In the Matter of the Petition by ) June 22, 1984 ) MR. DAVID A. ROSE, PUBLISHER ) 127 Ellis Street, Suite 230 ) San Francisco, CA 94102-2103 ) ) Revocation of Second-Class Mail ) Privileges for "THE SAN FRANCISCO ) AND BAY AREA GUIDE" ) P.S. Docket No. 18/76 APPEARANCE FOR PETITIONER: David A. Rose, Pro Se Publisher 127 Ellis Street, Suite 230 San Francisco, CA 94102-2103 APPEARANCE FOR RESPONDENT: Stanley F. Mires, Esq. Law Department United States Postal Service Washington, DC 20260-1143 BEFORE: Judge Edwin S. Bernstein
This is an appeal by Petitioner from a December 13, 1983 decision by Director, Office of Mail Classification, U. S. Postal Service, revoking second-class mail privileges for Petitioner's publication San Francisco and Bay Area Guide. A hearing was held in San Francisco on March 14, 1984. Both parties were afforded a full opportunity to present evidence and file proposed findings of fact, proposed conclusions of law and memoranda. All of these have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.
The parties stipulated and I find:
1. San Francisco and Bay Area Guide ("Bay Area Guide") is a periodical publication issued weekly which is authorized second-class entry as a requester publication. Each issue of Bay Area Guide contains at least 24 printed pages and no more than 75 percent advertising.
2. Approximately 15,000 copies of Bay Area Guide are distributed each week. All but a small number of these copies are distributed to over 125 hotels, motels, visitor centers and similar establishments in the San Francisco area. Each of these establishments asks to receive a number of copies of the publication, which are passed on free to its customers and guests. Approximately 163 copies of Bay Area Guide are mailed at second-class rates each week.
The Postal Service's September 1983 audit of Petitioner's publication's records led to the Postal Service's December 13, 1983, determination that Bay Area Guide did not qualify for second-class mail privileges because less than 50 percent of Bay Area Guide's copies were distributed to persons who requested the publication.
Domestic Mail Manual (DMM) § 422.6d reads:
Effective October 1, 1982, the publication must have a legitimate list of persons who request the publication, and 50 percent or more of the copies of the publication must be distributed to persons making such requests. Subscription copies paid for or promised to be paid for including those at or below a nominal rate may be included in the determination of whether the 50 percent request requirement is met. Persons will not be deemed to have requested the publication if their request is induced by a premium offer or by receipt of material consideration. Requests which are more than three years old will not be considered to meet this requirement.
The Postal Service argued that in determining whether the 50 percent requirement of DMM § 422.6d has been fulfilled:
1. "Copies of the publication" means all copies of that issue printed; and
2. A request by one person for multiple copies is considered as one request.
Petitioner argued that a reasonable application of DMM § 422.6d is that:
1. "Copies of the Publication" means only copies that are sent through the mail (Joint Exhibit 5, p. 1); and
2. A request by one person for multiple copies is considered as multiple requests. (Joint Exhibit 5, p. 1).
I agree with Respondent's interpretation.
Eligibility for second-class mail privileges is limited to newspapers and other periodicals which meet the requirements of DMM ??421 and 422, and are specifically authorized to mail at beneficial second-class rates. Each second-class publication must meet all of the criteria in DMM § 421, which essentially require that it be a periodical primarily designed for the transmission of information, be issued at regular intervals at least four times a year, maintain a known office of publication, and be formed of printed sheets. In addition, a publication must meet the particular standards for one of the five specific qualification categories set forth in DMM ??422.2-422.6. These standards set forth the specifications regarding purpose or content, subscription or circulation, and advertising applicable to each category.
The category of requester publications, authorized under DMM § 422.6, is the direct descendant of controlled circulation mail. Historically, controlled circulation matter was a separate type of mail from second-class matter, designed essentially for free circulation and not subject to the detailed qualification standards established for second-class publications. See, Act of June 5, 1934, 48 Stat. 888; former 39 U.S.C. ??4421, 4422 (1962); Domestic Mail Manual § 500 (Issue I, July 30, 1979).
As a result of the 1980 postal rate proceeding conducted before the Postal Rate Commission (PRC Docket No. R80-1), the classification of controlled circulation matter was eliminated, and a new category of second-class requester publications was created. As one element of this transformation, the new requester publications were required to maintain a list of requesters equal to 50 percent of their circulation. See, Domestic Mail Classification Schedule § 200.0110, implemented in DMM § 422.6d. This 50 percent request requirement was viewed as a "reliable and verifiable indicator of reader desire to receive the publication", analogous to the paid subscriber requirement historically applied to other second-class publications. See, Postal Rate Commission Opinion and Recommended Decision, Docket No. R80-1, at 307-327, especially at 320-322 (February 19, 1981).
The phrase "Copies of the Publication" in DMM § 422.6d is not defined as being limited to copies sent through the mail. In the absence of any evidence to the contrary, I interpret this as meaning total copies printed.
This interpretation maintains consistency with DMM § 422.2 which specifically states:
The distribution of all copies of a publication is considered, whether circulated in the mails or otherwise.
I further find that the phrase in DMM § 422.6d "distributed to the persons making the request" means that where one person requests multiple copies for redistribution, that constitutes one request.
This interpretation also is consistent with DMM § 422.2 which uses the term "ultimate recipients". The interpretation urged by Petitioner would render the requirement meaningless since one person could request all copies in every case under that interpretation.
Similar interpretations for general second-class publications, have been judicially sustained. See, Harvey L. Garrett, Publisher, P.S. Docket No. 6/148 (1979); Philip Maimone, P.S. Docket No. 5/30 (1977); Philip Maimone, t/a Ocean County Citizen v. United States Postal Service, Civil No. 77-0559 (D. N.J., September 11, 1978).
Since 50 percent or more of the copies of Bay Area Guide were not distributed to persons who requested the publication, the decision revoking Petitioner's second-class mail privileges was correct and the appeal is denied.