Before McGOWAN, TAMM and LEVENTHAL, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia. (D.C.Civil 77-0299).
Opinion for the court filed by TAMM, Circuit Judge.
Concurring opinion filed by LEVENTHAL, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
Appellant, Standard Rate and Data Service, Inc. , seeks review of a decision *fn1 of the United States District Court for the District of Columbia upholding the revocation by the United States Postal Service of the second-class mailing privileges of seven of appellant's publications. *fn2 We vacate the district court's grant of summary judgment, and remand with instructions to remand to USPS for further proceedings. I. BACKGROUND
The district court stated that SRDS publications
present detailed information for prospective buyers of advertising in newspapers and magazines, or by radio and television. Data are presented under standardized headings in tabular form broken down by states, cities, towns, or other categories to aid the prospective buyer readily to determine rates, coverage, requirements for placement, and the like. The publications issue periodically and reflect expertise, care, and editorial analysis in their preparation. The tabulated material is accompanied by very brief editorial comment. Some advertising appears with the data. *fn3
The postal authorities granted the first SRDS publication entry into the second-class mails in 1919, and, between 1919 and 1970, granted SRDS publications or their predecessors a total of thirty-seven entries, additional entries, or reentries *fn4 into the second-class mails in twelve different years: 1919, 1922, 1931, 1943, 1951, 1952, 1954, 1956, 1960, 1966, 1967 and 1970. *fn5 On January 3, 1975, the Director of the Office of Mail Classification, Rates and Classification Department, USPS, informed SRDS that its second-class privileges were to be annulled because the publications were not "newspapers (or) other periodical publications." *fn6 We have not been directed to any record of a revocation or refusal to grant to SRDS the privileges of second-class entry on similar grounds prior to 1975. Thus, "these publications had long enjoyed (second-class) privileges, some for over fifty years." *fn7
SRDS contested the revocation action pursuant to the procedures of the Rules of Practice in Proceedings Relative to the Denial, Suspension, or Revocation of Second-Class Mail Privileges, 39 C.F.R. § 954 (1977). After an evidentiary hearing, an administrative law judge held against appellant, *fn8 finding that its publications do not contain "articles", and, therefore, are not "periodical publications" entitled to second-class mailing privileges. *fn9 SRDS appealed the Initial Decision. The judicial officer of USPS affirmed the ALJ. *fn10
Having lost at the administrative level, appellant filed suit in the district court seeking a declaration that its publications are "periodical publications" and an injunction reinstating the second-class entries of its publications. *fn11 Both sides moved for summary judgment, and the district court granted the USPS motion. *fn12 This appeal ensued. II. THE LEGAL FRAMEWORK
In 1879, Congress provided for mailable matter to be divided into four classes. *fn13 Second-class mail was to include "newspapers and other periodical publications." *fn14 This descriptive language existed for years, surviving a 1960 congressional revision in the law governing postal matters, *fn15 and was brought forward in statutory form until 1970 in 39 U.S.C. § 4351 (1964).
In 1970, Congress, in an effort to improve the postal system, passed the Postal Reorganization Act (Act), Pub.L.No.91-375, 84 Stat. 719 (codified at 39 U.S.C. §§ 101-5605 (1970 & Supp. V 1975) and in other scattered sections of United States Code ). Section 4351 was not reenacted into the statute, but, pursuant to the Act, *fn16 the language of section 4351 was carried forward in a regulation of the Postal Service, where it remains to date. *fn17
The leading case interpreting the term "periodical publication" is Houghton v. Payne, 194 U.S. 88, 24 S. Ct. 590, 48 L. Ed. 888 (1904). In that case, the Supreme Court ruled that books that were complete in themselves and had no connection between them were not "periodicals" entitled to second-class mailing privileges just because they issued periodically in a series and were ...