In the Matter of the Petition by GEORGE W. SCHULTZ 40 Main Street, Butler, New Jersey 07405 Proposed Revocation of Second-Class Mail Privileges for "WANAQUE BULLETIN"; "BUTLER ARGUS"; "KINNELON TIMES"; "NORTH JERSEY TIMES"; "BLOOMINGDALE ARGUS"; "RIVERDALE BULLETIN"; "POMPTON LAKES BULLETIN" and "OAKLAND BULLETIN" P.S. Docket No. 3/143 May 9, 1975 George W. Schultz, 40 Main Street, Butler, New Jersey, pro se Arthur S. Cahn, Esq., Law Department, U. S. Postal Service, Washington, D.C., for Respondent Before: William A. Duvall, Chief Administrative Law Judge
George W. Schultz of Butler, New Jersey, is the publisher of the following publications, all of which are located in the State of New Jersey: Wanaque Bulletin, Butler Argus, Kinnelon Times,
North Jersey Times, Bloomingdale Argus, Riverdale Bulletin, Pompton Lakes Bulletin and the Oakland Bulletin.
On January 20, l975, the Director of the Mail Classification Division of the Bureau of Finance, United States Postal Service, the Respondent in this proceeding, advised Mr. Schultz, who is the Petitioner, that it was proposed to revoke the second-class mailing privileges theretofore in effect for each of the aforesaid publications.
The reasons for the proposed revocations were, in respect to all of the publications which will be dealt with more specifically later, that the publisher had failed to furnish the Postal Service representatives with circulation records of the publication and that the publisher had failed to file the required statement of ownership and management for calendar year 1974. In addition to these grounds, in regard to certain of the publications, there was no known office of publication.
In due course, the matter came on for hearing on April 21, l975, at the Headquarters of the Postal Service in Washington, D.C.
At the hearing Petitioner represented himself and the Respondent was represented by counsel. The representatives of both parties participated either in testifying or examining and cross-examining witnesses.
At the outset of the hearing, it was announced by counsel for the Respondent that the Petitioner had submitted the required ownership statements in those cases in which such statements previously had been lacking. Therefore, that no longer remains as an issue in this proceeding.
The two issues which remain, therefore, are (1) whether the publisher supplies for examination by representative of the Postal Service the required circulation records and (2) whether the Petitioner has a known office of publication for various publications.
All of the publications that are involved in this proceeding are subject to the charge that with respect to them there have been furnished no adequate circulation records.
The charge with reference to the failure to have a known office of publication relates to the Wanaque Bulletin, the Bloomingdale Argue, the Pompton Lakes Bulletin and the Oakland Bulletin.
The statutory and regulatory basis for this proceeding is found in Title 39 of the United States Code, Section 3685, and in Section 132.222 of the Postal Service Manual.
These provisions read as follows, beginning with SEction 3685, subsection (a), of Title 39 of the United States Code:
"Each owner of a publication having periodical publication mail privileges shall furnish to the Postal Service at last once a year, and shall publish in such publication once a year, information in such form and detail and at such time as the Postal Service may require with respect to--
(1) the identity of the editor, managing editor, publishers, and owners;
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(4) the extent and nature of the cir- culation of the publication, including, but not limited to, the number of copies distributed, the methods of distribution, and the extent to which such circulation is paid in whole or in part; and
(5) such other information as the Postal Service may deem necessary to determine whether the publication meets the standards for periodical publication mail privileges." (These provisions are embodied in Section 132.611 of the Postal Service Manual.)
Continuing with subsection (b) of Section 3685 of Title 39, United States Code, we find:
"Each publication having such mail privileges shall furnish to the Postal Service information in such form and detail, and at such times, as the Postal Service requires to determine whether the publication continues to qualify for such privileges." (The essence of this subsection is embodied in Section 132.612 of the Postal Service Manual.)
In subsection (c) of Title 39, Section 3685, it is provided that:
"The Postal Service shall make appropriate rules and regulations to carry out the purposes of this section, including provision for suspension or revocation of periodical publication mail privileges for failure to furnish the required information." (The last provisions are embodied in Section 132.613 of the Postal Service Manual.)
The pertinent part of Section 132.22 of the Postal Service Manual, which embodies the provisions found at 39 United States Code 4354(a)(2) reads as follows:
"Publications must be issued and mailed at a known office of publication. A known office publication is a public office where the business of the publication is transacted during the usual business hours. The office must be maintained at the place where the publication has been granted original second-class mail privileges. Offices for the transaction of business may be maintained at more than one place, but mailings may be accepted at the second-class pound rates only at the post offices where original or additional mail privileges have been authorized."
Testifying as a witness on behalf of the Respondent today was Inspector John F. Nieskens who has been a Postal Inspector for 9 years.
Inspector Nieskens testified that he conducted his first investigation, pursuant to his assignment, in January of 1974. This investigation related to the business affairs of the Petitioner's publication in connection with compliance with Postal laws and regulations governing second-class mail privileges. Over the course of the next 16 months, the Inspector visited the offices of the publications intermittently and at a minimum of 4 times. On each of these occasions, it was explained to the publisher what was necessary in terms of the maintenance and presentation of records in regard to circulation in order to comply with the requirements of the pertinent laws and regulations. The last visit of Inspector Nieskens to the office of the Petitioner was on April 8, l975.
During this 16-month period of time, there was consistent failure or refusal on the part of the publisher to supply the requisite records in regard to circulation, despite the fact that the Inspector explained to the publisher what was required to meet the regulations and the requirements of law. Some information was furnished with respect to the distribution made by mail, but there was nothing to indicate Petitioner's distribution outside the mails, and this information is necessary in order to determine whether the publication is designed for free circulation.
During the course of the proceeding, the Petitioner testified with regard to this issue, and he produced Petitioner's Exhibits 1 through 7 which were prepared in the month of April, some of them as recently as April 17 in preparation for this hearing. These exhibits reflected circulation of the various publications outside the mails for one week, in some instances, and not over two weeks, in every instance. Such records for such short periods of time are wholly inadequate.
The preparation of this information under the gun, so to speak, for the first time within a period of 16 months, despite repeated requests, can by no stretch of leniency or the imagination be held to constitute compliance with the reasonable requirements of the Postal Service, in respect to information regarding circulation.
As pointed out by Counsel for the Respondent, the Postal Service is not in business to put publishers out of business. The Petitioner said that it was inconsistent to take that position and still go ahead with this proceeding, the purpose of which, on the part of the Respondent, is to revoke the second-class mailing privileges for the Petitioner's publications.
The true purpose of the Postal Service throughout the entire course of the events leading to this hearing, has been to get the Petitioner to comply with the reasonable requirements of the regulations in order that the may maintain the second-class mail permits which previously had been issued to him. It would not be unreasonable to find that by postponing the hearing to this day, after having begun the investigation over a year ago, every reasonable leniency has been extended to this Petitioner.
The remaining issue has to do with whether there are known offices of publication for 4 of the publications under consideration today. Those publications are the Wanaque Bulletin, the Bloomingdale Argus, the Pompton Lakes Bulletin, and the Oakland Bulletin.
As recently as the early part of the month in which this hearing is being conducted, the Inspector went to the various addresses which the Petitioner had listed as being his offices of publication. At the time the Inspector made these visits, it was true, in each instance, that no office had available copies of the publications for purchase by the public. They had no receipts for subscriptions. They had no forms for the purchasing of advertising space, and about all that was done that could be called the functions of an office was to keep, in some instances, a sign available that indicated that it was the office of the particular publication. Also, if there happened to be a phone call for the publisher, the caller would referred to some place where they might find the publisher and mail was forwarded.
Under the regulation of the Postal Service, the office of publication is supposed to be a public office where the business of the publication is transacted during the usual business hours.
There is testimony in the record that there might be someone present at one or more of the office during the usual business hours or there might be anybody present during such times. Certainly, if an office is not equipped to sell advertising space in a newspaper, it is not equipped to transact the business of the publication.
In regard to this issue, the publisher presented, as Exhibits 8 through 12, letters, the earliest of which is dated April 7, l975, and the latest of which is dated April 15, l975, addressed "To Whom It May Concern," in which it is indicated that certain individuals as of the particular date have agreed to let Mr. Schultz utilize part of their office or part of their home as an office of publication. There is not the slightest indication in any of these letters as to any public notice that this is where the particular publication will transact its business. It is a recitation of a private agreement that exists between the publisher and some particular individual, so that even if this type of evidence were regarded as meeting the issue in this case, it still is not in compliance with the total requirements of the pertinent regulation.
In his closing remarks, the Petitioner said that to revoke the mail privileges of these publications would be to eliminate a 100 year old business and also to take away his livelihood. Both of these results are regarded as being unfortunate and regrettable, but if these results do flow from this proceeding, the blame cannot be put upon the doorstep of the Postal Service. The blame rests, and it can rest only with the Petitioner for his consistent and repeated failure to comply with the reasonable requirements of the Postal Service.
I find as a fact, therefore, that with respect to the Wanaque Bulletin, the Butler Argus, the Kinnelon Times, the North Jersey Times, the Bloomingdale Argus, the Riverdale Bulletin, the Pompton Lakes Bulletin, and the Oakland Bulletin that the publisher has failed to furnish to the Postal Service the circulation records necessary for a determination as to whether the several publications qualify for retention of second-class mail privileges.
I further find that with respect to the Wanaque Bulletin, the Bloomingdale Argus, the Pompton Lakes Bulletin and the Oakland Bulletin there is no known office of publication within the meaning of Section 4354(a)(2) of Title 39, United States Code, as embodied in Section 132.222 of the Postal Service Manual.
It follows, therefore, that the second-class mailing permits heretofore in effect for the aforenamed publications should be revoked, and that the decision of the Respondent to revoke the second-class mail permits for those publications was correct and is sustained.
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