MAIL ORDER ASS'N OF AMERICA v. U.S. POSTAL SERVICE

Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073 to 91-1075, 91-1079 and 91-1080.

2 F.3d 408 (1993)

MAIL ORDER ASSOCIATION OF AMERICA, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, McGraw-Hill, Inc.; Newspaper Association of America; Magazine Publishers of America, Inc.; TVSM; Third Class Mail Association; New York State Consumer Protection Board; Coalition of Religious Press Associations; United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; ADVO, Inc.; Time Warner, Inc.; Major Mailers Association; Shorter-Run Printers Committee; Association of Alternate Postal Systems; Parcel Shippers Association; Reader's Digest Association, Inc.; National Newspaper Association, Intervenors. DIRECT MARKETING ASSOCIATION, INC., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. NIAGARA TELEPHONE COMPANY, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. ALLIANCE OF NonPROFIT MAILERS, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Nashua Corporation and District Photo, Inc.; ADVO, Inc.; Time Warner, Inc., Intervenors. GOVERNORS OF the UNITED STATES POSTAL SERVICE, Petitioners, v. POSTAL RATE COMMISSION, Respondent, Dow Jones & Company, Inc.; United Parcel Service; Brooklyn Union Gas Company; American Business Press; Alliance of NonProfit Mailers; American Bankers Association; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. THIRD CLASS MAIL ASSOCIATION, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. DOW JONES & COMPANY, INC., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. ADVO, INC., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc., Intervenors. TIME WARNER, INC., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; ADVO, Inc., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided July 16, 1993.

As Amended August 24, 1993.

As Amended on Denial of Rehearing September 22, 1993.


Attorney(s) appearing for the Case

Daniel J. Foucheaux, Jr., Attorney, U.S. Postal Service, argued the cause for Governors of the U.S. Postal Service, petitioners in No. 91-1073. With him on brief were Eric P. Koetting and John L. DeWeerdt, Attorneys, U.S. Postal Service.

David E. McGiffert argued the cause for Mail Order Ass'n of America, Advertising Mail Marketing Ass'n, Third Class Mail Ass'n, Direct Marketing Ass'n, Inc. and ADVO, Inc., petitioners in Nos. 91-1058, 91-1059, 91-1074 and 91-1079 and intervenors in Nos. 91-1063, 91-1065, 91-1073, 91-1075 and 91-1080. With him on brief were David C. Todd, for Mail Order Ass'n of America, Ian Volner and N. Frank Wiggins, for Advertising Mail Marketing Ass'n and Third Class Mail Ass'n, Dana T. Ackerly, for Direct Marketing Ass'n, Inc. and John M. Burzio and Thomas W. McLaughlin for ADVO, Inc.

David M. Levy argued the cause for Alliance of NonProfit Mailers, petitioner in No. 91-1065 and intervenor in Nos. 91-1058, 91-1059, 91-1063, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080.

Michael F. McBride argued the cause for Dow Jones & Co., Inc. and Time Warner, Inc., petitioners in Nos. 91-1075 and 91-1080 and intervenors in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074 and 91-1079. With him on brief were M. Reamy Ancarrow and George L. Mahoney for Dow Jones & Co. and John M. Burzio and Timothy L. Keegan for Time Warner, Inc.

Timothy E. Welch argued the cause for Niagara Telephone Co., petitioner in No. 91-1063. Dean George Hill entered an appearance for Niagara Telephone Co.

William B. Baker argued the cause for Newspaper Ass'n of America and Ass'n of Alternate Postal Systems, intervenors in No. 91-1058. With him on brief were John R. Sturm for Newspaper Ass'n of America and David R. Straus for Ass'n of Alternate Postal Systems.

Richard Littell argued the cause for Major Mailers Ass'n, intervenor in No. 91-1058.

Stephen L. Sharfman argued the cause for Postal Rate Com'n, respondent in 91-1073.

Daniel J. Foucheaux, Jr., Attorney, U.S. Postal Service, argued the cause for U.S. Postal Service, respondent in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1074, 91-1075, 91-1079 and 91-1080. With him on brief were Eric P. Koetting and Scott L. Reiter, Attorneys, U.S. Postal Service.

Jacob M. Lewis, Attorney, U.S. Dept. of Justice, argued the cause for U.S. Postal Service, respondent in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080. With him on brief were Stuart M. Gerson, Asst. Atty. Gen., Patricia M. Bryan, Deputy Asst. Atty. Gen., and Anthony J. Steinmeyer and Jonathan R. Siegel, Attorneys, U.S. Dept. of Justice.

On brief for American Business Press, Shorter-Run Printers Committee, McGraw-Hill, Inc. and Coalition of Religious Press Associations, intervenors in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1075 and 91-1080, were David R. Straus, Stephen M. Feldman, Robert A. Saltzstein and Matthew F. Lintner for American Business Press and Shorter-Run Printers Committee and Ann J. LaFrance and David Alan Nall for McGraw-Hill, Inc. and Coalition of Religious Press Associations. Robert J. Brinkman entered an appearance for Nat. Newspaper Ass'n. Dr. John Stapert entered an appearance for Coalition of Religious Press Associations.

On brief for Brooklyn Union Gas Co. and American Bankers Ass'n, intervenors in No. 91-1073, were Michael W. Hall, Roderick D. Strickland and Kenneth T. Maloney for Brooklyn Union Gas Co. and John J. Gill and Irving D. Warden for American Bankers Ass'n.

On brief for New York State Consumer Protection Bd., intervenor in No. 91-1073, were Richard M. Kessell, Joel Blau and Philip S. Shapiro.

Robert L. Kendall, Jr. entered an appearance for United Parcel Service, intervenor in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080.

William J. Olson and John S. Miles entered appearances for Nashua Corp. and Dist. Photo, Inc., intervenors in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080.

Timothy J. May entered an appearance for Parcel Shippers Ass'n and Reader's Digest Ass'n, Inc., intervenors in No. 91-1058.

James R. Cregan entered an appearance for Magazine Publishers of America, Inc., intervenor in No. 91-1058.

Steven A. Levy entered an appearance for TVSM, intervenor in No. 91-1058.

Before WALD, WILLIAMS and HENDERSON, Circuit Judges.


Opinion for the Court filed Per Curiam.*

PER CURIAM.

I. Introduction

Under the Postal Reorganization Act of 1970, 39 U.S.C. § 101 et seq. ("PRA" or "Act"), the Governors of the United States Postal Service ("USPS" or "Postal Service"), and the Postal Rate Commission ("PRC" or "Commission") each play a distinct and complementary role in the process of changing postal rates and classifications. This complex case involves...

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