The American Newspaper Publishers Association, Petitioner, v. United States Postal Service, Respondent.mcgraw-hill, Inc., Intervenor,the Association of Business Publishers, Intervenor,third Class Mail Association, Intervenor,advo-system, Inc., Intervenor, 811 F.2d 1504 (4th Cir. 1987)

The American Newspaper Publishers Association (ANPA) petitions for review of an order by the Board of Governors of the United States Postal Service (Board), approving a recommended decision of the Postal Rate Commission (Commission), to add Section 200.0123 to the Domestic Mail Classification Schedule on the ground that the new regulation dealing with second-class mail discriminates against a class of publications known generally as Plus Issues in violation of the first and fifth amendments to the United States Constitution. Finding that a subsequent postal regulation cures whatever constitutional defects, if any, may have existed in the challenged regulation, we affirm.

The challenged regulation,¹  now codified at 39 C.F.R.App. A Sec. 3001.68, was recommended by the Postal Rate Commission in response to a complaint regarding the use of second-class mail permits for "Plus Issues." Plus Issues are issues of a newspaper (or other periodical publication) that are published on a regular schedule and are distributed both to newspaper subscribers and to a large number of nonsubscribers within certain geographic areas. Such issues typically contain a high percentage of advertising and a limited range of editorial content. Under existing postal regulations a second-class permit holder could mail a Plus Issue at low second-class rates while competitors had to use higher third-class rates to mail similar materials to the same audience. The complaint out of which the challenged regulation developed was that "the current practice of the Postal Service of accepting certain 'total market coverage' products [Plus Issues] for mailing to nonsubscribers at second-class regular and subsidized within-county rates, under the second-class permit of the regular daily newspaper, is improper." The final decision of the Board on this complaint, arrived at after a full hearing, was "that, for purposes of determining second-class eligibility and postage, an 'issue' of a newspaper or other periodical shall be deemed to be a separate publication if it is published at a regular frequency on the same day as another regular issue of the same publication, and it is distributed to more than (i) 10 percent nonsubscribers, or (ii) twice as many nonsubscribers as the other issue on that same day, whichever is greater." The ANPA has attacked this new regulation on the ground that it requires that the Plus Issues of daily newspapers "must meet the applicable second-class eligibility criteria," but "publications appearing less frequently (e.g. magazines and weekly newspapers) may publish additional issues and obtain second-class postage rates for their distribution without comparable restrictions."

The ANPA does not challenge the Board's authority to make rules of general application for second-class mail, and it readily concedes that the Board can regulate the allowable percentage of advertising and the percentage of distribution to nonsubscribers for second-class mail. As we have already indicated, the ANPA argues, however, that the Board improperly and unconstitutionally discriminated between daily and nondaily publications because Section 200.0123 is triggered only when two Plus Issues are regularly published on the same day. Because nondaily publications can produce Plus Issues on open days of the week and thus escape the same-day trigger, the ANPA contends that the economic burden of this regulation will fall solely on publications whose schedules contain no open days. This, alleges the ANPA, infringes on daily publications' first amendment right of free speech and its fifth amendment right to equal protection. See, e.g., Minneapolis Star and Tribune Co. v. Commissioner of Revenue, 460 U.S. 575 (1983).

We find it unnecessary to reach petitioner's constitutional question. After the briefs were filed in this case, the United States Postal Service promulgated a final rule whose effect is to eliminate the same-day trigger.²  The ANPA suggests that this most recent rule still discriminates between classes of publications on the basis of frequency because it substitutes a same-week trigger for a same-day trigger. We think this is too narrow a reading. The use of the word "week" in part (a) of the new rule clearly is illustrative rather than definitive. We do not read into this rule an exemption for any nonweekly publication that would permit it to mail Plus Issues at second-class rates by piggybacking onto the parent publication. Our reading of the rule is well supported by its plain language, and also conforms to our duty to construe regulations so as to avoid the constitutional question.

The ANPA suggests that the new rule is inadequate to cure the alleged defects in Section 200.0123 because the new rule emmanates from a different agency and because it amends the Domestic Mail Manual rather than the Domestic Mail Classification Schedule. Although we think it unfortunate that the two regulations affecting Plus Issues are in different places--one an appendix to 39 C.F.R. and the other merely incorporated into 39 C.F.R. by reference--we are nonetheless convinced that taken together these regulations contain no defects as charged under the first and fifth amendments to the United States Constituion.

Accordingly, the order by the Board of Governors of the United States Postal Service is

AFFIRMED.