Enterprise, Inc. v. Bolger

Citation582 F. Supp. 228
Decision Date21 March 1984
Docket NumberNo. CIV-4-83-108.,CIV-4-83-108.
PartiesThe ENTERPRISE, INC. v. William F. BOLGER, Postmaster General, Janet D. Steiger, Chairman, Postal Rate Commission, Postal Rate Commission, and The United States Postal Service.
CourtUnited States District Courts. 6th Circuit. Eastern District of Tennessee

Buddy D. Perry, Winchester, Tenn., for plaintiff.

William Sonnenburg, Chattanooga, Tenn., for defendants.

MEMORANDUM AND ORDER

HULL, District Judge.

This is an action for damages and injunctive relief challenging the constitutionality of certain postal regulations and mail classification standards. The defendants have moved to dismiss or for summary judgment.

Plaintiff, The Enterprise, Inc., is a corporation which publishes a weekly newspaper, The Enterprise, and distributes it by mail to 16,129 homes and businesses in Franklin County, Tennessee, and in portions of surrounding counties. Unlike most newspapers, plaintiff's is distributed free of charge to its subscribers.

Plaintiff would like the advantages of expedited "newspaper treatment" and the second-class mailing permit available to non-free news publications but has been advised by the local postmaster that under Sections 422.21 and 422.23 of the Domestic Mail Manual, it is not eligible for a second-class permit. Because it must mail its paper third-class, plaintiff claims it must spend approximately $60,000.00 a year in extra postal costs and also must endure the disadvantage of having to quarter-fold its paper to meet third-class size requirements. Quarter-folding is not only cumbersome but allegedly costs plaintiff an additional $200.00 per week.

Plaintiff does not contend that the local postmaster has misinterpreted the regulations or that these regulations have been misapplied in plaintiff's case. Plaintiff contends that the regulations themselves are unconstitutional. For this reason, the fact that plaintiff has not formally applied for the permit, been rejected, and exhausted whatever administrative remedy may be available, does not appear to warrant dismissal. A direct challenge to the constitutionality of a federal regulation is properly brought in federal court.

The challenged regulations from the Domestic Mail Manual read as follows:

"422.221 List of Subscribers. General publications must have a legitimate list of subscribers who have paid or promised to pay, at a rate above a nominal rate, for copies to be received during a stated time..."
"422.223 Free or Nominal Rate Circulation. Publications primarily designed for free circulation and/or circulation at nominal rates may not qualify for the general publications category. Publications are considered primarily designed for free circulation and/or circulation at nominal rates when one-half or more of all copies circulated are provided free of charge to the ultimate recipients, or are paid for at nominal rates by the ultimate recipients, or when other evidence indicates that the intent of the publisher is to circulate the publication free and/or at nominal rates. The distribution of all copies of a publication is considered, whether circulated in the mails or otherwise."

Plaintiff contends that these regulations violate the Equal Protection Clause of the Fifth Amendment to the United States Constitution by making an arbitrary and capricious distinction between free and non-free newspapers and conferring a benefit only on those newspapers whose...

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3 cases
  • The Enterprise, Inc. v. U.S., 86-3919
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Noviembre 1987
    ...constitutional challenge and ordered that the Enterprise be granted second-class mailing privileges. The Enterprise, Inc. v. Bolger, 582 F.Supp. 228 (E.D.Tenn.1984). On appeal by the Postal Service, this court vacated the judgment of the district court on the ground that 39 U.S.C. Sec. 3628......
  • Campus Communications, Inc. v. Department of Revenue, State of Fla.
    • United States
    • United States State Supreme Court of Florida
    • 11 Julio 1985
    ...note that the postal regulation has been invalidated on constitutional grounds by at least one federal court. In The Enterprise, Inc. v. Bolger, 582 F.Supp. 228 (E.D.Tenn.1984), the court presumed the publication in question was a newspaper, and concluded that the discrimination between pai......
  • The Enterprise, Inc. v. Bolger, 84-5704
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 9 Octubre 1985
    ...paid and unpaid subscriptions is reasonably related to a legitimate governmental objective. The Enterprise, Inc. v. William F. Bolger, et al., 582 F.Supp. 228, 229-30 (E.D.Tenn.1984). On May 25, 1984, the district court reaffirmed its previous decision, denying defendants' request to recons......

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