In the Matter of the Petition by ) April 12, 1974 ) GEORGE W. SCHULTZ, Publisher ) The Pequannock Township Argus Continuing ) The Pequannock Township Bulletin ) 206 Newark-Pompton Turnpike ) Pequannock, New Jersey 07440 ) P.S. Docket No. 2/111 ) ) Proposed Revocation of "THE PEQUANNOCK ) TOWNSHIP ARGUS CONTINUING THE PEQUANNOCK ) TOWNSHIP BULLETIN" APPEARANCES: For Petitioner: George W. Schultz, pro se For Respondent: John DeWeerdt, Esq. Arthur Cahn, Esq. Washington, D.C. Wenchel, Adam G.
This proceeding was commenced by George W. Schultz's petition of July 17, 1973, appealing from the determination of the Manager, Mail Classification Division, the Respondent here, that the second class mail permit for the Petitioner's publication "The Pequannock Township Argus Continuing the Pequannock Township Bulletin" (hereafter Pequannock Argus) should be revoked.
The Petitioner publishes a number of other publications, six of which are located within the same county with the Pequannock Argus. Petitioner has stated that he publishes separate publications in order to be eligible to carry legal advertising notices in each of the towns.
All seven of Petitioner's publications within the county are somewhat similar in makeup, news and advertising. However, particularly marked similarity exists between the Pequannock Argus, the Butler Argus and the Kinnelon Times.
Petitioner states the Pequannock Argus has about 150 to 175 mail subscriptions out of a press run of approximately 400. Other copies are sold on the newsstand and additional copies are delivered by an employee.
The issues raised by the petition and Respondent's answer are:
1. Whether a known office of publication is maintained for the Pequannock Argus within the limits of Pequannock, N.J., the office at which the publication holds its original second class mailing privilege. (Postal Service Manual § 132.222; 39 C.F.R. 132.2(b)(2)).
2. Whether the publisher has failed or refused to make available for Postal Service inspection records of the character described in PSM § 125.66 (39 C.F.R. 125.6(f)) from which the extent and nature of the publication's circulation can be determined.
3. Whether the Pequannock Argus is an independent publication or is an edition of other publications of the publisher.
4. Whether the Pequannock Argus is a publication designed primarily for free circulation, and as such is disqualified from enjoying the second class mailing privilege by PSM § 132.227 (39 C.F.R. 132.2(b)(7)).
5. Whether the publication has a legitimate list of subscribers as required by PSM § 132.225 (39 C.F.R. 132.2(b)(5)).
Although the Initial Decision did not find for Respondent on issue (1), it did uphold Respondent on issues (2), (3) and (4) and therefore recommended that the revocation be sustained.
Petitioner's appeal makes five points for consideration:
1. Petitioner has filed his appeal by himself because his attorney is away on vacation and suggests that a supplemental brief by his attorney would be in order. The Initial Decision in this proceeding was issued formally on January 23, 1974, and was received by Petitioner on January 25. Throughout this proceeding, Petitioner had not suggested that he would appear by Counsel at any stage. Petitioner has conducted the proceeding here on his own behalf as he has done in similar matters. 1/ Petitioner stated his attorney would return from vacation about March 26, 1974. Considering the circumstances, it is apparent that the matter of an attorney was an afterthought on the part of
Petitioner since by March 11, he had been aware of the Initial Decision for 45 days. In view of a 25 day extension of time for appeal previously granted and the other circumstances, an additional period of 21 days or more to allow Counsel to enter the proceeding was not warranted.
2. Petitioner asserts that he has now established a known office of publication within the limits of the Pequannock, New Jersey, post office. The Initial Decision did not sustain Respondent's charge on this issue. Accordingly, no further discussion of the matter is required.
3. Petitioner claims to be harassed by the Postal Service in that an investigation is being made of the record-keeping and circulation practices with respect to all newspapers Petitioner publishes. In view of the questions raised by the kinds of records produced in this proceeding, it would seem entirely reasonable for Respondent to investigate whether Petitioner maintains adequate records for his other publications. In any event, the investigation even if of the character ascribed to it would not be a basis for reversing the Chief Administrative Law Judge's findings as to records and circulation.
4. Petitioner argues that a sufficient distinction is maintained between the Pequannock Argus and his other publications to preclude it from being considered merely as an edition of the other publications.
The Initial Decision sustained the charge that the Pequannock Argus, the Butler Argus and the Kinnelon Times are editions of the same publication and that therefore the former is not entitled to a separate second class mail permit. That conclusion was reached on the basis that the non-advertising portions of the publications mentioned do not differ by 20%. This finding must be reversed for two reasons:
a. The conclusion apparently was reached on the basis of examination of only the July 5, 1973, issues of the publications which differ only by approximately 17 1/2%. The November 29, 1973, issues which are also in evidence, however, are different by about 23 1/2%. Considering the issues of both dates, it can only be concluded that the difference in non-advertising content is more than 20%.
b. A more fundamental difficulty is posed by the fact that Respondent proceeded on the issue of similarity on the basis of the 20% rule. Respondent's "20% rule" is that so long as there is a 20% difference in the non-advertising portion of two publications, Respondent will consider them different for postal purposes. That rule, however, is characterized as an internal rule used in administering the classification standards 2/ and is not published in the Federal Register. While it may be a useful tool for Respondent binding on him, it cannot, as an unpublished rule, be regarded as establishing a standard to which the Petitioner must adhere. Unless and until the "20% rule" is properly published it can lend no support to a proposed revocation or denial of a second class mail permit. 3/ Otherwise, in proceedings such as this it will be necessary each time to present not only evidence as to each factor tending to indicate the identity of two purportedly separate publications, but argument showing the weight to be given each factor in determining identity or the lack of identity. Respondent has not shown any other basis for holding the Pequannock Argus to be an edition of the other publications. Accordingly, it is my conclusion that Respondent has failed to prove that the publication in question is not an independent publication.
5. Respondent asserts that it had agreed to initiate better bookkeeping practices and that "the billing of all newspaper subscribers will be completed by March 13, 1974." Those assertions, however, beg the question of whether the Chief Administrative Law Judge's Initial Decision was erroneous. Obviously allegations of facts not in the record before the presiding officer cannot form a basis for holding his Initial Decision to be erroneous.
The Initial Decision found that the inadequacy of records was established. This was despite the Chief Administrative Law Judge's repeated attempts to have Petitioner submit copies of records after the hearing to show proper records were available. At the hearing of December 5, 1973, the Chief Administrative Law Judge requested Petitioner to file copies of documents (1) relating to the existence of an office, (2) relating to the press run and (3) consisting of bank deposit slips for Fridays during the months of February, June and September 1973. Petitioner neglected to file any of that material within the period originally specified. However, after a second call for the material, he did supply material relating to the first two and on the final day advised that the deposit slips would be mailed the next day. The Chief Administrative Law Judge thereupon allowed another week for the filing of those slips. Not having received any further communication from Petitioner three weeks after the deposit slips were to have been mailed, the Chief Administrative Law Judge formally issued the Initial Decision. Nothing further was received from Petitioner until the end of the period to appeal when Petitioner transmitted what purports to be the backs of two deposit slips, one dated February 23, 1973, and one dated September 24, 1973.
The two slips being filed after the Initial Decision was issued cannot be considered as evidence in this proceeding. 4/
Otherwise, Petitioner simply asserts that he will come into compliance with the record-keeping requirements.
The finding in the Initial Decision that Petitioner's records are inadequate is sustained. As to the future, if Petitioner corrects this deficiency and any other that may exist, he will then be in a position to reapply for a second class mail privilege to which he will then be Untitled.
The conclusions of the Initial Decision are sustained to the extent indicated above and the determination of the Respondent to revoke the second class mail privilege of the publication "The Pequannock Township Argus Continuing the Pequannock Township Bulletin" is hereby affirmed.
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1/ e.g., The Times Herald, P.S. Docket No. 1/90 and P.S. Docket No. 1/152 and Ringwood Bulletin, P.S. Docket No. 1/171.
2/ See Transcript of December 5, 1973, at page 73.