In the Matter of the Petition by ) May 17, 1976 ) THE UNIVERSITY OF ALABAMA ) Office of Publications ) P. O. Box 6175 ) University, Alabama 35486 ) P.S. Docket No. 3/176 ) Proposed Annulment of Second-Class ) Mail Privileges for "UNIVERSITY OF ) ALABAMA BULLETIN" ) APPEARANCES FOR PETITIONER: Paul Skidmore, Esq. Margie Searcy, Esq. Bob Callaway, Esq. Office of the University Counsul University of Alabama University, Alabama APPEARANCES FOR RESPONDENT: Arpad de Kovacsy, Esq. Law Department United States Postal Service Washington, D.C. Lussier, Edward F.
The subject proceeding is before the undersigned on appeal by Petitioner from the Initial Decision of Chief Administrative Law Judge William A. Duvall upholding the decision of the Director of the Office of Mail Classification to revoke the second-class mailing privileges for the "University of Alabama Bulletin."
etitioner's Appeal Brief consists of four main contentions which are understood to be its exceptions to the Initial Decision. The first contention is stated to be that "The role of the presiding officer at a hearing for revocation of second-class mailing privileges does not include the calling of witnesses." What Petitioner has reference to is the examination by Judge Duvall of three of Petitioner's witnesses whose testimony was submitted by affidavit prior to the hearing and with respect to whom counsel for Respondent waived his right to cross-examine. Petitioner maintains that under the applicable Rules of Practice in such proceedings, Judge Duvall had no authority to examine those witnesses. 1/ At the time of the examination by Judge Duvall Petitioner registered a formal objection "in view of the formal stipulation of counsel" (Tr. 59). The only stipulation of counsel contained in the record is that found at page 4 of the transcript where the following exchange took place:
"Mr. Skidmore: No preference, Your Honor, but we do have, however, a number of persons here as Your Honor can see. These persons all have other duties with the University and if there would be no cross examination and if the testimony of the witnesses would be accepted as previously submitted, we would request that their presence be excused for request if they indeed need to be at this time.
"Mr. Kovacsy: On this point Your Honor, the Postal Service intends to cross examine Claude Stabler, Helen Raye Pate and Mazie Blanks. I have no objection to excusing the other witnesses." Judge Duvall immediately advised the parties that he could not accept that and reserved the right to examine any witness. The agreement by Respondent's counsel to forego cross-examination of Petitioner's witnesses cannot deprive the presiding administrative law judge of his independent right of examination. Nor has Petitioner cited any authority other than the previously quoted Rules of Practice. Those Rules, far from negating, clearly support the action of the presiding administrative law judge in the circumstances of this case. This exception is accordingly disallowed.
Petitioner's remaining exceptions, which are consolidated into three contentions, namely, that the publication contains a variety of original articles by different authors, that each issue of the Bulletin is devoted to a special class of subjects and that the Bulletin does not consist of independent publications, all relate to the general underlying contention that the Bulletin comes within the definition in Houghton v. Payne, 194 U.S. 88 (1904). The Initial Decision goes into considerable detail explaining the content and nature of the various issues of the Bulletin and the reasons for its being found deficient in meeting the Houghton v. Payne definition of a periodical publication. Petitioner's argument regarding its publication containing "original articles" largely ignores these findings and reasons and affords no sound basis for reversing them.
he Initial Decision is supported by the record and needs no further amplification. This exception is disallowed.
Petitioner's last two contentions i substance relate to the lack of continuity and connection between the various issues of the Bulletin. The independence of the various issues each dealing with a different school is self-evident from the record. The extent of cross-referencing and limited use of more than one issue, as indicated in the findings, were properly held by Judge Duvall insufficient to show continuity and connection. Essentially all the current information on a particular school is to be found in the particular issue devoted to that school. For similar holdings in like situations, see Board of Supervisors of Louisiana State University & Agricultural and Mechanical College, P.S. Docket No. 3/191; Tulane University, P.S. Docket No. 3/156; George Washington University, P.S. Docket No. 3/142; Northwest Missouri State University, P.S. Docket No. 3/42.
In summation, Petitioner has shown no basis for reversing the findings of fact and conclusions of law of the Chief Administrative Law Judge and its exceptions to the Initial Decision are accordingly disallowed. The Initial Decision is hereby affirmed.