In the Matter of the Petition by THE HEARST CORPORATION, 959 Eighth Avenue, New York, New York 10019, Proposed Revocation of Second-Class Mail Privileges for "MOTOR'S CRASH ESTIMATING GUIDE" P.S. Docket No. 5/49 December 28, 1977 William A. Duvall Chief Administrative Law Judge APPEARANCES: Roger A. Clark, Esq. John H. C. Barron, Jr., Esq. Rogers & Wells 1666 K Street, N.W. Washington, D. C. 20006 for Petitioner Gerald E. Cerasale, Esq. Law Department United States Postal Service Washington, D. C. 20260 for Respondent
This proceeding was initiated by the filing by The Hearst Corporation (Petitioner) of an appeal from a ruling of the Director, Office of Mail Classification, Finance Group, United States Postal Service (Respondent). The ruling was expressed in correspondence which extended over the period of approximately one year, culminating in a letter dated July 6, 1976. Reduced to its essentials, the ruling of the Respondent revoked, subject to the Petitioner's right to appeal and initiate such a proceeding as this, Petitioner's second-class mail privileges for the publication "Motor's Crash Estimating Guide" (hereinafter referred to as "MCEG" or "the publication") on the grounds that MCEG is not a periodical publication as required by applicable postal laws and regulations because (1) the publication does not contain "a variety of original articles by different authors" and (2) "each issue of the publication is complete in itself, lacking continuity of literary character." These grounds for revocation are based upon the definition of a "periodical publication" appearing in Houghton v. Payne , 194 U.S. 88 (1904), 1/ but ground number (2) listed above is a combination of two of the characteristics of a periodical publication as defined by the Supreme Court.
In the timely Petition appealing Respondent's ruling, Petitioner alleges, and it is not denied by Respondent, that MCEG complies with the technical requirements of former 39 U. S. Code 4354(a) which were incorporated, in substance, in Section 200.1a. of the "Decision of the Governors of the United States Postal Service on Establishing a Mail Classification Schedule" dated June 2, 1976. Petitioner alleges, also, that the content of MCEG is comprised of articles because (1) no specific form is required to constitute a writing an article; (2) the text of the publication is the result of the editorial energy, originality, creativity and expertise of several authors; (3) it is presented in consecutive text; and (4) the topics in MCEG are cast in the form of nonfictional prose which is readily understood and easily utilized by subscribers. Finally, Petitioner asserts that no one issue of MCEG is complete in itself, and that the broad variety of information relating to the same substantive topics in each issue clearly manifests a continuity of literary character.
A hearing on the issues thus formed was held and both parties presented evidence through witnesses who were examined and cross-examined. As is usually the case in this type of proceeding, the most significant evidence consisted of various issues of the publication under consideration. (Ex. R-1 through R-8, R-10, R-11, P-14 through P-16)
The Petitioner was granted second-class mail privileges for the publication in November, 1969. (Tr. 124, 126) The broad purpose of the publication is to assist and inform people who repair damage to automobiles in estimating the costs of those repairs. The information in the publication is gathered from various sources, including manufacturers' parts and price lists, repair-time requirement lists, service manuals, service bulletins, price update magnetic tapes and, also, from various field sources. (Tr. 130) This material ultimately is put into logical sequence for estimating purposes, meaning that the presentation of the information in MCEG begins with respect to the front of a particular make and model car and proceeds to the rear of the car in the sequence that is normally used for repair-estimating purposes. (Tr. 132-133) In reaching this stage, however, there are several intermediate steps involving reviews and re-writes of the material. (Tr. 137-138) At times, additions or deletions must be made in respect of previously published information on the basis of bulletins received from the manufacturers. These changes are entered in Petitioner's master file so that when the next issue of the appropriate publication goes to press the latest information will be available. (Tr. 139)
MCEG is published twelve times per year. (Tr. 126) There are three basic types of issues for MCEG and each type is devoted to different automobile manufacturers. One type is devoted to General Motors (Exhibits R-3, 4, 8 and P-15), another to Ford and Chrysler (Exhibits R-1, 2, 6, 10, 11 and P-14), 2/ and finally one to American Motors (Exhibits R-5, 7, and P-16). Petitioner attempts to follow a basic sequence of publication for these three types (i.e., quarterly). (Tr. 142) However, whenever there have been many price changes by one or more manufacturers Petitioner may go out of sequence. For example, the Chrysler issue was published in February and April, 1973, instead of quarterly. (Exhibits R-1 and 2; see also Tr. 142).
David Lewis, Editor of MCEG, testified for Petitioner that there are times when, although one issue is devoted to certain particular manufacturers, yet the issue will contain some price changes for other manufacturers. (Tr. 142)
The Petitioner describes its publication sequence in the following language taken from the November 1976 issue (Ex. P-14, p. 2):
"MOTOR CRASH ESTIMATING GUIDE is published monthly, in permanently bound form, to provide completely updated parts prices, operation times, illustrations and specific data. No missing sheets. No chance of outdated prices. Generally,
Ford & Chrysler cars will be published one month, General Motors cars well be next in the series and American Motors, Jeep, Checker, Trucks and Frame Diagrams will be the third in the series. However, when there are price adjustments not in accord with the schedule, the order of publication will be changed accordingly, so that the subscribers receive the most timely data. Should several manufacturers simultaneously change prices, price change bulletins will be bound into the volume published that month. The contents of each volume of the series will be printed on the front cover.
"The latest volume received relates to and supplements the previously received volumes dealing with the same subject matter. Subscribers should retain the supplemented volumes in order to verify price adjustments and for use when dealing with older models which are not covered by the later volumes. Only by retaining such supplemented volumes will a subscriber have data available for vehicles no longer covered by later volumes.
"In general, information relating to each of the volumes covered appears in the three most current volumes. All three of the most current volumes should be consulted. Do not rely solely upon the volume which appears to have most of the relevant information. Be sure to obtain all the related information by checking the other volumes for data and specifications relating to the vehicle under consideration. A new subscriber starts with the three most current volumes.
"Always check the front cover of each volume received for important notices which will be printed thereon for your information." The publication sequence varies, however, depending upon such things as the frequency and volume of price, model, and other changes. (Tr. 164-165) The number of issues per year devoted to one make of automobile may vary from year to year depending upon, for example, the extent to which new models are introduced. (Tr. 168)
The publisher's use of illustrations is explained as follows:
"ILLUSTRATIONS
Illustrations portray assemblies and components as the manufacturer portrays them, and shows the relationship of each component with another. The numbers in the picture are coded to the same number in the text for easy identification. Some illustrations may not show the actual shape of a part. Those illustrations are for the purpose of identifying a part or one that is similar in function." (Ex. P-14, p. 2)
MCEG consists mainly of lists of automobile parts, their corresponding prices and repair times, and illustrations of such parts. (Tr. 161) This format has remained unchanged since the inception of this publication as Petitioner's witnesses have testified. (Tr. 110, 160)
The November, 1976 issue of MCEG (Exhibit P-14) contains 976 numbered pages, excluding the front and back cover. The contents of the issue are as follows (this description is from Respondent's Brief, but it has been checked, found to be accurate, and it is adopted by this Administrative Law Judge):
The inside front and back cover pages contain a time/dollar conversion table;
Page 1 is the Table of Contents;
Pages 2 and 3 contain a Guide to Estimating;
Pages 4 and 5 contain the Procedural Explanation Guide;
Page 6 contains an automobile tire conversion table;
Page 6A contains a table of Ford and Chrysler battery sizes and prices;
Page 7 contains an explanation of painting times;
Page 7A contains a list of abbreviations used in MCEG;
Pages 8 and 9 contain a list of Mopar (Chrysler Corp.) approved bumper recyclers;
Pages 10 through 15 contain two articles concerning automobile body repair;
Pages 16 through 16R contain Chrysler-Dodge-Plymouth identification information in form of charts, lists, and illustrations;
Pages 17 through 17N contain Ford-Lincoln-Mercury identification in the format described above;
Pages 18 through 19B contain, respectively, Dodge and Ford Truck identification in the format described above;
Page 19C is an address change form;
Pages 20 through 971 contain lists of parts, their respective prices and times of repair, and illustrations for automobiles and trucks manufactured by Ford and Chrysler from the 1970 model year through the 1977 model year; 3/
Pages 972 through 975 contain information concerning foreign automobiles; and
Page 976 contains the statement of ownership, management, and circulation.
The form of this issue is almost identical to that of other issues of MCEG, the idea being that a uniform format of reporting is "easy to understand." (Ex. R-14)
Having seen, in part, how the parties describe MCEG, it is appropriate now to refer to a representative portion of the publication itself. Attached hereto as Appendix A is a copy of the section of Ex. P-14 which deals with the 1971 Chrysler. This Appendix reproduces pages 68-77, inclusive, of the exhibit, and it is a relatively shorter treatment than the usual presentation in the publication, but it is referred to now because (1) it is a complete exposition with respect to a segment of one year's production by one automobile manufacturer and (2) it exemplifies the vast bulk (approximately 912 of a total of 976 pages) of the contents of MCEG. The reason for the devotion of so much time and space to the physical attributes of MCEG is to disclose, fully, the appearance, nature, and content of the publication for which continued second-class mail privileges are sought.
In its Brief in support of its proposed findings of fact and conclusions of law Petitioner asserts that the Postal Service has implemented a de facto change in classification without complying with the procedural requirements of the Postal Reorganization Act of 1970, P.L. 91-375 (39 U.S.C. 3001, et seq.)
In connection with the above assertion Petitioner states that it was precluded from eliciting information and evidence in support of this allegation because its second request to conduct discovery was denied. Comparison of the first and second sets of interrogatories discloses (1) the repetitive character of the second set and (2) the tenuous, if any, relevance and materiality to the real issues of the case of the information that was, and would have been, obtained by the questions posed in both sets of interrogatories.
The real thrust of Petitioner's argument, namely, that the Postal Service is engaging extra-legally and surreptitiously in a reclassification move, of which this proceeding is but a part, finds its most accurate, concise and complete refutation in the following quotation from Chief Judge Bryant's Memorandum and Order dated May 20, 1977, in The Reuben H. Donnelley Corporation v. United States Postal Service , Civ. No. 76-1336, D.C.D.C.:
"The Court must now turn to plaintiff's second contention, that being that the action of the defendant in revoking the Travel Planner's second class mail privileges is an attempt to change the classification of mails without first resorting to the procedures in subchapter II of Chapter 36 of Title 39 of the U.S. Code, 39 U.S.C. 3621-3625, and thus violates those provisions and 3 of the Postal Reorganization Act of 1970. Those provisions require that any change in rates or classification of mails shall be made by the Postal Rate Commission at the request of the Postal Service in compliance with 5 U.S.C. 556 and 557. With regard to classifications, these sections speak to schedules of classifications. Thus proceedings under 5 U.S.C. 556 and 557 are required when the general categories of mail are to be changed.
"Revocation proceedings, as provided for in 39 C.F.R. Part 954, are the process through which a determination is made whether or not a particular publication meets the criteria for an existing classification. No change in schedules of classifications is made, there is simply a determination based on the facts presented.
"In this case the manager made a determination, albeit belatedly, 8/ that the Travel Planner did not meet the existing criteria for second class mailability. No new standards were added. There was an interpretative decision made by the Postal Service. This Court has already found that that decision was not clearly erroneous, arbitrary and capricious, nor contrary to the Constitution.
The Congress, the Post Office Department, the Postal Service, the Postal Rate Commission, and the Board of Governors of the Postal Service -- all, at one time or another, have used the phrase "periodical publication" to identify a type of matter that properly may be entered as second class mail, but that phrase is not defined in postal laws or regulations. The only authoritative definition of the term "periodical publication," therefore, and the source of the standards used by Respondent in this case, is the one quoted earlier herein from the decision of the Supreme Court of the United States in Houghton v. Payne , ( supra , at p. 2,fn. 1). That decision was also cited with approval in Mr. Justice Holmes's decision for the Court in Smith v. Hitchcock , 226 U.S. 53, 58 (1912). For years the Houghton definition has been followed by the Postal Service, its administrative law judges and judicial officers in proceedings of this kind, and many of those decisions have been upheld in decisions in the Federal District Courts (e.g . Dell Publishing Co. v. Summerfield , 198 F. Supp. 843 (D.D.C. 1961), aff'd. sub nom . Dell Publishing Co. v. Day , 303 F.2d 766 (D.C. Cir. 1965); Florists' Transworld Delivery Association , P.S. Docket No. 1/167 (Sept. 17, 1974), aff'd. subnom . Teleflora, Inc. v. United States Postal Service , C.A. No. 75-288 (D.D.C. June 25, 1975); National Auto Research Publications, Inc. v. United States Postal Service , C.A. o. 76-766 (D.D.C. Dec. 20, 1976 (appeal pending); Reuben H. Donnelley Corporation v. United States Postal Service , supra.) 4/ These decisions upheld actions of the Post Office Department and the Postal Service in instances in which that portion of the Houghton definition of a periodical publication specifying the need for a "variety of original articles" was a principal basis for the particular administrative decision.
Examination of Appendix A to this decision dispels any idea that MCEG contains, significantly, a "variety of original articles." It consists primarily of columnar listings of parts, prices, repair times, and illustrations of the parts of the particular vehicles. These data do not constitute "articles" within the common, generally accepted definition of that word ( American Chemical Society , P.S. Docket No. 3/59, Postal Service Dec., May 20, 1976). Petitioner argues that each presentation in MCEG "addressed to a different automobile model selected by the authors" ( e . g ., Appendix A) is an article because it "results from the editorial energy, originality, creativity and expertise of its writers and editors." Mere reference to Webster's New International Dictionary should be a sufficient illustration to establish the point that not every collection of writings that "results from the editorial energy, originality, creativity and expertise of its writers and editors" is composed of "articles" and, thus, entitled to second-class mail entry. The question of eligibility for second class mail entry does not turn upon the qualifications and energies of the writers, editors, or publishers, but it turns upon characteristics of their work product. It is recognized that MCEG is probably an invaluable tool for businesses in the automobile repair and automobile insurance fields, and the evidence in this case fully supports this conclusion, but the evidence also supports Respondent's position that MCEG does not consist of a "variety of original articles."
Finally, Petitioner quarrels with the definition of the word "article" as it is interpreted and applied by the Respondent in this case. It cites the definition of an "article" in the 1904 edition of Webster's Universal Dictionary. The only portion of that definition which by any stretch of reason could be applicable to the present proceeding is the third meaning (Pet. Init. Br., p. 15):
"3. A complete and independent, or partially independent, portion of a literary publication, especially of a newspaper, magazine, review, or other periodical; as, an article on child labor; a series of articles on immigration."
Petitioner nowhere has claimed that MCEG is a "newspaper, magazine, review." It has claimed that MCEG is an "other periodical," but when that term is considered in context with the preceding examples, it is clear that Petitioner's claim is unwarranted. This conclusion is borne out when one acknowledges the obvious fact that, while "an article on child labor" and "a series of articles on immigration" may contain illustrative statistical tabular matter, they would not be composed, in such overwhelming preponderance, of statistical tabulations like those found in MCEG.
Respondent failed to sustain its burden of showing that "each issue (of the publication) is complete in itself, lacking continuity of literary character."
It is not difficult to understand why either a new, more precise definition of the term "periodical" or a new delineation of second-class mail is greatly to be desired. For a time after its enactment, it was believed that the Act of March 3, 1879, would simplify the task of the postal authorities in assigning a piece of mail to its appropriate classification - particularly a piece of second-class mail. This belief was short-lived because of the elasticity of the provisions of the statute and because of the adroitness of mailers in availing themselves of the advantages of this flexibility. Because of these factors, the Post Office began, in time, to insist on compliance only with the formal requirements such as the carrying of a serial number and an apparent periodicity. The basis for the foregoing statements, and some of the difficulties of enforcing the 1879 statute - some examples of which persist today, are discussed at pages XXXV to XL of the Report of the Postal Commission Authorized by Congress to Make Inquiry Regarding Second-Class Mail Matter (the Penrose-Overstreet Commission; H. Doc. No. 608, 59th Cong., 2nd Sess.) and in the testimony of Edwin C. Madden, Third Assistant Postmaster-General, before that Commission ( id ., pp. 4-51). In brief, the enforcement of the laws relating to second-class mail matter has presented many and varied difficulties 5/ since effort has been made to categorize the varied kinds of printed matter that comprise that class of mail. As a result, there was a period of about fifty years starting perhaps ten or so years after the Houghton case 6/ in which enforcement, if it existed, was very relaxed. The lapse of stringent administrative application of this most pertinent court decision on the subject does not establish the lack of applicability or viability of the decision. The reason for the failure to rely on the Houghton definition of "periodical" during this time has not been discovered nor has any reason been suggested. Beginning approximately nineteen years ago, and continuing with increasing vigor since then, a more energetic enforcement of the classification of second-class mail became evident, and, since it was still the leading case on the subject, reliance was again placed on the Houghton definition.
If it is determined that different criteria should govern eligibility for second-class mail status, the promulgator of such new criteria should be the Postal Rate Commission, the body specifically designated and authorized by the Congress to carry out that function. (39 U.S.C. 3623) The delineation of such criteria should be performed with great deliberation and care after thorough exploration and consideration of the thoughts of representatives of the varied interests involved - publishers, subscribers, occasional readers, and, not least importantly, the taxpayer.
Whatever the formulation process is to be, the new criteria, hopefully, will be so clear as to be, without too great difficulty, capable of being understood and applied. If the noun "periodical" remains in the pertinent laws or regulations, care must be taken to assure that mere periodicity does not creep in as a spurious substitute for a valid standard. The Houghton Court said "the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical." (194 U.S. 88, 98) On the preceding page the Court had given its definition of "a periodical, as ordinarily understood." ( id ., p. 97) Later, the Hitchcock Court said that "***not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law***." (226 U.S. 53, 58)
Houghton has provided administrative guidance for an appreciable period of time. While the Houghton standards may not be ideal, they have the virtue of being, in most instances, clear and definite. What is intended by these comments concerning appropriate standards and criteria is to suggest that the formulation of adequate parameters for second-class mail matter is a delicate undertaking requiring a skillful and thoughtful approach. The product of this effort should be so composed and expressed as to be an aid to the administrators charged with the duty of reasonably applying the yardstick. It is feared that some recent steps toward re-definition in this field have produced language that is so broad and so vague as (1) further to open the postal floodgates so as to inundate the mails with matter which ought not to be recognized as second-class matter and (2) to render even more difficult and complicated any effort toward a meaningful application of the laws governing second-class mail. Such a result would worsen the present situation and it could enormously increase the burden of the taxpayer in the form of subsidy for second-class mail. That increased burden is not necessarily undesirable, but it should not be placed upon the taxpayer unintentionally or as the result of improvidence.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. 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 because they are either contrary to, or unsupported by, the preponderance of the evidence, or because they are immaterial.
For the reasons set forth herein, it is concluded that the ruling of the Respondent, dated July 6, 1976, was correct. The appeal from that ruling must be and it hereby is denied.
I am aware of the holdings in Institute for Scientific Information v. United States Postal Service, et al. , No. 76-2055 (CA 3, May 5, 1977) and H. W. Wilson Company v. United States Postal Service , Civ. No. 76-3200 (S.D.N.Y., Nov. 15, 1977). The publications involved in those cases, however, are different from the one at issue here. Also, those decisions are contrary to those previously cited decisions of the U. S. District Court for the District of Columbia and to the further decision of that Court in National Auto Research Publications, Inc. v. United States Postal Service , No. 76-766 (Dec. 20, 1976) in which an appeal to the Circuit Court of Appeals for the District of Columbia is pending. For these reasons, the Institute for Scientific Information and H. W. Wilson cases lack controlling authority. Unless and until there is a change by Congressional enactment or Postal Rate Commission action, the second-class mail identification system could be poorly served by following other than a heedful application of Houghton v.Payne. It is not inconceivable that the appropriate entity may develop a system of classification based on an entirely new concept.
1/ "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/ The November, 1976, issue of MCEG was marked by the
reporter
as Ex. P-14 and it is so treated here, although the list of
exhibits on page 1-B of the transcript of the hearing shows the
September, 1976, issue as Exhibit P-14.
3/ There is some information from 1969 model year for some
specific automobiles and trucks whenever parts for model year 1970
are also the parts for model year 1969.
4/ For a list of decisions in numerous administrative cases
based on Houghton standards, see Scientific Meetings Publications , P.S. Docket No. 6/10, Init. Dec., pp. 8 and 9 (Dec. 21, 1977).
5/ Some of the problems have been resolved by legislation,
such
as the provisions for controlled circulation publications, which
were discussed by Mr. Madden.
6/ In 1912 in Smith v. Hitchcock , 226 U.S. 53
the Supreme Court
of the United States, speaking through Mr. Justice Holmes,
referred again to Houghton with apparent approval, pointing
out
that Houghton , and Smith v. Payne , 194 U.S. 104
(1904), might well
be dispositive of Smith v. Hitchcock . The Court
continued by
saying: "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 appellants' brief." ( id ., p. 58)