In the Matter of the Petition by SYRACUSE UNIVERSITY, Publications Office, 125 College Place, Syracuse, New York 13210, Proposed Revocation of Second-Class Mail Privileges for "SYRACUSE" (Formerly Syracuse University Bulletin) P.S. Docket No. 3/197 April 28, 1976 Quentin E. Grant Administrative Law Judge Bond, Schoeneck & King by S. Paul Battaglia, Esq. Syracuse, New York, for Petitioner Mitchell Knisbacher, Esq. United States Postal Service Washington, D.C., for Respondent Before : Quentin E. Grant , Administrative Law Judge
This proceeding was initiated by petitioner pursuant to 39 C.F.R., Part 954, to contest the ruling of respondent, represented by the Manager of the Mail Classification Division, Finance Department, U.S. Postal Service (hereinafter referred to as the "Manager") which, on March 27, 1975 annulled, subject to the outcome of this proceeding, petitioner's second-class mail privileges with respect to its publication, Syracuse , formerly Syracuse University Bulletin , (hereinafter sometimes referred to as the "publication").
The reasons for the Manager's ruling were stated by him as follows (Ex. R-4):
"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. 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 a periodical, as there is no connection between the subjects and no literary continuity. 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 reviewed copies of the July and November 1972, May, June (two issues) July, August, September, October, November and December 1973, and January (two issues), February, July and November 1974 issues of 'Syracuse'. These include the Bulletins for the School of Management (July 1972), the College of Law (November 1972, November 1974, The College of Engineering (May 1973), The School of Management Graduate Programs (June 1973), the College of Visual and Performing Arts (July 1973), the Maxwell Graduate School of Citizenship and Public Affairs (September 1973), the School of Nursing (October 1973), the College for Human Development (November 1973), the Division of International Programs Abroad (December 1973), the School of Public Communications (January 1974), the School of Architecture (January 1974) and the School of Education (February 1974).
"The June 1973 issue provides general information about Syracuse and is designed for prospective students.
"The August 1973 and July 1974 issues are respectively, the Undergraduate Catalogs for 1973-1974 and for 1974-1975.
"Each of the issues which we have reviewed with the exception of the June 1973 general information issue, contains general and academic information and regulations and course listings and descriptions for the particular school or program listed on the front of the issues.
"These are each essentially annual publications which are complete in themselves betraying no need of continuation in subsequent issues and suggesting no relation to prior issues. These publications would be more appropriately ascribed to the classification scheme providing for the mailing of books and printed matter.
"'Syracuse' is not a periodical publication within the meaning of the applicable postal regulations. Therefore, it does not qualify for second-class mail privileges."
Petitioner took timely appeal from the Manager's ruling. A hearing was held on January 8, 1976 in Syracuse, New York at which both parties presented evidence. They have submitted proposed findings of fact and conclusions of law.
The parties have stipulated that the only issue for determination in this proceeding is whether the publication is a periodical, having agreed that it meets all the other criteria for second-class mail privileges (Tr. 3).
Petitioner's principal arguments may be summarized as follows: the publication is a periodical publication in that it contains a variety of original articles by different authors; interpretation of "periodical" according to the 1904 usage as contained in Houghton v. Payne is erroneous; the failure of the Postal Service to promulgate objective and consistent standards by which a publication may be judged as a periodical denies petitioner due process of law; the publication is entitled to second-class mail privileges under former 4355 1/ of Title 39, United States Code, as a publication of an institution of learning.
1. Syracuse University is an institution of higher education incorporated under the laws of the State of New York.
2. Petitioner is a "regularly incorporated institution of learning" within the meaning of 132.2(c) of Title 39 of the Code of Federal Regulations.
3. Prior to 1931, petitioner was granted second-class mail privileges by the United States Post Office Department for its publication Syracuse University Bulletin .
4. On March 13, 1975 petitioner was authorized by respondent to change the title of its publication from Syracuse University Bulletin to Syracuse . At that time no ruling was made as to the eligibility of Syracuse to retain second-class mail privileges.
5. Under date of March 27, 1975 petitioner was notified by the Manager of the proposed revocation of its second-class mail privileges. The present appeal ensued.
6. There were received in evidence Volume 101 of Syracuse University Bulletin , Volume 102 of Syracuse and seven issues of Volume 103 of Syracuse . Volume 101 covers the year 1972 and consists of the following thirteen issues:
No. 1 College of Engineering
No. 2 School of Education
No. 3 Division of International Programs Abroad
No. 4 Syracuse University Summer Session 1972
No. 5 School of Public Communications
No. 6 School of Management - Graduate Programs in
Management
No. 7 School of Management
No. 8 General Undergraduate Catalog 1972-1973
No. 9 School of Architecture
No. 10 College of Visual and Performing Arts
No. 11 College of Law
No. 12 College for Human Development
No. 12A The Graduate School
Volume No. 102 covers the year 1973 and consists of the following
fifteen issues:
No. 1 College of Arts and Sciences
No. 2 School of Library Science
No. 3 Division of International Programs Abroad
No. 4 School of Education
No. 5 The L. C. Smith College of Engineering
No. 5A Systems and Information Science
No. 6 Syracuse
No. 6A School of Management Graduate Programs
No. 7 College of Visual and Performing Arts
No. 8 Undergraduate Catalog 1973-1974
No. 9 Maxwell Graduate School of Citizenship and Public
Affairs
No. 10 Graduate Study at Syracuse
No. 10A School of Nursing
No. 11 College for Human Development
No. 12 Division of International Programs Abroad
The seven issues of Volume 103 in evidence, two of which were numbered 1, are the following:
No. 1 S. I. Newhouse School of Public Communications
No. 1 School of Architecture
No. 2 School of Education
No. 7 General Undergraduate Catalog 1974-1975
No. 8 The L. C. Smith College of Engineering
No. 12 College of Law
No. 12A School of Architecture
7. The issues of the publication in evidence vary in length from 11 pages (Vol. 102, No. 5A) to 392 pages (Vol. 102, No. 8). They vary to a considerable degree in size and format among the various colleges and schools of the university, but generally the various issues pertaining to the same school or college and the undergraduate catalogs are very similar, if not identical, in format and content including photographs, differences consisting principally of updating of course and faculty listings, e.g. , Vol. 102, No. 4 and Vol. 103, No. 2, School of Education; Vol. 102, No. 5 and Vol. 103, No. 8, The L. C. Smith College of Engineering; Vol. 103, No. 1 and Vol. 103, No. 12A, School of Architecture; Vol. 101, No. 8, Vol. 102, No. 8 and Vol. 103, No. 7, the general undergraduate catalogs.
8. Although portions of most issues of the publication contain a variety of articles by different authors, numerous issues pertaining to the same school, college, or programs repeat these articles verbatim, e.g. , the volumes listed in Finding No. 7, above.
9. Course descriptions and listings, which generally constitute the most substantial portion of each issue, comprise in content 39% to 85% of the majority of the issues of the publication ( e.g. , Vol. 103, No. 1, 13 out of 33 pages; Vol. 102, No. 8, 336 out of 392 pages). Such matter, as well as faculty, trustee, and officer listings contained in most issues, do not constitute articles.
10. Petitioner's witness, Karen Winget, Assistant Director of the Publication Office of the university, testified that the general university information in the issues relating to the different schools and colleges is nearly identical.
11. It is apparent that most of the numbers of the publication issued in any one year are directed to different publics, to wit: persons interested in the school, college or programs treated by the particular number for the limited period covered thereby (Tr. 41 et seq .). Thus, each issue of the publication is essentially complete in itself without continuity or significant connection with other issues of the same volume.
1. To determine whether the publication, Syracuse , is a periodical publication entitled to second-class mail privileges I must, in accordance with longstanding and unvarying practice, apply the following definition of "periodical" contained in Houghton v. Payne , 194 U.S. 88, 97 (1904):
"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."
2. Applying the foregoing definition, I conclude that the publication is not a periodical thereunder for the following reasons:
a. Although most issues of the publication contain some variety of articles by different authors, several issues simply repeat these articles, almost verbatim. See Findings of Fact Nos. 7 and 8, above. Such repetition, as is found to predominate in issues of the publication relating to the same school, college or programs of the university, results in lack of the required characteristic of originality. See Purdue University , P.S. Docket No. 3/192 (Init. Dec., Dec. 5, 1975).
b. The publication lacks the required characteristic of incompleteness of each issue in itself because each issue is essentially complete in itself, being an update of preceding issues relating to the same school, college, or programs and containing all information required by the average user without reference to such preceding issues. See Phyllis Johnson , P.O.D. Docket No. 3/59 (Postal Service Dec., August 20, 1971).
c. Although many issues contain incidental references to issues relating to other branches of the university, each issue is devoted predominately to the branch to which it relates. Consequently, the publication lacks the required characteristic of continuity of literary character. See The American University , P.S. Docket No. 4/7 (Init. Dec., Sept. 25, 1975). The quotations in petitioner's written argument taken from American Chemical Society , P.S. Docket No. 3/59 (Init. Dec., Oct. 6, 1975) concerning incompleteness and continuity were clearly dicta and preceded by explicit statement by the author as to lack of freedom from doubt. The decision adverse to petitioner in that matter was based on lack of a variety of original article content. Petitioner's quotation from Florists' Transworld Delivery Assoc. , P.S. Docket No. 1/167 as to apparent repetitiveness of content not precluding a publication from being considered a periodical is taken from the original Postal Service Decision (May 24, 1974), not from the Amended Postal Service Decision (Sept. 12, 1974) ( aff'd sub nomine Teleflora, Inc. v. USPS , U.S.D.C., D.C., Civil Action No. 75-228 June 25, 1975), which was adverse to petitioner in that matter. The content of that quotation is at variance with the consistently opposite position with reference to repetition taken in the vast majority of decisions in which that characteristic has been determinative.
3. As recognized by petitioner, administrative decisions on second-class mail privileges for college and university publications have consistently rejected the argument it makes that under former 4355 of Title 39 U.S.C. publications published by a regularly incorporated institution of learning are entitled to second-class mail privileges whether or not they meet the definition of "periodical." See, e.g. , Purdue University , P.S. Docket No. 3/192 (Init. Dec., Dec. 5, 1975); Tennessee Technological University , P.S. Docket No. 4/17 (Init. Dec., Dec. 18, 1975). Petitioner's argument does not persuade me that this position should be changed.
4. Petitioner's argument that interpretation of the term "periodical publication" according to the 1904 usage contained in Houghton v. Payne is erroneous has been rejected in administrative decisions too numerous to require citation. In accordance with this longstanding and unvarying view, I reject the argument in this case.
5. I, likewise, am unpersuaded by petitioner's argument that the failure of the Postal Service to promulgate objective standards by which a publication may be judged and that the standards employed by the Postal Service in deciding the "periodical" issue in matters of this kind are vague, and applied arbitrarily and discretionarily, effectively deprive petitioner of due process of law. A study of the numerous decisions involving that issue reveals a remarkable degree of consistency, clarity, and cohesion in the application of the Houghton v. Payne definition to a wide variety of publications.
6. Based on the foregoing findings of fact and conclusions of law, I find that petitioner is not entitled to second-class mail privileges for its publication, Syracuse .
7. The ruling of the Manager, dated March 27, 1975, to annul petitioner's second-class mail privileges for Syracuse was correct. Accordingly, petitioner's appeal from that ruling is denied. Such privileges should stand annulled.