In the Matter of the Petition by THE CURATORS OF THE UNIVERSITY OF MISSOURI, University Hall, Columbia, Missouri 65201 Proposed Revocation of the Second-Class Mail Privileges for "HEALTH PROFESSIONS" P.S. Docket No. 4/138 August 30, 1976 Rudolf Sobernheim Administrative Law Judge APPEARANCES: Jackson A. Wright, Esq. Marvin E. Wright, Esq. James S. Newberry, Esq. Richard S. Paden, Esq. General Counsel 227 University Hall Columbia, Missouri 65201 for Petitioner Grayson M. Poats, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Respondent
This is a proceeding initiated by petitioner pursuant to 39 CFR Part 954 to contest the ruling of respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter referred to as the "Manager") which on 10 December 1975 annulled, subject to the outcome of this proceeding, petitioner's second-class mail privileges in respect of "HEALTH PROFESSIONS" (hereinafter sometimes referred to as petitioner's or as the "publication").
The reasons for his ruling were stated by the Manager as follows (Ltr dtd 10 Dec. 1975, Att'mt to Pet'n):
"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 December 10, 1974, February 11 and 21, 1975 and April 1, 9, 11 and 17, 1975 issues of 'Health Professions.' Each issue contains information about a different seminar offered by the University of Missouri - Columbia Medical Center Office of Continuing Education and Extension including a seminar outline, registration information, a registration form, a faculty listing and a statement of the purpose or objectives of the seminar.
The issues do not contain a variety of original articles by different authors, but are rather devoted entirely to presenting the program and other pertinent information for each seminar.
There is no continuity between the issues which we have reviewed and each one is complete in itself.
'Health Professions' is not a periodical publication within the meaning of the applicable postal regulations and is not entitled to retain second-class mail privileges. (See New York University Continuing Education, Case P.S. Docket No. 4/19, December 2, 1975.)"
The petition appealing the Manager's ruling was filed on 29 December 1975 and thereafter by agreement of the parties the place of hearing was ordered moved from Postal Service Headquarters in Washington, D.C., to St. Louis, MO. In turn, respondent was authorized to present the testimony of its witness, the cognizant mail classification specialist, in written form. Interrogatories were propounded to her by petitioner and were answered by her. At the hearing petitioner presented testimonial and documentary evidence, including volumes VI (1973-1974) and VII (1974-1975) of its publication. After the hearing both parties filed briefs and petitioner also presented proposed findings of fact and conclusions of law.
1. The University of Missouri (hereinafter referred to as the "University") is a state institution of learning and established as an institution of higher education under the Constitution and laws of the State of Missouri.
2. Since 1968 the University's Columbia Medical Center through its Office of Continuing Education and Extension has published HEALTH PROFESSIONS, at first 24 times annually, in 1973-1974 57 times (Pet. Ex. 2) and currently 55 times per year (Pet. Ex. 3).
3. Petitioner was granted second-class mail privileges for the publication in 1968 after certain technical problems were worked out between the parties (Pet. Ex. 4; T 23). The problems which then existed are not involved in the current proceeding.
4. The second-class mail status of petitioner's publication was questioned early in 1975 when petitioner filed an application for re-entry to change the frequency of the publication's issues to 55 times per year (Test. Beller, p. 6). Ultimately, the challenged ruling was issued.
5. The fifty-five issues of volume VII (1974-1975) of the publication consist but for two exceptions each of a single sheet, 8-1/2 by 14-1/2 inches in size, folded so as to form four panels (T 24) on each side, all or most of which are used.
a. The front panel bears the title of the workshop, conference, seminar or other activity being announced. The back panel bears the required second-class mail imprints, the identification of the sender and the name and address of the recipient.
b. The inside panels announce the purpose and objective of the activity, general information, the schedule, identity and background of the lecturers and a registration blank. The make-up of the announcements varies imaginatively in color and design and different points may receive greater prominence in particular announcements as the editors may consider useful.
c. Two of the 55 issues depart from the foregoing model in outward appearance. Each consists of two sheets, 8-1/2 by 11 inches in sizes, folded once and stapled together in the centerfold. Contentwise, both are within the parameters of the publication.
d. All the events announced in the issues of HEALTH PROFESSIONS are of a professional character and intended to offer health professionals, including physicians, opportunities to become acquainted with the latest advances and information in their fields of practice through programs developed by the University's Medical Center and presented through it to them (T 22).
6. Examples of early issues of the publication (Pet. Ex. 5 to 7) and volume VI (1973-1974) (Pet. Ex. 2) establish that the character of the publication has not changed and that volume VII, analyzed in Findings of Fact No. 7, is representative of the publication.
7. The events announced in the publication are generally announced four to six weeks in advance (T 26).
8. The events are addressed to a great variety of health interests and the number of announcements (issues) mailed (see Pet. Ex. 8) may run from as low as 94 for the 16th Annual Convention of the Missouri Speech and Hearing Association (Pet. Ex. 3, vol. VII, No. 44) to 30,827 for a two-day symposium on Sex & Society, held at the Medical Center in Columbia itself ( id ., No. 41). But an announcement of a seminar on metric measuring was also mailed out in a large number of copies ( id ., No. 51).
8. The publication has standard mailing lists for all issues, such as all hospitals and continuing education specialists in Missouri (T 24), and mailing lists of persons interested in particular fields (T 25).
9. Revocation of petitioner's second-class mail privileges for the publication would increase its cost (see Pet. Ex. 8) and slower third-class delivery would require earlier mailing of the individual issues of the publication so that the events would still be announced four to six weeks in advance (T 26).
10. Based on the foregoing detailed findings of fact and the record as a whole I find:
a. Each issue (announcement) is a separate and complete publication by itself, without continuity with prior or subsequent issues. Continuity is not established by the sole fact that all announced events represent activities of petitioner's Medical Center and its Office of Continuing Education and Extension.
b. The contents of the announcements are not articles as the term is commonly understood, except possibly for some of the statements of purpose and objective. These do not, however, lift the issues in which they appear out of the category of flyers announcing a particular event weeks in advance of its planned date. They do not convert the flyers into a single periodical.
c. The issues of the publication, each announcing a separate event, do not become a single periodical publication by virtue of being labelled by the name of "HEALTH PROFESSIONS" and numbered consecutively on an annual basis as issues thereof.
1. In order to be mailable as second-class matter a publication must meet the specific requirements set forth in section 132.2 of the Postal Service Manual (PSM) (39 CFR sec. 132.2) and must meet the test of what is a "periodical publication" laid down in Houghton v. Payne , 194 U.S. 88 (1904). A reading of that Supreme Court decision plainly shows that compliance with the technical provisions of the then-existing statute, now set forth in the PSM and the Code of Federal Regulations (CFR), by itself is not sufficient to permit mailing of a publication at second-class postage rates. To the extent that common linguistic usage is broader than the Houghton v. Payne definition or regulation requirements, the narrower judicial and regulatory language must and does prevail.
2. No valid distinction in the application of the Houghton v. Payne test exists between those periodical publications "[p]ublished by a regularly established state institution of learning supported in whole or in part by public taxation" (PSM 132.231a) and those published by publishers not mentioned in PSM 132.231. All must meet this test unless specifically exempted therefrom which is not the instant case.
3. There is likewise no distinction in the applicability of Houghton v. Payne , supra , between periodical publications the purpose of which is the dissemination of information of a public character and those devoted to literature, the sciences, art or some special industry. See PSM 132.224. The use of the disjunctive "or" in that section differentiates dissemination of information of a public character as the purpose of a publication mailable as second-class matter from devotion to literature, science, the arts or a special industry as another legitimate purpose of such publications. But nothing in that section indicates an intent of differentiating between publications of either character as to the requirements which they must meet.
4. All of the foregoing is well established. See Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974); Florists' Transworld Delivery Association (FTD) , P.S. Docket No. 1/167 (1974) (Amended Postal Service Decision). It has also recently again found the approval in the federal courts. FTD was treated with approval in Teleflora, Inc. v. U.S. Postal Service , U.S.D.C., D.C., Civ. Action No. 75-228 (1975) (summary judgment dismissing the complaint in a case paralleling FTD ) and the interpretation given Houghton v. Payne , supra , by the administrative decisions of the Postal Service was upheld in Institute for Scientific Information, Inc. v. U.S. Postal Service , U.S.D.C., E.D. Pa, No. 75-3528 (1976). Hannegan v. Esquire Magazine , 327 U.S. 146 (1946), cited by petitioner (Br. p. 5), dealt with the use of postal powers to effect censorship and has no application here.
5. There is nothing in earlier legislative history (Pet. Ex. 1) which changes any of the foregoing conclusions. The document proffered, moreover, antedates Houghton v. Payne , supra , by 16 years.
6. Minimal "article"-type content in a publication does not satisfy the Houghton v. Payne test. Mailability as second-class matter is determined by the character of the entire publication. William R. Good, Jr. , P.S. Docket No. 2/123 (1975); National Automobile Dealers Used Car Guide Company , P.S. Docket No. 2/183 (1975).
7. The application of the foregoing rules to college and university publications is firmly established. Northwest Missouri State University , P.S. Docket No. 3/42 (1975); The George Washington University , P.S. Docket No. 3/142 (init. dec. 1975; P.S. dec. 1976); Michigan State University , P.S. Docket No. 3/180 (init. dec. 1975; P.S. dec. 1976); University of Alabama , P.S. Docket No. 3/176 (init. dec. 1975; P.S. dec. 1976).
8. More specifically a university publication resembling in all essentials the instant publication and issued by that university's School of Continuing Education was held not to be mailable as second-class matter in New York University (Proposed revocation of second-class mail privileges for "CONTINUING EDUCATION"), P.S. Docket No. 4/19 (1975). The initial decision in that case was not appealed to the Judicial Officer and has become the final decision of the Postal Service (P.S. dec. 10 Feb. 1976).
9. Petitioner's publication is not a non-descript publication as that term was used in Houghton v. Payne , supra . This term is limited in its application to transportation guides and cannot be expanded beyond this field for reasons fully set forth in Shepard's Citations, Inc. and FTD , both supra .
10. Accordingly, the ruling of the Manager is found to have been correct and is upheld.