In the Matter of the Petition by ) August 16, 1984 ) FRANK MARTINEAU, CAE ) Editor and Publisher ) 7204 Clarendon Street ) Bethesda, MD 20814-2320 ) ) Proposed Revocation of Second- ) Class Mail Privileges for ) "ASSOCIATION TRENDS" ) P.S. Docket No. 17/37 APPEARANCE FOR PETITIONER: Frank Martineau 4948 St. Elmo Avenue Bethesda, MD 20814 APPEARANCE OF RESPONDENT: Jeffrey H. Zelkowitz, Esq. Law Department United States Postal Service Washington, DC 20260-1143
Petitioner has requested reconsideration of the Postal Service Decision issued on July 18, 1984, which concluded that Petitioner's publication "Association Trends" does not conform to the provisions of the Domestic Mail Manual (DMM) for second-class mail. In support of the request, Petitioner asserts that this decision is irrational; it is improperly based on a narrow dictionary definition of the word "page;" the 24-page rule is unconstitutional; and this is a class action case deserving of attention at the highest levels of the Postal Service. Respondent has opposed the request, asserting that the prior Postal Service Decision and the Initial Decision which it reviewed are correct, and that the request "does not present new matters or authority which warrant overturning these decisions."
Petitioner does not allege any new or previously unavailable evidence or raise issues which have not been considered. However, in support of his previously addressed contention that the 24-page requirement set forth in DMM § 422.6a is unconstitutional, Petitioner now cites The Enterprise, Inc. v. Bolger, Civil No. 4-83-108 (E.D. Tenn., Dec. 27, 1983), recon. denied, May 24, 1984), a Federal District Court decision issued after final briefs were filed with the Judicial Officer in this proceeding. The Court in The Enterprise, Inc. found that certain provisions of the DMM relating to second-class mail eligibility were unconstitutional to the extent that they accord second-class mailing privileges only to newspapers whose subscribers pay to receive them. Respondent contends that The Enterprise, Inc. was incorrectly decided and that, in any event, it is distinguishable because it concerns a general, rather than a requester, publication as is involved in the present proceeding.
The Enterprise Inc. decision is not sufficiently definitive court authority to require a determination that any portion of the Postal Service second-class mail regulations is unconstitutional. See Jacob Steinman, P.S. Docket No. 18/84 (P.S.D. July 25, 1984), at p. 3. Accordingly, it does not affect the present proceeding. Further, it is noted that the regulatory language addressed in The Enterprise Inc. is completely different from that considered here.
Petitioner's argument that the definition of "page" adopted in the prior decisions is senseless, because it contemplates that the same content would be accepted in one format and rejected in another, merits brief comment for purposes of clarification. Clearly, the format used for a particular publication is solely the prerogative of the publisher. However, if the publisher seeks to take advantage of special postage rates, it must comply with the requirements set forth in Postal Service regulations. An inquiry by this office into the managerial reason for the contested regulation would not serve any useful purpose since the Judicial Officer, in any event, would be without authority to find that the provision is invalid. See 39 C.F.R. § 224.1(c)(4)(iii).
Finally, regarding Petitioner's statement that his arguments should be reviewed by "the highest levels of the Postal Service," it is noted that the Judicial Officer is authorized "to render a final Postal Service Decision for the Postmaster General" in second-class mail proceedings. 39 C.F.R. § 954.15. See also 39 C.F.R. § 224.1(c)(4)(ii)(A). Any further appeal must be sought in the courts.
The Postal Service Decision in this matter, dated July 18, 1984, is affirmed.
James A. Cohen
Judicial Officer