In the Matter of the Petition by ) June 19, 1995
)
RICHARD S. LANE )
Vice President )
Suite 150 )
1055 South Wells Avenue )
Reno, NV 89502-2550 )
)
)
Denial of Application for Second-Class )
Mail Privileges for LANE GUIDE ) P. S. Docket No. 39/44
APPEARANCE FOR PETITIONER: Matthew L. Sharp, Esq.
Leverty & Associates Law
832 Willow Street
Reno, NV 89502-1304
APPEARANCE FOR RESPONDENT: Jeffrey H. Zelkowitz, Esq.
Law Department
United States Postal Service
Washington, DC 20260-1146
Petitioner has filed a Motion for Reconsideration of the Postal Service Decision issued on March 30, 1995, in which the Judicial Officer concluded that Petitioner's publication, Lane Guide, does not qualify for second-class mail privileges under Domestic Mail Manual (DMM) §422.1. In its motion Petitioner asserts that the Judicial Officer improperly looked beyond the requirements of DMM §422.1 by relying on Houghton v. Payne, 194 U.S. 88 (1904), misapplied the holding of Houghton and erroneously concluded that although Lane Guide meets the requirements of DMM §422.11, it is not entitled to second-class mail privileges. Respondent opposes the motion and requests that the Postal Service Decision be affirmed.
Petitioner's motion does not establish that the Postal Service Decision contains any errors of fact or law or that any other grounds exist to support its Motion for Reconsideration. Contrary to Petitioner's assertion, the Judicial Officer did not inappropriately look beyond the confines of DMM §422.1, misapply the holding in Houghton or erroneously conclude that Lane Guide is not entitled to second-class mail privileges even though it meets the technical requirements of DMM §422.11.
Although Petitioner argues that Houghton is not controlling, the Judicial Officer concluded in the Postal Service Decision that the Supreme Court's decision requires that "a publication must not only meet technical statutory requirements, but in addition must be a 'periodical in the ordinary meaning of the term'" in order to qualify for second-class rates. Petitioner's argument that the Court did not establish a rule of law to be followed in determining a publication's eligibility for second-class privileges is not supported by the Court's reasoning or by subsequent court decisions. The publications considered in Houghton were a series of books alleged to be periodicals entitled to second-class rates under the then existing statutory requirements. By looking beyond the existing statutory requirements to determine whether the publications it was reviewing met the eligibility requirements for second-class mailings, the Court necessarily held that a publication must be a periodical in the ordinary meaning of the term in order to qualify for second-class rates. The Court affirmed its holding that a publication must be a periodical in the ordinary meaning of the term in order to qualify for second-class rates in Smith v. Hitchcock, 226 U.S. 53, 58 (1912) and its holding was thereafter followed in Institute for Scientific Information v. United States Postal Service, 555 F.2d 128, 130-31 (3d Cir. 1987); Standard Rate & Data Service, Inc. v. United States Postal Service, 584 F.2d 473, 476-78 (D.C. Cir. 1978); H. W. Wilson Co. v. United States Postal Service, 438 F. Supp. 326, 329 (S.D.N.Y. 1977), aff'd in part, rev'd in part, 580 F.2d 33 (2d Cir. 1978). Thus, in construing the requirements of the DMM the Judicial Officer did not err in relying on Houghton and applying its holding to determine that Lane Guide is not a periodical in the ordinary meaning of the term and therefore not entitled to be mailed at second-class rates.
Petitioner's contention that the Houghton requirements are incorporated into the DMM and that the Judicial Officer cannot look beyond the DMM and consider the additional Houghton requirement that a publication must be a periodical in the ordinary meaning of the term is also without merit. The cases relied on by Petitioner to support this position stand for the proposition that government agencies are bound by their own regulations. They do not support Petitioner's contention that administrative law judges or other agency adjudicators may disregard controlling case law when applying agency regulations. Moreover, the fact that some of the Houghton requirements for periodicals are incorporated in the DMM does not permit the rejection of the Court's additional requirement that a publication must be a periodical in the ordinary meaning of the term.
Petitioner has not persuasively demonstrated
that Houghton v. Payne has been erroneously considered or applied,
or that any other grounds exist to reconsider and reverse the Postal Service
Decision. Accordingly, the conclusion that the Houghton principle
continues as a threshold requirement for second-class privileges is affirmed
and the Motion for Reconsideration is denied.
James A. Cohen Judicial Officer