In the Matter of the Petition by

 IDEAL PUBLISHING CORP.,
 295 Madison Avenue,
 New York, New York 10017

 Revocation of Second-Class Mail Privileges for "INTIMATE STORY"

 P.S. Docket No. 1/13

 March 17, 1972

 John Lewis Hearing Examiner
 
 Reeves & Harrison, by Marion Edwyn Harrison,
 of Washington, D.C., for petitioner. 

  Arthur S. Cahn, Law Department,
 U.S. Postal Service, for re- spondent.

 Before: John Lewis, Hearing Examiner.  

This matter is now before the undersigned Hearing Examiner for consideration on a motion by petitioner to dismiss the notice of proposed revocation issued on behalf of respondent herein. Said notice was issued on August 11, 1971, proposing to annul the second-class mail privileges for subject publication on the ground, substantially, that said publication was deemed to be "circulated primarily as a free circulation publication" inasmuch as it did not maintain a paid circulation of 65%, as required by 132.227 of the Postal Service Manual.

In its petition filed August 26, 1971, petitioner sought to dismiss the proposed revocation action on the ground that the purported requirement for a paid circulation of 65%, on the basis of which respondent proposed to take action herein, was invalid, and that a suit to declare said requirement invalid was pending in the United States District Court for the District of Columbia, entitled Sterling House, Inc. v. Blount , CA #1968-69. Following the filing of answer herein by respondent and various further procedural steps, petitioner moved to suspend any further proceedings herein on the ground that a motion for summary judgment had been granted in the Sterling House case. By order issued October 21, 1971, the under- signed postponed the hearing scheduled herein until after the expiration of the period allowed for the Postal Service to file an appeal in the Sterling House case.

In its motion to dismiss filed herein, petitioner states that the judgment in plaintiff's favor in the Sterling House case is now final inasmuch as respondent has agreed to a dismissal of the appeal theretofore taken by it in that case. Since the sole issue there involved was the validity of the 65% rule, petitioner urges the dismissal of the proposed revocation action herein, which likewise involves the validity of that rule. In its answer to said motion respondent agrees that the issue in this proceeding is the same as that presented in the Sterling House case, and states that in view of the decision in that case it has no objection to a dismissal without prejudice of the proposed revocation action herein.

It appearing that the sole issue in this proceeding is a legal one, and that said issue has been decided in favor of petitioner in the action brought in the United States District Court for the District of Columbia entitled Sterling House, Inc. v. Blount , and it further appearing that respondent has no objection to a dismissal of the proposed revocation of petitioner's second-class mail privi- leges, albeit one which is without prejudice, it is the opinion of the undersigned that it is appropriate to dismiss the notice of proposed revocation issued herein. Accordingly,

IT IS ORDERED that the notice of proposed annulment of second- class mail privileges for "INTIMATE STORY", dated August 11, 1971, be, and the same hereby is, set aside and dismissed.