Appeal of P.S. Docket No. 3/180 -- MICHIGAN STATE UNIVERSITY

 In the Matter of the Petition by 	) May 14, 1976
					)
 MICHIGAN STATE UNIVERSITY 		)
 212 Administration Building 		)
 East Lansing, Michigan 48824 		)
					)			
 Denial of Application for Second- 	)
 Class Mail Privileges for "MICHIGAN 	)
 STATE UNIVERSITY BULLETIN" 		) P.S. Docket No. 3/180

 APPEARANCES FOR PETITIONER: 		Leland W. Carr, Jr., Esq.
					Anderson, Carr, Street & Hornbach
					Lansing, Michigan

 APPEARANCES FOR RESPONDENT:
					Gerald E. Cerasale, Esq.
 					Law Department
					United States Postal Service
					Washington, D.C.
 Lussier, Edward F.

POSTAL SERVICE DECISION

The subject proceeding is before the undersigned on appeal from the Initial Decision of Chief Administrative Law Judge William A. Duvall upholding the denial of Petitioner's application for second-class mail privileges for the Michigan State University Bulletin. Petitioner takes three exceptions to the Initial Decision which are stated as follows:

"1. Michigan State University excepts to the finding that the contents of the 'Bulletin' do not consist of articles, and hence do not meet one test of the definition of the term 'periodical' enunciated in Houghton v. Payne, supra.

2. Michigan State University excepts to the finding that each publication is complete in itself.

3. Michigan State University excepts to the failure of the Administrative Law Judge to adopt the following proposed Finding of Fact and Conclusion of Law:

The 'Michigan State University Bulletin' is exclusively and strictly limited to the dissemination of information of a public character by a state-supported institution of higher learning, and therefore does not fit the limitations imposed by Houghton v. Payne or Florists' Transworld Delivery Association."

Petitioner's argument in support of its exceptions is entitled "Definition of a Periodical" and is based not on disagreement with specific factual findings describing the Bulletin but on Petitioner's contention that the language in Smith v. Hitchcock, 226 U.S. 53, and sections 132.224 and 132.231 of the Postal Service Manual require finding the Bulletin a periodical publication within the meaning of the postal law. Judge Duvall covered both points, discussing the Smith v. Hitchcock case at page 4 of the Initial Decision and the postal regulations implicitly in discussing former 39 U.S.C. § 4355 at page 11 of the Initial Decision.

Postal Service Manual § 132.224 describing general content must be read in connection with § 132.211 defining mailable publications as "newspapers and other periodical publications." This regulation and its statutory predecessors have consistently been held to require the publication's compliance with the definition of a periodical publication set forth in Houghton v. Payne, 194 U.S. 88 (1904). See Amended Postal Service Decision in Florists' Transworld Delivery Association, P.S. Docket No. 1/167 (affirmed sub nomine Teleflora Incorporated v. USPS, Civil Action No. 75-226, U.S.D.C. D.C. Order June 25, 1975), for a more detailed statement of, and citation to, the administrative litigation history in this connection. See also Northwest Missouri State University, P.S. Docket No. 3/142. Similarly, Postal Service Manual § 132.231, while exempting educational institutions from the requirement for having a list of subscribers, in no way alters the underlying requirement that the publication be otherwise a mailable periodical publication which, as Judge Duvall properly held on page 11 of the Initial Decision "brings us right back to Houghton v. Payne."

With respect to the Smith v. Hitchcock quotation, the holding in University of Oregon, P.S. Docket No. 3/110, is equally applicable. "The language * * * does not carry with it any necessary or probable inference that the Houghton definition of a periodical was intended to be inapplicable when viewing a publication whose subject matter is current information." Since a review of the Initial Decision and the record upon which it is based reveals the correctness of the factual findings to which exception is taken, the exceptions are accordingly disallowed.

Petitioner's third exception is overbroad in one sense, as Respondent's Reply Brief points out, in that the factual finding that the Bulletin is exclusively limited to dissemination of information of a public character by a state supported institution of higher learning was in fact made in the Initial Decision. The last portion of the exception to the effect that "therefore" the publication comes within the Houghton v. Payne definition was properly rejected for the reasons stated in the Initial Decision and in this Decision.

etitioner's exceptions to the Initial Decision have been considered and are disallowed. The Initial Decision is hereby affirmed.