In the Matter of the Petition by  	) June 29, 1998
      					)
JAMES BILINSKI    			)
Publisher     				)
109 N. Cayuga Street   			)
Ithaca, NY  14850-4305   		)
      					)
      					)
      					)
      					)
Denial  of Application for   		)
Periodicals Mail Privileges for  	)
"ITHACA TIMES"    			) P.S. Docket No. SCD 98-97


APPEARANCE FOR PETITIONER: 		James Bilinski
      					109 N. Cayuga Street
      					Ithaca, NY  14850-4305

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 James Bilinski, Publisher of Ithaca Times, appealing a February 8, 1998 decision by the Manager, Business Mail Acceptance, United States Postal Service.⁽¹⁾ That decision denied Petitioner's application to mail Ithaca Times at Periodicals rates as a requester publication.

On March 20, 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 his 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. Petitioner requested an additional two months to reply to Respondent's Motion to Dismiss, in order to give the parties more time to explore settlement. That request was granted, extending the time to June 16, 1998, 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:

E212.4.2a. - The publication must have a legitimate list of persons who have requested the publication, and 50% or more of the copies must be distributed to persons who have made such requests.

E212.4.2c. - Persons are not deemed to have requested the publication if their request is induced by a premium offer or by receipt of material consideration.

E216.1.1 - The publisher must keep records that can support the information required on the application for Periodicals mailing privileges and to confirm eligibility for entry of the publication at the requested Periodicals rate. The records must show that the publication is distributed to a legitimate list of requesters (if applicable) ....

The premise of Respondent's Motion to Dismiss, to which Petitioner has not replied, is correct. Petitioner has made no allegation, and presented no factual claim, that his publication meets the requirements quoted above. The position stated in the Petition is that Ithaca Times has presented, or can present, information by which it would qualify for Periodicals rates under the "New Times rule." This refers to a case, docketed here some years ago,⁽²⁾ which was settled, apparently based on a set of criteria agreed to by the parties. While those criteria may still be used by the Postal Service and other publishers to settle cases if the parties can agree to do so, there is no "New Times rule" to apply in this forum. The terms of settlement in another case do not provide a precedent upon which an Administrative Law Judge can make a ruling in this case. While settlement between the parties is encouraged, the only issue to be decided here is whether Petitioner's publication meets the regulatory requirements prescribed in the DMM. Because Petitioner has made no claim that his publication meets those requirements, 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