In the Matter of the Petition by ABC-CLIO, INC., Post Office Box 4397, Santa Barbara, CA 93140-4397, Denial of Application for Second-Class Mail Privileges for KALEIDOSCOPE: CURRENT WORLD DATA P.S. Docket No. 23/28 January 21, 1987 Randolph D. Mason Administrative Law Judge APPEARANCES FOR PETITIONER: Ian D. Volner, Esquire Mark L. Pelesh, Esquire Cohn and Marks 1333 New Hampshire Avenue, N.W. #600 Washington, D. C. 20036 APPEARANCE FOR RESPONDENT: Jeffrey H. Zelkowitz, Esquire Law Department United States Postal Service Washington, D. C. 20260-1143
This proceeding arises out of a Petition filed by ABC-CLIO, Inc., ("Petitioner") from a ruling of the Director, Office of Mail Classification ("Respondent"), holding that Petitioner's looseleaf service does not qualify for second-class mail privileges because it does not concern developments in the law or public policy within the meaning of Domestic Mail Manual ("DMM") 421.1(b)(2). After the Answer was filed, the case was remanded to the Director at the request of both parties to determine whether the publication constitutes a "periodical publication" under DMM 421.1(a). Subsequently, the Director determined that the publication fails to qualify under either DMM 421.1(a) or DMM 421.1(b)(2), and, accordingly, is not entitled to second-class mail privileges.
Thereafter, the parties submitted this case for determination to the undersigned based on a fully stipulated record. Both parties filed proposed findings of fact and conclusions of law which have been duly considered. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise they have been rejected as irrelevant. Based on the entire record herein, includ- ing the stipulations, pleadings, and exhibits, I make the following findings of fact and conclusions of law:
l. Kaleidoscope: Current World Data (" Kaleidoscope ") is published by ABC-CLIO, Inc. ("Petitioner"), 2040 Alameda Padre Serra, Santa Barbara, California (Stip. 1).
2. Kaleidoscope applied for second-class privileges at the Santa Barbara, California, Post Office on August 14, 1985, as a general publication. At the time the application was filed, the title of the publication was Deadline Data on World Affairs . Under this title, and before Petitioner acquired the publication, the Judicial Officer denied an application for second-class privileges filed by the previous owner in Deadline Data, Inc. , P.O.D. Docket No. 1/149 (Departmental Decision, November 5, 1959). On October 24, 1985, the Postal Service was advised of the adoption of the current title by petitioner's submission of an Application for Additional Entry or Reentry of Second-Class Publication (Form 3510) (Stip. 2).
3. Kaleidoscope is a comprehensive information service which provides current information concerning world affairs. The majority of entries, numbering approximately 170, describe individual countries. There are a lesser number of shorter entries describing organizations and associations such as the United Nations, Associa- tion of South East Asian Nations (ASEAN), the North Atlantic Treaty Organization (NATO), and the World Bank, and entries providing other information including recent obituaries, sports news and data, and currency rates. All entries are in looseleaf format and consist of one or more cards, each measuring approximately five inches by eight inches, which may be maintained in four cabinets provided by ABC-CLIO, Inc. The entire service is made up of approximately 4,500 cards.
The entry for each country is subdivided into three subsections:
l) "General Data and Government," which provides, inter alia , information concerning population, health, culture, economics, education, transportation, communications, and the military, a description of the political organization and structure, and a list of public officials;
2) "Historical Background," which synthesizes information concerning the country's history, and identifies events or developments which have affected its social, political, and economic development; and,
3) "Chronological," which discusses current developments in the country, including economic, social, military, judicial, governmental, and political developments.
In addition, the entries for the United States, Canada, and the Soviet Union include headings which describe these countries' constitutions, judicial processes and interpretation of laws, and electoral systems. (Stip. 3).
4. Kaleidoscope is published weekly. Each issue consists of approximately 50 looseleaf cards, which are designed to update about five to ten entries in the permanent file. In accordance with instructions provided in each weekly issue, subscribers may remove cards contained in the permanent file, and replace them with cards from that issue. In addition to the cards updating the Kaleidoscope entries, each weekly issue contains one card setting forth Kaleidoscope 's identification statement; one labeled "Editor's Note," which summarizes the contents of the issue; one with instructions for the removal of cards from the Kaleidoscope cabinet and the insertion of cards from that week's issue; and several cards providing a weekly news summary. Generally, where an issue updates the entry for an individual country, it replaces one, but not all, of the subsections for the country ( e.g. , "General Data and Government" or "Chronological"), although occasionally it replaces one or more, but not all, of the pages within one of the subsections for the country (Stip. 4). Some of these pages contain incomplete sentences which require reference to the permanent file.
5. The annual subscription price for Kaleidoscope is $495.00. Initially, subscribers receive a complete updated set of cards, filing cabinets (see 3), and the weekly issues (Stip. 5).
6. The Office of Classification and Rates Administration denied Kaleidoscope 's second-class application in decisions issued on December 5, 1985 and June 5, 1986. The parties have agreed for the purposes of this proceeding that Kaleidoscope complies with the second-class requirements set forth in DMM 421.2, 421.3, 421.4, and 422.2, and that it does not comply with DMM 421.1(b)(1) (college catalogs) or 421.1(b)(3) (transportation guides).
The primary issue for consideration is whether Kaleidoscope constitutes a "periodical publication" within the meaning of DMM 421.1.1/
Prior to issuance of these regulations, the Judicial Officer held that this identical publication was not a "periodical publication" and denied the application for second-class rates. Deadline Data, Inc. , P.O.D. Docket No. 1/149 (Departmental Decision, November 5, 1959). He held that the publication was a card index reference service which did not constitute a "periodical" within the ordinary meaning of the term. In this regard, he held that the weekly issues merely updated and corrected the basic set of 3500 cards (now 4500 cards), and that people would be unlikely to subscribe to the weekly, supplementary cards without having the complete, basic set, which contains all the background material. Unless there has been a material change in the law or regulations, this decision is controlling in the instant case.
Petitioner argues that Deadline Data, Inc. , supra , is not dispositive of the instant case in light of subsequent legislation concerning second-class rates for certain looseleaf publications. For the reasons set forth below, I conclude that the applicable principles set forth in Deadline are still valid and are undisturbed by intervening legislative history and cases.
On June 10, 1975, Congressman William D. Ford introduced a bill (H.R. 7735) to amend 39 U.S.C. 3626 to include the following within the definition of periodical publications eligible for second class rates:
"...any looseleaf page or report (including any index, instruction for filing, table, or sectional identifier which is an integral part of such report) which is designed for inclusion in any treatise or compilation."
Although the language seemed, at first blush, to encompass all forms of looseleaf publications, Mr. Ford's remarks demonstrated that he only intended to include those looseleaf publications which concerned developments in law and public policy (121 Cong. Rec. 18,276):
"Looseleaf publications provide current news concerning developments in the law and public policy to specialists who must be currently informed on the latest developments in areas of developing regulation. . . . [L]ooseleaf publications are 'a must' for any respectable law library. . . .
The importance of these publications in providing current news to the public concerning developments in the law and government policy was recognized by the Congress. . . .
. . . Frequently, the looseleaf publications are the first and often they are the only source of reliable information about changes in the law and regulations and policies by the Federal, State, and local governments."
Thereafter, on October 30, 1975, the bill was amended to allow second class privileges only for looseleaf reporting services "concerning developments in the law or public policy," which is the language finally incorporated into the statute (39 U. S. C. 3626(b)(1)(B)) and regulations (DMM 421.1(b)(2)). The amendment was described as (121 Cong. Rec. 34,445):
". . . a statutory limitation on the kind of matter allowed the second-class privilege under this section. The amendment limits the second-class privilege to those periodicals that now have the privilege. . . .
. . . As the [proposed] law was written [before this amendment], it would have opened up second-class mail privileges to all types of [looseleaf] material."
In view of this history, it is clear that Congress intended to strictly limit the looseleaf services eligible for second-class privileges to those concerning law and public policy. Congress noted that the Postal Service had previously allowed, but now sought to revoke, second-class privileges for these legal looseleaf services. It is noted that the predecessor of Kaleidoscope , Dead - line Data on World Affairs , had been denied its application for second-class rates many years before the above legislation. Thus Kaleidoscope 's predecessor was clearly not one of the "periodicals that now have the privilege" for which Congress sought to preserve the status quo in the above-quoted legislative history.
Petitioner argues that Kaleidoscope concerns "developments in the law or public policy" within the meaning of the statutory amend- ment and DMM 421.1(b)(2). Petitioner interprets this language broadly to encompass any looseleaf services with "some informational content on governmental affairs useful, in particular, to educa- tional institutions and libraries" (Petitioner's brief, p. 4). There is no basis for looking beyond the plain, unambiguous wording of the statute to this broader definition. The publication must primarily concern developments in "law" or "public policy" within the common meaning of those terms. Petitioner points to a few instances in Kaleidoscope such as information about political organization and structure within each country's entry; it is unlikely that Congress intended such matters to be considered as "developments in the law or public policy." In any event, it is clear that the publication is primarily a "comprehensive information service which provides current information concerning world affairs" (Stip. 3; JX-5,6,7), and has few, if any, references to develop- ments in the law or public policy within the common dictionary definitions of those terms. Since the latter references would constitute only a minor portion of the publication, they cannot control the outcome of this case. See , e.g. , Feature Publications, Inc. , P. O. D. Docket No. 1/254 (I.D., Dec. 29, 1960, p. 7). Accordingly, Kaleidoscope is not a periodical publication within the meaning of the statutory amendment and DMM 421.1(b)(2).
Petitioner also argues that Kaleidoscope constitutes a "periodical publication" within the meaning of DMM 421.1(a). This regulation was issued subsequent to the decision in Deadline Data, Inc., supra , so it is appropriate to determine whether the underlying principles of that case still apply in view of the new regulation.
DMM 421.1(a) was promulgated to set forth certain basic requirements for second-class status. As indicated in the comments accompanying the published regulation, the fundamental change con- tained in the regulation was the elimination of the previous requirement that the publication contain "original articles" by different authors. This was accomplished by adoption of the following sentence in the regulation:
"A periodical may consist of original or reprinted articles on a single topic or variety of topics, listings, photographs, illustrations, graphs, a combination of advertising and nonadvertising matter, comic strips, legal notices, editorial material, cartoons, or other subject matter."
It is undisputed that the remaining sentences of 421.1(a) contain well-established standards. In this regard, the comments further state that the new section "reflects the common understanding of both the Postal Service and mailers of what constitutes second-class publications" (45 F.R. 73519).
This regulation does not conflict with the principles enunciated in Deadline Data, Inc. , supra . As previously indicated, that decision held that the predecessor of Kaleidoscope was not a "periodical publication" within the "ordinary meaning" of the term 2/ because the weekly supplements merely updated and corrected the permanent card file reference service and people would be unlikely to subscribe to these supplements without having the permanent file. This interpretation of the law by the Judicial Officer is consistent with 421.1(a). Also, as previously noted, the statutory provision for looseleaf publications is strictly limited to those concerning developments in the law and public policy. Therefore, the Deadline decision is also consistent with DMM 421.1(b)(2), which is based on the statutory amendment.
Since Deadline Data, Inc ., supra , is still valid, the instant case is controlled by that decision. Accordingly, the decision of the Director denying the petitioner's application for second-class privileges is sustained and the appeal is denied.
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