In the Matter of the Petition by
DR. BRUCE WEST
July 24, 1998
APPEARANCE FOR PETITIONER:
|Dr. Bruce West
512 Loma Alta Road
Carmel, CA 93923-9449
Jeffrey H. Zelkowitz, Esq.
United States Postal Service
475 L'Enfant Plaza, SW
Washington, DC 20260-1146
DECISION ON MOTION TO DISMISS
This proceeding arises from a Petition filed by Dr. Bruce West, Publisher of Health Alert, appealing an April 14, 1998 decision by the Manager, Business Mail Acceptance, United States Postal Service. That decision denied Petitioner's application to mail Health Alert at Periodicals (formerly Second-Class Mail) rates.
On May 22, 1998, Respondent, the United States Postal Service, filed a Motion to Dismiss, arguing that Petitioner has presented nothing to contradict the Manager's stated reasons for denying the application, and also that Petitioner makes no claim that his publication meets the pertinent regulatory requirements. Petitioner replied to the motion on June 6, 1998.
The Rules of Practice governing appeals from denial of an application for Periodicals mail privileges, 39 C.F.R. Part 954, state that a petition must "allege facts showing compliance with each provision of law or regulation on which the publisher's claim to Periodicals mail privileges is based." 39 C.F.R. §954.8(b). The regulatory provisions pertinent to this case are found in the following sections of the Domestic Mail Manual (DMM):
E212.1.2a. General publications must have a legitimate list of subscribers who have paid or promised to pay, at more than a nominal rate, for copies to be received during a stated time.
E212.1.2f. At least 50% of a publication's distribution must be to persons who have paid above a nominal rate. Nominal rate subscriptions include those sold at a subscription price so low that the rate cannot be considered a material consideration; or at a reduction to the subscriber (under a premium offer or any other arrangement) of more than 50% of the basic annual subscription rate that would entitle the subscriber to receive one copy of each issue published during the subscription period. The value of a premium is considered its actual cost to the publisher, its recognized retail value, or its represented value, whichever is highest.
E212.1.3 Advertising is defined in E211. General publications primarily designed for advertising purposes do not qualify for Periodicals mailing privileges, including publications that:
b. Are owned or controlled by individuals or business concerns and conducted as an auxiliary to and essentially for the advancement of any other business or calling of those who own or control the publications.
E213.3.2 Before acting on an application, the manager or designee may ask the publisher for more information or evidence to complete or clarify the application. Failure to provide this information is sufficient grounds to deny the application.
E216.1.1 The publisher must keep records that can support the information required on the application for Periodicals mailing privileges (or any other form) and to confirm eligibility of the publication at the requested Periodicals rate. The records must show that the publication is . . . not designed primarily for free circulation or circulation at nominal rates . . . .
The Manager's April 14, 1998 denial letter gave multiple reasons for denying Petitioner's application, but two primary concerns were expressed. First, it appeared that Health Alert might run afoul of §E212.1.3 because it was used to advertise products that Petitioner sold through another aspect of his business, called "Immune Systems." Second, it appeared that Health Alert did not meet the 50% paid subscriber requirement of §E212.1.2f because of various "premiums" Petitioner offered for subscription renewals. Because Petitioner did not present records to demonstrate that his publication satisfied the requirements of these DMM rules, and because he did not provide specific information requested during the audit of his application, the Manager cited §E213.3.2 and §E216.1.1 as bases for denying the application.
In his Petition, Dr. West asserts that his "subscriber list is more than 95% paid in full." To that extent, he has alleged a fact showing compliance with §E212.1.2. However, his Petition also acknowledges that he either "forgot" or "overlooked" the matter of the "bonuses" he gives to subscribers, and that he will remove these if his application is approved. It appears, therefore, that he is claiming that he will comply with §E212.1.2 in the future, rather than that he is currently in compliance. He does not address the advertising issue at all, nor does he allege that he has the records required by §E216.1.1, and he does not contest the Manager's statement that he failed to furnish the documentation that was requested.
The arguments that Petitioner does make in the Petition, and in the reply to the Motion to Dismiss, are not sufficient to avoid dismissal. His complaint about the length of time it took to get a decision on his application may have some legitimacy (the Manager apologized for this), but this does not effect the merits of the case. As the Motion to Dismiss correctly argues, the fact that Health Alert may have "passed" previous audits,(1) or that similar publications may have been granted Periodicals mailing rates,(2) are not proper bases for deciding this case in Petitioner's favor. Richard S. Lane, P.S. Docket No. 39/44 (P.S.D. March 30, 1995) at 8; Banner Publications, Inc., P.S. Docket No. 17/32 (I.D. December 23, 1983) at 11.
Because Petitioner has not alleged "facts showing compliance with each provision of law or regulation on which the publisher's claim to Periodicals mail privileges is based," and has not disputed the other reasons stated by the Manager as bases for denying the application, the Motion to Dismiss is granted, the Petition is dismissed, and the decision of the Manager, Business Mail Acceptance is sustained.Bruce R. Houston
Chief Administrative Law Judge
1. As the Manager’s letter was a denial of an application, rather than a revocation of Second-Class mail status previously granted, it is not clear what these prior audits were. In any event, while they might be useful to Petitioner in attempting to negotiate a settlement of this matter, they would not be binding in this proceeding.
2. There is nothing in the record to show what these other publications are, or how they compare to Health Alert. Even if they are the same, however, the proper action is for Respondent to re-examine their entitlement to Periodicals status, rather than to grant Health Alert mailing rates for which it does not qualify.
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