P.S. Docket No. 4/49
October 31, 1975
In the Matter of the Petition by
O'SHEA PUBLISHING COMPANY, INC.,
Orchard Street,
Enosburg Falls, Vermont 05450
Proposed Revocation of Second-Class Mail Privileges for
"JOURNAL-GAZETTE", "ENOSBURG STANDARD" and "ST. Albans LEADER"
P.S. Docket No. 4/49
October 31, 1975
William A. Duvall Chief Administrative Law Judge
Bernard G. O'Shea, Publisher,
Orchard Street, Enosburg Falls, Vermont for Petitioner
Grayson M. Poats, Esq.,
Law Department, United States Postal Service,
Washington, D.C., for Respondent
Before: William A. Duvall, Chief Administrative Law Judge
Mr. Bernard G. O'Shea, who resides at Enosburg Falls, Vermont, is a journalist, and he is the publisher of the "Swanton Courier", the "St. Albans Leader", the "Richford Journal-Gazette", and the
"Enosburg Standard", all of which are publications in Frankin County, Vermont. The names Swanton, St. Albans, Richford, and Enosburg are the names of various communities in Franklin County, Vermont.
On June 25, 1975, the Manager of the Mail Classification Division, Finance Department, United States Postal Service, advised the publisher, O'Shea Publishing Company of Enosburg Falls, Vermont, that it was proposed to revoke the existing second-class mail permits for the "richford Journal-Gazette", the "Enosburg Standard", and the "St. Albans Leader". The reasons for the proposed action were stated as follows:
"Only one second-class permit may be authorized for a newspaper or other periodical publication. "An examination of copies of the June 12, 1975 and June 17, 1975 issues of the second-class newspapers 'Swanton Courier', 'Enosburg Standard', 'St. Albans Leader' and 'Journal Gazette' indicates that they are identical except for the titles and issue numbers. Merely changing the titles and the issue numbers does not create separate and independent newspapers for postal purposes.
"It appears that you are publishing the same newspaper under four titles and have a separate second-class permit for each title. Since under the present manner of preparation there is in fact only one newspaper, second-class mail privileges may only be authorized for one newspaper.
"If the newspapers differ by customary journalistic standards, each newspaper will be considered independent for postal purposes. This means that if the nonadvertising portions differ by at least 20% in each of the issues of the newspapers, they will be considered as being separate and independent newspapers.
"The Postmaster at Enosburg Falls has informed you of the foregoing information and you have not taken any corrective action concerning this matter." I note there a reference to 20%.
The letter of June 25, 1975, concluded by giving the publisher the alternative of (1) filing a statement showing compliance or intention to comply with the requirements of the postal laws and regulations governing second-class mail eligibility or (2) filing a petition appealing from the proposed revocation. The parties engaged in correspondence for a period of time, and the matter culminated by the filing of a timely petition of appeal by the publisher. The matter came on for hearing on September 30, 1975, in Burlington, Vermont, at a hearing before the undersigned and at which both parties were represented and participated in the examination and cross-examination of witnesses.
Among the exhibits received in evidence were Respondent's Exhibits 1, 2, 3 and 4, each of which had sub-exhibits (a), (b), (c) and (d). Exhibit R-1(a) is the "Swanton Courier" for February 6, 1975. Exhibit R-1(b) is the "St. Albans Leader" for February 6, 1975. Exhibit R-1(c) is the "Richford Journal-Gazette" for February 6, 1975, and Exhibit R-1(d) is the "Enosburg Standard" for February 6, 1975. Respondent's Exhibits 2, 3, and 4, each with sub-exhibits (a), (b), (c) and (d) are the issues of the same publications, respectively, for the dates June 12, 1975, June 17, 1975, and September 4, 1975.
Examination of these issues of the four publications discloses that, in fact, they are practically identical. They are identical in photographic material, news stories, editorial matter, and advertising copy. So that the fact that they are all published by one publishing company together with the additional fact of the identity or near-identity of content leads inevitably to the conclusion that they are one publication.
Since they are one publication, there is brought into application the provision of law which is codified as Section 4352 of Title 39, United States Code where it is provided as follows:
"(a) 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 sections 4353-4357 of this title to be classified as second class mail. A publication entered at one post office may also upon application be entered by him at another post office.
"(b) 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."
This provision of law and the postal regulations that have been issued in pursuance of this provision of law, which regulations are found generally in Section 132.3 of the Postal Manual and of the Code of Federal Regulations, have been held to mean that where there is one publication, as has been found in this case, there can be only one second-class mail original entry.
The Petitioner in this case asserted, without contradiction, that with respect to the numbers of second-class mail original entry permits which he has been utilizing, they were recognized by previous administrators in the former Post Office Department, and that he has had those permits in the case of the "Swanton Courier" since 1949; in the case of the "Richford Journal-Gazette" and the "Enosburg Standard", since 1957; and in the case of the "St. Albans Leader", since 1958. The publisher has taken the position that in view of the periods of time in which he has been permitted to retain those original second-class mail entry permits, the Postal Service may not now revoke them or any of them.
This question was raised in the case of Dow Jones & Company Inc ., which was P.S. Docket No. 1/11, and which matter was decided eventually by the United States District Court for the District of Delaware in the case of Dow Jones & Company Inc., v. United States Postal Service , 379 F. Supp. 1167 (1974). In that case the publisher indicated that it, too, had had original entry permits for various ones of its regional publications, and that the Postal Service was without authority in trying to revoke those permits. On this point the court said the following:
"If Dow Jones' argument is correct, where the Postal Service has improvidently granted a regional edition of a unitary national publication an original second class entry permit in excess of the statutory authority granted to it by Congress, the Director is powerless to correct the error unless the publication was not entitled to second class mailing privileges under 4354(a). Merely stating the argument serves to refute it. The Court will not conclude that Congress intended to prohibit the Postal Service from correcting action previously taken in violation of a Congressional limitation unless such Congressional intent appears clear on the face of the statute. 39 U.S.C. 4352(b) does not expressly limit the Director's ability to revoke original second class permits to instances where the publication is not entitled to any second class mailing privileges.***"
So that not only has the Postmaster General the right to take the action which was the subject of the Dow Jones case, and also the action which is the crux of this case, but the Postmaster General has also the duty to see to it that only those permits are issued which the Congress has authorized by statute.
In view of all the facts and circumstances revealed in this record, including the exhibits which were received in evidence, it is concluded that the action of the Respondent was correct, and that action proposing to revoke second-class mail privileges for the "Richford Journal-Gazette", the "Enosburg Standard", and the "St. Albans Leader" is affirmed.
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1/ Transcribed from oral decision as rendered at close of hearing held September 30, 1975. Changes have been made, but the substance of the decision is unchanged.