In the Matter of the Petition by COLORADO SEMINARY, University of Denver, University Park, Denver, Colorado 80210 Proposed Annulment of Second-Class Mail Privileges for "UNIVERSITY OF DENVER BULLETIN" P.S. Docket No. 4/73 June 14, 1976 Rudolf Sobernheim Administrative Law Judge APPEARANCES: Victor Quinn, Esq. Henry, Cockrell, Quinn & Creighton 1415 Security Life Building Denver, Colorado 80202 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 Director of the Office of Mail Classification, Finance Group, U. S. Postal Service (hereinafter sometimes referred to as the "Director"), which on 30 June 1975 revoked and 21 August 1975 reaffirmed, subject to the outcome of this proceeding, the revocation of petitioner's second-class mail privileges in respect of the "University of Denver Bulletin" (hereinafter referred to as the "Bulletin").
Neither party introduced in evidence the original revocation letter of 30 June 1975. However, respondent's post-hearing brief (Resp. Br., pp. 1-2) and the testimony of the cognizant mail classification specialist, given as written answers to petitioner's interrogatories (Dir. Test. Beller, pp. 6-7, 10 et seq .), makes it clear that this ruling rested on the basic regulatory provision governing second-class mailability (Postal Service Manual (PSM) 132.211)) and the U. S. Supreme Court decision of Houghton v. Payne , 194 U.S. 88 (1904), defining what constitutes a "periodical publication" for second-class mail purposes, and on the conclusion that the issues of the Bulletin examined by the Director ( id ., pp. 7-9) did not meet the criteria for a periodical publication mailable as second-class matter. Petitioner protested this ruling under date of 14 July 1975 and on 21 August 1975 the Director replied as follows:
"The letter of revocation dated June 30, 1975, which was sent to you by this office is a final decision by this office that the 'University of Denver Bulletin' is not a periodical publication and is not entitled to retain second-class mail privileges.
You have not presented any information indicating that changes will be made in the preparation of future issues of the publication to bring it into compliance with second-class regulations. Therefore, our original ruling that the 'University of Denver Bulletin' is not entitled to retain second-class privileges is still applicable.
The annulment of second-class privileges for 'University of Denver Bulletin' will become effective fifteen days from receipt by you of this letter unless you file an appeal within that period with the Docket Clerk in accordance with the provisions of section 954.8 of the attached copy of the 'Rules of Practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class Mail Privileges.'" (Att'mt to Complaint)
The complaint in this proceeding was thereupon docketed on 9 September 1975. A hearing was thereafter held in Denver, Colorado, at which petitioner adduced testimonial evidence and the parties jointly put in evidence volumes 75 (Jt Ex. 1) and 76 (Jt Ex. 2) and the first issue of volume 77 (Jt Ex. 3) of the Bulletin. The testimony of respondent's mail classification specialist, already referred to, was presented in writing directly and through answers to interrogatories submitted by petitioner.
1. Petitioner, a non-profit institution of higher learning, was first organized in 1864 when the State of Colorado was still a territory of the United States. In the Eighteen-Eighties its trustees incorporated the University of Denver for the purpose of confirming academic degrees upon the Seminary's students. Petitioner has retained the name "Colorado Seminary" as its corporate name but is today generally known as the University of Denver and hereinafter referred to as the "University". The University has grown in importance beyond a purely local or regional institution and is now an institution which draws its ca. 7,800 students from all over the country.
2. Among numerous other publications petitioner publishes the Bulletin as a monthly publication, as shown by the imprint on or inside each issue ( e . g . Jt Ex. 1, vol. 75, No. 1, p. 1). The record, without explanation, contains, however, only 10 issues of volume 75 and both in volumes 75 and 76 there are two issues bearing the same number (vol. 75: No. 6; vol. 76: No. 9). No issue is raised in this proceeding as to such irregularities.
3. The publication year of the Bulletin begins in June and ends the following May. Each volume covers an academic biennium: volume 75 the years 1973 to 1975; volume 76 the years 1974 to 1976; and volume 77 the years 1975 to 1977.
4. The Bulletin is divided each year between issues which contain general information or program announcements and issues which provide complete information and course catalogs for a college, school or special session of the University.
5. a. In volume 75 the issues not giving a complete presentation of a particular college, school or session are the following:
(1) Issue No. 4, entitled "General Information", published in September 1973. This issue is a glossy sheet of heavy paper not quite 24 inches in length and 8 inches in height, folded so as to form 6 pages of equal length and printed on both sides. The cover page shows seven individual pictures of students and the title of the issue. The inside pages, when folded, shows pictures of the University on the top half and beneath them three half-pages of brief descriptive paragraphs regarding the University, two half-pages listing graduate and undergraduate programs and one half-page for a University calendar. The five back pages are again divided between pictures and informative text on the University, student life and the City of Denver, and a request form for specific programs of study.
(2) Issue 6, published in November 1973, is a similar eight-page folder, with front and back cover design of children's faces describing the "Master of Social Work Program." The folder lays out the scope and purpose of the program, the combination of work and study (2 1/2 pages) and lists the Master's Courses (3 1/2 pages).
(3) Issue 7 for December 1973 is a brief announcement of the 1974 summer session with general information and its special features on a four page, 9 x 12 inch folder of glossy, cardboard paper. It includes a postage prepaid tear-out card asking for full summer session information.
(4) Issue 9, coming out in January 1974, is entitled "Estimated Expenses", on a folded 8-inch square sheet of heavy paper. This bulletin issue is introduced as an "update" of information of estimated expenses for tuition, housing and meals and matters related to their payment, loans and other details. The back page contains a university calendar.
b. Volume 76 of the Bulletin includes as issue 6 (November 1974) a reprint of the 1973 General Information folder (see FF 5a(1), supra ); as issue 7 (December 1974) an announcement of the 1975 summer session, following mutatis mutandis the format of issue 7 of volume 75 (FF 5a(3), supra ), and as issues 4, 8 and 12 (September 1974, January and May 1975) the folder on estimated expenses in which the calendar on the back page moves forward with time and in which the September 1974 edition echoes 1973 figures (see FF 5a(4)) and adds a descriptive paragraph on a $25.00 health fee while the 1975 issues show higher tuition charges and an additional paragraph on an adjustment of the health fee. Both 1975 issues of "Estimated Expenses" (Jt Ex. 2, vol. 76, Nos. 8 and 12) are identical except for issue number and date.
6. a. The "school" issues of volume 75 are as follows:
No. 1 College of Arts and Sciences
No. 2 Graduate Studies
No. 3 College of Business Administration
No. 6 Graduate School of International Studies
(actually the fifth issue)
No. 9 1974 Summer Session
No. 10 College of Law
b. The "school" issues of volume 76 are the following:
No. 1 School of Art
No. 2 School of Education
No. 3 Graduate School of Social Work
No. 5 Graduate School of Librarianship
No. 9 1975 Summer Session
No. 9 College of Business Administration
(actually the 10th issue)
No. 11 College of Arts and Sciences
c. Only the Summer Session, Business Administration and College of Arts and Sciences issues appeared in each of the two successive volumes of record. The Graduate School of Arts and Sciences issue, superseding the Graduate Studies issue of 1973, did not appear again until 1975 as the first issue of volume 77.
7. a. The "school" issues of volumes 75 to 77, which are part of the record herein, follow in general terms a uniform format. They begin with a statement of the school's philosophy (Jt Ex. 1, vol. 75, No. 1, pp. 2-3) or expectations (Jt Ex. 2, vol. 76, No. 1, p. 1) or about the school itself ( e . g . Jt Ex. 1, vol. 75, No. 10, p. 3; id ., No. 3, pp. 2-3; but cf . id ., No. 9 where the statement on the summer session at p. 5 is preceded by a statement on "The City and the State" ( id ., at p. 3)).
b. These introductions are followed by chapters entitled "General Information" and "Degrees and Requirements" which deal with admission, registration, financial matters and student life under the first and with programs of study and general as well as specific degree requirements under the second heading.
c. There follows a catalog of "Course Descriptions", a list of faculty and staff, university calendar and campus map with a key thereto. In some issues, such as that for the College of Arts and Sciences (Jt Ex. 1, vol. 75, No. 1; Jt Ex. 2, vol. 76, No. 11) the catalog of course descriptions comprises the bulk of the issue (76 out of 109 and 70 out of 112 pages respectively). A similar proportion of course catalog to total content prevails for the Graduate Studies or School of Arts and Sciences issue (Jt Ex. 1, vol. 75, No. 3; Jt Ex. 3, vol. 77, No. 1). In other schools, where the course offerings are fewer, the course descriptions occupy less than half the space of the issue.
8. a. Successive Bulletin issues covering the same school, such as the College of Arts and Sciences (Jt Ex. 1, vol. 75, No. 1 and Jt Ex. 2, vol. 76, No. 11), repeat to a large extent the same information. Nevertheless, a review of the two cited issues reveals numerous revisions of detail which relate to changes in administrative practices or requirements or to changes in terminology. Thus a section on "Married Student Housing" (vol. 75, No. 1, p. 13) becomes a section on "Family Housing" (vol. 76, No. 11, p. 16). In other places summary descriptions of available training opportunities have been enlarged in the later volume.
b. The cited volumes also show differences in typography and illustrations, no doubt the result of the central editing of material submitted by school deans, division heads and business managers (T 24-25), described by the University's director of publications (T 21, 22-23).
c. In one instance a wholesale reorganization of a "school" issue format is observable. This is the restriction of the Graduate Studies issue (Jt Ex. 1, vol. 75, No. 2) to the Graduate School of Arts and Sciences (Jt Ex. 3, vol. 77, No. 1) by eliminating in the later issue all but a cursory reference to graduate programs in the professional schools.
9. The testimony of petitioner's witnesses stressed the increasing trend toward cross-disciplinary programs (T 9), such as in the College of Law. An examination of the College of Law issue in the record (Jt Ex. 1, vol. 75, No. 10, p. 14) refers to joint degrees of master of science in judicial administration and in law and society but these degree programs are administered by law school faculty members and the College of Law issue simply refers students to them ( ibid .). However, more direct cross-references from one school to another undoubtedly occur (T 37).
10. The various issues of the Bulletin are printed in from 5,000 to 50,000 copies (T 27). The issues go to some 4,000 selected guidance counsellors ( ibid .) and smaller quantities of the issues presenting the professional and graduate schools go to some 2,200 four-year and junior colleges (T 28, 32). It was the view of the Director of Publications (T 29) that in order to gain a good view of the University, one would need the entire Bulletin. Presumably that would mean at least two volumes since a number of "school" issues are only published biennially (T 30).
11. Based on the foregoing detailed findings of fact and the record as a whole I find:
a. The Bulletin is composed of separate monthly issues each of which is complete within itself for the period for which it is issued, providing comprehensive coverage of the topic with which it is concerned and not requiring a continuance for current use. The foregoing is as true of the general information folders consisting essentially of a single announcement or continuing text as it is of the "school" issues which furnish programmatic and general information as well as a course catalog for the particular school or college covered.
b. The monthly issues of the Bulletin are independent folders or booklike volumes which furnish both to prospective and enrolled students in a single document information of a general character, spot program announcements, and the requirements which registration will or does demand of them, or the instruction which the University provides.
c. That all "school" or general information issues relate to the same University or that after examining at least two volumes of the Bulletin the reader may obtain an overall picture of the University is not the kind of continuity which would give to the Bulletin as a matter of fact the character of a periodical publication.
1. Both parties recognize that the outcome of the instant case is governed by the application of Houghton v. Payne , 194 U.S. 88 (1904). Petitioner argues that the broad definition of a periodical publication for postal (to wit: second-class mail) purposes is not applicable to the Bulletin, but that in any event the Bulletin satisfies the terms of Houghton v. Payne .
2. Both contentions have been made in other administrative-judicial proceedings within the U. S. Postal Service involving college or university publications similar to the Bulletin and have been rejected there. For recent decisions see George Washington University , P.S. Docket No. 3/142 (In. Dec. 1975; P.S. Dec. 1976); Michigan State University , P.S. Docket No. 3/180 (In. Dec. 1975; P.S. Dec. 1976); University of Alabama , P.S. Docket No. 3/176 (In. Dec. 1975; P.S. Dec. 1976); most recently Yale University , P.S. Docket No. 4/107 (In. Dec., 8 June 1976).
3. The administrative-judicial precedents cited and others cited therein make it clear that the publications of educational institutions must fall within the framework of Houghton v. Payne , supra , and that this decision will not be narrowly interpreted as delineating only books from periodicals. In addition to the cited decisions, see also Northwest Missouri State University , P.S. Docket No. 3/42 (1975); New York University , P.S. Docket No. 4/81 (In. Dec. 1976, app. pend'g).
4. Hence, Houghton v. Payne , supra , is applicable to the Bulletin. That the Bulletin lacks the characteristics which would bring it within the definition of a periodical publication under that decision is likewise clear. The issues of the Bulletin lack the incompleteness and the need for continuity which Houghton v. Payne considers salient characteristics of individual issues of a periodical publication. See Houghton v. Payne , loc . cit ., supra , at p. 97.
5. The Bulletin is, on the contrary, in contemplation of law a collection of booklike volumes or folders, each complete in itself even though all are covering facets of the University of Denver. Such collections do not constitute a periodical and their publishers are not entitled to mail them at second-class postage rates. See Smith v. Hitchcock , 226 U.S. 53 (1912); Yale University , supra .
6. Certain issues of the Bulletin, furthermore, are not composed of articles by different authors (see Houghton v. Payne , supra ) and the Bulletin would not be deemed to be a "periodical publication" if they alone constituted the Bulletin. This is true of the College and Graduate School of Arts and Sciences and Summer School issues which are catalogs. See Northwestern Missouri State University , supra . It is also true of the flyers announcing the summer school and the social work study program. See New York University , P.S. Docket No. 4/19 (1975).
7. Accordingly, the decision of the Director was correct and must be upheld.