In the Matter of the Petition by ) February 7, 1977 ) PHILIP MAIMONE ) Publisher ) 126-128 Second Street ) Lakewood, New Jersey 08701 ) P.S. Docket No. 5/30 ) Proposed Annulment of Second-Class ) Mailing Privileges for "OCEAN COUNTY ) CITIZEN" ) APPEARANCES FOR PETITIONER: Steven P. Russo, Esq. Toms River, New Jersey APPEARANCES FOR RESPONDENT: Gerald E. Cerasale, Esq. Law Department United States Postal Service Washington, D.C. Lussier, Edward F.
This appeal is from the Initial Decision by Administrative Law Judge Quentin E. Grant which upheld the ruling of the Director, Office of Mail Classification, Finance Group, U. S. Postal Service, revoking the second-class mail privileges for Petitioner's publication "Ocean County Citizen." Judge Grant held that the publication ran afoul of Postal Service Manual (PSM) section 132.227 which precludes second-class mail privileges to publications which are designated primarily for free circulation, in that the great bulk of circulation goes to individuals and institutions who do not pay for them. Petitioner has taken five exceptions to the Conclusions of Law contained in the Initial Decision, all addressing directly or indirectly the ultimate issue of whether the recipients of Petitioner's publication may be considered legitimate subscribers within the meaning of the postal regulations when the cost is paid entirely by a business establishment which purchases the publication for distribution to its customers. While Respondent, in its Reply Brief, has seen fit to correct or amplify upon certain factual statements made by Petitioner in its introductory statement of the case neither party has taken exception to Judge Grant's findings of fact and these are accepted as a basis for his Conclusions of Law and Petitioner's exceptions thereto.
Petitioner's first exception is to the conclusion at page 8 of the Initial Decision that PSM section 132.225 limits a legitimate list of subscribers generally to persons who pay or promise to pay for their own subscriptions. Petitioner contends the proper interpretation of the regulation is simply to establish the requirement that the rate of the subscription must be more than nominal and that no significance should be given to who pays it. It argues that the case of Myrick v. U.S., 219 Fed. 1 (1st Cir. 1915), compels that result. As Judge Grant properly, in my view, pointed out, the case cannot be taken as precedent for that proposition either construed standing alone, but in full context, or construed in light of the postal regulations applicable to the instant proceeding. This exception is accordingly disallowed.
Petitioner's second exception is to the conclusion treating the large business subscriber distribution as outside of the limited gift subscriptions permitted under PSM section 132.463 and thus free subscriptions under PSM section 132.227 not entitling those receiving them to be treated as subscribers under PSM section 132.225. 1/ Petitioner contends that the fact that the business concern pays for the subscription at above a nominal rate is sufficient in itself. As part of this exception it also appears to take issue with Judge Grant's earlier finding that the bulk subscriptions were taken to promote the interest of the business concerns. His corollary findings, well supported by Petitioner's own testimony, make it clear that the bulk subscriptions go to the customers of the business concerns. I consider his common-sense conclusion that the business interest is thereby served obvious from the record. Nor is there any doubt whatsoever that the bulk subscriptions are free to the recipients. PSM section 132.463 makes it clear that only a minor portion of the subscription list may consist of persons whose subscriptions were paid for as gifts and that subscriptions paid for by advertisers or others to promote their own interests do not qualify for the second-class rate. I consider the facts in this case beyond reasonable doubt. To adopt Petitioner's legal position in construing the regulations would render them virtually meaningless. The exception is disallowed.
Petitioner's third exception argues the controlling precedent of the Myrick case, cited above. As above indicated, I agree with Judge Grant that the case does not require the result Petitioner seeks and this exception is also disallowed.
Petitioner's fourth exception is based upon the contention that PSM section 132.463 does not apply to bulk subscribers but only to advertisers and others who are given a below nominal subscription rate as an inducement or to subscribers who are given special advertising benefits. I cannot read such a limitation into the regulation and no authority or evidence in support of that proposition is advanced. Consequently, this exception is disallowed.
Petitioner's last exception must also be disallowed as it attacks the constitutionality of section 132.463. That issue, as pointed out by Judge Grant, is beyond the scope of these proceedings since 39 CFR § 224.1(c)(5)(G) precludes both the Administrative Law Judges and the Judicial Officer from passing on the constitutionality of statutes or the validity of Postal Service regulations. To the extent its fifth exception argues arbitrary application of the regulations by repeating contentions contained in its earlier exceptions it is also disallowed.
The appeal has been considered and the exceptions taken therein having been disallowed the Initial Decision is hereby affirmed.