In the Matter of the Petition by                                )
                                                                               )
JACK SCHAFFER                                                   )
Publisher, The Schaffer Report                             )
56 North Williams Street                                         )
Crystal Lake, Illinois 60014                                     )    P.S. Docket No. 3/98
                                                                               )
Denial of Application for Second-                          )
Class Mail Privileges for                                         )
"THE SCHAFFER REPORT"                                     )

APPEARANCES:                                                     Jeffrey W. Kane, Esq.
                                                                               Saul J. Morse, Esq.
                                                                               Dale R. Turner, Esq.
                                                                               State House
                                                                               Springfield, Illinois 62706
                                                                               for Petitioner
                                                                               Grayson M. Poats, Esq.
                                                                               Law Department
                                                                               United States Postal Service
                                                                               Washington, D.C. 20260
                                                                               for Respondent
Lussier, Edward F.

POSTAL SERVICE DECISION

This matter is on appeal to the undersigned from an Initial Decision of Chief Administrative Law Judge William A. Duvall upholding a denial of Petitioner's application for second-class mail privileges for "The Schaffer Report". The basis for the decision was the finding that the publication is designed primarily for advertising purposes and therefore fails to qualify under § 132.226 of the Postal Service Manual. The pertinent part of that regulation reads as follows:

"Publications designed primarily for advertising purposes may not qualify for second-class privileges. They include:

* * * * *

b. Those owned or controlled by individuals or business concerns and conducted as an auxiliary to and essentially for the advancement of the main business or calling of those who own or control them."

The Initial Decision clearly, and in detail, sets forth the pertinent facts and there is no need here to repeat or elaborate upon them. Moreover Petitioner's exceptions on appeal go to other matters. It raises three grounds for reversal of the Initial Decision. In brief, these relate to the lack of written standards for application of the above-quoted regulation, the grant of second-class privileges to others with similar publications, and lack of cooperation of the Respondent, after the hearing, to help Petitioner bring the publication into compliance with the regulations.

Petitioner's contention that a coherent written standard is lacking to apply the regulation presumes that the regulation is itself too indefinite to be applied standing alone. However, the question of whether a publication is primarily for advertising is a question of fact. "This was the view of the Post Office Department at an early date (Postal Laws and Regulations (1887), Sec 337) and has remained its view in later periods. 8 Official Opinions of the Solicitor of P.O.D. 44 (1930). No reason has been shown why this rule should be abandoned" Vertical Marketing, Inc., P.S. Docket No. 2/6(1974). The rule has been applied in numerous cases, e.g. Amoco Motor Club, P.S. Docket No. 2/50(1974); Vertical Marketing, Inc., supra; Credit Bureau of Albuquerque, P.S. Docket No. 1/218(1973); National Association of Trailer Owners, Inc., P.O.D. Docket No. 1/144 (2nd Judicial Officer's Dec'n 1960); Pool Publications, Inc., P.O.D. Docket No. 1/143 (1959); Channel Northwest, Inc., H.E. Docket No.

5/178 (1958); Conover-Mast Publications, Inc., H.E. Docket No. 5/173 (1958); The Citizen Soldier, 1 Ops AAG for P.O.D. 400 (1877).

In the instant case the record is clear, and there appears no misunderstanding between the parties, that the Respondent's basis for considering "The Schaffer Report" to be designed primarily for advertising was its emphasis upon Senator Schaffer. The record contains a number of issues of "The Schaffer Report". Judge Duvall's description of the publication was based upon the most recent issue. The earlier issues in evidence all contained a notice adjacent to the subscription form explaining that "The State of Illinois does not provide for State Senators to publish newspapers and quite probably should not. A newsletter is obviously a political tool to promote a particular office holder and the temptation to use it for that purpose would be hard to resist." This quite honestly recognizes the problem. The decision as to whether a particular publication is designed primarily for advertising purposes, as Judge Duvall pointed out, must be based upon an examination of the publication as a whole and an evaluation of its impact. This is what he did in the Initial Decision. That the decider of fact must exercise his judgment in such a case does not render the regulation so vague as to deprive Petitioner of due process. ^1/

Petitioner also contends that it has been denied due process by virtue of the fact that Respondent has granted second-class privileges to publishers similarly situated without adequate explanation. While the appeal brief does not go into detail, a review of the record indicates that this contention has reference to a publication of a state political party (Petitioner's Exhibit 4) which Petitioner sent to Respondent along with other publications, not in evidence, after it had been notified that its application for second-class mail privileges for "The Schaffer Report" was being denied. The response it received was that the other newspapers do not feature information on one candidate (Respondent's Exhibit 2). A comparison between Petitioner's Exhibit 4 and "The Schaffer Report" reveals that there are in fact significant differences in this respect. While the issue of the propriety of the grant of second-class privileges for the former publication is not in issue here, Petitioner has not shown that a discriminatory standard was employed in denying it second-class mail privileges.

Petitioner lastly contends that it has been denied due process through a failure of Respondent to cooperate with Petitioner in bringing the publication into compliance after the issuance of an Initial Decision which was stayed by Judge Duvall to permit this effort. The exchange of correspondence between the parties during the period indicates a difference of opinion as to the extent of detailed guidance Respondent should provide. However, Respondent's July 2, 1975, letter to Petitioner, along with Judge Duvall's

Initial Decision, should have conveyed the substantial nature of the changes necessary to resolve the matter by agreement. I cannot conclude that Respondent's failure to give further guidance violated Judge Duvall's stay order.

Conclusion

Petitioner's arguments on appeal provide an insufficient basis to reverse the Initial Decision and that decision is hereby affirmed.

___________________

1/ Petitioner's citations to Holmes v. New York City Housing Authority, 398 F.2d 262 at 264 (1968), Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 at 597 (1971), and Environmental Defense Fund v. Environmental Protection Agency, 465 F.2d 528 at pp. 529-541 (1972) do not require a different result since the factual situations are significantly different.