In the Matter of the Petition by RENSSELAER POLYTECHNIC INSTITUTE Troy, New York 12181 Proposed Annulment of Second-Class Mail Privileges for "AT RENSSELAER" P.S. Docket No. 4/117 May 6, 1976 Quentin E. Grant Administrative Law Judge Pattison, Herzog, Sampson & Nichols P.C. by Gerald H. Katzman, Esq. Troy, 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 October 28, 1975 annulled, subject to the outcome of this proceeding, petitioner's second class mail privileges for its publication, At Rensselaer (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 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 August, September 1 and December 1974 and the July, August, September 1 and September 15, 1975 issues of 'At Rensselaer.'
"The August 1974 and August 1975 issues are the Freshman Catalog 1974/1975 and the Freshman Bulletin 1975/1976, respectively. These issues contain general information about Rensselaer Polytechnic Institute and information about the academic programs. These two issues are geared toward entering freshmen and are almost identical in content except that the 1975 issue contains several brief sketches about some of the faculty and students at Rensselaer which are not included in the 1974 issue.
"The September 1, 1974 issue is the 1974/1975 Catalog of Graduate and Professional Programs which contains general and academic information and regulations and graduate and professional course listings and descriptions.
"The December 1974 issue is the 150th Anniversary Issue. This issue contains a variety of articles describing how Rensselaer evolved into the technological university it is today and describing some of the plans for the school in the future.
"The July 1975 issue is the Rensselaer Alumni Bulletin which contains articles about and of interest to Alumni of Rensselaer.
"The September 1, 1975 issue is the Graduate Bulletin 1975-1976 which contains general and academic information and regulations and a description of the various graduate programs offered by Rensselaer Polytechnic Institute.
"Finally, the September 15, 1975 issue is the University Bulletin 1975-1976. This issue contains general and academic information and regulations, a description of the curriculum for each school and course listing and descriptions.
"The publications which we have reviewed are each complete in themselves betraying no need of continuation in subsequent issues and suggesting no relationship to prior issues. These are essentially separate and independent publications that would be more appropriately ascribed to the classification scheme providing for the mailing of books and printed matter.
"'At Rensselaer' is not a periodical publication within the meaning of the applicable postal regulations and is not entitled to retain second-class mail privileges. (See Northwest Missouri State University, Case P.S. Docket No. 3/42, March 6, 1975 and University of Oregon, Case P.S. Docket No. 3/110, May 6, 1975.)"
Petitioner took timely appeal from the Manager's ruling. A hearing was held on January 7, 1976 in Albany, 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 qualifications for second class mail privileges (Tr. 3).
Petitioner's arguments in opposition to the proposed annulment are, briefly, as follows:
a. The publication qualifies for second class mail privileges as the publication of a "regularly incorporated institution of learning" under former section 4355 of Title 39, U.S.C. 1/
b. The Houghton v. Payne definition of "periodical publication" does not apply to publications of educational institutions because Congress, by statute (Aug. 24, 1912, ch. 689, 1, 37 Stat. 550) enacted 8 years following that court decision, eliminated all content requirements for publications of such institutions.
c. The publication is a periodical within the meaning of former section 4355 of Title 39, U.S.C. which supplanted the requirements of section 4354 and the Houghton v. Payne definition with respect to publications of regularly incorporated institutions of learning.
d. Respondent is estopped to annul petitioner's second class mail privileges with respect to the publication because petitioner's publications have been accorded such privileges for more than 70 years and there is no clear, unambiguous statute under which respondent is acting to annul such privileges.
e. Respondent's actions in revocation of the second class mail privileges of educational institutions by ad hoc adjudication constitute a reclassification of mailable matter which may only be accomplished in accordance with sections 3621 and 3623 of Title 39, U.S.C.
f. The publication meets the Houghton v. Payne definition.
g. A ruling should be made that the "Alumni Bulletin" issues of the publication qualify as second class mail matter even though other issues may not.
1. Petitioner is a duly incorporated institution of learning, organized and existing under the laws of the State of New York.
2. As long ago as 1903, petitioner was granted second class mail privileges for its publications by the United States Post Office Department (Tr. 49).
3. Under date of October 28, 1975 petitioner was notified by the Manager of the proposed annulment of second class mail privileges for its publication, At Rensselaer . The present proceeding, timely initiated by petitioner, ensued.
4. There were received in evidence the following issues of the publication:
Volume 74
No. 1 February 1974 Winter 1973
No. 2 August 1974 Freshman Catalog
No. 3 September 1974 Graduate and Professional
Programs 1974-1975
No. 4 September 1974 Undergraduate Programs 1974-1975
No. 5 December 1974 150th Anniversary Issue
Volume 75
No. 8 October 1975 The Rensselaer Alumni Bulletin,
Summer at RPI
No. 9 November 1975 Summer at RPI
Volume 76
No. 1 July 1975 The Rensselaer Alumni Bulletin
No. 2 August 1975 Freshman Bulletin 1975-1976
No. 3 September 1975 Graduate Bulletin 1975-1976
No. 4 September 1975 University Bulletin 1975-1976
5. The issues of the publication vary substantially in number of pages, ranging from 12 pages (Vol. 75, No. 9) to 256 (Vol. 76, No. 4). They also vary widely in size. Sizes range from 5 7/8" x 8 7/8" (R-15, R-16), 8" x 9" (R-7, R-14), 7" x 10" (R-8, R-9) to 8 1/2" x 11" (R-6, R-10, R-11, R-12). There are also large differences in format.
6. Difference in content from issue to issue is substantial. For instance, "Winter 1973" (R-6) in its 16 pages contains simply eight articles describing, variously, new campus buildings, campus activities and programs, community and campus common concerns, etc. "Freshman Catalog 1974/1975" (R-7) contains 48 pages of general information directed, as the title implies, to freshmen, describing the university's location, its degree programs, its five schools, campus life, admission requirements, and various methods of financing an education at the university. It also contains in the left hand margins of some pages quoted student and faculty comments concerning the university. "Freshman Bulletin 1975/1976" (R-14) has content almost identical with "Freshman Catalog 1974/1975" (R-7) save for a minor amount of updating, some changes in photographs and the student and faculty comments in the margins. "Undergraduate Programs 1974-1975" (R-9) in 132 pages, contains general information concerning the university ( e.g. , academic calendar 1974/1975, degree programs, student life, tuition and fees, financial aid, academic standards and regulations), description of undergraduate programs in the various schools, course descriptions and lists of trustees, emeriti, and prizes. "Graduate and Professional Programs 1974-1975" (R-8) contains general information concerning the university, much of it identical with that contained in the undergraduate issue covering the same period (R-9, described immediately above), graduate program descriptions covering the various schools and course descriptions.
"University Bulletin 1975-1976" (R-16) in its 256 pages contains general information concerning the university much the same as, and some of it identical to, that contained in Exhibits R-8 and R-9, described above, a brief description of undergraduate, professional and graduate programs, a detailed description of the undergraduate programs in the various schools, undergraduate course descriptions, and listings of administration, trustees, faculty, emeriti, and prizes.
The contents of the 224 pages of "Graduate Bulletin 1975-1976" (R-15) are of much the same nature as those of the "University Bulletin 1975-1976," but directed to graduate students and describing graduate programs and courses.
The "150th Anniversary Issue" (R-10) in its 32 pages contains excerpts from speeches given at the 150th Anniversary Convocation, excerpts from various documents contained in the university archives, and articles pertaining to the purpose, history, and programs of the five schools in the university.
The two "alumni bulletin" issues of the publication (R-11, R-13) contain articles concerning university programs and activities and alumni activities, items concerning the accomplishments, activities, etc., of individual alumni, chapter activities and class notes, all obviously directed to university alumni.
The issue entitled "Summer at RPI" (R-12) in its 11 pages repeats verbatim the articles contained in the first 11 pages of the October 1975 alumni bulletin issue.
7. Most of the issues of the publication comprising any one volume are obviously directed to different audiences or publics, to wit: prospective undergraduate students at Rensselaer (R-7, R-9, R-14), prospective graduate students (R-8, R-15), or university alumni (R-11, R-13). Thus, most of the issues of the publication are essentially complete in themselves without continuity or significant connection with other issues of the same volume.
1. Petitioner's first three legal arguments, summarized briefly above, are essentially the same, i.e. , that under former section 4355 of Title 39, U.S.C., publications of a regularly incorporated institution of learning are entitled to second class mail privileges whether or not they meet the Houghton v. Payne definition of "periodical publication" stated by the Supreme Court as follows at 194 U.S. 97:
"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."
Previous administrative decisions relating to college and university publications have considered the same arguments and have consistently rejected them on the basis that the eligibility of a publication for second class entry under 39 U.S.C. 4355 depends first on its meeting the Houghton v. Payne definition of "periodical publication", which for so long has provided the guidelines followed by the Postal Service and its predecessor, because the first three words of that statute restricts its coverage to "mailable periodical publications." See 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 that 4355 has "supplanted" 4354 is not well taken. The initial words of 4355(a) lay that argument to rest, i.e. , "Mailable periodical publications meeting the first three conditions of section 4354(a) ***" [emphasis supplied].
learly the quoted wording conveys the conjoining of 4354 with 4355, rather than its supplantation, with respect to the common "periodical publication" requirement, although the latter section has eliminated, for the institutions, agencies and organizations covered thereby, the requirement that their publications be "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or a special industry."
2. Arguments similar to those advanced by petitioner involving contemporaneous construction and estoppel based on the long period during which it has enjoyed second class mail privileges for its publications have been considered and rejected by the Supreme Court in Houghton v. Payne at p. 99 and in prior administrative decisions. See California Institute of Technology , P.S. Docket No. 3/166 (Postal Service Dec., Jan. 15, 1976) and cases cited therein. Petitioner's arguments on these points must also be rejected.
3. It was made clear in the decision in California Institute of Technology , P.S. Docket No. 3/166 (Init. Dec. July 7, 1975 at p. 16, aff'd in Postal Service Dec., Jan. 15, 1976) that this kind of proceeding is not a rate case but rather a proceeding to inquire into the proper mail classification of a publication. The initial decision in that proceeding also made it clear that the Postal Service review of bulletins and catalogs published by various colleges and universities does not constitute a restructuring of the mail classification for which other procedures are required (39 U.S.C. 3621 et seq .). Petitioner's arguments on those lines is, therefore, rejected. See also recent Postal Service decision in Pacific Union College , P.S. Docket No. 3/178, and University of Oregon , P.S. Docket No. 3/110, rejecting similar contentions.
4. Applying the Houghton v. Payne definition, in accordance with longstanding practice in proceedings of this kind, I find that the publication is not a "periodical publication" within the meaning of the applicable statutes and regulations for the following reasons:
a. Each issue of At Rensselaer does not contain a variety of original articles in that the article content is not original, the contents of some issues being practically identical with that of other issues save for a minor amount of updating, changes in photographs, and student and faculty comment in margins. See Finding of Fact No. 6, supra . Such repetition results in lack of the required characteristic of originality. See Purdue University , P.S. Docket No. 3/192 (Initial Dec., Dec. 5, 1975).
b. The publication lacks the required characteristic of incompleteness of each issue in itself because several issues are essentially complete in themselves, being updates of preceding issues and containing all information required by the average user without reference to other, or preceding issues. (Exhs. R-7, R-14 (freshman catalogs); Exhs. R-8, R-15 (graduate bulletins); Exhs. R-6, R-10; see Finding of Fact No. 6, supra )). See Phyllis Johnson , P.O.D. Docket No. 3/59 (Postal Service Dec., Aug. 20, 1971).
c. The publication, taken as a whole, lacks continuity of literary character, in that most issues are directed to different audiences or publics. See California Institute of Technology , supra , Init. Dec., p. 12; Purdue University , supra , at p. 20.
5. I must deny petitioner's request for a ruling that the alumni bulletin issues of the publication (Exhs. R-11, R-13) qualify as second class mail matter standing by themselves. The appeal here is from the Manager's ruling on the publication as a whole and my authority is limited to passing on the correctness of that ruling. A ruling on individual issues of the publication is not within the scope of the appeal. This is not to say, however, that petitioner may not attempt to make appropriate changes in an effort to bring the publication within the regulations governing entry of second class mail matter and make new application thereunder.
6. The proposed findings of fact and conclusions of law submitted by the parties have been considered and adopted to the extent indicated. Otherwise, they are denied because they are not supported by evidence, are contrary to the evidence, or because they are irrelevant or immaterial to the decision.
7. 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, At Rensselaer .
8. The ruling of the Manager, dated October 28, 1975, to annul petitioner's second class mail privileges for At Rensselaer was correct. Accordingly, petitioner's appeal from that ruling is denied. Such privileges should stand annulled.
1/ Continued in force pursuant to Section 3 of Public Law 91-375 (Postal Reorganization Act).