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Time, Inc. v. United States Postal Service

June 8, 1983

TIME, INCORPORATED; NEWSWEEK, INC.; THE REUBEN H. DONNELLEY CORPORATION; MAIL ADVERTISING SERVICE ASSOCIATION INTERNATIONAL; DIRECT MAIL/MARKETING ASSOCIATION, INC.; MAIL ORDER ASSOCIATION OF AMERICA; NATIONAL ASSOCIATION OF GREETING CARD PUBLISHERS; AMERICAN BUSINESS PRESS, INC.; ASSOCIATED THIRD CLASS MAIL USERS; AMERICAN RETAIL FEDERATION; COUNCIL OF PUBLIC UTILITY MAILERS; UNITED PARCEL SERVICE OF AMERICA, INC., PETITIONERS,
v.
UNITED STATES POSTAL SERVICE, RESPONDENT, DIRECT MAIL/MARKETING ASSOCIATION, INC.; DOW JONES & COMPANY; THE NATIONAL ASSOCIATION OF GREETING CARD PUBLISHERS; ASSOCIATION OF AMERICAN PUBLISHERS; THE RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.; UNITED PARCEL SERVICE OF AMERICA, INC.; AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION; ADVERTISERS DISTRIBUTION SERVICES; ADVERTISERS POSTAL SERVICE CORP.; MAGAZINE PUBLISHERS ASSOCIATION; CLASSROOM PUBLISHERS ASSOCIATION; MARCH OF DIMES BIRTH DEFECTS FOUNDATION; NATIONAL NEWSPAPER ASSOCIATION; MAIL ORDER ASSOCIATION OF AMERICA; PARCEL SHIPPERS ASSOCIATION; TIME, INCORPORATED; NEWSWEEK, INC.; COUNCIL OF PUBLIC UTILITY MAILERS; AMERICAN RETAIL FEDERATION; AMERICAN BANKERS ASSOCIATION, INTERVENORS.



Renewed petition for review of the decision of the Board of Governors of the United States Postal Service to modify pursuant to 39 U.S.C. § 3625(d) (1976) the rates and fees for postal services recommended by Postal Rate Commission. While the Board has failed to justify its rejection of a cost methodology employed by the Postal Rate Commission, as required by our decision in Time, Inc. v. United States Postal Service, 685 F.2d 760 (2d Cir. 1982), we find that the Board has adequately explained its modifications to the rates and fees recommended by the Postal Rate Commission. Petition for review denied.

Author: Meskill

Before: LUMBARD, MESKILL and KEARSE,*fn* Circuit Judges.

MESKILL, Circuit Judge:

This decision should bring to an end a major portion of the fifth general ratemaking proceeding under the Postal Reorganization Act of 1970, 39 U.S.C. §§ 101 et seq. (Act), a proceeding which has spawned two lengthy decisions by this Court, see Time, Inc. v. United States Postal Service, 685 F.2d 760 (2d Cir. 1982); Newsweek, Inc. v. United States Postal Service, 663 F.2d 1186 (2d Cir. 1981), cert. granted sub nom., National Association of Greeting Card Publishers v. United States Postal Service, 456 U.S. 925, 102 S. Ct. 1969, 72 L. Ed. 2d 439, 50 U.S.L.W. 3838 (U.S. Apr. 19, 1982), argued, 51 U.S.L.W. 3440 (U.S. Dec. 1, 1982), and which has exposed the tensions that exist between the two executive agencies charged with administering the postal system: the United States Postal Service and its Board of Governors (Board) and the Postal Rate Commission (PRC). We are now asked to complete our review, begun in Time, of the Board's Modification Decision*fn1 which substantially revised the schedule of rates and fees for postal services that had been propounded by the PRC in its Third Recommended Decision.*fn2

We held in Time that the Board acted within its powers under 39 U.S.C. § 3625(d) (1976) when it modified the PRC's recommended rates for postal services in order to restore the almost $1 billion in revenues that the PRC had unlawfully trimmed from the Postal Service's estimated revenue requirements. Time, 685 F.2d at 767; see Newsweek, 663 F.2d at 1204-06. However, we remanded the case to the Board and retained jurisdiction because it had failed to provide class by class explanation of its modifications and had failed to justify its rejection of a cost methodlogy employed by the PRC in formulating certain rates. Time, 685 F.2d at 773-74. We gave the Board the option on remand of either returning to the PRC for a fourth recommended decision in light of Newsweek and Time, or providing us with an explanation and justification of its modifications. Id. at 775. The Board opted for the latter course and on December 20, 1982 produced for our review its Further Explanation and Justification Supporting the September 29, 1981 Decision of the Governors of the United States Postal Service on Rates of Postage and Fees for Postal Services (Dec. 20, 1982), Supp. App. (Further Explanation). Our review is now limited to whether the Further Explanation of the Board adequately explains, based on substantial record evidence, the modifications made to the PRC's Third Recommended Decision.*fn3 39 U.S.C. § 3628 (1976); 5 U.S.C. § 706 (1976). For purposes of this opinion, we assume familiarity with Newsweek and Time. We will, however, begin with a brief description of the ratemaking process and a synopsis of our prior decisions in Newsweek and Time.

Congress has created a unique legislative scheme that divides postal ratemaking authority between two independent executive agencies. See 39 U.S.C. §§ 201-02, 3601 (1976). The Postal Reorganization Act of 1970 vests authority in the Board "to establish reasonable and equitable classes of mail and reasonable and equitable rates of postage and fees" provided that such rates and fees generate "sufficient revenues so that the total estimated income and appropriations to the Postal Service will equal as nearly as practicable total estimated costs of the Postal Service." 39 U.S.C. § 3621 (1976). However, the Board must submit proposed rate changes to the PRC for its approval and evaluation in light of the policies and factors embodied in 39 U.S.C. § 3622(b) (1976). The PRC must afford interested parties an opportunity to comment on proposed rate changes and must return a decision to the Board which recommends rates sufficient to satisfy the Postal Service's estimated revenue requirements. 39 U.S.C. § 3624 (1976); Newsweek, 663 F.2d at 1203-06. The Board may then approve, allow under protest, reject, or modify the recommended decision in accordance with 39 U.S.C. § 3625 (1976).

Thus, the Board is the business manager of the Postal Service, in day-to-day control of policymaking and operations. It is responsible for determining revenue requirements based upon total estimated costs -- fixed institutional costs and variable costs tied to volume, see 39 U.S.C. § 3621 (1976) -- and is empowered to initiate a rate proceeding when revenue needs warrant rate increases, 39 U.S.C. § 3622(a) (1976). Whereas the Board is in charge of management, the PRC controls ratemaking. It is responsible for establishing postal rates, fees and classifications. 39 U.S.C. § 3622 (1976). Its primary responsibility in a rate proceeding is to allocate to each class of mail the direct and indirect costs attributable to that class in accordance with the congressional mandate that "each class of mail or type of mail service [shall] bear the direct and indirect postal costs attributable to that class or type plus that portion of all other costs of the Postal Service reasonably assignable to such class or type." 39 U.S.C. § 3622(b)(3) (1976). Because institutional costs are not directly attributable to individual classes of service, they have been allocated through the pricing process in accordance with the policies defined in 39 U.S.C. § 3622(b) (1976) (except subsection (3)).

Because the Board is obligated to ensure that the Postal Service maintains a balanced budget, 39 U.S.C. § 3621 (1976), Congress empowered the Board either to seek judicial review, reject and seek reconsideration, or, in some circumstances, to modify a recommended decision of the PRC. 39 U.S.C. § 3625(a) (1976). The Board cannot modify a recommended decision, however, unless it finds that the recommended rates are inadequate to generate "sufficient total revenues so that total estimated income and appropriations will equal as nearly as practicable estimated total costs," 39 U.S.C. § 3625(d)(2) (1976). In modifying recommended rates, the Board must, like the PRC, respect the policies underlying the Act, 39 U.S.C. § 3625(d)(1) (1976), including the requirement that each class of mail bear the attributable costs and a reasonably assignable portion of all other costs, 39 U.S.C. § 3622(b)(3) (1976).

In Newsweek, we considered the lawfulness of postal rates and fees that had been recommended by the PRC and allowed to take effect under protest by the Board.*fn4 39 U.S.C. § 3625(c)(2) (1976). We held that the PRC had unlawfully encroached on the management authority of the Board when it trimmed almost $1 billion from the Postal Service's estimated revenue requirements. 663 F.2d at 1205. Shortly before Newsweek was decided, the Board issued its Modification Decision which drastically revised the rates and fees for postal services contained in the PRC's Third Recommended Decision. In Time, we considered the lawfulness of the Board's modifications. We held that the Board could lawfully exercise its modification powers under 39 U.S.C. § 3625(d) (1976) in order to restore $1 billion in revenues necessary to balance the Postal Service's budget.*fn5 685 F.2d at 767. However, we remanded the case to the Board because its Modification Decision had failed to provide "class by class explanations for its modifications." Id. at 772; see 39 U.S.C. § 3625(e) (1976).

We also considered in Time the Board's purported rejection of the "Service-Related Cost" methodology (SRC) employed by the PRC to formulate certain rates. The Board and the PRC have been at loggerheads over the appropriateness of the SRC concept to ratemaking. The Board is steadfast in its opinion that SRC is unreasonable and founded upon questionable hypothetical assumptions. The PRC had embraced SRC in response to several decisions of the United States Court of Appeals for the District of Columbia Circuit that required the PRC to use SRC in devising postal rates. See National Association of Greeting Card Publishers v. United States Postal Service, 197 U.S. App. D.C. 78, 607 F.2d 392 (D.C. Cir. 1979) (per curiam), cert. denied, 444 U.S. 1025, 100 S. Ct. 688, 62 L. Ed. 2d 659 (1980); National Association of Greeting Card Publishers v. United States Postal Service, 186 U.S. App. D.C. 331, 569 F.2d 570 (D.C. Cir. 1976) (per curiam), vacated as to other issues, 434 U.S. 884, 98 S. Ct. 253, 54 L. Ed. 2d 169 (1977). SRC creates a third tier of costs apart from attributable variable costs and unattributable institutional costs. This third tier, reasonably assignable costs, are institutional costs that can be reasonably assigned to individual classes of postal service by applying a cost avoidance analysis. Cost decisions lie at the heart of ratemaking. Because the Act requires that each class of postal service bear its attributable costs and reasonably assignable costs, 39 U.S.C. § 3622(b)(3) (1976), cost allocations set the base rate for each class of service. The practical effect of SRC is to limit the effective scope of discretion in the pricing process by creating an additional category of assignable costs.

We held in Newsweek that the PRC was not required to employ the SRC concept in establishing rates, but that the PRC could use the methodology at its option, 663 F.2d at 1201, because the "choice of [cost] methodologies is normally within the province of the PRC." Time, 685 F.2d at 774.Although the $1 billion revenue deficiency identified in Newsweek was not due to SRC, but rather resulted from the PRC's unlawful reduction of the Postal Service's estimated revenue requirements, we recognized in Time that faulty costing methodologies can be the root cause of revenue deficiencies. Time, 685 F.2d at 774. Accordingly, we held that the Board could reject a recommended decision if substantial record evidence demonstrated that the costing methodology used by the PRC would likely endanger the Postal Service's balanced budget. Id. Because the Board in its Modification Decision had not shown how SRC was likely to jeopardize revenues, we invited the Board on remand to offer additional explanations and evidence to meet its "heavy burdedn." Id. at 774-75.

Discussion

In its Further Explanation, the Board purports to identify substantial record evidence both to explain its modifications to the rates recommended by the PRC and to justify its rejection of the SRC concept. Although the $1 billion revenue deficiency identified in Newsweek was not due to SRC, the Board nevertheless argues that the methodology is likely to jeopardize revenues, by a small margin initially, but by increasingly greater margins in the long run. In this rate proceeding, the PRC has identified approximately 64.2 percent of the Postal Service's revenue requirement as costs attributable to the various classes of service. Appendices to Opinion and Recommended Decision, App. D-1 at 4, J. App., Vol. 6. Rather than treat the balance of the revenue requirement as unattributable institutional costs allocable through the pricing process, the PRC applied SRC to ascertain costs that were reasonably assignable to various classes. Applying SRC, the PRC identified an additional 8.4 percent of the revenue requirement that was reasonably assignable to several classes, primarily preferential classes of service. Id., App. J at 260. Because rates in those classes will necessarily increase due to SRC, the Board fears that large volume losses will result as users switch either into nonpreferential classes of service or out of the postal system entirely. As a result, the Board envisions the elimination of certain types of preferential service. Further Explanation at 123-26. In the Board's opinion, all nonattributable costs ought to be allocated through the pricing process in accordance with the factors detailed in 39 U.S.C. § 3622(b) (1976) (except subsection (3)). Further Explanation at 104 n.73.

The Board specifically found that the SRC concept was likely to cause a revenue deficiency in the short run. The PRC had determined that SRC compelled both a classification change and a rate change within second class service. Accordingly, it established a new Red-Tag preferential subclass and created a 3.4 cent price differential between Red-Tag and nonpreferential second class service. The Board found that these changes were likely to lead to a ...


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