In the Matter of the Petition by ) August 17, 1993 ) DAVID SELLERS ) Publisher ) THE BEACON PUBLISHING COMPANY, INC. ) 124 West Commerce ) Oklahoma City, OK 73109-6000 ) ) ) Proposed Revocation of Second-Class ) Mail Privileges for ) "CAPITAL HILL BEACON" ) P. S. Docket No. 37/153 APPEARANCE FOR PETITIONER: David Sellers 124 West Commerce Oklahoma City, OK 73109-6000 APPEARANCE FOR RESPONDENT: Kenneth N. Hollies, Esq. Law Department United States Postal Service Washington, DC 20260-1142
David Sellers (Petitioner) has filed an appeal from an Initial Decision of an Administrative Law Judge which affirms the decision of the Director, Office of Classification and Rates Administration (OCRA), United States Postal Service, to revoke second-class mail privileges for the publication Capitol Hill Beacon (CHB). Petitioner challenges the validity and constitutionality of Domestic Mail Manual (DMM) § 423.125, as applied to the revocation of his publication's second-class mail privileges. Respondent, United States Postal Service, opposes the appeal.
Prior to the Director's decision to revoke Petitioner's second-class mail privileges, CHB had been granted these privileges as a general publication under DMM § 423.1 (Joint Stipulation (Stip.) 1; I.D., Findings of Fact (FOF) ¶ 1). In order to be eligible for second-class mail privileges as a general publication a publication must comply with certain circulation requirements established by the Postal Service (see DMM § 423.12). Under DMM § 423.125 publications primarily designed for free circulation (commonly referred to as the "paid subscriber rule")1/ do not qualify for second class mail privleges as a general publication. Publications are considered primarily designed for free circulation if "one-half or more of all copies circulated" are provided free of charge to the ultimate recipients (Id.). In determining whether a publication qualifies as a general publication under DMM § 423.125, "the distribution of all copies of a publication is considered, whether circulated in the mail or otherwise."
In this case, more than one-half of CHB's total circulation is distributed free of charge to the ultimate recipients (Stip. 7-9, Exhs. 3-7; I.D., FOF ¶ 5 & Conclusions of Law (COL) ¶ 1). As a result, the Director of OCRA issued his decision, affirmed by the Administrative Law Judge in the Initial Decision, which revoked CHB's second-class mail privileges (Stip. 3, Exh. 2; I.D., FOF ¶ 4 & COL ¶ 9). Petitioner on appeal takes exception to the conclusions of the Initial Decision. Respondent contends the Initial Decision should be affirmed.
Petitioner challenges the validity of DMM § 423.125 since it requires that total circulation, rather than total copies mailed, be considered in determining whether a publication qualifies for second-class mail privileges.2/ According to Petitioner, the Postal Service is not authorized by statute or the Domestic Mail Classification Schedule (DMCS), 39 C.F.R. Part 3001, to use total circulation in determining if a publication is entitled to second-class mail privileges. Petitioner also contends that DMM § 423.125 is ultra vires and void since it is not supported by other Postal regulations, including DMCS § 200.0122, which refers to "copies mailed" when describing publications designed primarily for free circulation.3/ Lastly, Petitioner argues that the DMM requirement violates his First and Fifth Amendment rights since it uses a subjective valuation based on total circulation which prohibits dissemination of public information, and creates an arbitrary classification which denies him equal protection under the law.
Respondent counters that the Administrative Law Judge has no authority to consider the validity of DMM § 423.125, and in any event, the courts have previously upheld the constitutionality of the paid subscriber rule. Respondent also contends that the paid subscriber rule is not limited to only mailed copies since the Act creating the rule uses the word "circulation," rather than "mailed circulation,"4/ and reference to "copies mailed" in DMCS § 200.0122 merely refers to a portion of the total circulation considered in determining whether certain copies are distributed free of charge.
Contrary to Petitioner's contentions on appeal, neither the Administrative Law Judge nor the Judicial Officer has authority to determine the constitutionality or validity of Postal Service statutes and regulations. See Spiegel, Inc. v. FTC, 540 F.2d 287, 294 (7th Cir. 1976); Hillhaven West, Inc. v. Bowen, 669 F.Supp. 312, 315 (S.D. Cal. 1987); Zeigler Coal Co. v. Marshall, 502 F.Supp. 1326, 1330 (S.D. Ill. 1980); Columbia Flyer, P.S. Docket No. 26/17 at 2-3 (P.S.D. May 11, 1988). Thus, in this case, both the Administrative Law Judge and Judicial Officer are without authority to determine whether DMM § 423.125 is unconstitutional or otherwise invalid. Accordingly, the Administrative Law Judge correctly concluded that he had no authority to decide the constitutional issues raised by Petitioner, and that he is bound to follow postal regulations and apply DMM § 423.125 as written.
Even if the Judicial Officer had authority to determine the validity of DMM § 423.125, Petitioner has not shown that the statutory history of the regulation or any other postal regulations require that only mailed circulation, rather than total circulation, should be considered in determining a publication's qualifications for second-class mailing privileges. Moreover, second-class mailing requirements have consistently been interpreted to apply to all copies printed, not just copies circulated in the mail. See, e.g., Philip Maimone v. USPS, Civ. No. 77-0559, slip op. at 1-2 (D.N.J. 1978); David A. Rose, P.S. Docket No. 18/76 at 2 (P.S.D. June 20, 1985); Jacob Steinman, P.S. Docket No. 18/84 at 2 (P.S.D. July 25, 1984); Harvey L. Garrett, P.S. Docket No. 6/148 at 10 (I.D. August 10, 1979), finalized (Order Sept. 5, 1979).
While the Administrative Law Judge and the Judicial Officer are not authorized to determine the validity of postal regulations, they may determine the constitutional applicability of those regulations. See Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir. 1991); McGrath v. Weinberger, 541 F.2d 249, 251 (10th Cir. 1976), cert. denied, 430 U.S. 933 (1977). In this case, the Administrative Law Judge correctly determined that DMM § 423.125 is not unconstitutional when applied to Petitioner's publication since it is being applied in the same manner to all publications for the purpose of determining whether the publications are primarily designed for free circulation. Therefore, the DMM requirement does not, as Petitioner contends, create an arbitrary classification.
See The Enterprise, Inc. v. United States, 833 F.2d 1216, 1226 (6th Cir. 1987).5/
Furthermore, no unconstitutional restriction of freedom of speech exists since Petitioner remains free to distribute his publication through the mail, even though he may no longer take advantage of the second-class mailing rate. See Id., at 1225-26. Accordingly, the DMM regulation as applied in this case does not create an arbitrary classification denying Petitioner equal protection under the Fifth Amendment nor infringe on his right of free speech under the First Amendment (Id.).
After consideration of the entire record, it is concluded that Petitioner's publication does not qualify as a general publication entitled to second-class mail privileges under DMM § 423.1. Accordingly, Petitioner's appeal from the Initial Decision of the Administrative Law Judge upholding the denial of second-class mail privileges for CHB is denied.
James A. Cohen Judicial Officer
1/ See The Enterprise, Inc. v. Bolger, 582 F. Supp. 228, 229 (E.D. Tenn. 1984) (considered "paid subscriber requirement," DMM § § 422.221 (now 423.121) and 422.223 (now 423.125)), vacated and remanded, 774 F.2d 159 (6th Cir. 1985); The Enterprise Inc. v. United States, 833 F.2d 1216, 1217-18 (6th Cir. 1987) (same case considering two regulations known as "paid subscriber rule").
2/ The parties stipulated that if only mailed circulation was considered, CHB would be in compliance with the circulation requirements of the DMM (Stip. ¶ 8).
3/ The DMCS, Part 3001, Subpt. C, App. A, states:
"200.0122. Designed primarily for free circulation is defined as distribution of 50 percent or more of the copies of a publication for free or at a nominal rate. Copies mailed to persons who are not on a legitimate list of subscribers as set forth in sections 200.0105 and 200.0110 are free copies."