In the Matter of the Petition by THE BRIGHAM YOUNG UNIVERSITY, Provo, Utah 84602, Proposed Revocation of Second-Class Mail Privileges for "BRIGHAM YOUNG UNIVERSITY BULLETIN" P.S. Docket No. 4/158 July 26, 1976 Quentin E. Grant Administrative Law Judge Wilkinson, Cragun & Barker by Glen A. Wilkinson, Esq. and Stephen A. Hildebrandt, Esq., Washington, D. C. for Petitioner Gerald E. Cerasale, 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 December 29, 1975, annulled, subject to the outcome of this proceeding, petitioner's second class mail privileges for its publication, "Brigham Young University Bulletin" (hereinafter sometimes referred to as the "publication").
The basis for the Manager's ruling was set forth at length in his ruling but for purposes of this decision may be summarized as his conclusion, based on examination of numerous issues thereof, that the publication does not meet the governing definition of "periodical", for second class mail privileges, set forth in Houghton v. Payne , 194 U.S. 88 (1904). The reasons for this conclusion were succinctly stated in the third from last paragraph of the ruling as follows:
"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 relation to prior issues. These are essentially separate and independent publications which would be more appropriately ascribed to the classification schemes providing for the mailing of printed matter and books. Many of these publications do not contain a variety of original articles by different authors.
"'Brigham Young 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. 3/10, May 6, 1975)."
Petitioner took timely appeal from the Manager's ruling. A hearing was held on April 9, 1976 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 decision is whether or not the publication is a periodical, all other qualifications for second class privileges having been met.
Petitioner's arguments in opposition to the proposed annulment are, briefly, as follows:
"I. The Houghton v. Payne definition of periodical should not be applied to this case because the Bulletin is distinguishable from the publication at issue in the Houghton case.
"II. The reenactment rule and the doctrine of contemporaneous construction prevent application of the Houghton definition to the Bulletin at this late date.
"III. Even if the Houghton definition is applicable, the Bulletin meets the requirements of this definition.
"IV. The Postal Service's application of the Houghton standard, and the revocation decision based thereon, was arbitrary and capricious, and therefore not in accordance with law."
1. Petitioner, The Brigham Young University, is a regularly incorporated institution of learning within the meaning of 132.231 of the Postal Service Manual.
2. On or about June 14, 1905, petitioner was granted second class mail privileges by the United States Post Office Department for its publication, "Brigham Young University Bulletin", or its similar predecessor publications.
3. Under date of December 29, 1975 petitioner was notified by the Manager of the proposed annulment of second class mail privileges for the publication. The present proceeding, timely filed by petitioner, was thereafter initiated.
4. Thirty issues of the publication are published each year.
5. There were received in evidence the following issues of the publication with the joint exhibit numbers as shown:
JX-1 - Supplement to Brigham Graduate Admissions
Young University Bulletin Application
("BYU Bulletin"), Vol. 71, No. 3a
JX-2 - BYU Bulletin , "Expanding Dimensions"
Vol. 71, No. 17
JX-3 - BYU Bulletin , "Home Study Newsletter"
Vol. 71, No. 18
JX-4 - BYU Bulletin , "Winter Bulletin 1975
BYU Salt Lake Center"
Vol. 71, No. 19
JX-5 - BYU Bulletin , "Winter Bulletin 1975
BYU Ogden Center"
Vol. 71, No. 20
JX-6 - BYU Bulletin , "Evening Classes - Winter
75" Vol. 71, No. 21
JX-7 - BYU Bulletin , "1975 Home Study Catalog
of Courses" Vol. 72,
No. 1
JX-8 - BYU Bulletin , "Home Study Newsletter"
Vol. 72, No. 2
JX-9 - BYU Bulletin , "Graduate School Catalog"
Vol. 72, No. 3
JX-10 - BYU Bulletin , "Ogden Center, Spring
Term 1975" Vol. 72, No. 4
JX-11 - BYU Bulletin , "Evening Classes--Spring/
Summer 1975" Vol. 72,
No. 5
JX-12 - BYU Bulletin , "Salt Lake Center,
Spring/Summer 1975"
Vol. 72, No. 6
JX-13 - BYU Bulletin , "Home Study Associate
Degree in Family Living"
Vol. 72, No. 7
JX-14 - BYU Bulletin , "General Catalog" Vol.
72, No. 8
JX-15 - BYU Bulletin , "Home Study Newsletter"
Vol. 72, No. 9
JX-16 - BYU Bulletin , "Book News"
Vol. 72, No. 10
JX-17 - BYU Bulletin , "Evening Classes, Fall
1975" Vol. 72, No. 11
JX-18 - BYU Bulletin , "College of Business
Advisement Center"
Vo. 72, No. 12
JX-19 - BYU Bulletin , "Graduate Application
for Admission" Vol. 72,
No. 13
JX-20 - BYU Bulletin , "Salt Lake Center, Fall
1975" Vo. 72, No. 14
JX-21 - BYU Bulletin , "Y News"
Vol. 72, No. 15
JX-22 - BYU Bulletin , "Undergraduate Applica-
tion for Admission"
Vol. 72, No. 16
JX-23 - BYU Bulletin , "Home Study Newspac"
Vol. 72, No. 17
JX-24 - BYU Bulletin , "Home Study Adult
High School"
Vo. 72, No. 18
JX-25 - BYU Bulletin , "Ogden Center, Fall
1975" Vol. 72, No. 19
JX-26 - BYU Bulletin , "Alumni Bulletin"
Vol. 72, No. 20
JX-27 - BYU Bulletin , "One Hundred Years
Young" Vol. 72, No. 21
JX-28 - BYU Bulletin , "Law School Application"
Vol. 72, No. 22
JX-29 - BYU Bulletin , "Two of Our Best from
Education Week"
Vol. 72, No. 23
JX-30 - BYU Bulletin , "Recertify"
Vol. 72, No. 24
JX-31 - BYU Bulletin , "Bachelor of Independent
Studies Newsletter",
Vol. 72, No. 25
JX-32 - BYU Bulletin , "Home Study Newsletter"
Vol. 72, No. 26
JX-33 - BYU Bulletin , "Evening Classes - Winter
76" Vol. 72, No. 27
JX-34 - BYU Bulletin , "Law School Catalog"
Vol. 72, No. 28
JX-35 - BYU Bulletin , "Ogden Center - Winter
75" Vol. 72, No. 29
JX-36 - BYU Bulletin , "Salt Lake Center -
Winter 76"
Vol. 72, No. 30
JX-37 - BYU Bulletin , "Home Study Catalog"
Vol. 73, No. 1
JX-38 - BYU Bulletin , "Law School Admission
Application" Vol. 73,
No. 2
JX-39 - BYU Bulletin , "Evening Classes -
Spring/Summer 1976"
Vol. 73, No. 3
JX-40 - BYU Bulletin , "Graduate School Catalog"
Vol. 73, No. 4
JX-41 - BYU Bulletin , "Graduate School of
Management Catalog"
Vol. 73, No. 5
JX-42 - BYU Bulletin , "Salt Lake Center-
Spring/Summer 1976"
Vol. 73, No. 6
JX-43 - BYU Bulletin , "Home Study Newsletter"
Vol. 73, No. 7
There was also received, as Exhibit R-2, "Home Study Catalog of Courses - 1975", Vol. 72, Number 1, of the publication.
6. The issues of the publication vary substantially in format, size, and numbers of pages, ranging from a one page, 15 in. x 18 in., poster (JX-30) to a 278 page, 8 in. x 12 in., General Catalog (JX-14).
7. Difference in content from issue to issue is substantial. For instance JX-30, the poster mentioned above, contains approximately 200 words consisting of information relating to home study courses offered by petitioner for teachers desiring to prepare for recertification. JX-1 contains a 12 page application for admission to the Graduate School, 1 page of instructions relating to such admission and 2 pages of graduate course listings. JX-5 contains 2 pages of course schedules and descriptions for the Winter 1975 semester at the BYU - Ogden Center for Continuing Education. JX-4, the 1975 Winter Bulletin for the BYU - Salt Lake Center contains 2 pages of general information, 6 pages of course time schedules, 4 pages listing lectures and concerts, and a 1 page enrollment card. JX-8, the Home Study Newsletter, Winter 1975, contains 4 pages of current information for home study students. JX-9, the 1975-76 Graduate School Catalog, contains a 21 page list of administrators and faculty, 18 pages of general information for graduate students, 67 pages of course listings (including course descriptions) and a 2 page index. JX-14, the 1975-76 General Catalog, contains a 3 page University Calendar, a 3 page reproduction of an 1876 "Bulletin," 44 pages of general information directed principally to undergraduate students, 191 pages of course listings and descriptions, a 31 page list of administrators and faculty, and a 6 page index. JX-16, "Book News", contains a 3 page list and description of books published by petitioner's Press and a 1 page letter to professors inviting them to make inquiries concerning publication of their manuscripts. JX-24, the Adult High School Dropout Bulletin, contains 2 pages of information for adult high school dropouts, 10 pages of course descriptions, a 1 page enrollment and book order form, and a 1 page catalog request form. JX-27, entitled "One Hundred Years Young," identifies itself as a magazine for prospective students and contains 40 pages of general information and pictures relating to the university. JX-28 and JX-38, Law School applications, each contains 1 page of instructions, a 7 page application, and 1 page setting forth the code of honor, dress and grooming standards. JX-34, the 1975-76 Law School Bulletin, contains 47 pages of general information for law students, 8 pages of course descriptions, and a 7 page list of faculty and administrators.
8. The application issues of the publication (JX-1, JX-19, JX-22, JX-28, and JX-38) contain nothing that resembles original articles. Each is directed to the limited audience seeking admission to a particular school of the university.
9. The Salt Lake Center issues of the publication (JX-4, JX-12, JX-20, JX-36, and JX-42) are primarily course, lecture, and concert listings. Their small prose content, consisting primarily of general information, is practically identical. (Tr. 79, 80). These issues are directed at a limited audience interested in the offerings of the Salt Lake Center.
10. The Ogden Center issues of the publication (JX-5, JX-10, JX-25, and JX-35) contain primarily course listings with little if any content that might be considered articles. Such prose content as they contain is nearly identical (Tr. 19, 20). These issues are directed to a limited audience interested in the offerings of the Ogden Center for Continuing Education.
11. The Graduate School Catalog issues of the publication (JX-9, JX-40) consist primarily of course listings and descriptions and other non-article material. The general information content which might be considered article material is nearly identical in each issue, differences consisting mainly of updating (Tr. 80, 81). These issues are directed to a limited audience consisting mainly of persons interested in admission to the Graduate School.
12. The Evening Classes issues of the publication (JX-6, JX-11, JX-17, JX-33, and JX-39) consist mainly of an academic calendar, course listings, registration, tuition and fees information, and other non-article material, much of which is nearly identical in each issue, differences being minor and consisting largely of updating. These issues are directed to a limited audience consisting mainly of persons interested in enrollment in evening classes.
13. The Home Study Catalog issues of the publication (JX-7, JX-37, and R-2) consist mainly of course listings and descriptions and other non-article material. R-2 and JX-37 are nearly identical in content. These issues are directed to the limited audience of persons interested in the home study offerings of the University. Also the Home Study Newsletter and Home Study Newspac issues (JX-3, JX-8, JX-15, JX-23, JX-32, and JX-43) are directed mainly to the limited home study audience.
14. Most issues of the publication cover a limited time period, such as an academic year or semester, and are replaced by issues covering subsequent similar time periods.
15. The number of copies of each issue printed varies from about 2,000 to 40,000 (Tr. 81, 82). Only about 1,000 addressees receive all 30 of the issues published yearly, a number much smaller than the total number printed (Tr. 83).
1. In Houghton v. Payne , supra , the Supreme Court defined "periodical" 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. 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."
2. Applying the foregoing 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 the publication does not contain a variety of original articles in that in numerous issues the article content is not original, the article content being practically identical with that of other issues save for a minor amount of updating, changes in photographs and faculty and administration listings. Such repetition results in lack of the required characteristic of originality. See Purdue University , P.S. Docket No. 3/192 (Init. Dec., Dec. 5, 1975).
b. The publication lacks the required characteristic of incompleteness of each issue in itself because most of the 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. See Phyllis Johnson , P.O.D. Docket No. 3/59 (Postal Service Dec., Aug. 20, 1971). The incidental references in some issues to other issues does not establish the required characteristic of continuity. See The American University , P.S. Docket No. 4/7 (Init. Dec., Sept. 25, 1975, Postal Service Dec., Jan. 30, 1976).
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 , P.S. Docket No. 3/166 (Init. Dec. July 7, 1975, aff'd in Postal Service Dec., Jan. 15, 1976); Purdue University , supra .
3. Petitioner has made the argument that on the basis of the Supreme Court's decision in Smith v. Hitchcock , 226 U.S. 53 (1912), its publication, published for the dissemination of information of a public character, is entitled to second class mail privileges without meeting the strict requirements of the Houghton v. Payne definition. This argument has been rejected in several prior administrative decisions in accordance with which I must reject it here. See Northwest Missouri State University , P.S. Docket No. 3/42 (Init. Dec. March 6, 1975, aff'd Postal Service Dec. Aug. 4, 1975); University of Oregon , P.S. Docket No. 3/110 (Init. Dec. May 6, 1975, aff'd Postal Service Dec. Jan. 12, 1976); Purdue University , supra .
4. Citing United States v. Ceredos Hermanos , 209 U.S. 337, 339 (1908), petitioner argues that the "reenactment" of the provisions of former 39 U.S.C. 4355(a)(1) by Congress in the Postal Reorganization Act (Pub. L. 91-375, Aug. 12, 1970, 84 Stat. 719) prohibits the postal Service from revoking its long-standing second class mail privileges because after such a reenactment a prior interpretation is deemed to possess implied legislative effect and to have the effect of law. This argument does not avail petitioner. The guiding definition of the term "periodical" for second class mail privileges at the time of enactment of the Postal Reorganization Act of 1971 had for years been, and still was, that of the Supreme Court in Houghton v. Payne , supra . Therefore, if the rule in Hermanos applies at all here, it means that in continuing in force the former statutory provision without defining the term "periodical publications" as used therein, Congress adopted the Houghton v. Payne definition thereof. The so-called "reenactment," therefore, did not serve to confer periodical status on publications of regularly incorporated institutions of learning not conforming to the Houghton v. Payne definition. See Shepard's Citations, Inc. , P.S. Docket No. 1/88, Init. Dec., Feb. 19, 1974, p. 29, 30; aff'd Postal Service Dec., Oct. 4, 1974.
5. Arguments similar to that of petitioner involving contemporaneous construction and estoppel based on the long period the publication has enjoyed second class mail privileges 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 , supra , and cases cited therein. Accordingly the argument is rejected here.
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 law or 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, Brigham Young University Bulletin .
8. The ruling of the Manager, dated December 29, 1975, to annul petitioner's second class mail privileges for the publication was correct. Accordingly, petitioner's appeal from that ruling is denied. Such privileges should stand annulled.