In the Matter of the Petition by WILLIAM C. MARCIL, Publisher, 19 South Fourth Street, Moorhead, Minnesota 56560 "Forum, Fargo-Moorhead" - Denial of Second-Class Privileges P.O.D. Docket No. 3/82January 26, 1973 Philip B. Vogel, Esq., of Wattam, Vogel, Vogel & Peterson, Fargo, N.D. for Petitioner Arthur S. Cahn, Esq., Law Department, U.S. Postal Service, for Respondent Before: John Lewis, Administrative Law Judge
This proceeding was initiated by the filing of a petition, pursuant to 954.8 of the 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 of the United States Postal Service (referred to herein as Respondent), denying Petitioner's application for second-class mail privileges for the above-named publication pursuant to 4352 and 4354 of Title 39 U.S. Code. Following the filing of an answer by the Respondent, and pursuant to notice duly given, a hearing was convened before the undersigned hearing officer, at which hearing testimony and other evidence were offered in support of and in opposition to the petition. Both parties participated in the hearing and were afforded full opportunity to examine and cross-examine witnesses. Petitioner was the sole witness on his behalf and offered certain documentary evidence in addition to his own testimony. No witnesses were called on behalf of Respondent, the latter restricting himself to cross-examining Petitioner and offering certain exhibits. Following the close of the reception of evidence, proposed findings of fact and conclusions of law were submitted by both parties.
After having carefully reviewed the evidence in this proceeding, and the proposed findings and conclusions submitted by the parties, 1/ and based upon the entire record, including his observation of the witnesses, the undersigned makes the following:
FINDINGS OF FACT
1. The above-named publication is a daily newspaper which is circulated in Fargo, North Dakota and Moorhead, Minnesota and the environs thereof. These communities are located on opposite sides of the Red River, which separates North Dakota from Minnesota. Approximately 44,000 copies of the publication are circulated on the North Dakota side of the river and 19,000 on the Minnesota side. Said publication is owned by Forum Publishing Company, of which Petitioner is President (Tr. 10, 13).2/
2. The present Forum is the result of the merger and combination of two separately-owned and operated daily newspapers. One was known as "The Forum", which was owned and operated by a predecessor of the present publisher, and was published in Fargo, North Dakota. The other was called "Moorhead News", and was published by Moorhead News, Inc., in Moorhead, Minnesota. Each of the newspapers had a second-class original entry mail permit at the post office where it maintained its office of publication. In December 1955, due to financial difficulties, all of the stock and assets of Moorhead News, Inc., including its daily newspaper, were sold to Forum Publishing Company (Tr. 11-13; PX 11-14).
3. For a period of time the publisher of "The Forum" continued to publish each of the newspapers separately, and they retained their separate second-class mail permits. However, in 1957 publication of the Moorhead News was discontinued and, with certain exceptions, its operations were transferred to the Forum's plant and offices in Fargo. The name of "The Forum" continued to be used, but immediately below that name was added the words "Fargo-Moorhead". During the week (i.e., Monday to Friday), the newspaper was published in two editions. On one edition, immediately below the name "The Forum", "Fargo-Moorhead", and alongside the date, there appeared the words "Moorhead, Minn.". The Fargo edition is circulated in North Dakota, and the Moorhead edition in Minnesota. Following the combination of The Forum and Moorhead News, Petitioner's predecessor lost the separate second-class permit for the latter paper (Tr. 12-13; PX 1-6).
4. The Forum, including the Moorhead edition, is printed and published in Fargo, North Dakota, in a building owned by Forum Publishing Company. The publisher employs approximately 220 people in Fargo, of whom 110 are engaged in the printing and assembling of the paper and the balance consists of office employees, reporters and advertising personnel. The publisher also rents office space in Moorhead, Minnesota, where six people are employed. The latter consists of a so-called editor (who also serves as a reported), a full-time reporter, two advertising personnel, a circulation manager, and an office employee. Occasionally other personnel are supplied from Fargo to assist in newsgathering activities in Minnesota. All decisions as to the makeup of the paper are made by the executive editor at the Fargo home office. The Moorhead editor makes assignments concerning newsgathering activities as between himself and the other reporter there. The latter sends his news stories directly to the executive editor in Fargo, who edits them and decides whether to include them in the paper (Tr. 15, 36-43).
5. The Fargo and Moorhead editions of The Forum are substantially identical in makeup and content, except for a few stories of local interest which appear in one edition and not in the other, and a few advertisements which appear only in the Moorhead edition (PX 1-10). Petitioner has conceded that the two editions are identical as to national and international news, but contends that they are "dissimilar with respect to local news" (Proposed Finding No. 9). However, a review of the two editions reveals substantial identity even as to local news and advertisements, with many Minnesota stories appearing in the Fargo edition and many North Dakota stories in the Moorhead edition. Wedding and other personal announcements involving both Minnesota and North Dakota residents are identical in both editions, as are classified advertisements. Such differences as there are usually appear on a single page of one of the daily editions and occupy less than one-fourth of the page. They generally comprise less than 2% of a newspaper which varies from 18 to 40 pages in length. In the case of the weekend editions of the paper (i.e., Saturday and Sunday), there are no differences, there being only one edition of the paper issued (RX 1-2).
CONTENTIONS AND CONCLUSIONS
1. Petitioner contends that it is entitled to a second-class original-entry permit at Moorhead, Minnesota, for the Moorhead edition of The Forum. While recognizing that the newspaper is printed in Fargo, it contends that it is published in both Moorhead and Fargo, and that it is therefore entitled to a second-class permit at Moorhead as well as Fargo, since it meets all of the requirements for such a permit, as set forth in Section 4354 of 39 U.S. Code (Petition, par. 3 at 3).
2. It is Respondent's position that the two editions of The Forum are essentially one newspaper, and that the paper is published at Fargo, N. D. Respondent contends that under Section 4352 of 39 U.S. Code and Section 132.33 of the Postal Service Manual there can be only one original-entry permit for a single publication (Resp. Ans.; Resp. Proposed Findings at 2-3).
3. Section 4352(a) of 39 U.S. Code provides in pertinent part as follows:
"Upon application in the form prescribed by him the Postmaster General shall enter as second class mail, at the Post Office where the office of publication is maintained , any publication which is entitled under sections 4353-4357 of this title to be classified as second class mail. A publication entered at one post office may also, upon application, be entered by him at another post office." (emphasis added).
4. Section 132-33 Postal Service Manual provides in pertinent part as follows:
"After a publication has obtained second-class mail privileges, applications may be filed for the following additional privileges:
* * * * *
"d. A publisher may apply for permission to mail at additional entry post offices any copies except those which are for delivery at the post office where the publication has been granted original second-class entry and mail privileges . A written application for an additional entry must be filed by the publisher at the post office where the publication has original second-class entry ." (emphasis added).
5. In the opinion of the undersigned, Section 4352(a) of 39 U.S. Code contemplates that only one original-entry permit will be issued for a single publication. It does sp by providing that the publication will receive its permit at " the Post Office where the office of publication is maintained" (emphasis added). A publication's entitlement to further entry is derived from its original entry, by the provision in Section 4352 that a "publication entered at one post office may also . . . be entered . . . at another post office" (emphasis added). Such further entry has been designated by the Postal Service and its predecessor agency as "additional entry", and the conditions for issuance thereof are specified in Section 132.33 of the Postal Service Manual.
6. To the extent that there is any ambiguity in Section 4352 of 39 U.S. Code concerning a publication's entitlement to only one original-entry permit, Section 132.33 of the Postal Service Manual has made it clear that any further entry granted to a particular publication will be an "additional entry". This has been the construction of the statute by the Postal Service and its predecessor agency for many years, and Congress was aware of it when it approved changes in second-class rates in recent years (U.S. Code and Administrative News, 90th Cong., 1st Sess., 1967, at 2266-67). It is now hornbook law that great weight will be given to the contemporaneous construction of an ambiguous statute by the officials charged with its enforcement, particularly where such statute was enacted or amended with knowledge by Congress of such administrative interpretation. Bingler v. Johnson , 394 U.S. 741, 749-50 (1969); Udall v. Tallman , 380 U.S. 1, 16-18 (1964); Cory Corporation v. Sauber , 363 U.S. 709, 712; United States v. American Trucking Association , 310 U.S. 534 (1940)
7. In the opinion of the undersigned the two editions of The Forum are part of a single publication, which is published in Fargo, North Dakota. That is where the paper is printed, and that is where it is basically composed and edited. Such limited activities as are conducted in Moorhead do not constitute the publication of the paper or its Moorhead edition. The latter edition is principally prepared, composed and edited in Fargo. In fact it is basically the same as the Fargo edition. Such differences as do exist in the Monday-to-Friday editions of the paper are so minimal as not to constitute the Moorhead edition a separate publication. Moreover, to the extent that its contents do differ from the Fargo edition, they are the result of the decision of the paper's editorial and management officials in Fargo. Consequently, even assuming arguendo that the Moorhead edition were deemed a separate publication, its office of publication were deemed a separate publication, its office of publication would have to be considered to be Fargo, rather than Moorhead. The fact that the Moorhead edition is recognized by the State of Minnesota and three school districts as the legal publication of Clay County for the publishing of legal notices (Proposed Finding No. 6) is irrelevant, since it is not within their jurisdiction to determine what is a separate publication within the meaning of the mail classification statutes.
CONCLUSIONS OF LAW
1. Under Section 4352 of 39 U.S. Code and Section 132.33 of the Postal Service Manual a single publication is entitled to only one second-class original-entry mail permit.
2. The Moorhead and Fargo editions of The Forum constitute part of a single, unitary publication.
3. The Forum has been authorized second-class original entry ar Fargo, North Dakota. It is not entitled to a second-class original-entry permit at Moorhead, Minnesota.
4. Respondent correctly denied Petitioner's application for a second-class original-entry permit at Moorhead, Minnesota. Such decision is accordingly affirmed.
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