P.S. Docket No. 26/17


May 11, 1988 


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

James A. Cohen Judicial Officer

APPEARANCES FOR PETITIONER:
Lawrence M. Garten, Esq.
S. Ronald Ellison, 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

POSTAL SERVICE DECISION

Petitioner has filed an appeal from an Initial Decision of an Administrative Law Judge affirming the denial of Petitioner's application for second-class mail privileges for the publication Columbia Flier . Petitioner contends that the Administrative Law Judge erred in concluding that the Columbia Flier is not entitled to second-class mail privileges, that he had no authority to decide constitutional issues and that, even if he did have such authority, he would find the regulations applicable to this proceeding to be constitutional.

The facts have been stipulated by the parties and are not in dispute. Petitioner applied for second-class mail privileges for the Columbia Flier as a general publication under Domestic Mail Manual (DMM) 422.2 (I.D., FOF l; Stip. l). In order to qualify for second-class mail privileges under this provision, a publication must have a legitimate list of paid subscribers and may not be designed primarily for free circulation or circulation at nominal rates (DMM 422.221 & .223). The Columbia Flier is primarily distributed free of charge to subscribers (I.D., FOF 2 & 3; Stips. 2 & 3). As a result, Petitioner's application for second-class mail privileges was denied by the Office of Classification and Rates Administration and the denial was upheld by the Administrative Law Judge (I.D., FOF 4, COL 6; Stip. 4). Petitioner argues that under The Enterprise, Inc. v. Bolger, 774 F.2d 159 (6th Cir. 1985), the Administrative Law Judge had authority to decide the constitutional issues and that he should have found the DMM requirement for paid subscribers to be a violation of the First and Fifth Amendments to the United States Constitution. Petitioner's contention that the Administrative Law Judge had authority to decide the constitutional issue is not well taken. While the Court in The Enterprise, Inc. v. Bolger, supra , held that the constitutionality of the Postal Service paid subscriber rule should have been raised in an administrative pro- ceeding, it did not conclude that the Administrative Law Judges or the Judicial Officer have authority to consider this issue. Under Postal Service regulations existing at the time of the Court's decision and at the time the Initial Decision was issued in this case, the Administrative Law Judges and the Judicial Officer were expressly prohibited from considering the constitutionality of statutes or the validity of Postal Service regulations (see 39 C.F.R. 224.l(c)(4)). Although the express prohibition has been deleted from the published regulations, there has been no additional delegation of authority to the Administrative Law Judges or the Judicial Officer to consider constitutional issues and there is no indication that the revised regulations were intended to expand their previously delegated authority ( see 52 Fed. Reg. 46998, Dec. ll, 1987). Accordingly, the Administrative Law Judge correctly ruled that he had no authority to decide the constitutional questions presented by Petitioner.

The Administrative Law Judge's conclusion that he would deny the appeal even if it were appropriate for him to consider Petitioner's constitutional arguments is also correct. Subsequent to the issuance of the decision in The Enterprise, Inc. v. Bolger, supra , the Court of Appeals for the Sixth Circuit had an opportunity to address the issue of the constitutionality of the DMM paid subscriber rule ( 422.221 and .223) and concluded that it did not violate either the First or Fifth Amendment to the Constitution. The Enterprise, Inc. v. United States , 833 F.2d 1216 (6th Cir. 1987). Thus, there is no merit to Petitioner's challenge to the Administrative Law Judge's statement concerning the constitutionality of the paid subscriber requirement.

Since Petitioner's publication does not comply with the paid subscriber requirement it is not entitled to second-class mail privileges as a general publication. It follows that the Columbia Flier is not eligible for expedited distribution under DMM 431, inasmuch as that provision is applicable only to publications possessing second-class mail privileges.

Conclusion

Accordingly, Petitioner's appeal from the Initial Decision of the Administrative Law Judge upholding the denial of second-class mail privileges for the Columbia Flier is denied.