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ASSOCIATED v. USPS

November 29, 1977

ASSOCIATED THIRD CLASS MAIL USERS, Plaintiff,
v.
UNITED STATES POSTAL SERVICE et al., Defendants


Barrington D. Parker, District Judge.


The opinion of the court was delivered by: PARKER

Barrington D. Parker, District Judge:

 The issue presented in this proceeding is whether advertisements directed in identical form to specific persons or residences are validly subject to the United States Postal Service monopoly over letter delivery. Plaintiff Associated Third Class Mail Users ("Mail Users") has brought suit against the United States Postal Service. Mail Users seeks a declaration that 39 C.F.R. § 310.1-.7 (1977), postal regulations enforcing the monopoly, are invalid or unconstitutional either in their entirety or insofar as they define the term "letter" to include such advertisements. *fn1" Plaintiff additionally seeks an injunction restraining the Postal Service from enforcing these regulations. The National Association of Letter Carriers, the exclusive bargaining representative for all nonsupervisory Postal Service employees in the city letter carrier craft, has been permitted to intervene as a party defendant.

 This proceeding arises under the postal laws of the United States, 18 U.S.C. § 1696 and 39 U.S.C. §§ 601-606 ("Private Express Statutes"); jurisdiction rests on 39 U.S.C. § 409(a) and 28 U.S.C. § 1339.

 There are no material facts in dispute and the parties have filed cross-motions for summary judgment. After consideration of the memoranda of points and authorities, the affidavits and the oral argument of counsel, the Court concludes that the defendants are entitled to judgment and that the complaint of Mail Users should be dismissed.

 I.

 Mail Users is a District of Columbia trade association consisting of more than 600 organizations which distribute so-called "public advertisements" through the mail at third class rates. Plaintiff's pleading defines such an advertisement to be a "printed message to the public directed in identical form to selected persons or addresses." *fn2" To avoid increasing postal rates, Mail Users desires to develop a private system of carriage and delivery of "public advertisements."

 The current Private Express Statutes and regulations determine the legality of private carriage systems. Title 18 U.S.C. § 1696 provides criminal penalties for whoever establishes or uses a private express. The companion civil statute, 39 U.S.C. §§ 601-606, approves private carriage of letters that display the proper amount of postage cancelled in ink and authorizes the Postal Service to search for and seize illegally transported letters. Although the Statutes do not define the term "letter," the Postal Service has defined that word to mean a "message directed to a specific person or address and recorded in or on a tangible object. . . ." and has specified that "[identical] messages directed to more than one specific person or address. . . constitute separate letters." *fn3"

 Mail Users readily admits that "public advertisements" are letters under the regulatory scheme and are therefore subject to the postal monopoly. However, plaintiff contests the validity of this outcome, because its members' advertisements are allegedly directed to the public at large rather than being the private communications connoted by the term "letters." Addressing, according to Mail Users, is merely a convenience to direct advertisements to various consumer markets.

 Despite plaintiff's representations, addressing is the most important characteristic of "public advertisements." Over 67% of third class mail is addressed to a specific member of a household. *fn4" While Mail Users members are free to develop a private delivery service for unaddressed advertisements, they have chosen to bring this action instead. Therefore, the focal question here is whether the distinction between addressed and unaddressed circulars under the Private Express Statutes and regulations is valid as a matter of law.

 In support of its motion for summary judgment, Mail Users refers the Court to legislative, judicial and administrative interpretations of the term "letter" in an attempt to prove that the regulatory distinction is invalid. In the alternative, plaintiff argues that the regulations violate its members' constitutional rights to due process, free speech and equal protection of the laws.

 II.

 As a preliminary matter, the Court notes that, contrary to the plaintiff's assertion, the Postal Service did not act ultra vires in promulgating the private express regulations under 18 U.S.C. § 1696. The Service is specifically authorized under 39 U.S.C. § 401(2) to develop regulations to further the private express objectives of Title 39. While section 1696 is not a part of Title 39, that section is a substantive Private Express Statute, separated from the others only when United States criminal provisions were codified into Title 18 in 1909. Therefore, the rulemaking authority of 39 U.S.C. § 401(2) also extends to § 1696. *fn5"

 Plaintiff Mail Users first argues that the Postal Service ignored legislative history in defining the term "letter" to include "public advertisements." This position has little, if any, merit. While the status of such messages in the postal monopoly legislation of the eighteenth and early nineteenth centuries is uncertain, Congress specifically included advertising circulars in 1845 by extending the private express prohibition to letters, packets or "other matter properly transmittable in the United States mail, except newspapers, pamphlets, magazines and periodicals." Act of March 3, 1845, § 9, 5 Stat. 735. In 1872, when Congress redrafted the statute and returned to earlier language prohibiting private express of only letters and packets, Act of June 8, 1872, § 228, 17 Stat. 311, advertisements were not thereby removed from the monopoly because the change was part of a general recodification of the law in 1872 to weed out redundancy. Given that substantive changes in the postal provisions were well-documented, the unheralded change in phrasing in the Private Express Statutes could only have been ...


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