In the Matter of the Petition by:

 DAVID SELLERS,
 Publisher,
 THE BEACON PUBLISHING COMPANY, INC.,
 124 West Commerce, 
 Oklahoma City, OK 73109-6000;

 Proposed Revocation of Second-Class Mail Privileges
 for "CAPITOL HILL BEACON"

 P.S. Docket No. 37/153

 08/16/91

 Mason, Randolph D., Administrative Law Judge

 APPEARANCE FOR PETITIONER: David Sellers, pro se, 124 West Commerce,
 Oklahoma City, OK 73109-6000 

 APPEARANCE FOR RESPONDENT: Kenneth N. Hollies, Esq., Law Department,
 United States Postal Service, 475 L'Enfant Plaza West, SW,
 Washington, DC 20260-1142

This proceeding arises out of a Petition filed by David Sellers, publisher of the Capitol Hill Beacon ("CHB"), on March 19, 1991, appealing the determination of the Director, Office of Classification and Rates Administration dated February 13, 1991, to revoke Petitioner's second-class mail privileges.

In lieu of an oral hearing, the parties entered into a Joint Stipulation of Facts, Contents of the Record, and Issues for Decision. Thereafter, they submitted Proposed Findings of Fact and Conclusions of Law on July 24, 1991, and Petitioner filed a Reply Brief on August 14, 1991. Based upon the entire record, the Administrative Law Judge makes the following findings of fact and conclusions of law:

1. The Capitol Hill Beacon ("CHB") is a weekly newspaper whose primary place of business is 124 West Commerce, Oklahoma City, Oklahoma 73109-6000. CHB is owned and operated by the Beacon Publishing Company, and is authorized second-class mail privileges as a "General Publication" pursuant to Domestic Mail Manual (DMM) $S423.1 (Stip. 1).

2. David Sellers ("Petitioner") is the publisher of CHB, and an owner of Beacon Publishing Company (Stip. 2; Ex. 1).

3. Regulations governing second-class mail publications like CHB are in the Domestic Mail Manual (DMM), including sections 423.1 (Requirements for General Publications) and 425 (Maintenance and Verification of Publisher's Records) (Stip. 9).

4. The Director's February 13, 1991 Decision to revoke second-class mailing privileges for CHB is based upon consistent failure by CHB to comply with applicable recordkeeping and circulation requirements, including DMM § 423.125, Free or Nominal Rate Circulation; S$425.1, Eligibility Records; § 425.21(a) (recordkeeping requirement for number of copies printed); and $S425.21(b) (recordkeeping requirements for manner of distribution and disposition of all copies) (Stip. 9).

5. Although the Postal Service has generously afforded it many opportunities to comply, CHB has consistently failed to satisfy the applicable regulations.n1 First, less than 50% of its total circulation is paid, which leads to the conclusion under DMM $S425.125 that CHB is primarily designed for free circulation and does not qualify as a general publication for second-class rates. Second, the records of the number of copies of each issue printed are deficient, in violation of DMM § 425.21(a). Third, a substantial portion of the unpaid circulation cannot be accounted for, which violates the recordkeeping requirements of DMM § 425.21(b). Stip. 8; Exhs. 3-7, 13, 17, 20-21, 24.

n1 Although Petitioner asserts that CHB's June 20, 1991 issue complies with DMM § 423.125, the affidavit of Petitioner's attorney (Exh. 28), which relies in part upon mere allegations of Mr. Sellers, does not constitute adequate proof. Moreover, this case concerns the validity of the Director's Decision, which is based upon prior issues of CHB.

1. There is no dispute about Petitioner's consistent failure to comply with the clear language of DMM § 423.125, and the applicable recordkeeping requirements set forth in DMM § 425.21(a) & (b). Section 423.125 provides that publications primarily designed for free circulation and/or circulation at nominal rates may not qualify for the general publications category. In pertinent part, publications do not qualify if "one-half or more of all copies circulated are . . . provided free of charge. . . The distribution of all copies of a publication is considered, whether circulated in the mail or otherwise" (emphasis supplied). The record is clear that more than half of CHB's total circulation, whether in the mail or otherwise, is provided free of charge. Accordingly, CHB is primarily designed for free circulation and does not qualify for second-class rates as a general publication.

2. Petitioner contends that the regulation is invalid to the extent that it requires the Postal Service to consider as part of the total circulation any copies that are not delivered by mail. Petitioner contends that since the Postal Service is concerned with the delivery of mail, and the second class rates are imposed only upon copies that are delivered by mail, that a publication should be considered primarily designed for free circulation only if half or more of the mailed copies are provided free of charge.

3. Generally, Administrative Law Judges have no jurisdiction to challenge the validity of agency regulations, and this is the rule at the Postal Service. Columbia Flier, P.S. Docket No. 26/17 (P.S.D. April 2, 1987). Accordingly, I am bound to follow the regulations. n2

n2 Moreover, since the paid subscriber rule is a method to ascertain reader desire to receive a publication, it is appropriate to consider the opinions of all recipients, not just those who receive their copies by mail. The latter group may not be an appropriate sample of the universe of recipients. Accordingly, the regulation is neither "irrelevant" nor "arbitrary," as contended by Petitioner.

4. In addition, Petitioner's contention was specifically rejected in Harvey L. Garrett, P.S. Docket No. 6/148 (I.D. August 10, 1979) (publication was primarily designed for free circulation even though all mailed copies were to paid subscribers).

5. It is also noted that the Judicial Officer has upheld a similar rule for Requester Publications where "50% or more of the copies of the publication must be distributed to persons who have made such requests." DMM § 423.421. Jacob Steinman, P.S. Docket No. 18/84 (P.S.D. July 25, 1984) and David A. Rose, P.S. Docket No. 18/76 (P.S.D. June 20, 1985), held that "copies of the publication" meant all copies printed, not just mailed copies. In the Initial Decisions therein, the Administrative Law Judge held that the rule was analogous to the paid subscriber rule which constituted a reliable and verifiable indicator of reader desire to receive the publication. Jacob Steinman, P.S. Docket No. 18/84 (I.D. June 22, 1984); David A. Rose, P.S. Docket No. 18/76 (I.D. June 22, 1984).

6. Petitioner also argues that the regulations in question are unconstitutional in that they infringe his right to free speech under the First Amendment and deny him equal protection of law under the Fifth Amendment. Again, the Administrative Law Judge has no jurisdiction to consider the constitutionality of agency regulations. Columbia Flier, supra. Moreover, the paid subscriber rule has been held to be constitutional in its present form. The Enterprise, Inc. v. U.S., 833 F.2d 1216 (6th Cir. 1987).

7. Also, there is no basis for Petitioner's contention that the rule is unconstitutional when it is applied to his particular set of facts. The rule is applied to all publishers in the same way, and for the same purpose, to ascertain reader desire to receive the publication and determine whether the publication is primarily designed for free circulation. Petitioner is free to print as many copies as he wishes and distribute them without charge to the public. The distribution of additional free copies generally permits a publication to charge more for advertising since it reaches a larger segment of the public, but the publication runs the risk of losing its second class mailing privilege when it does so. This was precisely the situation in Harvey L. Garrett, supra, where the application of the paid subscriber rule to a factual situation similar to the instant case was held to be constitutional.

8. Finally, Petitioner contends that the paid subscriber rule in question creates a new classification of mailers not contemplated by Congress or the Domestic Mail Classification Schedule. Again, this argument erroneously assumes that the rule does not accurately measure reader desire to receive the publication in the instant case. Since there is no basis in fact or law for this argument, it is rejected.

9. Accordingly, the Director's decision to revoke Petitioner's second-class privileges is sustained and the Petition is dismissed.