In the Matter of the Petition by ) October 3, 1997 ) BRIAN REILLY ) Publisher ) 4950 N. Bonham Street ) P.O. Box 929 ) Linden, CA 95236-0929 ) ) ) Proposed Revocation of Second-Class ) Mail Privileges for "Linden Herald" ) P.S. Docket No. SCD 97-282 APPEARANCE FOR PETITIONER: Brian Reilly 4950 N. Bonham Street P.O. Box 929 Linden, CA 95236-0929 APPEARANCE FOR RESPONDENT: Jeffrey H. Zelkowitz Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, DC 20260-1146
This proceeding arises out of a Petition filed by Brian Reilly, publisher of Linden Herald, appealing a July 7, 1997 ruling of the Manager, Business Mail Acceptance, United States Postal Service. That ruling revoked Petitioner's Periodicals mail privileges,(1) declaring that Petitioner's publication, which had previously been authorized to mail at the rates for a "general Periodical," no longer met the requirement that at least 50% of the circulation was to persons who paid above a nominal rate to receive it. The ruling also cited the requirement that publishers maintain, and make available to Postal Service officials, records that can confirm eligibility, and stated that Petitioner had failed to provide such records.
On August 14, 1997, Respondent, the United States Postal Service, filed a Motion to Dismiss. The basis for the motion is that Petitioner has not disputed the finding of Postal Service auditors that far less than 50% of the total distribution of Linden Herald is to paid subscribers. The motion asserts that many copies of Linden Herald are distributed as free copies, while Petitioner bases his argument only on the fact that at least 50% of those on his "subscriber's list" are paid subscribers. The motion accurately cites the Rules of Practice, which require a Petitioner to "allege facts showing compliance with each provision of law or regulation on which the publisher's claim to [Periodicals] privileges is based." 39 C.F.R. §954.8(b).
By Order dated August 18, 1997, Petitioner was given until September 18, 1997 to reply to the Motion to Dismiss. Petitioner received that Order on August 26, 1997, but has not filed a reply.
The premise of Respondent's motion is correct. The regulatory requirement for qualification as a general publication [Periodical] is clear that all distributed copies of a publication are to be considered in determining whether the 50% rule is met. Domestic Mail Manual (DMM) §E212.1.2(h). Petitioner has not replied to the Motion to Dismiss, and has made no allegation, and presented no factual claim, that Linden Herald meets the 50% requirement prescribed in the DMM. Accordingly, Respondent's motion is granted, the Petition is dismissed, and the decision of the manager, Business Mail Acceptance, is sustained.
Bruce R. Houston Chief Administrative Law Judge