In the Matter of the Petition by ARGUS PUBLISHING COMPANY, 147 Newark Pompton Turnpike, Pequannock, New Jersey 07440 Denial of Application for Second-Class Mail Privileges for "THE PEQUANNOCK TOWNSHIP ARGUS CONTINUING THE PEQUANNOCK TOWNSHIP BULLETIN" P.S. Docket No. 3/137 July 3, 1975 William A. Duvall Chief Administrative Law Judge No Appearance by Petitioner Arthur S. Cahn, Esq., Law Department, United States Postal Service, Washington, D.C., for Respondent
This proceeding involves a denial of an application for second-class mail privileges filed by the Argus Publishing Company seeking a second-class mail permit for the publication known as
"The Pequannock Township Argus Continuing the Pequannock Township Bulletin."
This case originally was scheduled to be heard on March 14, 1975. The reasons for the proposed denial of the application were (1) that the publisher failed to maintain a known office of publication as required by 39 U. S. Code, 4354 and by 132.222 of the Postal Service Manual; and (2) that the publisher had failed to furnish the Postmaster at Pequannock, New Jersey, with the circulation records of this publication that would permit the making of a determination as to whether the publication qualifies for second-class mail privileges.
In a letter dated January 30, 1975, sent in response to the notice of proposed denial dated January 14, 1975, the publisher, Mr. George W. Schultz, stated, in substance, that he wanted to bring his publication into compliance, and in fact he averred that his publication did comply with the requirements in the two particulars set forth in the notice of proposed denial.
When the Respondent filed Answer to this letter, which was treated as an appeal petition, the Respondent requested that the hearing be continued for four months in order to give the Postal Service an opportunity to review the publisher's records to determine whether he was, or would become, publishing in conformity with the requirements of the laws and the regulations.
The full four-month continuance was not granted, but the matter was continued until June 18, 1975, which is this day and date. At the hearing, the Petitioner was not represented either in person or by counsel.
The Respondent was represented by counsel, and through a witness presented evidence setting forth in full the reasons for the denial of this application and the background of events leading up to the issuance of that denial.
The record on this subject is complete. In the present situation, the Rules of Practice, a copy of which was served upon the Petitioner in this case, provide in 954.9 as follows under the caption "Default":
"If a publisher fails to appear at the hearing, the presiding officer may: (a) Dismiss the petition; (b) order the petitioner to show cause within 30 days from the date of the order why an order of dismissal should not be entered, and thereafter enter such order as the presiding officer deems to be appropriate. If the petition is dismissed by order of an Administrative law Judge, the dismissal may be appealed to the Judicial Officer within 15 days from the date of the order."
The record in this case indicates that the denial by the Respondent of the application filed by the Petitioner was, and is, amply justified. The fact that the Petitioner is not represented here today, together with the further fact that no word has been received from the Petitioner indicating why he is not here or requesting that this matter be continued, indicates either a lack of diligence or a lack of interest, or both, on the part of the Petitioner.
In view of these facts, the Petition in this case is hereby dismissed, and the Petitioner is hereby advised that he has 15 days from the date of his receipt of this decision and order of dismissal within which to appeal to the Judicial officer for the United States Postal Service.
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