In the Matter of the Petition by

THE GREAT WESTERN COUPON GAZETTE
3724 York Street

           at

Bellingham, WA 98226-5043

P. S. Docket No. P 00-29

APPEARANCE FOR PETITIONER:     Richard P. Wilson
                                                         3724 York Street
                                                         Bellingham, WA 98226-5043

APPEARANCE FOR RESPONDENT: Joseph E. McCann, Esq.
                                                         Western Area Law Office
                                                         United States Postal Service
                                                         1745 Stout Street, Suite 400
                                                         Denver, CO 80299-7501

The Petition in this case was docketed on February 1, 2000. In addition to requesting a hearing, Petitioner also sought dismissal of the matter on summary judgment. Respondent filed an Answer and Motion for Summary Judgment, which was docketed on March 2, 2000. On March 13, proceedings were suspended to allow the parties an opportunity to discuss settlement, but they were unable to resolve the matter. Petitioner was afforded an opportunity to file a response to Respondent’s motion for summary judgment but did not do so. Accordingly, this case is ready for decision on the parties’ cross motions for summary judgment.

1. In response to a complaint from a postal customer in Bellingham, Washington, in which he expressed his belief that an advertising mailing he received from Petitioner was erotically arousing or sexually provocative, the Postal Service issued Prohibitory Order No. 001065144 to Petitioner. The Order directed Petitioner to refrain from any mailing to the customer using his name and street address "or intended for the indicated address by any variation of addressee designation, such as, but not limited to, occupant, householder, resident, boxholder, postal customer, rural route boxholder, and local." The ban on mailings became effective on the 30^th calendar day after Petitioner received it.

2. Petitioner received the Prohibitory Order on August 2, 1999, making its effective date September 1, 1999.

3. After the effective date of the Prohibitory Order, Petitioner sent a copy of its publication, The Great Western Coupon Gazette, to the customer, which the customer received on November 10, 1999.⁽¹⁾

4. The mailpiece did not include the customer’s name or street address but was addressed to "Postal Customer." Petitioner does not individually address the mailings on the complaining customer’s route. Rather, it supplies the Postal Service carrier on the route with enough of the mailpieces—all with

"Postal Customer" as the only form of address—to provide one for each customer on the route.

5. The customer sent the November 10 mailpiece to the Postal Service, and the Manager, Prohibitory Order Processing Center, issued Complaint No. PDK001065146 to Petitioner on December 14, 1999. Petitioner filed a timely Petition for Hearing pursuant to 39 C.F.R. Part 963.

1. A grant of summary judgment is proper when there are no issues of material fact in dispute and when, as a matter of law, the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987).

2. Under 39 U.S.C. §3008, one who receives advertising mail that he believes is erotically arousing or sexually provocative is entitled to obtain an order of the Postal Service directing the mailer to refrain from further mailing to him. In this case, the customer obtained issuance of such an order regarding Petitioner’s The Great Western Coupon Gazette, which the customer believed was erotically arousing or sexually provocative (Finding 1). The reasonableness of the customer’s belief is not subject to review. 39 U.S.C. §3008 (a); Rowan v. United States Post Office Department, 397 U.S. 728, 737-738 (1970).

3. Petitioner contends that it has no ability to exclude the complaining customer from its mailings because Petitioner’s mailings are not specifically addressed to the complaining customer or to any customer on the route (Finding 4). However, the Prohibitory Order specifically precluded mailings to the complaining customer using the "postal customer" form of address appearing on the offending mailpiece the customer received on November 10 (Findings 1, 4).

4. There are no material facts in dispute, and the record establishes that Petitioner violated Prohibitory Order No. 001065144 by mailing material to the customer after the effective date of the Order (Findings 1-4). Accordingly, the Postal Service’s motion for summary judgment is granted, and the Complaint is upheld. Petitioner’s motion for summary judgment is denied.

Norman D. Menegat
Administrative Judge

¹ Because the customer received Petitioner's second mailing more than 30 days after the effective date of the Prohibitory Order, it is presumed that it was sent after the effective date of the Prohibitory Order (39 U.S.C. §3008 (f)). Petitioner has not rebutted the presumption.