Appeal of SALLY BLANCHARD -- P.S. Docket No. SCD 98-76

In the Matter of the Petition by  	) June 16, 1998
      					)
SALLY BLANCHARD   			)
Editor      				)
326 Lincoln Avenue    			)
Alameda, CA  94501-3219   		)
      					)
      					)
Denial of Application for   		)
Periodicals Mail Privileges   		)
for "THE PET BIRD REPORT"  		) P.S. Docket No. SCD 98-76


APPEARANCE FOR PETITIONER:  		Sally Blanchard
       					326 Lincoln Avenue
       					Alameda, CA  94501-3219

APPEARANCE FOR RESPONDENT:  		Jeffrey H. Zelkowitz
       					Law Department
       					United States Postal Service
       					475 L'Enfant Plaza, SW
       					Washington, DC  20260-1146

DECISION ON MOTION TO DISMISS

This proceeding arises out of a Petition filed by Sally Blanchard, Editor of The Pet Bird Report, on February 23, 1998, appealing a ruling of the Manager, Business Mail Acceptance, United States Postal Service. That ruling, dated February 5, 1998, declared that Petitioner's publication was not eligible for mailing privileges as a Periodical (formerly Second-Class Mail) because "the identification statement within the publication does not contain the name and address of the known office of publication."

On April 3, 1998, Respondent, the United States Postal Service, filed a Motion to Dismiss, arguing that Petitioner does not dispute the factual basis of the Manager's ruling and makes no claim that her publication meets the pertinent regulatory requirements. Respondent contends that this forum only has jurisdiction to determine whether a publication meets the standards set forth in the Domestic Mail Manual (DMM) and, therefore, has no jurisdiction to consider the arguments that Petitioner does make, i.e., that she should be given an exception to the particular regulatory provision, or that the regulation should be changed. Petitioner asked for an extension of time, to June 1, 1998, to reply to the motion, so that the parties could attempt to reach a settlement agreement. That request was granted, but apparently no settlement was reached, and Petitioner has not replied to the motion. Accordingly, decision on the motion is appropriate.

The Rules of Practice governing appeals from denial of an application for Periodicals mail privileges, 39 C.F.R. Part 954, state that a petition must "allege facts showing compliance with each provision of law or regulation on which the publisher's claim to periodicals mail privileges is based." 39 C.F.R. §954.8(b). The regulatory provisions pertinent to this case are found in the following sections of the DMM:

E211.4.1 - The publisher of a Periodicals publication must maintain a known office of publication at the location where the original entry for Periodicals mailing privileges is authorized.

E211.4.2 - The known office of publication must be a public office for transacting the business of the publication during normal business hours. It must also be the office where the publication's circulation records are kept or can be available for USPS examination.

E211.10.2 - An identification statement, in an easily readable type, must be included in all copies of publications authorized Periodicals mailing privileges and in all copies mailed pending approval of Periodicals mailing privileges.

E211.10.5 - The identification statement must contain:

* * *

f. The name and address of the known office of publication, including street number, street name, and the ZIP+4 or 5-digit ZIP Code. ....

The premise of Respondent's Motion to Dismiss is correct. The requirements regarding a "known office of publication" are clear. Petitioner has not replied to the motion and has made no allegation, and presented no factual claim, that her publication meets the requirements quoted above. In her Petition, Ms. Blanchard states that The Pet Bird Report is published from her home and that, for security reasons, she does not wish to publicly list her home address. Presumably, Postal Service officials could grant an exception to the DMM rules, or could modify those rules to accommodate home publishers such as Ms. Blanchard. Whether it would be wise to do so is for others to decide, however. Respondent is correct in arguing that I have no authority to grant or direct such an exception or amendment to the rules. See Zion's Hope, Inc., P.S. Docket No. 38/163 at 7 (P.S.D. August 23, 1993).

Petitioner also argues that her appeal should be granted because the postal officials with whom she dealt in preparing and submitting her application did not adequately inform her of the "known office of publication" requirements. There is no principle of "equitable estoppel" applicable here, nor has Petitioner made a case for application of such a rule. See Wise Enterprises, P.S. Docket No. 30/169 at 10-11 (I.D. April 11, 1989).

For the reasons stated above, Respondent's Motion to Dismiss is granted, the Petition is dismissed, and the decision of the Manager, Business Mail Acceptance, is sustained.

					Bruce R. Houston 
					Chief Administrative Law Judge