In the Matter of the Petition by                                )
                                                                               )
DOW JONES & COMPANY, INC.                             )
30 Broad Street                                                      )
New York, New York 10004                                  )
                                                                               )
Revocation of Second-Class Mail                          )
Privileges for "WALL STREET JOURNAL"              )
at Palo Alto, California; Dallas,                               )
Texas; and Chicago, Illinois                                    ) P.S. Docket No. 1/11

APPEARANCES:                                                     W. Gilbert Faulk, Jr., Esq.
                                                                               Dow Jones & Company, Inc.
                                                                               P. O. Box 300
                                                                               Princeton, New Jersey
                                                                               and
                                                                               Robert S. Potter, Esq.
                                                                               Patterson, Belknap & Webb
                                                                               One Wall Street
                                                                               New York, New York 10005
                                                                               for Petitioner

                                                                               Arthur S. Cahn, Esq.
                                                                               John L. DeWeerdt, Esq.
                                                                               Law Department
                                                                               United States Postal Service
                                                                               Washington, D.C. 20260
                                                                               for Respondent

Wenchel, Adam G.

POSTAL SERVICE DECISION

THE PROCEEDING

The "Wall Street Journal" was first granted an entry as second class mail at New York, New York, in 1889. Thereafter it was granted entries at San Francisco, California (later transferred to Palo Alto, California) in 1929 for its Pacific Coast Edition, at Dallas, Texas, in 1948 for its Southwest Edition and at Chicago, Illinois, in 1951 for its Chicago Journal of Commerce Edition. The last was reentered as the Midwest Edition in 1952.

On August 9, 1971, the Manager, Mail Classification Division, gave notice to Petitioner of his intention to revoke the entries held at Palo Alto, Dallas and Chicago on the grounds that the Pacific Coast, Southwest, Midwest and Eastern Editions are editions of a single periodical publication; namely, the "Wall Street Journal." ^1/

Petitioner's appeal from the notice of proposed revocation initiated this proceeding. Following hearing before him, the Administrative Law Judge issued an Initial Decision upholding the Manager's action. The matter is now before the Judicial Officer on Petitioner's appeal from the Initial Decision.

I. Law and applicable regulations do not preclude a periodical publication from having more than one original entry.

II. There are four discreet periodical publications issued under the name "Wall Street Journal".

III. None of the outstanding entries granted to the "Wall Street Journal" may be revoked as long as it is entitled to retain one entry, because--

A. The Postal Service is bound by the administrative construction involved in granting the entries at Chicago, Dallas, and San Francisco (Palo Alto);

B. There is no provision of law for revoking the challenged entries without revoking the entry at New York; and

C. The Postal Service is estopped from revoking any entries improvidently granted.

I. MULTIPLE ORIGINAL ENTRIES

The first question for consideration is whether a periodical publication is authorized under applicable regulations to hold more than one original entry. Petitioner argues that such is the case. An examination of the laws and applicable regulations makes it clear that a publication can be entitled to only one original entry.

Section 4354(a) of title 39 U.S. Code as codified by P.L. 86-682, like its predecessor § 14 of the Act of March 3, 1879, 20 Stat. 359, prescribed as one condition for second class mail entry of a publication that it be issued "from a known office of publication" (Underscoring supplied). Section 4352(a) of title 39 U.S.C. provided in part:

"Upon application in the form prescribed by him the Postmaster General shall enter as second class mail, at the post office where the office of publication is maintained, any publication which is entitled under ??4353-4357 of this title to be classified as second class mail" (Underscoring supplied).

The current requirement with respect to office of publication is embodied in 39 C.F.R. 132.2(b)(2); Postal Service Manual § 132.222 ^2/ as follows:

"(2) Issuance at known office. Publications must be issued and mailed at a known office of publication. A known office of publication is a public office where the business of the publication is transacted during the usual business hours. The office must be maintained at the place where the publication has been granted original second-class mail privileges. Offices for the transaction of business may be maintained at more than one place, but mailings may be accepted at the second-class pound rates only at the post offices where original or additional mail privileges have been authorized."

Aside from the plain meaning of the adjective "original" as the first or initial item, precluding more than one, ^3/ the quoted regulation and the statutes upon which it was previously based preclude by their terms more than one original entry for a single publication since the original entry must be at the designated known office of publication. This is the result reached in the Initial Decision, now the final decision, in Petition by William C. Marcil, P.O.D. Docket No. 3/82 (January 26, 1973).

II. THE WALL STREET JOURNAL AS ONE PUBLICATION

Petitioner's basic claim in this proceeding is that it publishes four separate periodical publications; namely, The Wall Street Journal--Eastern Edition, The Wall Street Journal--Midwest Edition, The Wall Street Journal--Southwest Edition, and The Wall Street Journal--Pacific Coast Edition. As demonstrated by the excellent exposition on pages 14-18 of the Initial Decision, the four editions of the Wall Street Journal are exactly that and are not separate periodical publications.

Indeed it appears that Petitioner itself considers the Wall Street Journal to be one publication, not four. Petitioner's sole witness, its Vice President for Finance, testified (Tr. p. 94) that Wall Street Journal is a national business daily and is "a newspaper made up of four different editions" (Tr. p. 104). The operations of the Wall Street Journal are so organized that no person below the corporate officer level is responsible for any one edition. The Managers of Accounting, Sales and News for each edition report separately to the central organization rather than to the chief of the office of their respective regional editions. (Tr. p. 100). In fact, the chief editorial or news employee at the regional office is given only the title "Assistant Editor" and no more authority than the title suggests. His name is not even printed in the publication.

Subscriptions are not solicited for the various editions as such. Subscribers normally subscribe to the Wall Street Journal rather than to an edition and their subscriptions normally are filled by the edition appropriate to the areas of delivery (Tr. p. 102, 1. 18 - p. 104, 1. 1). Publicity and advertising of Wall Street Journal appear to treat Wall Street Journal in a unitary manner (Tr. p. 106 et seq.; RX 16-23) and do not point out the existence of the various editions except insofar as regional advertising is solicited. But even the advertising solicitation offers a discount for placing advertisements in the "National Edition", which is the composite of the four regional editions. It is also interesting to note that the edition designation in no case is carried as part of the title of the newspaper but appears inconspicuously on the first page in the line below with the volume number, date and newsstand price. The designation does not appear either on the headings of other pages or on the masthead. Insofar as appears it is solely or at least primarily in its dealings with postal authorities that Petitioner purports to establish separate and independent identities for the various editions of Wall Street Journal.

III. REVOCATION OF EXCESS ENTRIES

The various contentions made by Petitioner relating to the prior grant of the entries are discussed separately below. However, it should be noted that to accept the proposition that an entry once granted cannot be revoked, absent a change in the publication, would also preclude adoption of regulations, after following appropriate procedures, altering the conditions for holding an entry. The law obviously does not require that result.

A. Grant of Entry as an Administrative Construction.

Petitioner contends that the Postal Service is bound by the earlier grant of the entries here involved as an administrative construction of the applicable laws. Petitioner's claim that past administrative practice supports its claim to multiple entries is supported only by the granting of the entries sought to be revoked in this proceeding. So far as can be determined, no similar action has been taken in any other instance. In fact, a ruling on a further application for an original entry at Washington, D.C. is inconsistent with the earlier grant of the entries at San Francisco, Chicago and Dallas. It is clear that the administrative actions in granting the disputed entries for the Wall Street Journal when no similar action was taken with respect to any other publication cannot be considered as a long consistent administrative practice. Giving the weight Petitioner contends should be given to the prior administrative actions would be tantamount to holding that the Postal Service could not correct its errors through a revocation proceeding. But even if there had been a prior consistent administrative practice, the consequence would not be the freezing of that practice into a rule of law. The precedents are to the contrary. A number of judicial decisions, including landmark cases, have upheld revocations in which the characteristics of the publications apparently had not changed. ^4/ None has been cited to the contrary.

B. Authority to Revoke Excess Entries

Petitioner cites the language of § 4352(b) of title 39 U.S.C. as enacted by P.L. 86-682 (1960) as follows:

"The Postmaster General may revoke the entry of a publication as second class mail whenever he finds, after a hearing, that the publication is no longer entitled to be entered as second class mail."

Petitioner reasons that so long as Wall Street Journal is entitled to its entry at New York as a publication that meets the second class mail standards, the entries granted at other post offices cannot be revoked. It is contended that the law authorizes revocation only when "the publication is no longer entitled to be entered as second class mail". Aside from the fact that such an illogical result should not lightly be imputed to the Congress, Petitioner clearly misconstrues the meaning of the section quoted. Section 4352(b) was a recodification of language contained in section 1 of the Act of March 3, 1901, 31 Stat. 1107. It provided:

"When any publication has been accorded second-class mail privileges, the same shall not be suspended or annulled until a hearing shall have been granted to the parties interested."

As may be seen, the language on which Petitioner relies to construe § 4352(b) did not appear in the original enactment. No basis exists for concluding that § 4352(b) prohibited revocation of an entry under conditions such as those involved in this proceeding. The purpose of the 1960 codification was to restate the then existing law and not to make new law. ^5/ Accordingly, the change in language from the earlier law should not be regarded as showing an intention by the 86th Congress that thereafter an entry, once granted for

"It is sometimes feared that mere changes in terminology and style will result in changes in substance or impair the precedent value of earlier judicial decisions and other interpretations. This fear might have some weight were this the usual kind of amendatory legislation, where it can be inferred that a change in language is intended to change substance. In a codification statute, however, the courts uphold the contrary presumption: the law is intended to remain substantively unchanged." (86th Cong. 2d Sess., S. Rept. No. 1763, p. 5) something that is not a periodical publication, should not be revoked.

The entries sought to be revoked here are the entries granted to the "Wall Street Journal--Southwest Edition", "Wall Street Journal--Midwest Edition" and "Wall Street Journal--Pacific Coast Edition", respectively. The basic question to be determined following the hearing and the other proceedings before the Administrative Law Judge and Judicial Officer is whether there are four periodical publications, each entitled to retain its separate entry. The entitlement of the Wall Street Journal, as such, to entry as second class mail is not questioned in these proceedings. It will retain its entry at New York regardless of the outcome of the instant case. Nevertheless, as stated above, "The Wall Street Journal--Midwest Edition", "The Wall Street Journal--Southwest Edition" and "The Wall Street Journal--Pacific Coast Edition" are not periodical publications in themselves. None, therefore, is entitled to a second class mail entry.

C. Equitable Estoppel

Petitioner presents its argument on estoppel on pages 9 and 10 of its brief on appeal as follows:

"Petitioner has suffered 'detrimental reliance'. Petitioner has done business for many years under the assumption that it could continue to rely on having four original entries. When a company does business under the assumption that its postal cost is a certain amount due to the manner in which its publications have been classified by the Postal Service and then is faced with an increase in postage rates of $1,500 per day, it has suffered 'detrimental reliance'. Moreover, the evidence shows that Petitioner, in order to maintain its original entry in Chicago, actually changed the name of the Midwest Regional Edition at the suggestion of the Post Office Department. (PX 2L, PX 2M, PX 2N). A change in the name of a publication in order to maintain an original entry constitutes 'detrimental reliance'. In addition, the evidence shows that Petitioner had originally applied for an additional entry in Dallas, but was informed that in order to be able to still mail some copies from New York to Texas it would have to have an original entry in Dallas. Thus, in reliance on being able to mail copies from New York to Texas, Petitioner applied for and received an original entry in Dallas by establishing the requirements for an original entry, such as maintaining circulation records at this location, etc. (PX 1C, PX 1D)."

An analysis of the various points raised by Petitioner shows them to be without merit.

1. Petitioner contends it has built a large circulation in reliance on the separate original entries. But it has failed to show that the same circulation would not have been obtained under additional entries. In any event the complaint is that the excess entries permitted Petitioner to reach a greater strength than otherwise would have been possible. I can find no detriment to Petitioner in that circumstance.

2. Petitioner states it changed the name of the Midwest Edition in order to maintain an original entry at Chicago. The only question pertaining to the name used in Chicago raised by the Post Office Department was its insistence that the publication show its true name. The requirement is the same for copies mailed under an additional entry as it is for copies mailed under an original entry. In any event, revocation of the Chicago entry would not require any further name change to be made.

3. Petitioner contends that it has relied on the original entry at Dallas to its detriment in that it would not be able to mail copies from New York to Texas if it had an additional entry rather than an original entry at Dallas. Although until recently (See 38 F.R. 16351, amending 39 C.F.R. 132.3(c)(4)) copies could not be mailed at the pound rates from an additional entry office to subscribers at the office of original entry (e.g., Dallas to New York), it is not clear from the regulations (39 C.F.R. 132.3(c)) that the reverse is true and that matter has not been clarified in the record. But even if Petitioner may not mail copies from New York to subscribers in Dallas at the pound rates, it has not shown that it is in any worse condition now than it would have been had its application for an original entry at Dallas been denied initially. First, Petitioner's brief on appeal does not point to any evidence showing how many, if any, copies are mailed from New York to Texas. For this reason the extent to which an actual burden is present cannot be determined. Second, Petitioner has not shown what it would have done differently, nor that it cannot take that action now.

4. Petitioner also states that in reliance on the original entry it maintains delivery records at Dallas. However, revocation of the original entry would not require Petitioner to cease maintaining circulation records at Dallas. Neither would it preclude the continued maintenance of the records relating to the Southwest Edition at Dallas. Although it was necessary for separate records to have been maintained for the copies mailed under the original entry at Dallas, Petitioner was never required to maintain them within the Dallas area. In all likelihood, Petitioner will find it convenient to maintain its records in the same manner as heretofore.

Petitioner's brief on appeal cites no authorities in support of th estoppel argument and its brief to the Administrative Law Judge cites only two decisions, both of which involve instances of a change of rulings after the transaction had taken place. ^6/

That situation is comparable to the assessment of additional postage on mail previously received for dispatch. Here, however, Respondent is only seeking to take an action that will affect postage on future transactions. Since estoppel must be applied with great caution to the Government, ^7/ revocation of improvidently granted second class mail entries rarely would present a case for estoppel.

In conclusion, equitable estoppel does not apply where the Postal Service is not seeking to collect increased postage retroactively. Application of equitable estoppel as to future mailings would discriminate unfairly against other mailers ^8/ and, in any event, Petitioner suffered no detriment by relying on the prior grant of the entries now subject to challenge.

CONCLUSION

Petitioner is not entitled to retain separate second class mail entries for The Wall Street Journal--Midwest Edition at Chicago, Illinois, The Wall Street Journal--Southwest Edition at Dallas, Texas, and The Wall Street Journal--Pacific Coast Edition at Palo Alto, California. The recommendation of the Initial Decision to uphold the revocation of those entries is sustained.

___________________

1/ Upon determination that a periodical publication qualifies for second class mail privileges it is "entered" as second class mail at the office of publication (39 C.F.R. 132.3(a) and (b)). Upon change of name, frequency of publication or location, a publication may receive a "reentry" (39 C.F.R. 132.3(c)(5)). An "additional entry" authorizes the mailing of copies of the publication at an office other than the office of original entry (39 C.F.R. 132.3(c)(4)). Zone rates of postage are determined from the point of mailing whether the mailing is from an additional entry post office or the original entry office. However, the lower within county rates are available only "within the country in which they are published and originally entered." (39 C.F.R. 132.1(a)). Thus, if Petitioner is required to mail under additional entries rather than the existing original entries at Palo Alto, Dallas and Chicago, postage will be payable at beyond county rates which are substantially higher than the within county rates. The cost consequence to the publisher and the revenue consequence to the Postal Service neither preclude nor justify revocation of the entries involved here. However, they do explain the importance the parties attach to the outcome of this proceeding.

2/ We no longer need be concerned with whether post office regulations correctly apply the provisions of 39 U.S.C., Chapter 63 (§§ 4351 et seq.) since the latter have been repealed by the Postal Reorganization Act and superseded by regulations issued thereunder. See pages 2 through 4 of Postal Service Decision in Petition by Phyllis Johnson, August 20, 1971, P.O.D. Docket No. 3/59. See also 39 C.F.R. 211.1, as amended effective June 28, 1973 (38 F.R. 20402).

3/ Webster's New World Dictionary of the American Language, College Edition (1962) defines the adjective "original" as follows: 1. having to do with an origin; initial; first; earliest. 2. never having occurred or existed before; not copied; fresh; new; novel. 3. capable of or given to inventing or creating something new, or thinking or acting in an independent, individual, fresh way. 4. coming from someone as the originator, maker, author, etc. 5. being that or those from which reproductions, copies, etc. have been made.

4/ See Houghton v. Payne, 194 U.S. 88; Smith v. Payne, 194 U.S. 104; Smith v. Hitchcock, 226 U.S. 53; Columbian College v. Wynne, 25 App. D.C. 149; Dell v. Summerfield, 198 F.Supp. 843.

5/ "The object of the new title is to restate existing law, not to make new law. Consistently with the general plan of the United States Code, the pertinent provisions of law have been reworded and rearranged, subject to every precaution against making changes in substance or disturbing existing rights, privileges, duties, or functions.

6/ Bornstein v. U.S., 345 F.2d 558 (1965); Michin v. C.I.R., 335 F.2d 30 (1964). It is interesting to note that in both cases the courts refused to apply estoppel.

7/ U.S. v. Fox Lake State Bank, 366 F.2d 962 at 965-966

8/ The organic law for the Postal Service commands that the Service not "make any undue or unreasonable discrimination among users of the mails nor *** grant any undue or unreasonable preferences to any such user" (39 U.S.C. 403(c)). Even if this mandate does not preclude application of estoppel in classification matters, it does make it incumbent on postal officials to avoid granting of a preferential treatment under the guise of estoppel.