INITIAL DECISION

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) (“POM”)) §616.21, which requires the chief field counsel to forward certain mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Grainger County News, P.O. Box 218, Rutledge, TN 37861-0218. The Rutledge Postmaster is holding the mail.

Disputant Linda Witt submitted a sworn statement and supporting documents in accordance with 39 C.F.R. §965.5. Disputant Laura Beth Macka did not file a sworn statement or documents or comments to Ms. Witt’s submittal as permitted by 39 C.F.R. §965.6. However, unsworn statements and documents she previously submitted to the postmaster have been forwarded to this office. The following findings of fact are based on Ms. Witt’s submission and the material forwarded by the United States Postal Service Law Department, Memphis Office.

FINDINGS OF FACT

1. Linda Witt has owned the Grainger County News, a weekly newspaper, since 1981. She has rented P.O. Box 218 in Rutledge, TN, as the newspaper’s mailing address for 22 years. Ms. Witt has also used that address for her personal mail. (Ms. Witt’s Timeline of Events and Statement of Facts (“Witt Stmt”); Ms. Witt’s August 20, 2003 Letter to the postmaster; Bunch/Cowan Sales Agreement).

2. On June 13, 2003, Ms. Witt and her daughter, Laura Beth Macka, discussed the possible sale of the newspaper to Ms. Macka, but a sales agreement was never finalized. Also on that date, Ms. Witt made Ms. Macka a co-signer on the newspaper’s checking account. (Witt Stmt; Statement of Laura Macka)

3. In July of 2003, Ms. Macka assumed the day-to-day operation of the newspaper, and Ms. Witt named Ms. Macka the publisher of the Grainger County News. The newspaper had been published in Ms. Witt’s home for many years, but in July, Ms. Macka rented other space in Rutledge and moved the newspaper operation to the new location. (Witt Stmt; Statement of Laura Macka).

4. Ms. Witt continued to handle all subscriptions, advertising billing, filing employment tax returns, paying state unemployment insurance premiums and escrow deposits, and filing the statement of mailing for each newspaper issue with the post office. (Witt Stmt).

5. In July, Ms. Macka obtained a business license based on her representation to the local issuing officials that she was the owner of the newspaper. On July 15, 2003, Ms. Macka closed the newspaper’s checking account and opened a new one in the newspaper’s name, to which she did not authorize Ms. Witt access. (Witt Stmt; Statement of Laura Macka).

6. On July 18, 2003, Ms. Macka caused the post office to change the lock on the newspaper’s post office box and did not provide a new key to Ms. Witt. When Ms. Witt demanded access to the mail, the post office determined the existence of a mail dispute and held the mail. (Witt Stmt; Postmaster’s memorandum dated September 3, 2003; Statement of Laura Macka).

DECISION

Ms. Macka did not file the submittal required by 39 C.F.R. §965.5 and thus is in default under 39 C.F.R. §965.7. That default would be sufficient to warrant directing that the disputed mail be delivered to Ms. Witt. 39 C.F.R. §965.7. Nevertheless, the entire record, including materials Ms. Macka submitted to the postmaster, has been considered in reaching this decision. However, the sworn statement given by Ms. Witt in this proceeding is given greater weight on disputed issues of fact than the unsworn statements of Ms. Macka and others that Ms. Macka submitted to the postmaster.

Notwithstanding evidence in the record that Ms. Witt and Ms. Macka discussed the sale of the newspaper to Ms. Macka, there is insufficient evidence to conclude that a formal agreement was ever reached or that ownership of the newspaper was transferred to Ms. Macka (Finding 2). It is not disputed that no written agreement was ever entered into. Ms. Witt denies that a sale or an agreement to sell was concluded and denies receiving any of the $1,000 per month payments that Ms. Macka has suggested were a part of a sales agreement. Ms. Macka provided to the postmaster a copy of her August 31, 2003 check made out to Ms. Witt in the amount of $1,000, which Ms. Macka asserted was a payment for the newspaper. However, only the front of the check was shown so there is no evidence that the check was delivered to or negotiated by Ms. Witt, and Ms. Witt denies under oath receiving that check or any payment under the alleged agreement to sell the newspaper.

Ms. Macka has been conducting the day-to-day operations of the newspaper as its publisher since July of 2003 (Findings 3, 5), and thus it might be concluded that those sending mail to the newspaper’s address would want it delivered to her as the person operating the newspaper. However, Ms. Witt continues to perform a number of significant bookkeeping and financial tasks (subscriptions, advertising billings, payroll tax information) (Finding 4) that would suggest that mail addressed to the newspaper would be intended for her. Accordingly, the preference in mail disputes for delivering the mail as the senders would wish is not controlling in this case as the senders’ wishes are not evident in the record.

Finally, under Postal Service regulations, an organization’s mail will be delivered according to the direction of the organization’s president “or equivalent official” (POM §614.1). There is insufficient evidence in the record that the publisher of a newspaper, and specifically that the publisher of the Grainger County News, is an official of the newspaper equivalent to an organization’s president and entitled to control delivery of the newspaper’s mail contrary to the wishes of the newspaper’s owner.

Accordingly, on the record presented, Ms. Witt has established that she remains the owner of the Grainger County News, and as the owner she has the right to control delivery of the mail.

This decision deals only with delivery of the mail addressed to the newspaper at the disputed address. It does not attempt to decide any other dispute between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such order. (POM §616.3).

The Judicial Officer should issue an Order to the Rutledge Postmaster directing that the disputed mail be delivered as directed by Ms. Witt.

Norman D. Menegat

Administrative Judge