In the Matter of Petition by WILLIAM AND MARY ANNA TOWLER Publishers WMT PUBLICATIONS, Inc. 250 North Goodman Street Rochester, NY 14607-1199 Denial of Application for Periodicals Mailing Privileges for “CITY NEWSPAPER” ) ) ) ) ) ) ) ) XXXXXX, 2001
P.S. Docket No. 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 viewed. 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 application. 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 (703) 534-5750
Jeffrey Zelkowitz Attorney for Respondent United States Postal Service 475 L'Enfant Plaza SW Washington, DC