In the Matter of the Petition by May 19, 1986 PUBLISHERS 919 North Michigan Avenue Chicago, IL 60611-1653 Proposed Revocation of Second-Class Mail Privileges for "TOWNSFOLK" P.S. Docket No. 23/66APPEARANCE FOR PETITIONER: J. P. Person Publisher, Townsfolk 919 N. Michigan Avenue Chicago, IL 60611-1653 APPEARANCE FOR RESPONDENT: Jeffrey H. Zelkowitz, Esq. Law Department United States Postal Service Washington, D.C. 20260-1143 May 19, 1986 Mason, Randolph D.
This proceeding arises out of a Petition filed by J. P. Person, publisher of Townsfolk ("Petitioner") from the ruling of the Director, Office of Mail Classification ("Respondent"), revoking the second-class mail privileges for that publication. In its timely filed Answer, Respondent contends that the revocation was proper under Domestic Mail Manual § 421.22 in view of Petitioner's consistent failure to publish Townsfolk regularly on a monthly basis as called for by its statement of frequency.
On March 24, 1986, the parties submitted a Joint Stipulation of Facts and Exhibits and submitted Joint Exhibits 1 through 22 ("J-1", etc.). The stipulations and exhibits were filed in lieu of an oral hearing. Although both parties were given an opportunity to file proposed findings of fact and conclusions of law, only the Respond ent chose to do so. Petitioner indicated that her position was set forth in the joint exhibits. To the extent indicated below, pro posed findings and conclusions have been adopted; otherwise they have been rejected as irrelevant or contrary to the evidence. Based on the entire record herein, I make the following findings of fact and conclusions of law:
1. Townsfolk is authorized to mail at second-class rates at the Chicago, Illinois post office. It has had a second-class authoriza tion for approximately 50 years. Joint Stip. 1.
2. Townsfolk's authorized frequency is monthly and has been so since at least 1980. Joint Stip. 2.
3. During the last five months of 1980, three issues of Townsfolk were published. J-1. Petitioner failed to publish the October and November, 1980, issues and subsequently alleged that they were not printed " d ue to a change of printers in early October." J-2.
4. In 1981, only seven issues of Townsfolk were published. J-1. Petitioner advised the Postal Service that the January and February, 1981, issues were "combined into one." J-3. Petitioner later explained that the September, October, and November, 1981, issues were not published due to "printer difficulties and change over from one printer to another." J-5. No explanation was given for the failure to publish a July, 1981, issue. J-1.
5. In 1982, seven issues of Townsfolk were published. J-1, p. 2. Petitioner advised the Postal Service that the February, 1982, issue was not published due to "printer difficulties and the lateness of February." J-6. Later, after the Postal Service had inquired concerning the failure of Townsfolk to be published in July, August, September, October, and November, 1982, Petitioner advised the Postal Service that Townsfolk was "a few months behind in our monthly publication" because of "a merge of our printer with another printer." Petitioner expressed the hope that Townsfolk would "be caught up by the end of the year." J-7. Eventually, the November, 1982, issue was published, but the July, August, September, and October, 1981, issues were not published. J-1.
6. In 1983, five issues of Townsfolk were published. J-1. Petitioner explained that the July and August, 1983, issues were not published "because of a merge with our printer and another." J-10. Petitioner also told the Postal Service that Townsfolk was not published every month in 1983 "because of printer difficulties." J-11.
7. Five issues of Townsfolk were published during 1984. J-1, p. 3. Petitioner advised the Postal Service that Townsfolk was not published monthly during 1984 " d ue to the merger of our printer with another this past year, our photographer with financial problems and not meeting our photo deadlines." J-12.
8. Townsfolk was published three times in 1985. J-1, pp. 3-4. Petitioner attributed this irregularity to problems with "printing, photo and editorial copy,"; "printing problems," (J-13); and "a merge of its printer with another printing company, new press men who were not familiar with Townsfolk makeup and new machinery being established." J-16.
9. Townsfolk was not published during the first two months of 1986. Petitioner now has a new printer, and no reason was given why these issues were not printed.
10. On November 8, 1983, the Postmaster, Chicago, Illinois, sent a certified letter to Petitioner explaining the failure to meet the frequency requirement and warning it that the publication's second class authorization could be revoked if the problem was not cor rected. J-9. Similar letters were sent on a number of other occasions. Joint Stip. 4.
11. On May 23, 1985, the Chicago Post Office advised the Office of Mail Classification that Townsfolk was not complying with its authorized frequency. Joint Stipulation 5; J-14. The Office of Mail Classification issued a decision revoking Townsfolk's second class authorization on July 1, 1985, due to its failure to comply with its authorized frequency. This decision stated that the determination would be final unless Petitioner appealed under 39 C.F.R. § 954, or filed a statement showing compliance, or a proposal for compliance, with the Domestic Mail Manual requirements. J-15.
12. On July 5, 1985, Petitioner wrote to the Office of Mail Classification, and stated that Townsfolk had not been published regularly due to certain problems incurred by its printer over the past 10 years, including its merger with another printer, and its use of new employees and machinery. Petitioner stated its belief that Townsfolk would be able to comply with its authorized frequency from that time on, and further stated that the May, June, and July, 1985, issues were nearing completion. J-16.
13. No issues of Townsfolk were published for May, June, or July, 1985. J-1, pp. 3-4.
14. On August 9, 1985, the Office of Mail Classification issued a further determination revoking Townsfolk's second-class authoriza tion. This decision noted Petitioner's failure to comply with the frequency requirements or to take affirmative steps to correct these failures. The decision stated that " p roduction difficulties can not be used to indefinitely justify protracted irregularity in issuance of your publication." J-17.
15. On August 12, 1985, Petitioner stated that it expected Townsfolk to be issued in accordance with its stated frequency for the remainder of the year. J-18.
16. On September 6, 1985, the Office of Mail Classification, in reliance on Petitioner's assurances that Townsfolk would be pub lished from that time on in compliance with its stated frequency, deferred its decision to revoke Townsfolk's second-class privileges for 90 days to allow Petitioner a final opportunity to comply. J-19. The Office of Mail Classification suggested that, if Townsfolk could not adhere to its authorized monthly frequency, Petitioner should apply, within the 90-day period, to change its frequency to one which could be met. J-19.
17. On January 2, 1986, Respondent determined that Townsfolk was still not in compliance with the second-class frequency require ments, and issued a determination revoking Townsfolk's second-class authorization. Joint Stipulation 7; J-20.
18. On January 10, 1986, Petitioner stated that Townsfolk had a new printer, that it would now comply with its authorized monthly frequency, and that the December, 1985, and January, 1986, issues of Townsfolk were nearing completion. J-21.
19. No issues of Townsfolk have been published for December, 1985, and January and February, 1986. J-1, p.4.
20. On January 24, 1986, Respondent issued a decision concluding that Townsfolk's problems in complying with the second-class freq uency requirements had not been satisfactorily resolved. This decision declined to defer the determination to revoke Townsfolk's second-class authorization. J-22.
21. On numerous occasions, Petitioner assured the Postal Service that its production problems had been solved, and promised each time that Townsfolk would be published in accordance with its authorized frequency. J-7; J-10; J-11; J-12; J-13; J-16; J-18; J-21.
22. Respondent provided Petitioner numerous opportunities to bring Townsfolk into compliance with its authorized frequency. Joint Stips. 4, 6; J-9; J-15; J-17; J-19; J-20; J-22.
23. Townsfolk has not been published in accordance with its statement of frequency since at least August, 1980. J-1.
1. Section 421.21 of the Domestic Mail Manual provides that each second-class publication must be issued at a regular freq uency. The publisher must determine the number of issues to be published each year and adopt a statement of frequency that will show at what regular intervals the issues will appear. Towns folk's authorized frequency is monthly. Joint Stip. 2. In order to maintain second-class mailing privileges, the publisher must also comply with Domestic Mail Manual § 421.22, which provides:
All issues must be published regularly as called for by the statement of frequency. If the publisher wishes to change the number of issues scheduled or the statement of frequency, he must adopt a new statement of frequency by filing an application for second-class reentry (See 444). If a publication fails to maintain regular issuance according to its stated frequency, the postmaster will remind the publisher of the above requirements and request compliance. If irregular issuance continues, the Office of Mail Classification, USPS Headquarters, will revoke the publication's second-class mail privileges (See 441.5). The primary issue for consideration is whether Petitioner published regularly as called for by its statement of frequency. It is obvious that Petitioner has failed to do so. Moreover, the Postal Service has been extremely patient with Petitioner and afforded it several opportunities to comply with the frequency requirements. In spite of these opportunities, Petitioner failed to comply.
2. Petitioner's contention that its infrequency over the past 10 years was due to problems with its printer is rejected. Peti tioner blames its irregularity on a change of printers in 1980 and 1981 and a "merger" of its printer with another printer in each of the years 1982, 1983, and 1984. Likewise, Petitioner placed most of the blame on a printer for missing nine out of the twelve monthly issues in 1985. These claims are not believable. Furthermore, on July 1, 1985, Petitioner admitted: " w e have been re-miss sic with printing, photo and editorial copy, hence our lateness" (J-13). Over the ensuing eight month period, Petitioner only published one issue (September, 1985). J-1. Also, Petitioner had ample opportunity to find a printer who could publish Townsfolk on a monthly basis, but it failed to do so. It is concluded that Petitioner must bear the responsibility for its failure to publish Townsfolk in accordance with its authorized monthly frequency.
3. In Zest Publishing Company, Inc., P.O.D. Docket No. 1/234 (Departmental Decision, September 21, 1961), the publisher was denied second-class mailing privileges when it had missed three out of twelve monthly issues. The Judicial Officer did not believe that the infrequency was due to problems with the printer. In the instant case, the evidence of irregular issuance is far more extreme. Accordingly, it is concluded that Petitioner's second class mail privileges should be revoked. DMM § 421.22.
4. The decision of the Director, Office of Mail Classification is sustained and the Petition is denied.