In the Matter of the Petition by WESTERN WASHINGTON STATE COLLEGE, 516 High Street, Bellingham, Washington 98225 Proposed Revocation of Second-Class Mail Privileges for "WESTERN WASHINGTON STATE COLLEGE BULLETIN" P.S. Docket No. 4/121 July 28, 1976 William A. Duvall Chief Administrative Law Judge Stephen G. Jamieson, Esq. Assistant Attorney General, Western Washington State College, Bellingham, Washington, for Petitioner Arpad de Kovacsy, Esq. Law Department United States Postal Service Washington, D.C., for Respondent Before : William A. Duvall, Chief Administrative Law Judge
1/ On or about October 28, 1975, the United States Postal Service, the Respondent in this proceeding, acting through the Manager of the Mail Classification Division of the Finance Department, advised Western Washington State College, the Petitioner, that the second-class mail privileges theretofore in effect with respect to Western Washington State College Bulletin were to be revoked, subject to the outcome of a proceeding such as the present one.
A timely appeal was taken by the Petitioner from the ruling of the Respondent and in due course this matter came on for hearing.
The reasons for the action taken by the Respondent are stated as follows from Respondent's Exhibit 8:
"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 January, March, July and October 1974 issues of 'Western Washington State College Bulletin'.
"The January 1974 issue contains general information such as the history and development of the college, graduate studies, master's degree programs and specializations, and application procedures.
"The March 1974 issue contains general and academic information including course descriptions and listings, and a schedule of courses for the summer session '74.
"The July 1974 issue is designated on the front as the 'General Catalog 1974/1975' and contains general information about the college as well as information concerning admission, registration, finances, housing and student services. The major portion is devoted to describing the course requirements and listing the courses offered for the various academic and professional programs during the 1974-1975 year at Western Washington State College.
"The October 1974 issue contains general information about the State College for prospective students such as academic programs, costs and financial aid, a directory of campus offices and activities, student service groups, and living accommodations on and off campus.
"Each of the publications which we have reviewed is complete in itself betraying no need of continuation in subsequent issues and suggesting no relation to prior issues. These are each essentially separate and independent annual publications that would be more appropriately ascribed to the third-class of mail.
"'Western Washington State College Bulletin' 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.)"
At the outset of this proceeding it was stipulated that the Petitioner's publication meets the formal requirements set forth in subparagraphs 1 through 5 of Section 4354(a) of Title 39, United States Code. Therefore, the basic issue in this proceeding is whether the Western Washington State College Bulletin is a periodical publication within the meaning of Section 4351 and 4354 of Title 39, United States Code, and Section 132.211 of the Postal Service Manual, as those provisions of law and regulations have been applied in second-class proceedings or as they properly should be applied.
The basic criteria that are followed in determining whether a publication is a "periodical publication," as that phrase is used in the pertinent laws and regulations, are set forth in the decision of Houghton v. Payne , reported at 194 U.S. 88, at page 97, where the Court said:
"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."
In order to determine whether the publication under consideration in this proceeding measures up to those criteria, it is necessary to examine the various issues of the publication of which nine were introduced into evidence. These exhibits will not be considered in the order in which they were introduced but they will be considered in the way they logically may be grouped together for purposes of this proceeding.
The first two to be considered are the Graduate Bulletins, respectively, for the years 1974 and 1976, which are Respondent's Exhibits 9-B and 9-H. The first 24 to 26 pages of these publications contain matter of general information about the college for the benefit of persons who are interested in enrolling in the graduate school, or who just want general information about the graduate school. These pages contain what reasonably may be considered to be articles within the meaning of Houghton v. Payne . But they may not be considered to be original articles because there is so much repetition and the repetition, at times, is verbatim repetition and, at other times, it is repetition of substance with slight changes made to update the language in the preceding issue.
For example, in the earlier issue it is indicated that the library contains approximately 400,000 volumes and in the later edition the library is reported to contain about 600,000 volumes. Also such things as fees for different courses and fees for different services, such as rental of housing facilities, are changed to indicate the changes that are made in those amounts of money. But in the main, the material that appears in these articles can only be classified as repetition and, therefore, it loses whatever claim it might have had for originality.
Next, there follows a section in which the different departments of the school are identified and the requirements for obtaining a Master's degree are set forth. At the head of most, if not all, of the departments there is a narrative account of the nature of the department. Again, this material, if considered alone, could be classified as articles. But, on the other hand, there is much repetition of the type previously described that is found also even in these short resumes of the different departments that are found at the head of the different sections. Other than those descriptions, this portion of these publications consists of a listing of courses by number and name and, in most instances, there would also be a course description.
Counsel for the Respondent has stated, if I understand him correctly, that it has been held that a course description, simply by virtue of the fact that it is a course description, may not be regarded as an article. That has not been my understanding. A course description could be written, in my opinion, so that it could be an article. It could be an original article. But in the form in which it has been found to date in publications of the type that are under investigation, they are not so written as to be articles. It is my impression that it was not intended to state that nothing in the future could be written which is a course description and which is at the same time an article. I do not think anybody could provide such a proscription as that. This section of the publication consumes the greatest portion of it by volume. These Exhibits 9-B and 9-H, conclude with lists of names of various people connected with the institution such as the Graduate Council, the Graduate Council Sub-committees, the Board of Trustees, Officers of the College Administration, Department Chairmen, Master's Degree Program and Specialization Advisors and so forth.
The next issues to be considered are Respondent's Exhibits 9-C and 9-I. These are the Summer bulletins for the respective years 1974 and 1976. In these bulletins, too, the first 10 to 12 pages are made up of narrative type insertions which could be considered as articles. Following this introductory material one moves into the different disciplines such as chemistry, economics, education and so forth where, again, there are found the lists of courses and the course descriptions. The lists are not articles and it is difficult to perceive how just a list, if it is nothing more than a list, can be so prepared as to comprise an article. There are course descriptions in this section of both of these publications and, again, as they appear in these publications, these course descriptions cannot reasonably be held to be articles.
There are some pieces in the back of each publication which are very short but I think that they could be considered to be articles. They are under different headings of types of studies, but these articles, if they are such, and the publisher is entitled to the benefit of the doubt, do not by any means comprise the dominant characteristic of these publications. They are in the distinct minority of the contents of these publications.
These publications also include at the end, in the last few pages, applications for enrollment as a summer student and different kinds of forms to be filled out by the applicant.
We turn now to Respondent's Exhibits 9-D and 9-F, which, respectively, are the undergraduate bulletins for the years 1974-1975 and 1975-1977, and are identified by the title "General Catalog." In these publications there is a larger portion, numerically speaking, of pages which contain material that could, and should, be regarded as articles. These are about the first 51 or 53 pages, something of that order, but that is out of a total of some 350 pages. Again, there are articles that are repeated practically word for word, with such updated insertions as are necessary to make them currently descriptive and applicable.
It is noted that in this group of publications some of the same photographic material is used in some of the same places. For example, opposite page 7 in both publications there is the photograph of the same people and this is followed by textual material which appears to be word for word the same in both publications. This does not run throughout the entire remainder, but for the next page or two, that photograph is followed by the same language. Sometimes the same information appears but at a slightly different place. A paragraph may be removed from one section and put in a different section than it appeared in the earlier publication. But, generally speaking, the same information is there and, most frequently, it is in the same words.
The format follows that of other issues and the different courses that one may pursue are next outlined in the publication. There is a short article that gives a description of the nature of the departments such as, for example, the art department. In many instances, these short articles are repeated with such updating as may be necessary. This follows for a large number of pages, taking up practically the remainder of the publication. In Exhibit 9-D it runs to page 329 and on that page there begins the listing of the college personnel, including the trustees, officers of administration, faculty members and so forth. The concluding piece in each publication is the presentation of the student rights and responsibilities. These are stated in practically the same language, if not exactly the same, with some amendments as have been adopted by the institution from time to time.
The only other group of publications consists of Respondent's Exhibits 9-A, 9-E and 9-G. Exhibit 9-A bears a different title, although it is identified as Western Washington State College Bulletin, but it is called the "Navigator." The other two publications are referred to on their cover as "A Student's Guide to Western." Exhibit 9-A was published in October 1973. Exhibit 9-E is for the year 1974-75, and Exhibit 9-G is for the year 1975-76.
Exhibits 9-A and 9-E are very, very much alike. They are comprised of material that could be considered articles and they are found to contain interesting reading about the college and its location, some of the facilities that are available, and services that are made available to the students. But these two publications are very, very much alike. The latter one is based on the earlier one, but the third one in this series, Respondent's Exhibit 9-G, gives evidence of editorial judgment and activity that has taken place with respect to this publication. There is some repetition but there is not so much, and this fact indicates that it has been reworked. Basically the same information is conveyed but it is conveyed in somewhat slightly different language.
The problem is to keep in mind these characteristics of these publications and to measure them against the definition established in the Houghton v. Payne case. From what has been said, it is obvious that these publications, viewed as a whole, do not consist of a variety of original articles by different authors. They consist primarily of duplicated and replicated material and there can be no legitimate claim made that these publications do consist of or contain primarily a variety of original articles by different authors. Counsel for the Petitioner, in his very forthright and able argument, indicated that that was the primary problem confronted in this proceeding by the Petitioner, and that is quite true. And because of the characteristics of the publication under consideration here, it is found that Western Washington State College Bulletin is not a periodical publication within the meaning of applicable Postal Service laws and regulations.
To be addressed next is the question of the completeness of the issues. These issues divide themselves into four categories: the undergraduate catalog; the summer catalog; the graduate catalog and the Navigator or Student Guide to Western. Each of these categories states information which is pertinent to the period of time for which it is published. There are incidental references by which people who are interested in graduate programs are referred at times in the undergraduate catalog to the graduate catalog. Some of those were noted for the record, and there may be others, but they form such a very small portion of the information contained in these publications that it is not reasonable to say that there is a close relationship between the various issues of the series. The fact that by their title they suggest that they are related to Western Washington State College in some way is not, and does not suggest, that kind of continuity which the Court in the Houghton case was talking about. Nor do I think that there are other characteristics of these publications which convey that kind of continuity. Each issue contains all of the information that is necessary for an individual who is interested in the college for a particular time. Even those cross-references, which are few in number and brief in volume, lend an air of completeness, because if the information is not in the issues at hand, the reader is told where to go in those rare instances for some other information in which he might be interested. The crux of the situation is that the complete information or, in a very few instances, the key to the information is contained in these various issues so that for practical purposes each issue may be said to be complete in itself and to betray no continuity with other issues in the series.
Counsel for the Petitioner raised a number of points in his argument to which attention will now be directed. A number of arguments were directed at the Houghton v. Payne definition, one of which was that the Supreme Court exceeded the bounds of judicial propriety when it announced its definition in that the Court went beyond the requirements which the Congress had enacted in the legislation which was then under consideration by the Court. But the Court expressed itself on this point when it said that the section which was particularly under consideration, that was Section 14 of the Act of 1879, included the term "periodical" but that the Congress did not define that term.
It was incumbent upon some authoritative source to define the term "periodical" in order that the administrative people in the Postal Service would know what should be accorded second-class mail privileges. Since the Congress did not provide such a definition, I can think of no higher or greater authority than the Supreme Court of the United States to perform that function, and it did so as previously indicated. Without such a definition, the enforcement, or the application and administration of the laws related to second-class mail matter would be absolute chaos because everything that is published with any degree of regularity would be claimed by its publisher to be a periodical publication entitled to be deposited in the mails upon the payment of second-class postage rates. There are many such claims made today.
Counsel for the Petitioner has urged that the decision of the Supreme Court in Houghton v. Payne , insofar as it applies a definition of the term periodical publication, be reversed. That is an assignment which I shall not undertake.
Counsel for the Petitioner said that it was improper for the Postal Service to undertake to revoke the mail privileges of this Petitioner after they had been in existence for such a long period of time. This, also, is a position taken by many publishers in these and other cases. The Petitioner has insisted that the Postal Service is estopped from proceeding as proposed here. The doctrine of estoppel is not applicable in this situation because it has been pointed out that an essential ingredient of estoppel is detrimental reliance by the persons seeking to invoke that doctrine. The fact that the educational institution has mailed its publications at second-class mail rates for the period of time this Petitioner has done so certainly precludes any claim of detrimental reliance, for there has been beneficial reliance for this period of time. It has been held that even if detrimental reliance can be shown the doctrine of equitable estoppel does not prevent an agency from changing its position to correct an error of law. Bornstein v. United States , 345 F.2d 558, 563; Automobile Club of Michigan v. Commissioner of Internal Revenue , 353 U.S. 180. In the Houghton case, that same claim was made by the publishers and the Supreme Court was not impressed. At one point the Court said: "A custom of the department however long continued by successive officers must yield to the positive language of the statute."
The Court had another opportunity to look at Houghton v. Payne - it has had several opportunities as a matter of fact - but twelve years after the Houghton case, it had an opportunity in the case of Smith v. Hitchcock , reported at 226 U.S. 53. It was stated in the majority decision in that case, which was written by Mr. Justice Holmes, that the parties tried to reargue the Houghton case, among some others upon which the Court relied, and the Court said in that case at page 58: "Some attempt was made to reargue the law of the decisions just cited, but we do not feel called upon to reopen the discussion in that part of the appellants' brief."
The Petitioner asserted that the Houghton case was different from the present case in that the Supreme Court was then considering a book. That fact is not the important feature in that case. The important fact is that the Court was construing a provision of law which is very similar to the provision of law presently in effect. In connection with that function, the Court did see the need for the definition of the term periodical publication, and it did provide that definition. That definition is applicable today and it is important today and essential today, or at least some definition is. Until there is a different definition issued by legally competent authority, the Houghton definition is the one that will have to continue to be applied.
The Petitioner's counsel made the assertion that there are other publications which do not meet the test of being comprises of a variety of original articles by different authors. That statement is undoubtedly true. There are approximately 33,000 second-class mail permits now in existence and among that vast number, there must be some who hold the permit who are not entitled to do it. But it is a matter of record, in other cases of which I think official notice may certainly be taken, that there is in progress a continuing review of second-class mail permits. There come to the attention of the people in the Classification Division of the Postal Service different instances in which certain particular publishers want to change frequency of publication, or their locations or other matters which require that they reapply, and in the course of acting on these application, the character of the publication again comes under scrutiny. As time is available, therefore, effort is being made to bring the publications that are now being published into conformance with the requirements of the laws and regulations governing second-class mail eligibility. Whether 100 per cent compliance will ever be achieved is unknown, but it would appear to be a matter that is at least quite far into the future. That likelihood does not preclude the efforts of the Postal Service to do what it can to see to it that only those publishers whose publications are fully qualified are granted second-class mailing privileges. Any other course of conduct would be discriminatory and improper.
Proposed findings of fact and conclusions of law and supportive arguments were presented by counsel for the parties. To the extent indicated, these proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are contrary to or unsupported by the evidence or because they are immaterial.
Based upon the entire record in this proceeding, it is concluded that the Western Washington State College Bulletin is not a periodical publication within the meaning of Sections 4351 and 4354 of Title 39, United States Code, and within the meaning of applicable Postal regulations. It follows that the decision of the Respondent to revoke the second-class mail privileges theretofore in effect with respect to that publication was correct and that decision is sustained.