In the Matter of the Petition by                      )
                                                                     )
MR. JACOB STEINMAN                                 )
Publisher and Editor                                      )
Post Office Box 2693                                   )
San Francisco, CA 94119-3693                   )
                                                                      )
Revocation of Second-Class Mail                 )
Privileges for "CITY SPORTS MAGAZINE"    )  P.S. Docket No. 18/84

APPEARANCE FOR PETITIONER:
Jacob Steinman, Pro Se
Publisher & Editor
P. O. Box 3693
San Francisco, CA 94119

APPEARANCE FOR RESPONDENT:
Stanley F. Mires, Esq.
Law Department
United States Postal Service
Washington, DC 20260-1143

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

This is an appeal by Petitioner from a December 14, 1983 decision by Director, Office of Mail Classification, U. S. Postal Service, revoking second-class mail privileges for Petitioner's publication City Sports Magazine. A hearing was held in San Francisco on March 13, 1984. Both parties were afforded a full opportunity to present evidence and file proposed findings of fact, proposed conclusions of law and memoranda. All of these have been considered. To the extent indicated they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

FINDINGS OF FACT

The parties stipulated and I find:

1. City Sports Magazine ("City Sports") is a periodical publication issued monthly which is authorized second-class entry as a requester publication. Each issue of City Sports contains at least 24 printed pages and no more than 75 percent advertising.

2. Approximately 190,000 copies of City Sports are distributed each month. All but approximately 14,000 of these copies are distributed free through approximately 2,100 sports specialty stores, health and athletic clubs, and retail establishments throughout California. Each of these outlets asks to receive from 15 to 1,000 copies each month, which are then passed on free to its members or customers. Approximately 10,000 copies of City Sports are mailed in bulk at second-class rates each month.

The Postal Service's August 1983 audit revealed that the May 1983 issue of City Sports had a total press run of 189,800 copies which were distributed as follows:

Copies Counted by Respondent as Requester Copies:

Mailed to Individual Paid

Subscribers 9,887

Proof Copies Distributed to

Advertisers 4,275

Distributed to Agents who

Requested Copies for

Further Distribution 2,149

Total 16,311

Copies Not Considered by Respondent to be

Requester Copies:

Handed Out Free at Sporting

Events 5,000

Distributed Free by 2,149

Agents 131,886

Held in Reserve to Replenish

Racks During the Month 36,603

Total 173,489

________

Total Press Run 189,800

This audit led to the Postal Service's December 14, 1983, determination that City Sports did not qualify for second-class mail privileges because less than 50 percent of City Sports' copies were distributed to persons who requested the publication.

CONCLUSIONS OF LAW

Domestic Mail Manual (DMM) § 422.6d reads:

Effective October 1, 1982, the publication must have a legitimate list of persons who request the publication, and 50 percent or more of the copies of the publication must be distributed to persons making such requests. Subscription copies paid for or promised to be paid for including those at or below a nominal rate may be included in the determination of whether the 50 percent request requirement is met. Persons will not be deemed to have requested the publication if their request is induced by a premium offer or by receipt of material consideration. Requests which are more than three years old will not be considered to meet this requiurement.

The Postal Service argued that in determining whether the 50 percent requirement of DMM § 422.6d has been fulfilled:

1. "Copies of the publication" means all copies of that issue printed; and

2. A request by one person for multiple copies is considered as one request.

Petitioner argued that a reasonable application of DMM § 422.6d is that:

1. "Copies of the Publication" means only copies that are sent through the mail (Joint Exhibit 5, p. 2); and

2. A request by one person for multiple copies is considered as multiple requests. For instance, with respect to the May 1983 issue, the 131,886 copies distributed free to 2,149 agents who further distributed them would be considered as 131,886 copies distributed to persons making the requests.

I agree with Respondent's interpretation.

Eligibility for second-class mail privileges is limited to newspapers and other periodicals which meet the requirements of DMM ??421 and 422, and are specifically authorized to mail at beneficial second-class rates. Each second-class publication must meet all of the criteria in DMM § 421, which essentially require that it be a periodical primarily designed for the transmission of information, be issued at regular intervals at least four times a year, maintain a known office of publication, and be formed of printed sheets. In addition, a publication must meet the particular standards for one of the five specific qualification categories set forth in DMM ??422.2-422.6. These standards set forth the specifications regarding purpose or content, subscription or circulation, and advertising applicable to each category.

The category of requester publications, authorized under DMM § 422.6, is the direct descendant of controlled circulation mail. Historically, controlled circulation matter was a separate type of mail from second-class matter, designed essentially for free circulation and not subject to the detailed qualification standards established for second-class publications. See, Act of June 5, 1934, 48 Stat. 888; former 39 U.S.C. ??4421,4422 (1962); Domestic Mail Manual § 500 (Issue I, July 30, 1979).

As a result of the 1980 postal rate proceeding conducted before the Postal Rate Commission (PRC Docket No. R80-1), the former classification of controlled circulation matter was eliminated, and a new category of second-class requester publications was created. As one element of this transformation, the new requester publications were required to maintain a list of requesters equal to 50 percent of their circulation. See, Domestic Mail Classification Schedule § 200.0110, implemented in DMM § 422.6d. This 50 percent request requirement was viewed as a "reliable and verifiable indicator of reader desire to receive the publication", analogous to the paid subscriber requirement historically applied to other second-class publications. See, Postal Rate Commission Opinion and Recommended Decision, Docket No. R80-1, at 307-327, especially at 320-322 (February 19, 1981).

The phrase "Copies of the Publication" in DMM § 422.63 is not defined as being limited to copies sent through the mail. In the absence of any evidence to the contrary, I interpret this as meaning total copies printed.

This interpretation is consistent with DMM § 422.2 which specifically states:

The distribution of all copies of a publication is considered, whether circulated in the mails or otherwise.

I further find that the phrase in DMM 422.6d "distributed to the persons making the request" means that where one person requests multiple copies for redistribution, that constitutes one request.

This interpretation is also consistent with DMM 422.2 which uses the term "ultimate recipients". The interpretation urged by Petitioner would render the requirement meaningless since one person could request all copies in every case under that interpretation.

Similar interpretations for general second-class publications, have been judicially sustained. See, Harvey L. Garrett, Publisher, P.S. Docket No. 6/148 (1979); Philip Maimone, P.S. Docket No. 5/30 (1977); Philip Maimone, t/a Ocean County Citizen v. United States Postal Service, Civil No. 77-0559 (D. N.J., September 11, 1978).

Since 50 percent or more of the copies of City Sports were not distributed to persons who requested the publication, the decision revoking Petitioner's second-class mail privileges was correct and the appeal is denied.