In the Matter of the Petition by THE TIMES HERALD, 54 Main Street, Little Falls, New Jersey 07424 Annulment of Second-Class Mail Privileges for "THE TIMES HERALD" P.S. Docket No. 1/152June 20, 1973
The Times Herald, Petitioner unrepresented. Arthur S. Cahn, Esq., Law Department, U.S. Postal Service, for Respondent Before: John Lewis, Administrative Law Judge
STATEMENT OF PROCEEDINGS
This proceeding was initiated by the filing of a Petition pursuant to 954.8 of 39 C.F.R. (Rules of Practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class Mail Privileges) by the above-named publisher (referred to herein as Petitioner) appealing a ruling made by the Director, Office of Mail Classification, United States Postal Service (referred to herein as Respondent), proposing to annul second-class mailing privileges of the above-named publication for the reason that it was not circulated in compliance with 4354 of Title 39, United States Code,a nd 132.2 and 132.222 of the Postal Service Manual. Following the filing of an Answer by Respondent, and pursuant to notice duly given, a hearing was initially convened before me on November 17, 1972, at which hearing the Petitioner failed to appear. Based on the Petitioner's default, and on motion of counsel for Respondent to dismiss the Petition pursuant to 954.9 of the Rules of Practice, I issued an Initial Decision and Order granting the motion to dismiss and provided that the Petition would be dismissed, and that the revocation of Petitioner's second-class mailing permit for the publication here involved would take effect, as of December 5, 1972, unless Petitioner made appropriate arrangements prior thereto for a verification of its records. The effective date of such dismissal order was several times extended by me in order to permit a verification of Petitioner's records.
Following an audit and verification of the circulation records of the subject publication, counsel for Respondent moved that this matter be again set down for hearing inasmuch as the audit indicated that the publication was designed primarily for free circulation. Accordingly, I issued an order on April 17, 1973, vacating my prior Initial Decision and Order, and scheduling this matter for hearing on May 8, 1973. Petitioner again failed to make an appearance at said hearing or to offer any testimony or other evidence in support of its Petition. Testimony and evidence were offered on behalf of the Respondent, consisting of the testimony of a mail classification specialist in the employ of the United States Postal Service and a report of the Assistant Postmaster of the Little Falls, New Jersey, Post Office concerning the circulation of subject publication. At the close of the evidence I concluded that in view of the simplicity of the issues and the lack of any contradictory evidence by the Petitioner, it would be appropriate to render an oral decision.
After having carefully considered the evidence in this proceeding, and based upon the entire record, including the testimony of the mail classification specialist and the report of the Assistant Postmaster at Little Falls, New Jersey, concerning the circulation of the subject publication, I make the following:
FINDINGS OF FACT
1. The Times Herald is a weekly publication purporting to be published by George W. Schultz and circulating in Little Falls, New Jersey, and the environs thereof. The said publisher has heretofore received a second-class mail permit for said publication.
2. By letter dated June 28, 1972, the publisher was notified by the Manager of the Mail Classification Division of the United States Postal Service that its second-class mailing privileges for "The Times Herald" would be annulled within 15 days unless it filed a Petition for a review of such decision in accordance with the applicable provisions of the Rules of Practice pertaining to second-class mailing privileges. The basis of the proposed action to revoke second-class mail privileges for the publication in question was that the publisher (a) had failed to establish from its records that the publication was not designed for free circulation, and (b) did not maintain a known office of publication in Little Falls, New Jersey.
3. Counsel for Respondent stated at the hearing that, after a review of the facts, Respondent no longer contends that the Petitioner does not maintain a known office of publication at Little Falls, New Jersey, and that this ground for the proposed revocation is no longer being pursued. However, counsel contends that the audit made of the Petitioner's circulation records discloses that the other ground for the proposed revocation is sustained by the evidence.
4. The report made by the Assistant Postmaster at Little Falls, New Jersey, following an audit of the Petitioner's circulation records, establishes that the publication in question has a total distribution of 545 copies as to which there is evidence that only 141 copies, or 26 percent of the total number of copies circulated and distributed, are paid for. As to the balance of the Petitioner's circulation of the subject newspaper, the report discloses either
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