In the Matter of Petition by
WILLIAM AND MARY ANNA TOWLER ) February 15, 2002
WMT PUBLICATIONS, Inc. )
250 North Goodman Street )
Rochester, NY 14607-1199 )
Denial of Application for Periodicals ) P.S. Docket No.
Mailing Privileges for “CITY NEWSPAPER” ) 99-125
Stipulation of Facts and Settlement
1. On May 10, 1985, the presiding officer accepted a joint stipulation of settlement and
motion to dismiss by Phoenix New Times, Inc. and the United States Postal Service. That
settlement involved the creation of the so-called “New Times criteria” to demonstrate
compliance with the circulation and recordkeeping requirements for certain publications .
Among other things, under that settlement the newspapers were permitted to demonstrate
through a readership survey that they possessed sufficient evidence of reader demand to
comply with requirements that a requester publication must have " a legitimate list of
persons who request the publication and, 50 percent or more of the copies of the
publication must be distributed to such persons making such requests."
2. In January 1996, petitioner WMT Publications, Inc.(WMT) filed a Postal Service form
3511 for Periodicals mail privileges. WMT requested the privileges as a requester
publication under the New Times criteria. This submission followed a revocation of City
Newspaper’s authorization to mail at Periodicals rates that culminated in P.S. Docket No.
94-218. In subsequent months after January, 1996, , Petitioner submitted two readership
survey reports to document qualifications for a Periodicals permit. For varying reasons,
the Postal Service determined that the evidence submitted by Petitioner did not
demonstrate compliance with the New Times criteria.
3. On December 29, 1998, the Postal Service issued a final denial of Petitioner's request
for a Periodicals authorization. In a letter from Edmund Wronski, the Postal Service
indicated that survey information demonstrated insufficient reader demand to comply
with Postal Service criteria. Mr. Wronski said, "Postal application of the 'New Times'
criteria has generally required the survey data must establish whether the average
surveyed recipient of the publications read more than half the issues published in a
month. Following this criteria, only 33.8% of the respondents read or looked at more than
half of the issues of City Newspaper published during one month."
4. On January 11, 1999, Petitioner filed an administrative appeal within the Postal
Service of the denial of the Periodicals authorization.
5. On March 19, 1999, that appeal was denied by John J. Sadler, manager of Business
Mail Acceptance for the Postal Service.
6. In April 9, 1999, petitioner appealed the Postal Service's ruling to the Office of
Administrative Law Judges, arguing that its readership survey information had been
incorrectly interpreted and that its information would meet the requirements if properly
7. Postal Service moved to dismiss on April 26, 1999, and requested additional time to
file an answer. It argued that Petitioner's request for Periodicals privileges had been
properly denied because of petitioner's failure to maintain a legitimate list of persons who
have requested the publication required by DMM § E212.4.2 (a). It also said Petitioner's
request for a Periodicals authorization under the New Times criteria, specifically, had
been properly denied. It said that Postal Service was willing to consider settlement of this
case under terms similar to those applied in previous settlements.
8. From April 28, 1999, to the present, the docket has been in abeyance under motions for
continuance or suspension to permit the parties to discuss terms of settlement.
9. The parties hereby agree that the Petitioner should be permitted to demonstrate under
the New Times criteria that a legitimate list of persons have requested Petitioner's
publication, City Newspaper.
10. The parties agree that, in order to satisfy the New Times criteria, the publisher must
submit evidence to demonstrate that at least half of the persons who read or receive City
Newspaper “request” the publication. This evidence must include a circulation audit and
a readership survey. Each must be conducted by a qualified, independent auditor,
research organization or other entity. In order to ensure that they consider the same issues
of the publication, each must be conducted during the same time period.
11. For purposes of the reader survey, the parties further agree that the test of such
demand will be either 1) that at least half of the persons who pick up City Newspaper
have read no fewer than three out of the last five issues; or 2) that at least half of the
persons who pick up City Newspaper have read more than half of the issues in a typical
month, (usually at least three out of four issues in a month). Petitioner may opt for
qualification under either option 1) or option 2).
12. Petitioner may seek the views of the Postal Service before conducting the circulation
audit or reader survey. This request may ask the Postal Service to approve the entity
selected by Petitioner to conduct the audit or survey; the methodology that is used; the
questions asked; or any other aspect of the audit or survey. These requests should be
submitted to the office of Mail Preparation and Standards, which may either respond
itself or refer the questions to the appropriate Rates and Classification Service Center or
other office to answer on behalf of the United States Postal Service. Before responding,
the Postal Service may ask the publisher for additional information. The parties agree that
the Postal Service will not unreasonably withhold approval of the entity selected to
conduct the survey or audit or the questions or methodology proposed.
13. The parties agree that, in addition to the results, the report of the reader survey must:
state the identity and qualifications of the entity conducting the survey and analyzing the
results; provide a thorough description of the sample design, sample selection procedures,
and the sample size at each stage of sampling; state measures taken to ensure the
reliability of the sample and the validity of the results; provide complete data on the
response rate at each stage of sampling; and present the formulas and assumptions used to
calculate the estimates and their potential error due to sampling and nonresponse. The
parties also stipulate that, in determining whether the test set forth in paragraph 11 is met,
the percentage of readers will be considered net of the error level at a 95% confidence
level. For example, if it is determined that 54% read more than half of the issues in a
month, plus or minus 5% at a 95% confidence level, the readership percentage, for
purpose of this agreement, will be 49%.
14. For purposes of resolving the pending dispute concerning the application for a
Periodicals authorization submitted by City Newspaper, the Postal Service agrees to
rescind its ruling, described in paragraph 5, denying that application and to issue a new
ruling based on submission by Petitioner of a new circulation audit and reader survey
under the procedures in paragraphs 15-19.
15. The parties stipulate that, for purposes of fulfilling the requirement for a reader
survey set forth in paragraph 14, Petitioner may conduct an “in-paper” survey, whether
or not at the time the survey is conducted the Postal Service considers such surveys to be
reliable evidence to demonstrate compliance with the New Times criteria. For any other
reader surveys, the publisher may utilize any type of survey considered by the Postal
Service at the time the survey is conducted to provide reliable evidence to demonstrate
compliance with the New Times criteria.
16. The parties agree that the time permitted for collecting and interpreting data for
readership survey will be no longer than 270 days following the publisher’s selection and
the Postal Service’s approval (if the Petitioner seeks such approval) of an entity to
conduct the reader survey.
17. The parties agree that Petitioner may ask the Postal Service to review a draft of the
reader survey report before the final version is submitted. If Petitioner chooses to seek
such review, it must provide the draft to the office of Mail Preparation and Standards at
the United States Postal Service headquarters within 30 days of the completion of the
survey procedures. The Postal Service may request amendments or clarification in
writing, if any are needed for acceptance, within 30 days of receipt of the draft report.
18. The parties agree that a final draft of the readership report will be provided to the
office of Mail Preparation and Standards of the Postal Service within 30 days of the
receipt of requests for amendments or clarifications from that office. If Petitioner does
not submit a draft report to the Postal Service for review under paragraph 17, it must
submit the final reader survey report to the Postal Service within 45 days of the
completion of the survey procedures. The publisher must submit a circulation audit to the
Postal Service that has been conducted at the publisher's request and is available to the
publisher during the same time period as the reader survey. If Petitioner fails to submit
the documentation evidencing compliance with the New Times criteria and the terms of
this agreement by the dates set forth in this agreement, the Manager, Mail Preparation
and Standards, may issue a final agency decision denying City Newspaper’s Periodicals
19. The parties agree that the Manager, Mail Preparation and Standards, will issue a
decision concerning City Newspaper’s application for an authorization to mail at
Periodicals rates within 30 days of the submission of the reader survey and circulation
audit. If the authorization is granted, the effective date of the authorization shall be the
date on which the authorization is received by City Newspaper.
20. The parties agree that Petitioner may withdraw City Newspaper’s application for an
authorization to mail at Periodicals rates at any time within the 270 days preceding the
first draft of the readership survey without prejudice to any future application to be made
by petitioners, whether or not under the New Times criteria.
21. The parties agree that City Newspaper may count subscriptions or written requests
from readers as valid requesters and that the total of such subscriptions or written
requests will be included in the circulation audit as requests under DMM §E212.4.2 (a).
22. The parties agree that requests induced by a premium offer or receipt of material
consideration may not be considered a request under DMM §E212.4.2 (a), but that a
reader may be encouraged by an incentive, such as a drawing for gifts, to respond to the
reader survey without violating DMM §E212.4.2 (a).
23. Nothing in this agreement shall excuse City Newspaper’s need to provide postal
officials with evidence of compliance, in accordance with postal standards then in effect,
with the eligibility requirements for Periodicals publications if it obtains an authorization
to mail at Periodicals rates. If City Newspaper is granted an authorization to mail at
Periodicals rates under the New Times criteria and this agreement, the requests
evidenced by the circulation audit and reader survey will be considered valid requests for
the maximum period for which written requests are considered valid under postal
standards. Under current procedures, this period is three years. Accordingly, in order to
maintain eligibility to mail at Periodicals rates under the New Times criteria and this
agreement, the publisher must submit to the Postal Service new evidence of compliance
with the New Times criteria which shall be measured by the terms of this agreement
before the expiration of the validity of its requests. In doing so, the publisher may seek
guidance from the Postal Service before these reports are submitted, in accordance with
the procedures set forth in paragraphs 12 and 17-19.
24. This agreement does not preclude the Postal Service from taking any appropriate
administrative actions against the City Newspaper. Nothing in this agreement shall limit
City Newspaper’s right to submit future applications for authorizations to mail at
Periodicals rates or for other purposes nor to appeal any Postal Service administrative
decisions, except that the parties stipulate that a decision by the manager, Mail
Preparation and Standards, or that Manager’s designee or successor, to revoke City
Newspaper’s Periodicals authorization or to deny a reentry or Periodicals application on
the basis that City Newspaper has not demonstrated compliance with the New Times
criteria or this agreement shall be considered to be a final agency decision which is not
subject to an appeal to the Office of Administrative Law Judges or Judicial Officer under
39 C.F.R. 954 nor otherwise subject to further review.
25. This agreement shall be binding on and inure to the benefit of the parties and their
respective legal representatives, predecessors, successors, assigns, affiliates, officers,
directors, owners, shareholders, and employees. The parties warrant that this agreement is
executed by persons with the authority to bind the parties thereto.
26. The parties shall execute a joint motion for the dismissal with prejudice of Postal
Service Docket No. SCD 99-125.
Tonda F. Rush
Attorney for Petitioners
William and Mary Anna Towler
KING & BALLOW
PO Box 50301
Arlington, VA 22205
Attorney for Respondent
United States Postal Service
475 L'Enfant Plaza SW