In the Matter of the Petition by       ) November 24, 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

Petitioner has filed a Motion to Reconsider the Postal Service Decision issued on August 17, 1993, which concluded that Petitioner's publication "Capital Hill Beacon" (CHB) does not qualify as a general publication entitled to second-class mail privileges under Domestic Mail Manual (DMM) § 423.1.^1/ Petitioner asserts that the decision is erroneous and not supported by the evidence. Respondent opposes the motion, asserting that Petitioner's arguments are without merit.

Petitioner first contends that the two most recent audits conducted by the Postal Service establish that CHB was in substantial compliance with the paid subscriber rule (DMM § 423.125) before CHB's second-class mail privileges were revoked. In support of this contention, Petitioner argues that the Postal Service should consider the number of copies circulated, not the number of copies printed. Petitioner also contends that the Postal Service failed to prove that office copies of CHB were in fact circulated. Finally, Petitioner contends that CHB is now in compliance with the Postal Service interpretation of the paid subscriber rule and therefore entitled to reinstatement of its second class mail privileges.

Petitioner has not shown that the Postal Service Decision is erroneous as a matter of fact or law, or that reconsideration is otherwise warranted. Petitioner's contention that certain audits show that CHB was in compliance with Postal Service requirements is contrary to the parties joint stipulation No. 8 which states that three of four audits concluded that "CHB was not in conformity with applicable Postal regulations."^2/ The stipulation, supported by the audit reports in the record, is sufficient to support the Postal Service Decision. Petitioner's newly raised argument that the number of copies circulated, rather than the number printed, should be considered in determining compliance with the Postal Service regulations is not persuasive. DMM § 425.21 requires a publisher to maintain, and make available to the Postal Service, records that establish the disposition of "all copies," and makes no distinction between copies circulated and copies printed. Absent records verifying the destruction or other disposition of printed copies, it was not improper to conclude that the total number printed were circulated. Petitioner's contention that the Postal Service should bear the burden of proving the number of copies circulated also lacks merit. Under the Postal Service regulations it is Petitioner's responsibility to maintain records sufficient to permit the Postal Service to determine the number of copies distributed. DMM § § 425.1, 425.21(b), 425.3(i).

Petitioner's claim that CHB is now in compliance with Postal Service regulations and therefore the revocation action should be dismissed is not a proper basis for reconsidering the Postal Service Decision. The decision to revoke Petitioner's second-class mail privileges was necessarily based on Petitioner's failure to comply with Postal Service regulations prior to the initiation of the action. Petitioner is free to reapply for second-class mail privileges and to include in its application evidence of current compliance.

Petitioner has not persuasively demonstrated that the decision of the Judicial Officer was erroneous or that any other grounds exist for reversing the Postal Service Decision. Accordingly, Petitioner's Motion For Reconsideration is denied.

                                        James A. Cohen
                                        Judicial Officer

1/ The DMM was revised effective July 1, 1993, and most section numbers were changed. In this decision, however, all references to provisions of the DMM are to those section numbers that were in effect at the time the revocation action was initiated.

2/ The joint stipulation refers to audits conducted on or about Aug. 31, 1989; Feb. 28, 1990; Aug. 17, 1990; and Oct. 12, 1990. The parties agreed that the Aug. 17, 1990, audit reached no conclusion.