In the Matter of the Petition by                                )
                                                                               )
MARY L. SCARPA                                                 )
Publisher                                                                )
P.O. Box 890                                                          )
Adelanto, California 92301                                     )
                                                                               )
Proposed Annulment of Second-Class                  )
Mail Privileges for "ADELANTO                              )
INDEPENDENT                                                         ) P.S. Docket No. 6/40

APPEARANCE FOR PETITIONER:                           Ms. Mary L. Scarpa
                                                                               Publisher, Adelanto Independent
                                                                               P.O. Box 890
                                                                               Adelanto, California 92301

APPEARANCE FOR RESPONDENT:
                                                                               Grayson M. Poats, Esq.
                                                                               Law Department
                                                                               U.S. Postal Service
                                                                               Washington, D.C. 20260

Cohen, James A.

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant denying the proposed revocation of second-class mail privileges for the Petitioner's publication "Adelanto Independent." Respondent agrees with the facts found in the Initial Decision; however, it takes exception to portions of the Conclusions of Law.

A short summary of the facts is necessary for an understanding of the controversy. Petitioners are owners and publishers of the "Adelanto Independent," a bi-weekly newspaper published at Adelanto,

California, and distributed to 948 paid subscribers. The "Adelanto Independent" is presently authorized to mail at second-class rates of postage. Petitioners also publish the "Adelanto Independent - Dirt Explosion," which is circulated free or at nominal rates. Approximately 3,00 to 4,000 copies of this publication are printed for distribution.

The "Adelanto Independent" and the first section of the "Adelanto Independent - Dirt Explosion," with the exception of the title, are identical. The "Adelanto Independent - Dirt Explosion" has a second section with the title "Dirt Explosion." If both section of the "Adelanto Independent - Dirt Explosion" are considered as one newspaper, the non-advertising content of this newspaper is approximately 50 percent different from that of the "Adelanto Independent."

Section 132.227 of the Postal Service Manual provides that "Publications designed primarily for free circulation may not qualify for second-class privileges." Judge Grant, in the Initial Decision, concluded that the "Dirt Explosion" section of the "Adelanto Independent - Dirt Explosion" was an integral part of that publication and that the non-advertising content of both section was 50 percent different from the "Adelanto Independent." He then concluded that the "Adelanto Independent" and the "Adelanto Independent - Dirt Explosion" were two separate and distinct publications and that the circulation of the "Adelanto Independent - Dirt Explosion" should not be considered in determining whether the "Adelanto Independent" was distributed primarily free. The ultimate conclusion reached was that the "Adelanto Independent" was not designed primarily for free circulation and therefore was entitled to second-class mail privileges.

Respondent takes the position in this appeal that the distribution of copies of the "Adelanto Independent - Dirt Explosion" should be considered in determining whether the "Adelanto Independent" is designed primarily for free distribution under § 132.227 of the Postal Service Manual. According to Respondent, since 3,000 to 4,000 copies of the "Adelanto Independent - Dirt Explosion" are circulated free as opposed to the 948 paid subscriptions to the "Adelanto Independent," the latter is circulated primarily free in violation of the Postal Service regulation.

Respondent's principal disagreement with the Initial Decision lies in the treatment of the status of the second section of the "Adelanto Independent - Dirt Explosion." Respondent considers it to be a separate and distinct publication with completely different content and emphasis. It argues that even though the "Dirt Explosion" is distributed with the "Adelanto Independent," part one of the "Adelanto Independent - Dirt Explosion" is the same publication as the "Adelanto Independent." Since in its view the "Dirt Explosion" and the "Adelanto Independent" are separate publications the contents of the "Dirt Explosion" should not be considered in determining whether the "Adelanto Independent" and the "Adelanto Independent - Dirt Explosion" are separate publications.

The more reasonable conclusion, in my judgment, is that reached in the Initial Decision. The "Dirt Explosion," when added to the "Adelanto Independent," forms an integral part of the publication called the "Adelanto Independent - Dirt Explosion." In the absence of any specific guidance in statutes or regulations to determine whether the two publications are separate and distinct, one important factor to consider is a comparison of the non-advertising contents of the two papers. When such a comparison is made the most reasonable conclusion to reach is that the two papers are separate and distinct publications.

Respondent also argues that if the "Adelanto Independent - Dirt Explosion" were indeed a separate publication it would not need to carry the second-class identification statement required for inclusion in the "Adelanto Independent" nor the 10-cent charge. Although of less significance than the non-advertising content, the identification statement and the charge are also factors to be considered in determining whether the two publications are the same or separate. In order to maintain the separation between the publications the second-class identification statement and the 10-cent charge should be deleted from the "Adelanto Independent - Dirt Explosion."

Subject to the modification of the Initial Decision as contained in the preceding paragraph, the Initial Decision is affirmed.