In the Matter of the Petition by ) June 4, 1976 ) THE REUBEN H. DONNELLEY CORPORATION ) 2000 Clearwater Drive ) Oak Brook, Illinois 60521 ) P.S. Docket No. 2/78 ) Revocation of Second-Class Mail ) Privileges for "OAG TRAVEL PLANNER ) AND HOTEL/MOTEL GUIDE" ) APPEARANCES FOR PETITIONER: John M. Burzio, Esq. Hydeman, Mason & Goodell Washington, D.C. APPEARANCES FOR RESPONDENT: Arpad de Kovacsy, Esq. Law Department United States Postal Service Washington, D.C. Lussier, Edward F.
This proceeding is before the undersigned on Petitioner's appeal from the Initial Decision of Chief Administrative Law Judge William A. Duvall which sustained the proposed revocation of second-class mail privileges for the "OAG Travel Planner and Hotel/Motel Guide." Petitioner has taken five exceptions to the Initial Decision which will be considered in the order raised. The first of these is to the finding on page 7 of the Initial Decision that only "location information and nearest airport" are provided for colleges, universities and military installations. Petitioner contends that Joint Exhibits 1-4 show that information on available surface transportation and how to get to and from colleges, universities and military installations is contained in the publication. Respondent's Reply Brief concedes that some additional travel information is provided for certain of the military installations but contends that only location information and nearest airport are provided for colleges and universities. A review of the exhibits in question reveals the correctness of Respondent's statement of the facts. The Initial Decision must accordingly be so modified and the exception to that extent allowed, and otherwise disallowed.
Petitioner's second exception is to the finding on page 8 of the Initial Decision that no information on land transportation "ticket prices" is contained in the publication. Petitioner contends that its Exhibits 1 and 2 demonstrate that information on fares for land transportation to and from airports is published. Petitioner's Exhibits 1 and 2 are statements of proposed testimony of one of Petitioner's witnesses. Respondent's Reply Brief concedes that this testimony does represent that the publication contains "limousine information, including time to airport and fares" but contends that the finding, when read in context, was referring to scheduled air or land transportation and not to taxi or limousine service. The full finding reads as follows:
"The Travel Planner does not contain any time-tables or transportation schedules either for air or land transportation nor any information on ticket prices or the type of tickets which may be available."
A review of the publications in evidence reveals that limousine fare is listed for certain cities. This appears to be often, but not always, the case for the city of flight termination. However, for the far more numerous cities, also listed in the Travel Planner and Hotel/Motel Guide, which are serviced by an airport in a different city no fares are shown. These facts are so obvious that I doubt seriously they were overlooked in writing the Initial Decision and am therefore inclined to agree with Respondent that the finding was not meant to include taxi or limousine service. However, it can be so interpreted and the exception is allowed and the Initial Decision modified to the limited extent above indicated.
Petitioner's third exception is to the finding on page 8 of the Initial Decision that the publication at best provides the user with "leads" as to where to find the necessary information. 1/ Petitioner argues that the information is far more than leads, referring in general to its proposed findings of fact 11 through 14 and emphasizing the importance of such information as is given. The finding must be read in connection with the next sentence, fully supported by the record, which is that "Travel Planner, is, in fact, what its name states it to be: a tool to travel planning and not a guide to the actual transportation schedules and prices." One page chosen at random and attached as an appendix hereto illustrates the point. Information such as the name, phone number and ticket office location of the pertinent airline is not inaccurately labeled a "lead" and the finding needs no correction. Petitioner's third exception is disallowed.
Petitioner's last two exceptions are to the conclusions in the Initial Decision that the publication is not a "transportation guide" and is not a "periodical publication." The latter conclusion was based upon the absence of a variety of articles by different authors, a conclusion finding full support in the record and in the case precedent cited in the Initial Decision. Neither party spends any time rearguing this issue on appeal choosing rather to refer to the original arguments made in their briefs filed with the Chief Administrative Law Judge. The disposition of that issue in the Initial Decision is clearly correct absent a substantial change in the controlling law and Petitioner's exception must accordingly be disallowed.
The primary legal issue addressed on appeal relates to Petitioner's fourth exception which, stated positively, asserts that the publication is eligible for second-class mail privileges as a "transportation guide." The Initial Decision rejected that contention in the following language:
"The Travel Planner is not a transportation guide of the type which the Court in Houghton v. Payne said had been 'treated' as periodical publications. It does not contain any transport schedules and does not inform any reader when any means of transport is to depart or to arrive at any destination. Nobody using the Travel Planner can schedule his or her travels and determine when he or she must leave in order to arrive at a desired time. At best, the Travel Planner provides leads as to where transportation schedule information is to be found. Such a publication cannot be considered a transportation guide of the same class as the various consolidated railroad and bus timetable publications or the OAG, published by Petitioner." (Initial Decision, pp. 10-11).
The railway guide mentioned in Houghton v. Payne, 194 U.S. 88, 96, citing at 97 Payne v. Railway Publishing Co., 20 D.C. App. 581, and the bus and steamship guides described in National Publishing Company, Inc., P.O.D. Docket No. 3/5, are significantly different from Petitioner's publication for the reasons stated. Nor does Petitioner's reference to the brief legislative history of 39 U.S.C. § 4352(c), carried over by Section 3 of the Postal Reorganization Act, P.L. 91-375, 84 Stat. 717, 773, August 12, 1970, require a different result in the circumstances of this case. That subsection provides:
"(c) The Postmaster General may not accept for mailing as second class mail any publication having more than 75 per centum advertising in more than one-half of its issues during any twelve-month period and he shall revoke its entry. A charge made solely for the publication of transportation schedules, fares, and related information is not considered as advertising under this subsection."
Both the language of the statute and the letter to the Senate Committee from the publisher of the "Railway Guide," which apparently prompted the inclusion of the last sentence quoted above, refer to transportation schedules, fares and related information, the conjunctive "and" suggesting strongly if not compelling the conclusion that a publication consisting primarily of a listing of hotels and motels and virtually no information on commercial schedules and fares is not within the scope of this statutory language or intent. To the extent that the above referenced statutory exemption to the advertising limitation for second-class mail may be argued to be an indication of congressional recognition of the special status of "transportation guides" its extension to a publication such as the "OAG Travel Planner & Hotel/Motel Guide" is thus unjustified. As Respondent's Reply Brief points out, if such an argument is sound, then listings of restaurants, night clubs, travel agents, etc., all having a relationship to travel, might as well qualify by the addition of limited incidental information related to commercial travel. It is clear that no such breadth was intended by the statute or it easily could have been provided by appropriate language. When such limiting language is used, meaning must be given to it.
The expansion of the "nondescript" publication category beyond the traditional transportation guides has not met with success in the cases administratively litigated. This case is no exception. Similarly, the suggestion, briefly set forth toward the end of Petitioner's Brief, that the Initial Decision effects such a fundamental change in policy that it can only be made by a rate-making proceeding under Chapter 36 of the Postal Reorganization Act, must be rejected for the reasons set out in full at pages 7-9 in University of Oregon, P.S. Docket No. 3/110, which are equally applicable here.
Petitioner's exceptions to the Initial Decision are disallowed and that Decision is hereby affirmed.