the postmaster in accordance with PSM 132.221 brought the situation to the Manager's attention (RX 1).
22. Based on the foregoing detailed findings of fact and the record as a whole I further find:
a. Petitioner's publication is composed of two disparate segments between which there is no connection or continuity: the announcements of seminars or conferences, sent to readers interested therein, and the newsletter, sent to a different group of readers altogether.
b. Each announcement is a separate and complete publication by itself, without continuity with prior or subsequent issues. Continuity is not established by the sole fact that all announced events represent activities of petitioner's School of Continuing Education.
c. None of the contents of the announcements are articles as the term is commonly understood, except possibly for the two statements on New York University and the New York Management Center. These two pieces, even if considered articles, do not, however, lift the issues in which they appear out of the category of flyers announcing a particular event months in advance of its planned date. They do not convert the flyer into a periodical as the term is commonly understood.
d. The newsletters and announcements together cannot be considered a periodical publication in which the newsletters provide the textual portion while the announcements take the place of advertisements or similar matter frequently found combined in the same issue of a magazine. Here the announcements and newsletters are wholly separate issues without physical connection as a single document. Petitioner's publication cannot, therefore, properly be compared with issues of a magazine containing both articles and some non-article material.
e. Although petitioner's second-class mail permit is for a semi-weekly publication published throughout the calendar year, it is not published in accordance with the terms of its permit.
f. The newsletter portion of petitioner's publication does not appear at regular intervals.
1. Petitioner asks (Br., p. 22) that a decision herein be withheld in the light of pending legislation (now designated as H.R. 8603, 94th Cong., 1st Sess.) which would establish second-class mail privileges for "any catalog or other course listing issued by any institution of higher learning" (H.R. 8603, sec. 10, amending 39 USC 3626 by adding a new subsection (b)). This bill has not yet and may never become law. Until it does the law as it presently exists governs and appeals from rulings of the Manager, proposing to annul second-class mail privileges, must be decided and acted upon in accordance with existing law. Nothing therein or in H.R. 8603 authorizes or empowers the administrative law judges of the United States Postal Service to preserve by their inaction second-class mail privileges heretofore improperly granted if that be the case. Hence, petitioner's request that a decision on its appeal be withheld while the outcome of legislative developments is being awaited cannot be granted.
2. Petitioner further requests (Br., p. 19) one year's time to refashion its publication so as to bring it within the scope of existing regulations as they are now understood as a matter of law. While a brief delay to attain such goal might be administratively granted by cognizant authority, nothing in the regulations governing second-class mail privileges (PSM 132.2) or this appeal (39 CFR Part 954) authorizes the presiding administrative law judge in deciding an appeal to issue such an order without concurrence of the parties. None here exists and petitioner's request must be denied.
3. Nor is it true that the proposed annulment of petitioner's second-class mail privileges exceeds the powers of respondent. Houghton v. Payne , 194 U.S. 88 (1904). There is nothing in U.S. ex rel. Milwaukee Social Democratic Publishing Company v. Burleson , 225 U.S. 407 (1921) which would abridge respondent's right to revoke second-class mail privileges improvidently granted to publishers of publications which fail to meet the tests for the granting of such privileges laid down by statute, regulation or authoritative court decision ( loc . cit ., supra , at pp. 410-11, 415). Nor does Mr. Justice Brandeis' celebrated dissent deny such powers to the Postmaster-General. 225 U.S. 417, at pp. 426-7. To the same effect, see the dissent of Mr. Justice Holmes, 225 U.S. 436, at p. 437. Hannegan v. Esquire Magazine , 327 U.S. 146 (1946) dealt with the use of postal powers to effect censorship and has no application here. The issue here is not whether petitioner's publication publishes "information of a public character" nor whether its content is "good" or "bad" as was argued in Hannegan . See loc . cit ., supra , at p. 151, cited in petitioner's brief at page 16.
4. The issue here is, on the contrary, the simple one whether petitioner publishes a publication which meets the terms of the applicable regulations (see in particular PSM 132.221) and of the decision of the United States Supreme Court in Houghton v. Payne , 194 U.S. 88 (1904) which defined what constitutes a "periodical publication" entitled to second-class mail privileges. Upon the answer to the question thus posed Payne v. Railway Publishing Co. , 20 App. D.C. 581 (1902) sheds no light. Transportation guides form almost a separate category of publications constituting second-class matter. See Houghton v. Payne , supra , 194 U.S. at pp. 96-98. This category, called there "non-descript publications", cannot be extended beyond such transportation guides. See Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974); Florist's Transworld Delivery Association , P.S. Docket No. 1/167(1974) (Amended Postal Service Dec.).
5. Whatever policy considerations regarding the widest dissemination of information applied to fashion the rule exemplified in Payne v. Railway Publishing Co. , supra , would not, however, support its extension to a publication consisting in its most recent volume of four newsletters sent mainly to recent students of a school of a particular university and fifty-five announcements of technical seminars and conferences organized by the school which are sent to divers mailing lists of prospective attendees. For further comment see Shepard's Citations, Inc. , supra .
6. The meaning of the term "periodical publications," as used in former and present postal laws and regulations (PSM 132.2, 132.211), was defined by the United States Supreme Court in Houghton v. Payne , supra , at page 97 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.
7. When petitioner's publication is examined in the light of the Supreme Court's definition of a periodical publication which its publisher is entitled to mail as second-class matter, it is clear that the publication is not one composed of articles, as described by the Court, but is a vehicle for announcements of seminars and conferences in the form of flyers normally constituting matter mailable at third-class postage rates.
8. Each of these announcements is addressed to a particular event and is unconnected with the preceding or subsequent ones and complete in itself. The announcements lack the connecting link which Houghton v. Payne , supra , found in periodical publications and do not become qualified as such by means of a common name and consecutive numbering by volume and issue.
9. The four annual newsletters provide for petitioner's publication a certain amount of the type of material which is ordinarily found in periodical publications, as defined in Houghton v. Payne , supra . However, this minimal amount of articles does not alter the basic character of the publication as a series of individual announcements of seminars and conferences to be held months after the announcement. As has been recently held in William R. Good, Jr. , P.S. Docket No. 2/123(1975), it is the character of the entire publication and not a minimal content of "article"-type material that determines the mailability of the publication as second-class mail matter. To the same effect:
National Automobile Dealers Used Car Guide Company , P.S. Docket No. 2/183 (1975); Florist's Transworld Delivery Association , supra .
10. In the light of the cited decisions and the considerations set forth herein petitioner is not entitled to second-class mail privileges for its publication.
11. Even if petitioner's publication be treated as in fact two publications one of which ex hypothesi would be composed of the four newsletters petitioner would not be entitled to second-class mail privileges for such a publication since it is clearly not published at regular intervals, as required by PSM 132.221.
12. Petitioner also has failed to comply with the terms of its second-class mail permit of semi-weekly publication throughout its publishing year or 104 issues since volume IX has only 59 issues. Such failure to meet second-class mail permit terms also justifies annulment or revocation of the permit. See PSM 132.221.
13. Accordingly, the appeal of petitioner from the Manager's ruling of 2 June 1975 is denied. His ruling was correct and petitioner's second-class mail privileges for "Continuing Education" should stand annulled.