In the Matter of the Petition by Publisher,

COLUMBIA FLIER,
Patuxent Publishing Corporation,
10750 Little Patuxent Parkway,
Columbia, MD 21044-3103,

Denial of Second-Class Mail Privileges for "COLUMBIA FLIER"

P.S. Docket No. 26/17

Randolph D. Mason Administrative Law Judge

APPEARANCE FOR PETITIONER:
Lawrence M. Garten, Esq.
Fedder & Garten
2300 Charles Center South
36 South Charles Street
Baltimore, MD 21201-3177

APPEARANCE FOR RESPONDENT:
Jeffrey H. Zelkowitz, Esq.
Law Department
United States Postal Service
Washington, DC 20260-1143

INITIAL DECISION

This proceeding arises out of a Petition filed by Patuxent Publishing Corporation, publisher of the "Columbia Flier." The Petition disputes the Determination issued on October 28, 1986 in which the Director of Respondent's Office of Classification and Rates Administration denied Petitioner's application for second-class mail privileges because it failed to meet the paid subscriber requirement for general publications provided by Domestic Mail Manual (DMM) 422.223. Petitioner admits that the publication is distributed free of charge but argues that this requirement is unconstitutional.

Petitioner does not dispute Respondent's factual allegations and the parties have submitted the case to the undersigned for decision based upon the pleadings, a joint stipulation of facts, and briefs. Respondent filed proposed conclusions of law and a memorandum of points and authorities, and Petitioner relied upon its pleadings and response to a motion to dismiss. Based on the entire record, I make the following findings of fact and conclusions of law:

Findings of Fact

1. The Columbia Flier applied for second-class privileges as a general publication under DMM 422.2 (Stip. 1).

2. The Columbia Flier is primarily distributed free of charge to subscribers. It has a free circulation of approximately 26,000, and a paid circulation of approximately 131 (Stip. 2).

3. The paid circulation of the publication is less than one percent of the total circulation (Stip. 3).

4. The Office of Classification and Rates Administration denied the Petitioner's second-class application in a decision dated October 28, 1986. The basis for that decision was the determination that the Columbia Flier is primarily designed for free circulation in violation of DMM 422.223 (Stip. 4).

Conclusions of Law

1. It is clear that Columbia Flier runs afoul of DMM 422.223, which provides that publications primarily designed for free circulation or circulation at nominal rates may not qualify for second-class mailing privileges under the general publications category. Publications are disqualified under this regulation when one-half or more of all copies circulated are provided free of charge to the ultimate recipients. In the instant case, Petitioner fails to meet the requirement of the regulation because the paid circulation is less than one percent (Stip. 3). However, Petitioner challenges the constitutionality of the paid subscriber requirement and argues that the regulation is invalid.

2. Petitioner contends that the regulation is unconstitutional for two reasons. First, it alleges that the regulation violates the Equal Protection Clause of the Fifth Amendment by making an arbitrary distinction between free and non-free newspapers and conferring a benefit only on those newspapers whose subscribers pay for them. Second, it argues that the First Amendment is violated because the regulation puts an "unjustifiable condition" on the use of the mails for the distribution of information, which constitutes censorship of the press.

3. Petitioner's constitutional arguments do not constitute a valid defense in this proceeding because the Judicial Officer and the Administrative Law Judges lack jurisdiction to determine either the constitutionality of statutes or the validity of Postal Service Regulations. 39 CFR 224.1(c)(4)(iii), 224.1(c)(4)(iv)(B). Since these are the only arguments raised by Petitioner, the appeal must be denied on this ground.

4. Moreover, the appeal would be denied even if it were appropriate to consider Petitioner's constitutional arguments in this proceeding. In this regard, the Governors of the Postal Service have rejected identical arguments and approved recommended decisions by the Postal Rate Commission which held that the paid subscriber requirement is constitutional under the First and Fifth Amendments. Complaint of Tri-Parish Journal, Inc., d/b/a River Parishes Sun , Docket No. C85-2 (Decision of the Governors, January 6, 1986); Complaint of The Enterprise, Inc. , Docket No. C86-1 (Decision of the Governors, September 9, 1986).

5. Finally, Petitioner requests "expedited newspaper treatment" in its prayer for relief. It appears that Petitioner is referring to the expeditious service provided to second-class publications by DMM 431. Since Petitioner's application for second-class privileges was properly denied, such relief cannot be granted.

6. Accordingly, Petitioner's appeal is denied and the determination of the Director of the Office of Classification and Rates Administration is sustained.