In the Matter of the Petition by SEATTLE UNIVERSITY, Seattle, Washington 98122, Proposed Annulment of Second-Class Mail Privileges for "SEATTLE UNIVERSITY BULLETIN OF INFORMATION" P.S. Docket NO. 4/125 July 28, 1976 William A. Duvall Chief Administrative Law Judge Robert J. Walerius, Esq. Moriarty, Long, Mikkelborg & Broz, 3300 Seattle-First National Bank Building, Seattle, 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 November 11, 1975, the Postal Service, the Respondent in this proceeding, acting through the Manager of the Mail Classification Division of the Finance Department, advised Seattle University, the Petitioner in this proceeding, that the Seattle University Bulletin of Information was regarded as no longer being eligible to be mailed at second-class postage rates and that, therefore, it was proposed to revoke the second-class mail privileges which theretofore had been in effect in respect to this publication.
A timely appeal was filed, and in due course this matter came on for hearing.
The reasons why the Respondent initiated the action which it has taken in this case are set forth in the attachment to Respondent's Exhibit 5, which is a copy of the letter containing a notice of proposed revocation, which letter has already been identified as being dated November 11, 1975. The attachment to Respondent's Exhibit 5 is attached to this decision as Appendix A.
The issue in this proceeding is substantially as stated by the Petitioner in its brief as follows: Is Petitioner's Bulletin of Information a periodical publication eligible for second-class mail rates within the meaning of pertinent Postal laws and regulations?
In Section 4354, Title 39, of the United States Code and in Section 132.211 of the regulations found in the Postal Service Manual, it is provided in substance that only newspapers and other periodical publications are eligible for second-class mail entry. That requires a determination as to what a periodical publication is. The Supreme Court in the case of Houghton v. Payne , 194 U.S. 88, formulated a definition which reads as follows:
"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."
his paragraph continues but that is enough for the purposes of this proceeding.
The Petitioner's case in its principal thrust consists of an attack upon this definition. The Petitioner presented as a witness a professor from the University of Seattle who is a specialist and an expert in the field of the English language. This expert testified that there is a certain flexibility and changeability that is inherent in the English language and that because of the metamorphosis that has occurred in the language the Houghton definition is no longer valid. I have great admiration and respect for the witness whose testimony was heard on this subject. Her discussion was interesting, it was enlightening, and it was erudite. But the fact of the matter is that it is the Supreme Court of the United States whose rulings are binding upon the Postal Service in matters of this kind. Until or unless there is a change in the definition as expressed in the Houghton case, it is likely that that definition will be followed by the Postal Service in making determinations of eligibility for second-class mail status.
It is now necessary to give consideration to the publication which comprises the Bulletin of Information of the Seattle University. These Bulletins are listed as follows in the order they were received in evidence by the various exhibit numbers. Unless otherwise indicated, all exhibits referred to are Respondent's Exhibits. Six-A, is the Class Schedule for the Fall Quarter of 1974; 6-B, is the Class Schedule for the Spring Quarter of 1976; 6-C, is Seattle University Bulletin of Information for the Winter issue of 1976; 6-D, is the Bulletin for the Summer Session of 1974; 6-E, is the Bulletin of Information for the Summer Session of 1975; 6-F, is the Bulletin of Information for the year 1973-74; 6-G, is the Bulletin of Information for the year 1974-75; 6-H, is the Bulletin of Information for the year 1975-76; and 6-I, is the Bulletin of Information for the period 1976-77. Reviewing these exhibits it is found that Exhibit 6-A and 6-B consist of approximately 21 or 22 pages. Of these pages, only four in Exhibit 6-A and only six in Exhibit 6-B are comprised of material which could be called articles. This fact means that the bulk of the publications, varying from 18 to 16 pages, respectively, in these exhibits consist of material that in no way reasonably could be regarded as an article. It simply is a listing of different courses, giving the course number, the section number, a one or two word description of the course, the number of hours of credit, the times a day when the courses are given, the days of the week on which they are given, the instructor by whom the subject is taught, the room in which the class is held, and occasional remarks. These are presented in tabular form and under no reasonable interpretation of the word article could this material be considered an article.
Exhibit 6-C is a general description of Seattle University, and, if it were one of a series of similar publications, it would appear to me that there would be no difficulty in recognizing this as a periodical publication. Standing alone as it does, however, it cannot be so regarded. Exhibits 6-D and 6-E are the Summer Session catalogs and the page sizes are larger than in Exhibit 6-A and 6-B, but the format is substantially the same. A few pages of material could be regarded as articles in the first 5 or 6 pages of the publication, but the remaining 15 or 16 pages, clearly the dominant part of the issues, are comprises of lists of courses, again giving the field of study, the course number, subject and so forth, presented in tabular form. In a number of cases similar to this one this type of material consistently has been held to be material other than articles.
The last group of issues of this publication is comprised of Exhibits 6-F, G, H, and I. These may be considered together. The same general format has been followed in these publications as was used in the other issues, but the various sections have been expanded. To illustrate, the portion of the publication containing general information consists now of approximately 30 or 32 pages, and then for the next 100 or so pages there are the course listings. Interspersed with these course listings is some narrative descriptive material with respect to the different schools or colleges of the University, and within those divisions there are subdivisions with respect to different departments in a school or college. These narrative expositions are of a very, very brief, abbreviated nature. By far the vast majority of the pages in this section are composed of the names of the different courses of study and short, abbreviated course descriptions. In the form in which they are presented in this publication these course descriptions do not constitute articles. These exhibits conclude with a statement about the graduate school which contains the material that properly should be regarded as articles. Finally, there are lists of the Board of Trustees and the Officers of the Administration of the University, the faculty members, the Index, instructions as to where to write for additional information, and a guide showing the map of the campus, with various buildings located by number.
The material in these publications which has been identified as being capable of recognition as articles has a flaw with respect to it in that there is much, much repetition - a large portion of it being verbatim repetition. Where there is not verbatim repetition there may be, for example, the addition of a new paragraph, or a new course, or the name of a new faculty member, or there may be the correction or change in the course number; there may be the deletion of a course, there may be a change to indicate an increase of certain fees that are paid for the registration, or for housing; but, in the main the materials that appear in these publications as articles can lay no legitimate claim to being "a variety of original articles."
Other criticisms have been directed toward the Houghton decision by the Petitioner in this case and in other cases and these criticisms will be considered one by one. The Petitioner said that in the Houghton case the Court found that the term "periodical" means magazine. My careful reading of this case fails to lead me to that conclusion. What the Court actually said, and this is a quotation from page 96 of the decision, supra , is as follows: "By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.'" As I read this statement the Court did not say that periodicals means magazines. The Court said that magazines are illustrative of the type of material that can be classified as periodicals.
The Petitioner asserted that the Court held that the term periodical should be given its ordinary meaning. On this subject the Court had this to say:
"Under section 10 the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term. A periodical is defined by Webster as 'a magazine or other publication which appears at stated or regular intervals,' and by the Century Dictionary as 'a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself.'"
espite the fact that the Court refers to these definitions, and to two separate dictionaries, the Court found it necessary itself to provide a definition of the term "periodical publication" and it is the Court's definition that is relied upon in this proceeding.
The Petitioner said that the Court in the Houghton case was dealing with a publication that was a book and which was not comparable to the publication that is under consideration in this case. That is quite true but that fact is not controlling in this situation. What is important in the Houghton case is the fact that the Court was at that time construing a provision of law which is very similar to the provisions of law found in 39 U. S. Code 4351 and 4354. In construing that provision the Court found it necessary to, and did, formulate a definition of the term "periodical publication."
The Petitioner relies upon Smith v. Hitchcock , 226 U.S. 53, in some way which I do not fully understand, to indicate that the Court in the Hitchcock case, which was decided some twelve years after the Houghton case, had a view that was at variance with the view expressed by the Court in the Houghton case.
In Hitchcock it was Mr. Justice Holmes who wrote the decision of the Court. In that case the moving party sought to attack the Houghton decision and wanted to reargue that matter. However, at 226 U.S. 58, Mr. Justice Holmes, referring to Houghton , and other cases, made this remark: "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 opportunity obviously was presented to the Court in the Hitchcock case to modify or alter the Houghton case but, being fully aware of that opportunity as indicated by this language, the Court elected not to do so.
Finally, the Petitioner took the position that the Court in Houghton acknowledged that other nondescript publications were periodicals within the meaning of the law then under consideration. The Postal Service for some time has taken a different view of this particular matter than that expressed by the Petitioner. The Court, again on page 96 of 194 U.S. Reports and going over to page 97, said: "A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals and entitled to the privileges of second class mail matter. Payne v. Railway Pub. Co. , 20 D. C. App. 581." This statement is the direct antithesis of recognizing that railway guides are periodicals. The Court described the railway guide as a "nondescript publication" which it said had been treated as if it were a periodical. The Court recognized that this was a definitely discrete publication which was at that time one of a kind, and it appears to remain so today in this respect, with the exception of the bus guide which also has been granted second-class mail eligibility.
Recalling the descriptions of the publications that are under consideration in this proceeding, and measuring those publications against the criteria set forth in the Houghton case, it is obvious that because of the lack of a variety of original articles by different authors, the publications are not, and cannot be, regarded as periodical publications within the meaning of the governing statutes and regulations.
Proposed findings of fact, conclusions of law and supporting arguments have been presented by counsel for both parties. To the extent indicated herein those 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 of record in this proceeding or because of their immateriality.
Based on the entire record in this proceeding, the decision of the Respondent to revoke second-class mail privileges previously in effect for the Seattle University Bulletin of Information was correct, and that decision is sustained.