In the Matter of the Petition by BUTLER UNIVERSITY 4600 Sunset Avenue Indianapolis, Indiana 46208 Proposed Revocation of Second-Class Mail Privileges for "BUTLER UNIVERSITY BULLETIN" P.S. Docket No. 4/142 July 15, 1976 William A. Duvall Chief Administrative Law Judge Harry T. Ice, Esq. and Andrew W. Lilliston, Jr., Esq., Ice, Miller, Donadio & Ryan, 10th Floor, 111 Monument Circle, Indianapolis, Indiana, for Petitioner Gerald E. Cerasale, Esq. Law Department United States Postal Service Washington, D. C., for Respondent Before : William A. Duvall , Chief Administrative Law Judge
By letter dated December 17, 1975, the United States Postal Service, the Respondent, acting through the Director, Office of Mail Classification, Finance Group, notified Butler University, the Petitioner that, subject to Petitioner's right to show either (1) compliance or (2) how it was intended to comply with the requirements governing second-class mail eligibility, the second-class mail privileges previously in effect for the Butler University Bulletin, hereinafter sometimes referred to as the Bulletin, would be revoked within 15 days from Petitioner's receipt of the notice. Petitioner was advised that it could contest the ruling by filing an appeal within 15 days, as provided in Section 954.8 of the pertinent Rules of Practice, a copy of which was transmitted with the notice. In the notice it was stated that the reasons for the ruling are as follows:
"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 of Houghton v. Payne , 194 U.S. 88 (1904).
"We have reviewed copies of the December 1974 and April and June (two issues) 1975 issues of 'Butler University Bulletin.'
"The December 1974 and June 1975 (Vol. 64, No. 1) issues are respectively the 1975 Spring Semester and 1975 Fall Semester Bulletins for the Evening Division of Butler University. Each issue contains admissions, fees and registration information and course listings, descriptions and schedules for the Evening Division.
"The April 1975 issue is designated 'Summer Sessions 1975' and contains admissions, fees and registration information and course listings, descriptions and schedules for the 1975 summer sessions.
"The second June 1975 issue is the Bulletin for 1975-1977.
This issue contains general and academic information and regulations, course listings and descriptions and a faculty directory.
"There is no continuity between the issues which we have reviewed and each one is complete in itself betraying no need of continuation in subsequent issues and suggesting no relationship to prior issues. These publications do not each contain a variety of original articles.
"'Butler University 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.)"
It will be seen that the first paragraph of the passage quoted above from the notice of revocation, beginning with the second sentence, follows the language of the definition of the term "periodical publication" announced by the Supreme Court in Houghton v. Payne , supra , at p. 97.
Petitioner did file a timely appeal and, by agreement of the parties, the matter was submitted for decision on the record, which is comprised of the notice of revocation, the exhibits hereinafter described, the written testimony of witnesses, and the briefs of counsel.
The basic issue in this proceeding is whether the Butler University Bulletin is a "periodical publication" within the meaning of applicable postal statutes and regulations; and within the definition of the term "periodical publication" as that phrase has been interpreted and applied by the Postal Service utilizing the criteria set forth above from the Houghton case. In that case the Supreme Court construed statutes which were the predecessors of former 39 U. S. Code 4351 and 4354 and which contained language very similar to that contained in those former provisions of law. */
The exhibits introduced into evidence, although not in the sequence in which they were offered and received, are as follows:
Ex. No. Subject
R-1 Summer Sessions, 1974
R-4 Summer Sessions, 1975
R-2 Fall Semester, 1974
R-6 Fall Semester, 1975
R-3 Spring Semester, 1975
R-7 Spring Semester, 1976
R-5 Butler University Bulletin, 1975/1977
R-8 Notice of revocation decision dated December 17, 1975
P-1 Butler University Bulletin 1974-1975
P-2 Stipulation that Butler University Bulletin has had second-class entry since August 11, 1913.
There was also received into the record, on a temporary basis, Vol. 1, No. 3 of the "Bulletin", dated March, 1914. In this exhibit it is shown on the title page that the publication was "Entered as second-class mail matter at the post office at Indianapolis, Ind., August 11, 1913". */
The witness whose testimony was submitted by Respondent was the Mail Classification Specialist by whom this matter had been initially reviewed and whose draft of the notice of revocation was reviewed, approved and signed by Respondent's representative. The testimony of this witness could be summarized accurately by saying it is an elaboration of the position stated by Respondent in the notice of revocation.
The statements of three witnesses were submitted on behalf of Petitioner. One such witness was Dr. Alexander E. Jones, President of Butler University, who testified that Butler University is a non-profit, coeducational institution of higher learning incorporated under the laws of the State of Indiana. With respect to the Bulletin, Dr. Jones said that the writings in the Bulletin conform to the definition of the term "article", since each such writing is a nonfictional prose composition forming an independent part of the Bulletin. The witness said that each publication is incomplete and must be related to another issue in the series in order for a complete picture to emerge.
Another witness whose statement was submitted by Petitioner was Chris C. Theofanis, Public Relations Director for the University, who indicated that when the time comes for the preparation of a new Bulletin he parcels out each section of the Bulletin to the appropriate University official for that official to "update, completely rewrite, delete, or add sections". It was the testimony of Mr. Theofanis that the actual writings are done by various faculty members to reflect the constantly changing nature of the University. Mr. Theofanis stated that complete sets, which included all four issues, of the Bulletin are sent to about 550 individuals or organizations, and that there are some others who receive complete sets for distribution to employees, for example. He said that it is evident that a large percentage of Butler students receive all of them but it is impossible to document these numbers except to the extent that large numbers of students are enrolled in both day and evening summer classes. The following numbers of various issues were printed: Fall 1974 - 17,000; Spring 1975 - 15,000; Summer 1975 - 18,500; and 1975/1977 Bulletin - 30,000. Information with respect to the number of copies of Volume 63 of the Bulletin which were mailed was given by Mr. Theofanis as follows: Fall 1974 - about 6200; Summer 1975 - about 6200; Issue No. 4 (presumably the 1975/1977 Bulletin) - about 11,000.
In an affidavit of R. W. Gladman, Treasurer - Controller of Butler University, there is the statement that "according to the most recent 'Statement' of September 28, 1975, the average number of copies of each issue distributed during the preceding 12 months totalled 16,500." It is difficult to reconcile this statement with some of the figures given in the preceding paragraph with respect to the number of copies printed, but if there is a discrepancy, and it is possible that there is one, its existence has no material bearing upon the issues, or the outcome, of this proceeding. It is evident that the Bulletin is of interest to anyone, graduate or undergraduate student, who is contemplating entering Butler University, but not every issue is of interest to each such person.
Attention is now turned to examination of the exhibits heretofore listed as having been received in evidence. With respect to Exhibits R-1 and 4, the Summer Sessions issues for 1974 and 1975, respectively, it is seen that the makeup of each issue follows the same pattern. The inside front cover contains a listing of the Officers of Administration, an index and the title of the publication, and a small amount of other information. Opposite the index page is a page bearing the caption "Directions for Summer Registration". These pages are identical in both issues. On the pages which bear the number 1, is the academic calendar for each of the respective Summer Sessions. These pages are substantially identical except for dates. Then follow approximately 2 1/4 pages of a listing of the names of the summer instructional staff. The succeeding 6 pages set forth general information about the Summer Sessions, and this information is substantially the same in both issues with the minimal exception that certain fees are different, and, of course, dates differ, but the vast bulk of the textual material is the same in this section of each publication. On pages 11 - 45 in both issues there are course listings for different schools showing course numbers, titles, days and hours when given, locations, fees, if any, the name of the instructor, an abbreviated course description, and a statement of prerequisites. Many courses remain the same from year to year, but there are some course changes. The publications conclude with forms for requested class schedules for (1) degree candidates and non-degree candidate Butler students and (2) degree candidates in other universities or colleges.
Exhibits R-2 and 6, as a pair, and R-3 and 7, as a pair, may be considered together because of the similarities that exist with respect to all four exhibits. On the inside of the front covers there are listings of Officers of Administration, indexes, and other information. Opposite the inside of the front cover there are statements concerning "Butler University", "Classes for Adults", "Graduate Work", and "Time of Class Meetings". On the back of this page there are statements of importance with respect to "Admission". Both sides of this page are identical in all four exhibits. There follows next in all four exhibits the academic calendar, which, in Exhibits R-2 and 6 is identical, except for dates, and in Exhibits R-3 and 7 is identical, except for dates. The academic calendars are followed by listings of 2 or 3 pages of the names of faculty members which have some changes to reflect the infrequent faculty changes. The list of faculty members is followed by 4 or 5 pages of "General Information" which are identical in Exhibits R-2 and 6, as a pair, and Exhibits R-3 and 7, as a pair, except for updates of such matters as fees, dates, and the like. "General Information" is followed by 32 or 33 pages of descriptions of courses offered by the various colleges.
The next item is entitled "Directions for Evening Registration", which is identical in all four exhibits. This set of directions is followed by 2 pages containing forms for "Requested Class Schedules" of the types described above for Exhibits R-1 and 4, and on the back of each such page is a schedule of early registration dates, final registration dates, and other information with respect to course changes, evening classes and registration.
There remain for consideration the Bulletin for 1974-1975 (Ex. P-1) and the Bulletin for 1975/1977 (Ex. R-5). In Exhibit P-1 there are 373 pages, of which only 126 pages contain material which could be regarded as coming within the generally recognized meaning of articles. In Exhibit R-5 there is a total of 155 pages, of which only 49 may reasonably be said to contain articles. In addition to the foregoing statistics, there is an appreciable amount of repetition in the later Bulletin of information that is contained in the earlier Bulletin. Each Bulletin contains all of the information which the student, or the former or the prospective student, will need with respect to the period of time covered by that issue.
There is no continuity between the various issues of the Bulletin. Each issue is a discrete publication, containing information which is applicable only for a limited and stated period of time. The fact that some indefinite number in excess of 500 people and organizations receive all four issues of the Bulletin certainly does not mean that the people comprising those individuals and organizations read all four issues. Petitioner's witness indicated that the purpose for which complete sets are sent to these individuals and organizations is so that they may be distributed on an individual basis to persons having a special interest in a particular issue. The fact that so few complete sets out of such large printing runs are sent to individuals and organizations for such purpose demonstrates the lack of continuity, and the lack of appeal to the same readership, in the various issues of the publication.
It is demonstrable that the inclusion of much, if not most, of the material in the Bulletin within the definition of "article", as suggested by the President of the University, is not compatible with what the Supreme Court had in mind in its definition of the term "periodical publication". For example, many of the course descriptions appearing in the different publications are not even complete, grammatical sentences. On page 20 of Exhibit R-1, course number PL 310-1R, American Philosophy, is described as follows:
"Puritanism, Idealism, Pragmatism, Realism. Prerequisite, junior standing."
In Exhibit R-4 on page 24, course number ED 407-1R, Survey of Literature for Children and Youth, is described thus:
"Exploration of appropriate literature for children and youth. Methods of selection and utilization."
hese are but two examples, chosen at random, which could be duplicated in character many times. In the Houghton decision, the context in which the word "articles" was used clearly does not permit such short, telegraphic word-series as appear in the course descriptions contained in the Bulletin to be regarded as "articles" for the purpose of determining second-class mail eligibility.
In its Brief, Petitioner urges five points which are considered as follows:
Proposed Conclusion of Law No. 1. 39 U. S. Code 4355(a)(1) sets forth special provisions for regularly incorporated institutions of learning, which provisions confer second-class mail eligibility upon the publications of such institutions.
This statement is accurate so far as it goes, but it is incomplete. What is omitted from the statement is the requirement that the publications of such institutions must be "mailable periodical publications". This question was ruled upon specifically by the Judicial Officer in a similar case involving Michigan State University (P.S. Docket No. 3/80, decided May 14, 1976), and that ruling is adverse to Petitioner's position in this case.
Proposed Conclusions of Law Nos. 2, 6 and 7. The Bulletin meets the standards set forth in the postal laws and regulations and in Houghton v. Payne , supra , and in Smith v. Hitchcock , 226 U.S. 53.
That the Bulletin conforms with the technical requirements of 39 U. S. Code 4354(a)(1) - (5) is not an issue in this proceeding and, presumably, is conceded by Respondent. The statute, however, requires that, in addition to those formal requirements, a publication must be a "mailable periodical publication", which term was defined in Houghton . The Supreme Court in Smith v. Hitchcock had the Houghton case brought to its attention and the Court specifically declined to permit it to be reargued, supra , at p. 58. At the same page, the Supreme Court cited a portion of the Houghton case at which the definition of a "periodical publication" was being discussed. For reasons discussed above, especially because of the lack of "a variety of original articles by different authors", these proposed conclusions of law must be rejected.
Proposed Conclusion of Law No. 3. The action of Respondent in this proceeding "is in fact a change in mail classification schedules" - authority for which is specifically and solely vested in the Postal Rate Commission.
This proceeding involves only the question of whether the publication of one publisher is entitled to continued carriage in the mails as second-class mail matter. The definition of the second class of mail is not being re-formed, but it has been determined by means of this proceeding that the publication under consideration, assuming that it has been of the same character since its first issue, improvidently was accorded second-class mail status over 63 years ago.
Proposed Conclusions of Law 4 and 5. Petitioner's publication has enjoyed second-class mail status for over 63 years and this fact should be accorded great weight and deference in this proceeding.
This argument was made, and rejected, in Dow Jones & Company, Inc. v. United States Postal Service , U.S.D.C., Del., 379 F. Supp. 1167 (1974), wherein Chief Judge Latchum said, inter alia :
"The Court will not conclude that Congress intended to prohibit the Postal Service from correcting action previously taken in violation of a Congressional limitation unless such Congressional intent appears clear on the face of the statute."
or other, among many, holdings to the same effect, see Houghton v. Payne , supra , and Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974).
Proposed findings of fact and conclusions of law submitted by the parties have been fully considered and they are adopted to the extent herein indicated. 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 upon the entire record herein, and for the reasons indicated, the decision of the Respondent from which this appeal was taken is correct, and that decision is sustained. The Butler University Bulletin is not a periodical publication within the meaning of applicable postal laws and regulations. Hence, the second-class mail permit heretofore in effect with respect to that publication is revoked.
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