Complaint on Electronic Postmark, 12405-12411 [E6-3403]
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availability of video teleconferencing
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Dated: March 6, 2006.
Andrew L. Bates,
Advisory Committee Management Officer.
[FR Doc. 06–2319 Filed 3–9–06; 8:45 am]
BILLING CODE 7590–01–P
OVERSEAS PRIVATE INVESTMENT
CORPORATION
Agency Information Collection
Activities: Proposed Collection;
Comment Request
Overseas Private Investment
Corporation (OPIC).
ACTION: Request for Comments
AGENCY:
SUMMARY: In compliance with the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.), this document announces
that OPIC is planning to submit the
following proposed information
Collection Request (ICR) to the Office of
Management and Budget (OMB): OPIC
2006 Client Satisfaction Survey. Before
submitting the ICR to OMB for review
and approval, OPIC is soliciting public
comment on the client survey.
Comments are being solicited on the
need for the information, its practical
utility, the accuracy of the Agency’s
burden estimate, and on ways to
minimize the reporting burden. The
proposed ICR is summarized below.
DATES: All comments must be received
by OPIC within 60 calendar days from
the publication date of this Notice.
ADDRESSES: Information regarding this
information collection request and/or a
copy of the survey questions can be
obtained from the Agency Submitting
Officer below. Comments on the survey
should be submitted to the Agency
Submitting Officer.
FOR FURTHER INFORMATION CONTACT:
OPIC Agency Submitting Officer
Essie Bryant, Records Manager,
Overseas Private Investment
Corporation, 1100 New York Avenue,
NW., Washington, DC 20527, telephone
(202) 336–8563.
SUPPLEMENTARY INFORMATION:
Type of Request: New information
collection.
Title: 2006 OPIC Client Satisfaction
Survey.
OMB Approval Number: None.
Frequency of Response: Once per
client.
Type of Respondents: Individual
business officer representatives of U.S.
companies sponsoring projects overseas.
Respondent’s Obligation: Voluntary.
Affected Public: U.S. companies or
citizens sponsoring projects overseas.
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Estimated Number of Respondents:
100.
Estimated Time Per Response: 30
minutes.
Estimated Total Annual Burden: 50
hours.
Estimated Federal Cost: $10,075.00.
Authority for Information Collection:
Sections 231 and 234 of the Foreign
Assistance Act of 1961, as amended.
Abstract (Needs and Uses of
Information Collected): OPIC is
conducting a telephone survey of its
clients to determine their satisfaction
with its products and services. OPIC
will use the survey results to develop
strategies to improve customer service.
Comments are invited on: (1) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of OPIC, including
whether the information collected will
have practical utility; (2) the accuracy of
OPIC’s estimate of the burden of the
proposed collection of information; (3)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (4) ways to minimize the
burden of the collection of information
on respondents, including automated
collection techniques or the use of other
forms of information technology.
Signature Date: March 7, 2006.
John P. Crowley III,
Senior Counsel for Administrative Law,
Department of Legal Affairs.
[FR Doc. 06–2339 Filed 3–9–06; 8:45am]
BILLING CODE 3210–01–M
POSTAL RATE COMMISSION
[Docket No. C2004–2; Order No. 1455]
Complaint on Electronic Postmark
Postal Rate Commission.
Notice and order.
AGENCY:
ACTION:
SUMMARY: This document identifies
preliminary procedural steps in a formal
complaint case involving a challenge to
an electronic postmark service offered
by the Postal Service. It discusses the
basis for the challenge, reviews
pertinent filings, and sets deadlines for
a submission of a statement by the
complainant and for filing notices of
intervention. Issuance of this document
informs interested parties of the
Commission’s determinations to date.
DATES: 1. Deadline for complainant to
provide a statement estimating amount
of time required to develop and file a
direct case: March 20, 2006.
2. Deadline for notices of
intervention: March 21, 2006.
ADDRESSES: Submit comments
electronically via the Commission’s
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Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Notices
Filing Online system at https://
www.prc.gov.
FOR FURTHER INFORMATION CONTACT:
Stephen L. Sharfman, general counsel,
at 202–789–6820.
SUPPLEMENTARY INFORMATION:
dsatterwhite on PROD1PC65 with PROPOSAL
Regulatory History
Definition of Postal Services Order, 69
FR 3288 (January 23, 2004).
Definition of Postal Services Proposed
Rule, 69 FR 67514 (November 18, 2004).
Definition of Postal Services Order, 71
FR 2464 (January 17, 2006).
In a complaint, filed in Docket No.
MC2004–2, DigiStamp, Inc. (DigiStamp
or Complainant) contends that the
Postal Service is providing a document
delivery service called Electronic
Postmark(tm) in violation of the Postal
Reorganization Act.1 It requests, among
other things, an order from the
Commission finding that the ‘‘Postal
Service’s document delivery service
called ‘Electronic Postmark (EPM)’ is a
‘postal service’ subject to the
[Commission’s] jurisdiction[.]’’ 2
The Postal Service moves to dismiss
DigiStamp’s complaint on two grounds.
First, it contends that the Commission
lacks authority to resolve a complaint
over the nature of the service provided.3
Second, the Postal Service argues that,
even assuming the Commission’s
jurisdiction, the complaint should be
dismissed since electronic postmark is
not a postal service.4
The motion to dismiss is denied
because, as discussed in detail below,
the Commission: (a) Rejects the Postal
Service’s contention that the
Commission lacks authority to
determine the scope of its own
jurisdiction; and (b) finds that the
parties’ conflicting claims whether
electronic postmark is or is not a postal
service raise genuine issues of material
fact that require a hearing in conformity
with § 3624. See sections II and III,
below. To that end, the Complainant is
directed to file a statement, no later than
March 20, 2006, estimating the amount
of time it will require to develop and
file a case-in-chief. Thereafter the
Commission will issue a procedural
schedule and, if warranted, special rules
of practice.
1 Complaint of DigiStamp, February 25, 2004
(Complaint). On its Web site, the Postal Service
refers to this service as ‘‘USPS Electronic
Postmark(tm) (EPM).’’ For purposes of this Order,
the service will be referred to as electronic
postmark or USPS EPM.
2 Motion to Notify the Postal Rate Commission of
a Recent Example Where the Use of USPS EPM
Replaces Traditional Mail Service, November 12,
2004, at 1 (DigiStamp Motion).
3 Motion of the United States Postal Service to
Dismiss, April 26, 2004, at 2–5 (Motion to Dismiss).
4 Id. at 6–17.
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The motion to dismiss is, however,
granted in one respect, specifically, as to
DigiStamp’s claim that the Postal
Service violated section 3661 by failing
to request an advisory opinion on
electronic postmark. See section IV,
below.
I. The Pleadings
The complaint. DigiStamp’s
complaint contains three principal
claims. First, DigiStamp alleges that the
Postal Service is providing electronic
postmark service in violation of the Act.
It contends that electronic postmark is
a class of mail or type of service and
thus requires the Postal Service to
request a recommended decision
pursuant to sections 3622 and 3623 of
the Act before service may be
implemented or rates charged for the
service.5 It describes electronic
postmark as ‘‘largely an electronic
service [that] functions as a type of mail
(and a service ancillary to mail), using
recent technology, to provide evidence
of the time and date of a document
transmission and security against
tampering with the contents of the
document.’’ Id. at 4, para. 21. DigiStamp
characterizes electronic postmark as
‘‘mail,’’ asserting that it substitutes for
hardcopy mail. Ibid. paras. 23–24.
Second, DigiStamp contends that the
rates charged for electronic postmark
fail to comply with section 3622(b).6 It
asserts that the Postal Service is offering
electronic postmark in competition with
companies in the private sector,
including DigiStamp, providing similar
service. Id. at 7, paras. 43–44. DigiStamp
further alleges that the Postal Service is
cross-subsidizing electronic postmark
service ‘‘with monopoly revenues
[which] may inhibit competition to the
detriment of consumers of all such
services.’’ Ibid. para. 47.
Third, DigiStamp contends that the
provision of electronic postmark
violates section 3661,7 asserting that
electronic postmark may affect the use
of other mail services, e.g., First-Class
Mail, registered or certified mail,
because it will be used in lieu of such
services. Ibid. para. 49. DigiStamp
asserts that providing electronic
postmark service therefore represents a
change in the nature of postal services
which will generally affect service on a
nationwide or substantially nationwide
basis.
The Postal Service’s responses.
Concurrently, the Postal Service filed an
answer to the complaint and a motion
5 Complaint
at 4–5, paras. 17–29.
at 5–7, paras. 48–53.
7 Id. at 5–7, paras. 30–47.
6 Id.
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to dismiss the complaint. In its answer,
the Postal Service, among other things:
Denies that electronic postmark is a
‘‘document delivery service;’ ’’ 8
Clarifies that electronic postmark
service in ‘‘its current configuration,’’
which is offered through a strategic
alliance with AuthentiDate, ‘‘was
launched in January, 2003.’’ Id. at 2,
para. 2 and 5, paras. 14–16;
∑ Denies any continuing relevance of
18 U.S.C. 1341. Id. at 3, para. 9;
∑ Admits that electronic postmark is
a service provided by the Postal Service.
Id. at 4, para. 11;
∑ Denies that electronic postmark has
incurred a large net loss in its current
configuration, stating that a large net
loss was incurred during the period
from its inception in 1996 until
termination of that configuration. Id. at
5, para. 16;
∑ Denies that electronic postmark is a
class of mail, type of mail service, or
service ancillary to mail; id. at 6, paras.
17 and 21; and
∑ Denies that the Postal Service crosssubsidizes electronic postmark with
‘‘ ‘monopoly revenue.’ ’’ Id. at 12, para.
47.
In moving to dismiss the complaint,
the Postal Service advances two
principal arguments. First, it contends
that its decision to launch electronic
postmark is unreviewable by the
Commission.9 This assertion rests on
the premise that the Postal Service’s
unilateral classification of a service as
‘‘nonpostal’’ is dispositive and is
reviewable, if at all, only by a United
States district court. Id. at 3.
Second, the Postal Service argues that,
even assuming the Commission has
authority to determine whether
electronic postmark is a postal service,
‘‘EPM is not a ‘postal service’ for
purposes of sections 3622, 3623, 3661,
and 3662 of title 39, United States
Code.’’ Id. at 6. In support, the Postal
Service highlights ‘‘the primary
precedents,’’ which include the ATCMU
and NAGCP I 10 opinions and the
Commission’s decisions in Docket Nos.
R76–1, C95–1, and C96–1. Based on its
review, the Postal Service concludes
that these authorities stand for the
proposition that ‘‘such services [to be
deemed a postal service] must bear, at
minimum, some relation to hardcopy
postal delivery networks.’’ 11
8 Answer of the United States Postal Service,
April 26, 2004, at 2, para. 2 (Postal Service Answer).
9 Motion to Dismiss at 2–3.
10 Associated Third Class Mail Users v. U.S.
Postal Service, 405 F. Supp. 1109 (D. D.C. 1975)
(ATCMU), affirmed, National Association of
Greeting Card Publishers v. U.S. Postal Service, 569
F.2d 570 (D.C. Cir. 1976) (NAGCP I), vacated on
other grounds, 434 U.S. 884 (1977).
11 Motion to Dismiss at 7.
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dsatterwhite on PROD1PC65 with PROPOSAL
In addition, the Postal Service
contends that electronic postmark
service is not a postal service because it
is entirely electronic and, further, does
not deliver anything between senders
and recipients. Id. at 12–13. The Postal
Service describes the purpose of
electronic postmark service as being ‘‘to
protect the integrity of electronic data.’’
Id. at 13. The Postal Service states that
electronic postmark service neither
requires nor accomplishes the
transmission of content. Id. at 14. Thus,
the Postal Service contends that, since
nothing moves between the sender and
recipient, ‘‘it is impossible to construe
any ‘carriage of mail’ that is the sine qua
non of a postal service.’’ Id. 14–15.
The Postal Service notes that that
electronic postmark service may
‘‘enhance the utility of subsequent
electronic document exchange,’’
describing the ‘‘EPM process [as] often
a step towards broader participation in
electronic commerce, and other varieties
of electronic information transmission.’’
Id. at 15. It characterizes electronic
postmark service as ‘‘a wholly
independent transaction,’’ not ancillary
to the electronic information
transmission.12
DigiStamp’s answer to the motion.
DigiStamp filed an answer opposing
the Postal Service’s motion to dismiss.13
It addresses each of the Postal Service’s
principal claims. First, DigiStamp
contests the Postal Service’s conclusion
that the Commission lacks authority to
determine the scope of its own
jurisdiction as well as its
characterization of the issue as entailing
approval or review of the Postal
Service’s exercise of its independent
authority under the Postal
Reorganization Act. Id. at 2–3.
DigiStamp also contends that the Postal
Service mischaracterizes the complaint
by misreading section 3662. According
to DigiStamp, the complaint is not
primarily about the lawfulness of
electronic postmark service, but
whether the Postal Service must obtain
Commission review and a
recommended decision prior to
commencing a new postal service. Id. at
3–4. Further, DigiStamp counters the
Postal Service’s claim that review, if
any, is available only by a U.S. district
court, arguing that the statute does not
12 Ibid. In an accompanying footnote, the Postal
Service briefly discusses the ‘‘superficial
resemblance’’ between electronic postmark service
and money orders, discounting the appropriateness
of any such comparison. Id. at 15, n.12. It also
compares electronic postmark service with services
provided by a notary public. Id. at 15–16.
13 DigiStamp Answer in Response to Motion of
the United States Postal Service to Dismiss, May 3,
2004 (DigiStamp Answer).
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preclude review by the Commission via
the complaint process. Id. at 4–5.
Regarding the Postal Service’s second
principal argument—that even assuming
Commission authority to consider the
complaint, electronic postmark is not a
postal service—DigiStamp contends that
the issue is a matter for hearing. Id. at
6–14. In support, DigiStamp, among
other things:
∑ Cites several examples from a
Postal Service press release comparing
the similarities of electronic postmark to
mail service, e.g., ‘‘ ‘creating the first in
a series of ‘First-Class’ Mail electronic
commerce services[,]’ ’’ and ‘‘the Postal
Service is developing ‘‘ ‘a series of
services to mirror those of First-Class
Mail.’ ’’ Id. at 8, citing Exhibit A to the
Complaint; 14
∑ Contends that electronic postmark
service adds value to the mail similar to
other security and evidentiary features
such as certified and registered mail. Id.
at 9;
∑ Disputes the Postal Service’s
contention that electronic postmark
service does not entail ‘‘ ‘the transfer of
something from a sender to a recipient,’
* * * indicat[ing] a product ancillary to
mail.’’ Ibid.;
∑ Quotes material from the Postal
Service’s web site which, DigiStamp
contends, suggests the Postal Service
views ‘‘EPM service as a substitute for
traditional services.’’ Ibid.;
∑ Cites Postal Service advertising
claims implying an ancillary
relationship to hard-copy mail and
imbuing electronic postmark service
with characteristics reserved only for
mail service. Id. at 10; and
∑ Contends that the status of
electronic postmark service as a postal
service or not ‘‘requires a hearing into
the specific facts surrounding this
service[.]’’ Id. at 14–15.
DigiStamp also moves to supplement
its complaint with information not
available when the complaint was
filed.15 The motion indicates that the
Postal Service’s electronic postmark
service has been added to South
Carolina’s Uniform Electronic
Transactions Act (UETA) as an
alternative to certified or registered mail
for certain types of electronic
communications, e.g., process of
service. Id. at 1–2. DigiStamp represents
that the electronic service has the ‘‘same
force of law and legal effect as those
physical mail services.’’ Id. at Exhibit A.
14 DigiStamp acknowledges that the press release
relates to a superseded version of the service, but
asserts that there has been no showing that the
essential elements of the current service are
significantly different. Id. at 8.
15 See DigiStamp Motion, supra, November 12,
2004.
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It contends that the ‘‘specific
application of UETA in South Carolina
excludes any service provider other
than the Postal Service.’’ Id. at 2.
DigiStamp also asserts that ‘‘EPM
software and service [include] what has
been historically marketed as the
Electronic Courier Service.’’ Ibid.
Stating that the Postal Service had
discontinued the latter line of business
in November 2002, but subsequently reentered it in July 2004, DigiStamp
asserts that ‘‘EPM is now being
combined with other communications
functions to operate as Electronic
Courier Service under a new name.’’ Id.
at 3. It requests that this allegation be
made part of its complaint. Ibid. The
Postal Service did not file an answer to
this motion.
II. The Commission’s Jurisdiction To
Consider Complaints
The complaint alleges that electronic
postmark is a postal service and
therefore the Postal Service should have
requested a recommended decision
before initiating service. The Postal
Service argues that the Commission
lacks ‘‘authority to approve or review
the Postal Service’s exercise of its
independent authority to carry out its
own powers and duties under the
statute.’’ 16 The issue raised by the
complaint is not whether the Postal
Service’s action is lawful or not; rather
it is whether electronic postmark service
is a postal service, a matter
appropriately before the Commission.
In Docket No. RM2004–1, the
Commission proposed and, after several
rounds of comments, subsequently
adopted an amendment to its rules of
practice defining the term postal service
as follows: Postal service means the
receipt, transmission, or delivery by the
Postal Service of correspondence,
including, but not limited to, letters,
printed matter, and like materials;
mailable packages; or other services
incidental thereto. See PRC Order No.
1449, January 4, 2006. This definition
became effective February 16, 2006.
The rulemaking proceeding was
initiated, in large part, because the
Commission determined that the
jurisdictional implications of a spate of
new services implemented unilaterally
by the Postal Service would be most
efficaciously addressed by rule rather
16 Motion to Dismiss at 1. As a variation of this
claim, the Postal Service argues that the
Commission lacks authority ‘‘to declare
independent actions of the Postal Service to be
either lawful or unlawful.’’ Id. at 3.
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than on an ad hoc basis.17 In Docket No.
RM2004–1, based on a detailed analysis
of statute, legislative history, precedent,
and the parties’ comments, the
Commission rejected the Postal
Service’s contention that the
Commission lacked authority to
determine the scope of its own
jurisdiction. Consequently, the
Commission finds it unnecessary to
revisit that issue, choosing instead to
incorporate by reference its findings and
conclusions from that rulemaking.18
Section 3662 provides interested
parties an independent means to bring
rate and classification matters before the
Commission between rate cases. A
complaint will lie if the interested party
believes that ‘‘the Postal Service is
charging rates which do not conform to
the policies set out in [title 39] or * * *
that [he/she is] not receiving postal
service in accordance with the policies
of this title[.]’’ If, in its discretion, the
Commission holds hearings, its
response is dependent, in the first
instance, on finding the complaint to be
justified and, secondly, on whether the
subject matter of the complaint is
covered by subchapter II of title 39.
Subchapter II encompasses rate and
classification matters.
DigiStamp’s complaint includes both
rate and classification elements. It
complains that the rates charged for
electronic postmark service do not
conform to the policies of title 39 since:
(a) The Postal Service implemented
service and began charging rates
without first obtaining a recommended
decision from the Commission; (b) the
rates charged do not comply with
section 3622(b); and (c) the rates for
electronic postmark service are being
cross-subsidized.19
DigiStamp’s classification claim, that
the Postal Service has failed to comply
with section 3623,20 also bears on the
issue whether ‘‘postal service’’ is being
received in accordance with the policies
of title 39. That facet of the complaint
is framed in terms of a competitor, not
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17 PRC
Order No. 1389, January 16, 2004, at 8;
PRC Order No. 1424, supra, at 3 and PRC Order No.
1449, supra, at 16–17.
18 See PRC Order No. 1424, November 12, 2004,
at 6–39, and PRC Order No. 1449, supra, at 5–21.
The Postal Service Motion to Dismiss predated both
of the foregoing orders. Postal Service arguments in
this proceeding reiterated arguments it advanced in
Docket No. RM2004–1. The merits of its arguments
were thoroughly considered in the latter docket.
19 See Complaint at 4–8, paras. 20, 27–29, 42, 45–
47, and 54. DigiStamp’s allegations of an unlevel
playing field may have implications for whether or
not the Postal Service’s provision of this service has
a substantial public effect. See ATCMU, supra, 405
F. Supp. at 1115.
20 Complaint at 4–5, paras. 19, and 27–29.
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user of the service. DigiStamp’s claim of
unfair competition goes to this issue.21
The gravamen of the complaint,
according to the Postal Service, is
unrelated to the rates being charged,
‘‘but [rather] whether the Postal Service
acted lawfully when offering USPS EPM
without a recommended decision from
the Commission.’’22 The Postal Service
mischaracterizes the complaint.
DigiStamp contends that electronic
postmark is a postal service. Its
complaint satisfies the elements of
section 3662 by raising both rate and
service issues. It may be that the latter
become moot if the Commission
concludes that electronic postmark is
not a postal service, but that conclusion
(or any other jurisdictional finding
made by the Commission) is not, as the
Postal Service would characterize it,
synonymous with finding the Postal
Service’s actions lawful or unlawful.
Rather, the result is a product of the
Commission acting properly under the
statute to determine the scope of its own
jurisdiction.
The Postal Service argues its decision
not to seek a recommended decision is
unreviewable by the Commission and
that review, if any, may be obtained by
DigiStamp only by filing suit in a
United States district court. Id. at 2–3.
The Postal Service argues that its
position is supported by ‘‘the
contemporaneous interpretation’’ of the
Act ‘‘immediately following postal
reorganization.’’ Id. at 3. Citing the
ATCMU case, it concludes that ‘‘district
courts are available to address and
resolve the exact issue upon which the
DigiStamp complaint must hinge.’’23
While this statement is accurate
regarding the availability of district
court review, it does not get the Postal
Service very far.
First, that parties in prior cases
challenged certain services as postal by
filing in district court rather than with
the Commission is not dispositive of
subsequent complainants’ choice of
forum. They are free to elect to proceed
21 See Complaint at 3–4, para. 13, 7, para. 45, and
Exhibit G.
22 Motion to Dismiss at 2.
23 Ibid. (footnote omitted). Regarding the ATCMU
case, the Postal Service asserts that it initially took
the position that ‘‘all special services were
‘nonpostal’ and [thus] excluded from Commission
jurisdiction.’’ Ibid. That contention appears to
misstate the Postal Service’s argument regarding the
special services at issue in that case. The Postal
Service did not argue that those special services
were nonpostal. Rather, it argued, inter alia, that
those services were not subject to the requirements
of chapter 36 of the Act and further that ‘‘special’’
services were exempt from the Commission’s
jurisdiction by virtue of section 404(a)(6). See
ATCMU, supra, 405 F. Supp. at 1116–18. The court
rejected the Postal Service’s arguments.
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under section 3662, an election made by
DigiStamp.
Second, the court’s jurisdiction is not
exclusive. See 39 U.S.C. 409(a). (‘‘[T]he
United States district courts shall have
original but not exclusive jurisdiction
over all actions brought by or against the
Postal Service.’’) Furthermore, section
409(a) expressly exempts cases covered
by section 3628 from its reach, thus
assuring the Commission’s primary
jurisdiction over postal rate and
classification matters. In sum, nothing
in the statute either precludes a
complainant from electing to proceed
under section 3662 or bars the
Commission from considering, on
complaint, the jurisdictional status of
the subject service.24
The court cases relied upon by the
Postal Service stand for the proposition
that the services there at issue fell
within the Commission’s jurisdiction. In
the first two omnibus rate cases, the
Postal Service did not propose any
changes in special service fees. The
Commission, nonetheless, asserted its
jurisdiction over special services.25 That
issue, however, did not come to a head
until the Postal Service proposed a
unilateral increase in special service
fees in 1975. The litigation that
ensued—ATCMU and NAGCP I—
resolved the issue whether those
services were postal or not and, in doing
so, confirmed that the Commission had
primary jurisdiction over postal rate and
classification matters, including
determining the scope of its own
jurisdiction. In discussing the ‘‘great
deference [a reviewing court must give]
to the interpretation given a statute by
the agency charged with its
administration,’’ the NAGCP I court
observed, ‘‘[t]he district court, in short,
without expressly stating so might
simply have deferred to a long-held and
reasonable interpretation given the
statute by the very agency [the
24 The Postal Service also cites Order No. 724 as
lending support for its contention that the district
court is the only forum in which this complaint
may be heard. Its reliance on Order No. 724 is
misplaced. The Postal Service suggests that in
Order No. 724 the Commission ‘‘redirect[ed] parties
initiating complaints under section 3662 to district
court.’’ Motion to Dismiss at 4. In fact, however, the
Commission asserted jurisdiction over the
complaint filed in that proceeding. The language
relied on by the Postal Service is taken out of
context and does not support the Postal Service’s
position. The passages cited by the Postal Service
concern a challenge to a Postal Service regulation
issued in the Domestic Mail Manual. The
Commission found that the regulation did not raise
a classification issue and therefore was outside its
jurisdiction. The relevant point, however, is that the
Commission did decide the jurisdictional issue in
that proceeding, the very result that DigiStamp
urges in this proceeding.
25 See, e.g., PRC Op. R74–1, August 28, 1975,
Appendix F.
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Commission] whose jurisdiction is at
issue.’’26
dsatterwhite on PROD1PC65 with PROPOSAL
III. Issues of Material Fact
The Postal Service’s contention that
electronic postmark service is a
nonpostal service has two prongs: First,
that it is a totally electronic service and,
second, that it does not entail the
transfer of something from a sender to
a recipient, which the Service
characterizes as the essence of a postal
function.27 It contends that ‘‘either of
these facts would be sufficient to
demonstrate that USPS EPM is not a
postal service.’’ Ibid.
That electronic postmark service is
totally electronic is not conclusive of
whether or not it is a postal service.
Currently, the Postal Service offers
several wholly electronic services that
are postal services, e.g., electronic
return receipt, Confirm, and Delivery
Confirmation. Moreover, this issue was
specifically addressed in Docket No.
RM2004–1 in orders issued subsequent
to the Postal Service’s filing of its
motion to dismiss. The Commission
concluded that services in which the
Postal Service receives, transmits, or
delivers correspondence, including
electronic communication services,
constitute postal services under the
Act.28 The Commission noted, however,
that ‘‘inclusion of [electronic] services
in the definition should not be read as
a conclusion that all such services are
jurisdictional; only such services that
entail correspondence become postal
services.’’ Id. at 4. Consequently,
whether or not electronic postmark
service is postal or not turns on the
nature of the service provided.
The Postal Service and DigiStamp
offer significantly different views on the
nature of the service itself. The parties
agree, however, that electronic
postmark: Features the use of auditable
time stamps, digital signatures, and
hash codes; provides proof (as
postmarked by the Postal Service) for a
third party to verify the authenticity of
the electronic postmark item’s content;
provides evidence to support nonrepudiation of the item’s content; and is
designed to deter and detect any
tampering or alteration of the item’s
content.29 They differ in almost all other
respects about the nature of electronic
postmark service.
The Postal Service states that
electronic postmark service neither
requires nor accomplishes transmission
26 NAGCP
I, supra, 569 F.2d. at 595, n.110.
to Dismiss at 12.
28 PRC Order No. 1424, supra, at 31–39.
29 See Complaint at 1, para. 3 and Postal Service
Answer at 2.
27 Motion
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20:31 Mar 09, 2006
Jkt 208001
of content.30 The Postal Service argues
that ‘‘[t]here is no necessary linkage
between application of an USPS EPM to
electronic data, and the transmission of
that data between a sender and a
recipient.’’ Ibid. According to the Postal
Service, this is not meant to imply that
electronic postmark service could not be
used to ‘‘enhance the utility of
subsequent electronic document
exchange.’’ Id. at 15. The Postal Service
views electronic postmark service as a
totally independent transaction, not
ancillary to any electronic transmission.
It compares electronic postmark with
notarial services, noting that the
Commission previously found notary
public services by postmasters in Alaska
to be nonpostal. Id. at 15–16.
For its part, DigiStamp refers to a
1996 Postal Service press release that
characterizes electronic postmark
service in terms of its postal or mail-like
attributes, including, for example,
describing electronic postmark as the
first in ‘‘a series of services to mirror
those of First-Class Mail.’’ 31 The Postal
Service denies that this press release
‘‘accurately describes the current status
of, or its current expectation regarding,
the Postal Service’s programs in these
areas.’’ 32 This denial, however, does not
resolve the factual dispute between the
parties. That the ‘‘current status’’ is
different from what it may have been
does not reveal what it has become or
how it is different. Nor does the denial
shed any light on the Postal Service’s
current expectations. Moreover, as
DigiStamp observes, the Postal Service
has not shown that its strategic alliance
with AuthentiDate, apparently
commenced in 2003, effects any
significant change in the elements of the
service.33
DigiStamp also cites statements
contained on the Postal Service web site
which it contends give the impression
that electronic postmark is, at a
minimum, ‘‘a service ancillary to the
Postal Service’s historical activity of
carrying the mail.’’ Id. at 10. These
include attributing unique postal
statutory attributes to electronic
postmark service such as:
‘‘ ‘correspondence handled by USPS [is]
subject to confidentiality statutes and
regulations;’ ’’ referencing the mandate
of section 101 of the Act ‘‘to bind the
30 Motion
to Dismiss at 14.
at Exhibit A; see also DigiStamp
Answer at 7–9. In addition, the press release
identifies future electronic services such as return
receipt, certified, registered, and verification of the
sender and recipient, each of which, DigiStamp
contends, are already deemed to be postal services.
DigiStamp Answer at 8.
32 Postal Service Answer at 3, para. 6.
33 DigiStamp Answer at 8.
31 Complaint
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Frm 00077
Fmt 4703
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12409
nation together through the * * *
correspondence of the people;’’ and the
history of providing postmarks with
legal significance. Ibid.
In addition, the web site also lists
various criminal statutes applicable to
the Postal Service’s electronic postmark,
e.g., 18 U.S.C. 1343 concerning wire
fraud, and 18 U.S.C. 2510 concerning
electronic communications. See https://
www.usps.com/electronicpostmark
/benefits.htm. DigiStamp argues that by
extending the criminal statutes designed
to protect mail to electronic postmark
service, the Postal Service gives ‘‘EPM
the status of a mail service.’’ Ibid. The
Postal Service acknowledges that, at the
time the complaint was filed, the web
site did include a reference to 18 U.S.C.
1341, concerning mail fraud. It states,
however, that the reference was
inadvertent, has been removed, and
denies that section 1341 has any
continuing relevance to this matter.34
DigiStamp describes the Postal
Service’s electronic postmark as a
document delivery service, a
characterization that the Postal Service
rejects, arguing that there is ‘‘no
necessary linkage’’ between application
of the electronic postmark to data and
the transmission of that data.35
DigiStamp takes issue with the Postal
Service’s statement. It notes that the
Postal Service’s previously mentioned
press release specifically states that a
third party sends the electronically
postmarked message to the recipient
‘‘ ‘via a value-added network.’ ’’ 36
DigiStamp asserts that electronic
postmark service adds value similar to
that of various special services, such as
certified mail, registered mail, and
signature confirmation.37 DigiStamp
concludes, contrary to the Postal
Service’s characterization, that ‘‘there
will nevertheless apparently be the
‘transfer of something from a sender to
a recipient’ * * * indicat[ing] a product
ancillary to mail.’’ Ibid.
Elsewhere, DigiStamp expands on its
contention that electronic postmark is a
value-added service, arguing that it has
the attributes of a special service. Id. at
34 Postal Service Answer at 3, para. 9. The Postal
Service suggests that criminal interference with the
operation of the Postal Service’s electronic
postmark service may be subject to investigation by
the United States Postal Inspection Service and to
prosecution under several federal statutes. Id. at 4,
para. 11.
35 Compare Complaint at 4, para. 12 and Postal
Service Answer at 2, para. 2; and see Motion to
Dismiss at 14.
36 DigiStamp Answer at 9; see also Complaint,
Exhibit A.
37 DigiStamp Answer at 9. As relates to its third
claim, DigiStamp argues that electronic postmark
service may even replace or cannibalize some
special services. Ibid.
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dsatterwhite on PROD1PC65 with PROPOSAL
11. DigiStamp compares electronic
postmark service to money orders,
noting that transactions involving the
latter may be independent of subsequent
mailing.38 In response to the Postal
Service’s discussion of notarial services,
DigiStamp argues that the mails can
serve a similar purpose suggesting the
postmark and certified delivery offer
third-party proof that a document
existed or was received on a specific
date. Implicitly acknowledging that the
comparison may be less than perfect,
DigiStamp’s larger point appears to be
that the legal implications of the effects
of changing technology on services
offered by the Postal Service must be
considered and that hearings on its
complaint are an appropriate forum for
doing so. DigiStamp Answer at 11–12.
Based on the pleadings, the
Commission is unable to determine
whether electronic postmark service is
or is not a postal service. The parties’
sharply contrasting contentions
regarding the nature of the service
cannot be resolved on this record. Thus,
it would be premature to grant the
Postal Service’s motion to dismiss. The
facts necessary to support the parties’
contentions need to be developed on the
record.
Each party challenges the other’s
characterization of the service. For
example, the Postal Service argues that
electronic postmark service can be
viewed as a stand-alone service, and
that it is independent of transmission. It
suggests that the non-electronic service
most analogous to electronic postmark
is notarial service.39
DigiStamp counters that apparently
something is transferred between the
sender and recipient. In addition,
DigiStamp touts electronic postmark’s
value-added properties, contending that
electronic postmark service has
attributes indistinguishable from
recognized special services such as
return receipt, certified mail, registered
mail, and verification of the sender and
recipient.
Furthermore, in its supplemental
motion addressing South Carolina’s
38 The Postal Service, too, discusses money
orders, arguing that, unlike purchasers of electronic
postmark service, purchasers are unlikely to use
money orders other than to transfer funds from one
person or entity to another. It contends that ‘‘[t]he
broad range of potential applications of EPMs
precludes any such facile analysis.’’ Motion to
Dismiss at 15, n.12.
39 Motion to Dismiss at 15–16. The Postal Service
also suggests that electronic postmark may be
applied to electronic data intended to be stored in
the user’s own files; for example, a doctor might
apply it to electronic notes of patient records on a
daily basis to verify, if required, that the records
were created contemporaneously with the patient’s
visit. Id. at 14.
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20:31 Mar 09, 2006
Jkt 208001
legislation adopting the UETA,40
DigiStamp alleges that electronic
postmark software and service
‘‘includes what has been historically
marketed as the Electronic Courier
Service.’’ Ibid. It provides a brief
timeline of the latter, noting that Docket
No. C99–1 was dismissed when the
Postal Service exited that business, but
contending ‘‘that EPM is now being
combined with other communications
functions to operate as Electronic
Courier Service under a new name.’’ Id.
at 3. It requests that its complaint be
broadened to include this allegation. As
noted above, the Postal Service did not
respond to this motion. The relationship
between these two services may be
addressed at the hearings. However, if
no nexus is demonstrated between the
two services, the Commission reserves
the right to limit the issues to the
original complaint.
In Docket No. RM2004–1, the
Commission adopted a definition of the
term postal service. That definition
became effective February 16, 2006. In
light of this and in summary fashion,
the task of the parties in this proceeding
is to develop a record demonstrating
that, by the nature of the service
provided, electronic postmark falls
within (or outside) that meaning. The
parties’ contentions lack factual support
needed before the Commission can
fairly determine whether electronic
postmark service is (or is not) a postal
service. In addition to the foregoing, the
parties may also wish to develop a
record, to the extent deemed relevant,
on the experience of foreign posts in
offering electronic postmark as a postal
service or not. Accordingly, the
Commission shall set this matter for
hearing.
postmark will generally affect service on
a nationwide basis. Id. at 7–8, paras. 49–
50.
The Postal Service addresses the
claim in a footnote, arguing that the
claim is without merit because section
3661 does not apply to nonpostal
services.42 In addition, the Postal
Service argues that, while unstated by
DigiStamp, this claim must be in the
alternative to the first claim ‘‘because
there is no basis in the Act * * * that
a new service proposed to be
established in accordance with sections
3622–3625 also be the subject of a
request for an advisory opinion
pursuant to section 3661.’’ Ibid.
DigiStamp does not address the Postal
Service’s arguments in its reply to the
Service’s motion to dismiss.
It is not apparent that premising this
claim on electronic postmark being a
postal service is necessary to support a
claim based on section 3661. If the
Commission finds electronic postmark
service to be a postal service, section
3623, change in mail classification,
would apply, rather than section 3661,
concerning a change in the nature of
postal services. On the other hand, if
electronic postmark is found not to be
a postal service, section 3661 may apply
if, as DigiStamp alleges, there is a
nationwide or substantially nationwide
affect on existing postal services.
Nonetheless, since DigiStamp premises
its third claim on electronic postmark
being a postal service and further chose
not to reply to the Postal Service’s
arguments, the Commission will dismiss
this claim from this proceeding without
prejudice to reconsidering this issue, on
motion or otherwise, should the record
developed herein support it.43
IV. DigiStamp’s Third Claim
Neither party devotes much attention
to DigiStamp’s third claim, that the
Postal Service failure to request an
advisory opinion on electronic postmark
service violates 39 U.S.C. 3661.
DigiStamp predicates this claim on
electronic postmark being a postal
service.41 It argues that electronic
postmark service may have an adverse
affect on the use of various mail
services, such as First-Class Mail,
Express Mail, Certified Mail, Return
Receipt, and Delivery Confirmation.
DigiStamp contends that by
cannibalizing these services, electronic
V. Procedural Matters
40 DigiStamp Motion, supra, at 2. Under the
legislation, USPS EPM applied e-mails may be used
as an alternative to certified or registered mail for
certain types of electronic communications.
DigiStamp contends that the Postal Service is the
exclusive electronic postmark provider. Ibid.
41 Complaint at 7, para. 48.
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Sfmt 4703
Hearing. For the reasons discussed
above, the Commission concludes that
consideration of DigiStamp’s complaint
is authorized under 39 U.S.C. 3662.
Accordingly, this matter will be set for
hearing.
Notice. Pursuant to Rule 17 of the
Commission’s rules of practice and
procedure, 39 CFR 3001.17, this order
provides notice of this proceeding.
42 Motion
to Dismiss at 2, n.1.
similar issue arose in Docket No. C99–1. The
Commission found that considering the issue would
not exceed the scope of its authority under section
3662, noting that ‘‘to the extent that the § 3662
complaint mechanism has been viewed as a
remedial supplement to the review of substantially
nationwide service changes required under § 3661,
consideration of a Postal Service action purportedly
in violation of § 3661 in a complaint proceeding
appears compatible with the statutory scheme of the
Reorganization Act.’’ PRC Order No. 1239, May 3,
1999 at 14 (footnote omitted).
43 A
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Intervention. Those wishing to be
heard in this matter are directed to
submit a notice of intervention, on or
before March 21, 2006, via the
Commission’s Filing Online system,
which can be accessed electronically at
https://www.prc.gov. Persons needing
assistance with Filing Online may
contact the Commission’s Docket
Section at 202–789–6846. Notices shall
indicate whether participation will be
on a full or limited basis. See 39 CFR
3001.20 and 3001.20a.
Statement. To facilitate the
development of a procedural schedule
for this docket, DigiStamp is directed to
provide a statement, due on or before
March 20, 2006, estimating the amount
of time it will require to develop and
file a case-in-chief. The Commission
will thereafter issue a procedural
schedule and, if need be, special rules
of practice.
Representation of the general public.
In conformance with § 3624(a) of title
39, the Commission designates Shelley
S. Dreifuss, director of the
Commission’s Office of the Consumer
Advocate, to represent the interests of
the general public in this proceeding.
Pursuant to this designation, Ms.
Dreifuss will direct the activities of
Commission personnel assigned to
assist her and, upon request, will supply
their names for the record. Neither Ms.
Dreifuss nor any of the assigned
personnel will participate in or provide
advice on any Commission decision in
this proceeding.
Public notice. The Commission
directs the Secretary to arrange for
publication of this order in the Federal
Register.
dsatterwhite on PROD1PC65 with PROPOSAL
Ordering Paragraphs
It is ordered:
1. The Motion of the United States
Postal Service to Dismiss, filed April 26,
2004, is denied, in part, and granted, in
part, as set forth in the body of this
order.
2. Proceedings in conformity with 39
U.S.C. 3624 shall be held in this matter.
3. The Commission will sit en banc in
this proceeding.
4. Notices of intervention are due no
later than March 21, 2006.
5. Shelley Dreifuss, director of the
Commission’s Office of the Consumer
Advocate, is designated to represent the
interests of the general public in Docket
No. C2004–2.
6. Complainant shall provide a
statement, due on or before March 20,
2006, estimating the amount of time it
will require to develop and file a direct
case in this proceeding.
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22:11 Mar 09, 2006
Jkt 208001
7. The Secretary shall arrange for
publication of this Order in the Federal
Register.
12411
registered under Section 12(b) of the
Act.4
SECURITIES AND EXCHANGE
COMMISSION
Any interested person may, on or
before March 29, 2006, comment on the
facts bearing upon whether the
application has been made in
accordance with the rules of CHX, and
what terms, if any, should be imposed
by the Commission for the protection of
investors. All comment letters may be
submitted by either of the following
methods:
[File No. 1–00043]
Electronic Comments
By the Commission.
Steven W. Williams,
Secretary.
[FR Doc. E6–3403 Filed 3–9–06; 8:45 am]
BILLING CODE 7710–FW–P
Issuer Delisting; Notice of Application
of General Motors Corporation To
Withdraw Its Common Stock, $12⁄3 Par
Value, From Listing and Registration
on the Chicago Stock Exchange, Inc.
File No. 1–00043
March 6, 2006.
On March 2, 2006, General Motors
Corporation, a Delaware corporation
(‘‘Issuer’’), filed an application with the
Securities and Exchange Commission
(‘‘Commission’’), pursuant to Section
12(d) of the Securities Exchange Act of
1934 (‘‘Act’’) 1 and Rule 12d2–2(d)
thereunder,2 to withdraw its common
stock, $12⁄3 par value (‘‘Security’’), from
listing and registration on the Chicago
Stock Exchange, Inc. (‘‘CHX’’).
The Administrative Committee of the
Issuer’s Board of Directors (‘‘Board’’)
approved a resolution on September 9,
2005, to delist the Security from listing
and registration on CHX. The Issuer
stated that the purposes for seeking to
delist the Security from CHX are to
avoid dual regulatory oversight and dual
listing fees. The Security is traded, and
will continue to trade on the New York
Stock Exchange, Inc. (‘‘NYSE’’). In
addition, the Issuer stated that CHX
advised the Issuer that the Security will
continue to trade on CHX under
unlisted trading privileges.
The Issuer stated in its application
that it has complied with applicable
rules of CHX by providing CHX with the
required documents governing the
withdrawal of securities from listing
and registration on CHX. The Issuer’s
application relates solely to the
withdrawal of the Security from listing
on CHX and shall not affect its
continued listing on NYSE, the Pacific
Exchange, Inc. (‘‘PCX’’), or the
Philadelphia Stock Exchange, Inc.
(‘‘PHLX’’),3 or its obligation to be
1 15
U.S.C. 78l(d).
2 17 CFR 240.12d2–2(d).
3 The Issuer filed applications with the
Commission to withdraw the Security from listing
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Fmt 4703
Sfmt 4703
• Send an e-mail to rulecomments@sec.gov. Please include the
File Number 1–00043
or;
Paper Comments
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
All submissions should refer to File
Number 1–00043. This file number
should be included on the subject line
if e-mail is used. To help us process and
review your comments more efficiently,
please use only one method. The
Commission will post all comments on
the Commission’s Internet Web site
(https://www.sec.gov/rules/delist.shtml).
Comments are also available for public
inspection and copying in the
Commission’s Public Reference Room.
All comments received will be posted
without change; we do not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly.
The Commission, based on the
information submitted to it, will issue
an order granting the application after
the date mentioned above, unless the
Commission determines to order a
hearing on the matter.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.5
Nancy M. Morris,
Secretary.
[FR Doc. E6–3436 Filed 3–9–06; 8:45 am]
BILLING CODE 8010–01–P
and registration on PCX and PHLX on February 23,
2006 and February 27, 2006, respectively. Notice of
such applications will be published separately.
4 15 U.S.C. 78l(b).
5 17 CFR 200.30–3(a)(1).
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]]>Agencies
[Federal Register Volume 71, Number 47 (Friday, March 10, 2006)]
[Notices]
[Pages 12405-12411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-3403]
=======================================================================
-----------------------------------------------------------------------
POSTAL RATE COMMISSION
[Docket No. C2004-2; Order No. 1455]
Complaint on Electronic Postmark
AGENCY: Postal Rate Commission.
ACTION: Notice and order.
-----------------------------------------------------------------------
SUMMARY: This document identifies preliminary procedural steps in a
formal complaint case involving a challenge to an electronic postmark
service offered by the Postal Service. It discusses the basis for the
challenge, reviews pertinent filings, and sets deadlines for a
submission of a statement by the complainant and for filing notices of
intervention. Issuance of this document informs interested parties of
the Commission's determinations to date.
DATES: 1. Deadline for complainant to provide a statement estimating
amount of time required to develop and file a direct case: March 20,
2006.
2. Deadline for notices of intervention: March 21, 2006.
ADDRESSES: Submit comments electronically via the Commission's
[[Page 12406]]
Filing Online system at https://www.prc.gov.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, general counsel,
at 202-789-6820.
SUPPLEMENTARY INFORMATION:
Regulatory History
Definition of Postal Services Order, 69 FR 3288 (January 23, 2004).
Definition of Postal Services Proposed Rule, 69 FR 67514 (November
18, 2004).
Definition of Postal Services Order, 71 FR 2464 (January 17, 2006).
In a complaint, filed in Docket No. MC2004-2, DigiStamp, Inc.
(DigiStamp or Complainant) contends that the Postal Service is
providing a document delivery service called Electronic Postmark(tm) in
violation of the Postal Reorganization Act.\1\ It requests, among other
things, an order from the Commission finding that the ``Postal
Service's document delivery service called `Electronic Postmark[supreg]
(EPM)' is a `postal service' subject to the [Commission's]
jurisdiction[.]'' \2\
---------------------------------------------------------------------------
\1\ Complaint of DigiStamp, February 25, 2004 (Complaint). On
its Web site, the Postal Service refers to this service as ``USPS
Electronic Postmark(tm) (EPM).'' For purposes of this Order, the
service will be referred to as electronic postmark or USPS EPM.
\2\ Motion to Notify the Postal Rate Commission of a Recent
Example Where the Use of USPS EPM Replaces Traditional Mail Service,
November 12, 2004, at 1 (DigiStamp Motion).
---------------------------------------------------------------------------
The Postal Service moves to dismiss DigiStamp's complaint on two
grounds. First, it contends that the Commission lacks authority to
resolve a complaint over the nature of the service provided.\3\ Second,
the Postal Service argues that, even assuming the Commission's
jurisdiction, the complaint should be dismissed since electronic
postmark is not a postal service.\4\
---------------------------------------------------------------------------
\3\ Motion of the United States Postal Service to Dismiss, April
26, 2004, at 2-5 (Motion to Dismiss).
\4\ Id. at 6-17.
---------------------------------------------------------------------------
The motion to dismiss is denied because, as discussed in detail
below, the Commission: (a) Rejects the Postal Service's contention that
the Commission lacks authority to determine the scope of its own
jurisdiction; and (b) finds that the parties' conflicting claims
whether electronic postmark is or is not a postal service raise genuine
issues of material fact that require a hearing in conformity with Sec.
3624. See sections II and III, below. To that end, the Complainant is
directed to file a statement, no later than March 20, 2006, estimating
the amount of time it will require to develop and file a case-in-chief.
Thereafter the Commission will issue a procedural schedule and, if
warranted, special rules of practice.
The motion to dismiss is, however, granted in one respect,
specifically, as to DigiStamp's claim that the Postal Service violated
section 3661 by failing to request an advisory opinion on electronic
postmark. See section IV, below.
I. The Pleadings
The complaint. DigiStamp's complaint contains three principal
claims. First, DigiStamp alleges that the Postal Service is providing
electronic postmark service in violation of the Act. It contends that
electronic postmark is a class of mail or type of service and thus
requires the Postal Service to request a recommended decision pursuant
to sections 3622 and 3623 of the Act before service may be implemented
or rates charged for the service.\5\ It describes electronic postmark
as ``largely an electronic service [that] functions as a type of mail
(and a service ancillary to mail), using recent technology, to provide
evidence of the time and date of a document transmission and security
against tampering with the contents of the document.'' Id. at 4, para.
21. DigiStamp characterizes electronic postmark as ``mail,'' asserting
that it substitutes for hardcopy mail. Ibid. paras. 23-24.
---------------------------------------------------------------------------
\5\ Complaint at 4-5, paras. 17-29.
---------------------------------------------------------------------------
Second, DigiStamp contends that the rates charged for electronic
postmark fail to comply with section 3622(b).\6\ It asserts that the
Postal Service is offering electronic postmark in competition with
companies in the private sector, including DigiStamp, providing similar
service. Id. at 7, paras. 43-44. DigiStamp further alleges that the
Postal Service is cross-subsidizing electronic postmark service ``with
monopoly revenues [which] may inhibit competition to the detriment of
consumers of all such services.'' Ibid. para. 47.
---------------------------------------------------------------------------
\6\ Id. at 5-7, paras. 48-53.
---------------------------------------------------------------------------
Third, DigiStamp contends that the provision of electronic postmark
violates section 3661,\7\ asserting that electronic postmark may affect
the use of other mail services, e.g., First-Class Mail, registered or
certified mail, because it will be used in lieu of such services. Ibid.
para. 49. DigiStamp asserts that providing electronic postmarkservice
therefore represents a change in the nature of postal services which
will generally affect service on a nationwide or substantially
nationwide basis.
---------------------------------------------------------------------------
\7\ Id. at 5-7, paras. 30-47.
---------------------------------------------------------------------------
The Postal Service's responses. Concurrently, the Postal Service
filed an answer to the complaint and a motion to dismiss the complaint.
In its answer, the Postal Service, among other things:
Denies that electronic postmark is a ``document delivery service;'
'' \8\
---------------------------------------------------------------------------
\8\ Answer of the United States Postal Service, April 26, 2004,
at 2, para. 2 (Postal Service Answer).
---------------------------------------------------------------------------
Clarifies that electronic postmark service in ``its current
configuration,'' which is offered through a strategic alliance with
AuthentiDate, ``was launched in January, 2003.'' Id. at 2, para. 2 and
5, paras. 14-16;
Denies any continuing relevance of 18 U.S.C. 1341. Id. at
3, para. 9;
Admits that electronic postmark is a service provided by
the Postal Service. Id. at 4, para. 11;
Denies that electronic postmark has incurred a large net
loss in its current configuration, stating that a large net loss was
incurred during the period from its inception in 1996 until termination
of that configuration. Id. at 5, para. 16;
Denies that electronic postmark is a class of mail, type
of mail service, or service ancillary to mail; id. at 6, paras. 17 and
21; and
Denies that the Postal Service cross-subsidizes electronic
postmark with `` `monopoly revenue.' '' Id. at 12, para. 47.
In moving to dismiss the complaint, the Postal Service advances two
principal arguments. First, it contends that its decision to launch
electronic postmark is unreviewable by the Commission.\9\ This
assertion rests on the premise that the Postal Service's unilateral
classification of a service as ``nonpostal'' is dispositive and is
reviewable, if at all, only by a United States district court. Id. at
3.
---------------------------------------------------------------------------
\9\ Motion to Dismiss at 2-3.9
---------------------------------------------------------------------------
Second, the Postal Service argues that, even assuming the
Commission has authority to determine whether electronic postmark is a
postal service, ``EPM is not a `postal service' for purposes of
sections 3622, 3623, 3661, and 3662 of title 39, United States Code.''
Id. at 6. In support, the Postal Service highlights ``the primary
precedents,'' which include the ATCMU and NAGCP I \10\ opinions and the
Commission's decisions in Docket Nos. R76-1, C95-1, and C96-1. Based on
its review, the Postal Service concludes that these authorities stand
for the proposition that ``such services [to be deemed a postal
service] must bear, at minimum, some relation to hardcopy postal
delivery networks.'' \11\
---------------------------------------------------------------------------
\10\ Associated Third Class Mail Users v. U.S. Postal Service,
405 F. Supp. 1109 (D. D.C. 1975) (ATCMU), affirmed, National
Association of Greeting Card Publishers v. U.S. Postal Service, 569
F.2d 570 (D.C. Cir. 1976) (NAGCP I), vacated on other grounds, 434
U.S. 884 (1977).
\11\ Motion to Dismiss at 7.
---------------------------------------------------------------------------
[[Page 12407]]
In addition, the Postal Service contends that electronic postmark
service is not a postal service because it is entirely electronic and,
further, does not deliver anything between senders and recipients. Id.
at 12-13. The Postal Service describes the purpose of electronic
postmark service as being ``to protect the integrity of electronic
data.'' Id. at 13. The Postal Service states that electronic postmark
service neither requires nor accomplishes the transmission of content.
Id. at 14. Thus, the Postal Service contends that, since nothing moves
between the sender and recipient, ``it is impossible to construe any
`carriage of mail' that is the sine qua non of a postal service.'' Id.
14-15.
The Postal Service notes that that electronic postmark service may
``enhance the utility of subsequent electronic document exchange,''
describing the ``EPM process [as] often a step towards broader
participation in electronic commerce, and other varieties of electronic
information transmission.'' Id. at 15. It characterizes electronic
postmark service as ``a wholly independent transaction,'' not ancillary
to the electronic information transmission.\12\
DigiStamp's answer to the motion.
---------------------------------------------------------------------------
\12\ Ibid. In an accompanying footnote, the Postal Service
briefly discusses the ``superficial resemblance'' between electronic
postmark service and money orders, discounting the appropriateness
of any such comparison. Id. at 15, n.12. It also compares electronic
postmark service with services provided by a notary public. Id. at
15-16.
---------------------------------------------------------------------------
DigiStamp filed an answer opposing the Postal Service's motion to
dismiss.\13\ It addresses each of the Postal Service's principal
claims. First, DigiStamp contests the Postal Service's conclusion that
the Commission lacks authority to determine the scope of its own
jurisdiction as well as its characterization of the issue as entailing
approval or review of the Postal Service's exercise of its independent
authority under the Postal Reorganization Act. Id. at 2-3. DigiStamp
also contends that the Postal Service mischaracterizes the complaint by
misreading section 3662. According to DigiStamp, the complaint is not
primarily about the lawfulness of electronic postmark service, but
whether the Postal Service must obtain Commission review and a
recommended decision prior to commencing a new postal service. Id. at
3-4. Further, DigiStamp counters the Postal Service's claim that
review, if any, is available only by a U.S. district court, arguing
that the statute does not preclude review by the Commission via the
complaint process. Id. at 4-5.
---------------------------------------------------------------------------
\13\ DigiStamp Answer in Response to Motion of the United States
Postal Service to Dismiss, May 3, 2004 (DigiStamp Answer).
---------------------------------------------------------------------------
Regarding the Postal Service's second principal argument--that even
assuming Commission authority to consider the complaint, electronic
postmark is not a postal service--DigiStamp contends that the issue is
a matter for hearing. Id. at 6-14. In support, DigiStamp, among other
things:
Cites several examples from a Postal Service press release
comparing the similarities of electronic postmark to mail service,
e.g., `` `creating the first in a series of `First-Class' Mail
electronic commerce services[,]' '' and ``the Postal Service is
developing `` `a series of services to mirror those of First-Class
Mail.' '' Id. at 8, citing Exhibit A to the Complaint; \14\
---------------------------------------------------------------------------
\14\ DigiStamp acknowledges that the press release relates to a
superseded version of the service, but asserts that there has been
no showing that the essential elements of the current service are
significantly different. Id. at 8.
---------------------------------------------------------------------------
Contends that electronic postmark service adds value to
the mail similar to other security and evidentiary features such as
certified and registered mail. Id. at 9;
Disputes the Postal Service's contention that electronic
postmark service does not entail `` `the transfer of something from a
sender to a recipient,' * * * indicat[ing] a product ancillary to
mail.'' Ibid.;
Quotes material from the Postal Service's web site which,
DigiStamp contends, suggests the Postal Service views ``EPM service as
a substitute for traditional services.'' Ibid.;
Cites Postal Service advertising claims implying an
ancillary relationship to hard-copy mail and imbuing electronic
postmark service with characteristics reserved only for mail service.
Id. at 10; and
Contends that the status of electronic postmark service as
a postal service or not ``requires a hearing into the specific facts
surrounding this service[.]'' Id. at 14-15.
DigiStamp also moves to supplement its complaint with information
not available when the complaint was filed.\15\ The motion indicates
that the Postal Service's electronic postmark service has been added to
South Carolina's Uniform Electronic Transactions Act (UETA) as an
alternative to certified or registered mail for certain types of
electronic communications, e.g., process of service. Id. at 1-2.
DigiStamp represents that the electronic service has the ``same force
of law and legal effect as those physical mail services.'' Id. at
Exhibit A. It contends that the ``specific application of UETA in South
Carolina excludes any service provider other than the Postal Service.''
Id. at 2.
---------------------------------------------------------------------------
\15\ See DigiStamp Motion, supra, November 12, 2004.
---------------------------------------------------------------------------
DigiStamp also asserts that ``EPM software and service [include]
what has been historically marketed as the Electronic Courier
Service.'' Ibid. Stating that the Postal Service had discontinued the
latter line of business in November 2002, but subsequently re-entered
it in July 2004, DigiStamp asserts that ``EPM is now being combined
with other communications functions to operate as Electronic Courier
Service under a new name.'' Id. at 3. It requests that this allegation
be made part of its complaint. Ibid. The Postal Service did not file an
answer to this motion.
II. The Commission's Jurisdiction To Consider Complaints
The complaint alleges that electronic postmark is a postal service
and therefore the Postal Service should have requested a recommended
decision before initiating service. The Postal Service argues that the
Commission lacks ``authority to approve or review the Postal Service's
exercise of its independent authority to carry out its own powers and
duties under the statute.'' \16\ The issue raised by the complaint is
not whether the Postal Service's action is lawful or not; rather it is
whether electronic postmark service is a postal service, a matter
appropriately before the Commission.
---------------------------------------------------------------------------
\16\ Motion to Dismiss at 1. As a variation of this claim, the
Postal Service argues that the Commission lacks authority ``to
declare independent actions of the Postal Service to be either
lawful or unlawful.'' Id. at 3.
---------------------------------------------------------------------------
In Docket No. RM2004-1, the Commission proposed and, after several
rounds of comments, subsequently adopted an amendment to its rules of
practice defining the term postal service as follows: Postal service
means the receipt, transmission, or delivery by the Postal Service of
correspondence, including, but not limited to, letters, printed matter,
and like materials; mailable packages; or other services incidental
thereto. See PRC Order No. 1449, January 4, 2006. This definition
became effective February 16, 2006.
The rulemaking proceeding was initiated, in large part, because the
Commission determined that the jurisdictional implications of a spate
of new services implemented unilaterally by the Postal Service would be
most efficaciously addressed by rule rather
[[Page 12408]]
than on an ad hoc basis.\17\ In Docket No. RM2004-1, based on a
detailed analysis of statute, legislative history, precedent, and the
parties' comments, the Commission rejected the Postal Service's
contention that the Commission lacked authority to determine the scope
of its own jurisdiction. Consequently, the Commission finds it
unnecessary to revisit that issue, choosing instead to incorporate by
reference its findings and conclusions from that rulemaking.\18\
---------------------------------------------------------------------------
\17\ PRC Order No. 1389, January 16, 2004, at 8; PRC Order No.
1424, supra, at 3 and PRC Order No. 1449, supra, at 16-17.
\18\ See PRC Order No. 1424, November 12, 2004, at 6-39, and PRC
Order No. 1449, supra, at 5-21. The Postal Service Motion to Dismiss
predated both of the foregoing orders. Postal Service arguments in
this proceeding reiterated arguments it advanced in Docket No.
RM2004-1. The merits of its arguments were thoroughly considered in
the latter docket.
---------------------------------------------------------------------------
Section 3662 provides interested parties an independent means to
bring rate and classification matters before the Commission between
rate cases. A complaint will lie if the interested party believes that
``the Postal Service is charging rates which do not conform to the
policies set out in [title 39] or * * * that [he/she is] not receiving
postal service in accordance with the policies of this title[.]'' If,
in its discretion, the Commission holds hearings, its response is
dependent, in the first instance, on finding the complaint to be
justified and, secondly, on whether the subject matter of the complaint
is covered by subchapter II of title 39. Subchapter II encompasses rate
and classification matters.
DigiStamp's complaint includes both rate and classification
elements. It complains that the rates charged for electronic postmark
service do not conform to the policies of title 39 since: (a) The
Postal Service implemented service and began charging rates without
first obtaining a recommended decision from the Commission; (b) the
rates charged do not comply with section 3622(b); and (c) the rates for
electronic postmark service are being cross-subsidized.\19\
---------------------------------------------------------------------------
\19\ See Complaint at 4-8, paras. 20, 27-29, 42, 45-47, and 54.
DigiStamp's allegations of an unlevel playing field may have
implications for whether or not the Postal Service's provision of
this service has a substantial public effect. See ATCMU, supra, 405
F. Supp. at 1115.
---------------------------------------------------------------------------
DigiStamp's classification claim, that the Postal Service has
failed to comply with section 3623,\20\ also bears on the issue whether
``postal service'' is being received in accordance with the policies of
title 39. That facet of the complaint is framed in terms of a
competitor, not user of the service. DigiStamp's claim of unfair
competition goes to this issue.\21\
---------------------------------------------------------------------------
\20\ Complaint at 4-5, paras. 19, and 27-29.
\21\ See Complaint at 3-4, para. 13, 7, para. 45, and Exhibit G.
---------------------------------------------------------------------------
The gravamen of the complaint, according to the Postal Service, is
unrelated to the rates being charged, ``but [rather] whether the Postal
Service acted lawfully when offering USPS EPM without a recommended
decision from the Commission.''\22\ The Postal Service mischaracterizes
the complaint. DigiStamp contends that electronic postmark is a postal
service. Its complaint satisfies the elements of section 3662 by
raising both rate and service issues. It may be that the latter become
moot if the Commission concludes that electronic postmark is not a
postal service, but that conclusion (or any other jurisdictional
finding made by the Commission) is not, as the Postal Service would
characterize it, synonymous with finding the Postal Service's actions
lawful or unlawful. Rather, the result is a product of the Commission
acting properly under the statute to determine the scope of its own
jurisdiction.
---------------------------------------------------------------------------
\22\ Motion to Dismiss at 2.
---------------------------------------------------------------------------
The Postal Service argues its decision not to seek a recommended
decision is unreviewable by the Commission and that review, if any, may
be obtained by DigiStamp only by filing suit in a United States
district court. Id. at 2-3. The Postal Service argues that its position
is supported by ``the contemporaneous interpretation'' of the Act
``immediately following postal reorganization.'' Id. at 3. Citing the
ATCMU case, it concludes that ``district courts are available to
address and resolve the exact issue upon which the DigiStamp complaint
must hinge.''\23\ While this statement is accurate regarding the
availability of district court review, it does not get the Postal
Service very far.
---------------------------------------------------------------------------
\23\ Ibid. (footnote omitted). Regarding the ATCMU case, the
Postal Service asserts that it initially took the position that
``all special services were `nonpostal' and [thus] excluded from
Commission jurisdiction.'' Ibid. That contention appears to misstate
the Postal Service's argument regarding the special services at
issue in that case. The Postal Service did not argue that those
special services were nonpostal. Rather, it argued, inter alia, that
those services were not subject to the requirements of chapter 36 of
the Act and further that ``special'' services were exempt from the
Commission's jurisdiction by virtue of section 404(a)(6). See ATCMU,
supra, 405 F. Supp. at 1116-18. The court rejected the Postal
Service's arguments.
---------------------------------------------------------------------------
First, that parties in prior cases challenged certain services as
postal by filing in district court rather than with the Commission is
not dispositive of subsequent complainants' choice of forum. They are
free to elect to proceed under section 3662, an election made by
DigiStamp.
Second, the court's jurisdiction is not exclusive. See 39 U.S.C.
409(a). (``[T]he United States district courts shall have original but
not exclusive jurisdiction over all actions brought by or against the
Postal Service.'') Furthermore, section 409(a) expressly exempts cases
covered by section 3628 from its reach, thus assuring the Commission's
primary jurisdiction over postal rate and classification matters. In
sum, nothing in the statute either precludes a complainant from
electing to proceed under section 3662 or bars the Commission from
considering, on complaint, the jurisdictional status of the subject
service.\24\
---------------------------------------------------------------------------
\24\ The Postal Service also cites Order No. 724 as lending
support for its contention that the district court is the only forum
in which this complaint may be heard. Its reliance on Order No. 724
is misplaced. The Postal Service suggests that in Order No. 724 the
Commission ``redirect[ed] parties initiating complaints under
section 3662 to district court.'' Motion to Dismiss at 4. In fact,
however, the Commission asserted jurisdiction over the complaint
filed in that proceeding. The language relied on by the Postal
Service is taken out of context and does not support the Postal
Service's position. The passages cited by the Postal Service concern
a challenge to a Postal Service regulation issued in the Domestic
Mail Manual. The Commission found that the regulation did not raise
a classification issue and therefore was outside its jurisdiction.
The relevant point, however, is that the Commission did decide the
jurisdictional issue in that proceeding, the very result that
DigiStamp urges in this proceeding.
---------------------------------------------------------------------------
The court cases relied upon by the Postal Service stand for the
proposition that the services there at issue fell within the
Commission's jurisdiction. In the first two omnibus rate cases, the
Postal Service did not propose any changes in special service fees. The
Commission, nonetheless, asserted its jurisdiction over special
services.\25\ That issue, however, did not come to a head until the
Postal Service proposed a unilateral increase in special service fees
in 1975. The litigation that ensued--ATCMU and NAGCP I--resolved the
issue whether those services were postal or not and, in doing so,
confirmed that the Commission had primary jurisdiction over postal rate
and classification matters, including determining the scope of its own
jurisdiction. In discussing the ``great deference [a reviewing court
must give] to the interpretation given a statute by the agency charged
with its administration,'' the NAGCP I court observed, ``[t]he district
court, in short, without expressly stating so might simply have
deferred to a long-held and reasonable interpretation given the statute
by the very agency [the
[[Page 12409]]
Commission] whose jurisdiction is at issue.''\26\
---------------------------------------------------------------------------
\25\ See, e.g., PRC Op. R74-1, August 28, 1975, Appendix F.
\26\ NAGCP I, supra, 569 F.2d. at 595, n.110.
---------------------------------------------------------------------------
III. Issues of Material Fact
The Postal Service's contention that electronic postmark service is
a nonpostal service has two prongs: First, that it is a totally
electronic service and, second, that it does not entail the transfer of
something from a sender to a recipient, which the Service characterizes
as the essence of a postal function.\27\ It contends that ``either of
these facts would be sufficient to demonstrate that USPS EPM is not a
postal service.'' Ibid.
---------------------------------------------------------------------------
\27\ Motion to Dismiss at 12.
---------------------------------------------------------------------------
That electronic postmark service is totally electronic is not
conclusive of whether or not it is a postal service. Currently, the
Postal Service offers several wholly electronic services that are
postal services, e.g., electronic return receipt, Confirm, and Delivery
Confirmation. Moreover, this issue was specifically addressed in Docket
No. RM2004-1 in orders issued subsequent to the Postal Service's filing
of its motion to dismiss. The Commission concluded that services in
which the Postal Service receives, transmits, or delivers
correspondence, including electronic communication services, constitute
postal services under the Act.\28\ The Commission noted, however, that
``inclusion of [electronic] services in the definition should not be
read as a conclusion that all such services are jurisdictional; only
such services that entail correspondence become postal services.'' Id.
at 4. Consequently, whether or not electronic postmark service is
postal or not turns on the nature of the service provided.
---------------------------------------------------------------------------
\28\ PRC Order No. 1424, supra, at 31-39.
---------------------------------------------------------------------------
The Postal Service and DigiStamp offer significantly different
views on the nature of the service itself. The parties agree, however,
that electronic postmark: Features the use of auditable time stamps,
digital signatures, and hash codes; provides proof (as postmarked by
the Postal Service) for a third party to verify the authenticity of the
electronic postmark item's content; provides evidence to support non-
repudiation of the item's content; and is designed to deter and detect
any tampering or alteration of the item's content.\29\ They differ in
almost all other respects about the nature of electronic postmark
service.
---------------------------------------------------------------------------
\29\ See Complaint at 1, para. 3 and Postal Service Answer at 2.
---------------------------------------------------------------------------
The Postal Service states that electronic postmark service neither
requires nor accomplishes transmission of content.\30\ The Postal
Service argues that ``[t]here is no necessary linkage between
application of an USPS EPM to electronic data, and the transmission of
that data between a sender and a recipient.'' Ibid. According to the
Postal Service, this is not meant to imply that electronic postmark
service could not be used to ``enhance the utility of subsequent
electronic document exchange.'' Id. at 15. The Postal Service views
electronic postmark service as a totally independent transaction, not
ancillary to any electronic transmission. It compares electronic
postmark with notarial services, noting that the Commission previously
found notary public services by postmasters in Alaska to be nonpostal.
Id. at 15-16.
---------------------------------------------------------------------------
\30\ Motion to Dismiss at 14.
---------------------------------------------------------------------------
For its part, DigiStamp refers to a 1996 Postal Service press
release that characterizes electronic postmark service in terms of its
postal or mail-like attributes, including, for example, describing
electronic postmark as the first in ``a series of services to mirror
those of First-Class Mail.'' \31\ The Postal Service denies that this
press release ``accurately describes the current status of, or its
current expectation regarding, the Postal Service's programs in these
areas.'' \32\ This denial, however, does not resolve the factual
dispute between the parties. That the ``current status'' is different
from what it may have been does not reveal what it has become or how it
is different. Nor does the denial shed any light on the Postal
Service's current expectations. Moreover, as DigiStamp observes, the
Postal Service has not shown that its strategic alliance with
AuthentiDate, apparently commenced in 2003, effects any significant
change in the elements of the service.\33\
---------------------------------------------------------------------------
\31\ Complaint at Exhibit A; see also DigiStamp Answer at 7-9.
In addition, the press release identifies future electronic services
such as return receipt, certified, registered, and verification of
the sender and recipient, each of which, DigiStamp contends, are
already deemed to be postal services. DigiStamp Answer at 8.
\32\ Postal Service Answer at 3, para. 6.
\33\ DigiStamp Answer at 8.
---------------------------------------------------------------------------
DigiStamp also cites statements contained on the Postal Service web
site which it contends give the impression that electronic postmark is,
at a minimum, ``a service ancillary to the Postal Service's historical
activity of carrying the mail.'' Id. at 10. These include attributing
unique postal statutory attributes to electronic postmark service such
as: `` `correspondence handled by USPS [is] subject to confidentiality
statutes and regulations;' '' referencing the mandate of section 101 of
the Act ``to bind the nation together through the * * * correspondence
of the people;'' and the history of providing postmarks with legal
significance. Ibid.
In addition, the web site also lists various criminal statutes
applicable to the Postal Service's electronic postmark, e.g., 18 U.S.C.
1343 concerning wire fraud, and 18 U.S.C. 2510 concerning electronic
communications. See https://www.usps.com/electronicpostmark/
benefits.htm. DigiStamp argues that by extending the criminal statutes
designed to protect mail to electronic postmark service, the Postal
Service gives ``EPM the status of a mail service.'' Ibid. The Postal
Service acknowledges that, at the time the complaint was filed, the web
site did include a reference to 18 U.S.C. 1341, concerning mail fraud.
It states, however, that the reference was inadvertent, has been
removed, and denies that section 1341 has any continuing relevance to
this matter.\34\
---------------------------------------------------------------------------
\34\ Postal Service Answer at 3, para. 9. The Postal Service
suggests that criminal interference with the operation of the Postal
Service's electronic postmark service may be subject to
investigation by the United States Postal Inspection Service and to
prosecution under several federal statutes. Id. at 4, para. 11.
---------------------------------------------------------------------------
DigiStamp describes the Postal Service's electronic postmark as a
document delivery service, a characterization that the Postal Service
rejects, arguing that there is ``no necessary linkage'' between
application of the electronic postmark to data and the transmission of
that data.\35\ DigiStamp takes issue with the Postal Service's
statement. It notes that the Postal Service's previously mentioned
press release specifically states that a third party sends the
electronically postmarked message to the recipient `` `via a value-
added network.' '' \36\ DigiStamp asserts that electronic postmark
service adds value similar to that of various special services, such as
certified mail, registered mail, and signature confirmation.\37\
DigiStamp concludes, contrary to the Postal Service's characterization,
that ``there will nevertheless apparently be the `transfer of something
from a sender to a recipient' * * * indicat[ing] a product ancillary to
mail.'' Ibid.
---------------------------------------------------------------------------
\35\ Compare Complaint at 4, para. 12 and Postal Service Answer
at 2, para. 2; and see Motion to Dismiss at 14.
\36\ DigiStamp Answer at 9; see also Complaint, Exhibit A.
\37\ DigiStamp Answer at 9. As relates to its third claim,
DigiStamp argues that electronic postmark service may even replace
or cannibalize some special services. Ibid.
---------------------------------------------------------------------------
Elsewhere, DigiStamp expands on its contention that electronic
postmark is a value-added service, arguing that it has the attributes
of a special service. Id. at
[[Page 12410]]
11. DigiStamp compares electronic postmark service to money orders,
noting that transactions involving the latter may be independent of
subsequent mailing.\38\ In response to the Postal Service's discussion
of notarial services, DigiStamp argues that the mails can serve a
similar purpose suggesting the postmark and certified delivery offer
third-party proof that a document existed or was received on a specific
date. Implicitly acknowledging that the comparison may be less than
perfect, DigiStamp's larger point appears to be that the legal
implications of the effects of changing technology on services offered
by the Postal Service must be considered and that hearings on its
complaint are an appropriate forum for doing so. DigiStamp Answer at
11-12.
---------------------------------------------------------------------------
\38\ The Postal Service, too, discusses money orders, arguing
that, unlike purchasers of electronic postmark service, purchasers
are unlikely to use money orders other than to transfer funds from
one person or entity to another. It contends that ``[t]he broad
range of potential applications of EPMs precludes any such facile
analysis.'' Motion to Dismiss at 15, n.12.
---------------------------------------------------------------------------
Based on the pleadings, the Commission is unable to determine
whether electronic postmark service is or is not a postal service. The
parties' sharply contrasting contentions regarding the nature of the
service cannot be resolved on this record. Thus, it would be premature
to grant the Postal Service's motion to dismiss. The facts necessary to
support the parties' contentions need to be developed on the record.
Each party challenges the other's characterization of the service.
For example, the Postal Service argues that electronic postmark service
can be viewed as a stand-alone service, and that it is independent of
transmission. It suggests that the non-electronic service most
analogous to electronic postmark is notarial service.\39\
---------------------------------------------------------------------------
\39\ Motion to Dismiss at 15-16. The Postal Service also
suggests that electronic postmark may be applied to electronic data
intended to be stored in the user's own files; for example, a doctor
might apply it to electronic notes of patient records on a daily
basis to verify, if required, that the records were created
contemporaneously with the patient's visit. Id. at 14.
---------------------------------------------------------------------------
DigiStamp counters that apparently something is transferred between
the sender and recipient. In addition, DigiStamp touts electronic
postmark's value-added properties, contending that electronic postmark
service has attributes indistinguishable from recognized special
services such as return receipt, certified mail, registered mail, and
verification of the sender and recipient.
Furthermore, in its supplemental motion addressing South Carolina's
legislation adopting the UETA,\40\ DigiStamp alleges that electronic
postmark software and service ``includes what has been historically
marketed as the Electronic Courier Service.'' Ibid. It provides a brief
timeline of the latter, noting that Docket No. C99-1 was dismissed when
the Postal Service exited that business, but contending ``that EPM is
now being combined with other communications functions to operate as
Electronic Courier Service under a new name.'' Id. at 3. It requests
that its complaint be broadened to include this allegation. As noted
above, the Postal Service did not respond to this motion. The
relationship between these two services may be addressed at the
hearings. However, if no nexus is demonstrated between the two
services, the Commission reserves the right to limit the issues to the
original complaint.
---------------------------------------------------------------------------
\40\ DigiStamp Motion, supra, at 2. Under the legislation, USPS
EPM applied e-mails may be used as an alternative to certified or
registered mail for certain types of electronic communications.
DigiStamp contends that the Postal Service is the exclusive
electronic postmark provider. Ibid.
---------------------------------------------------------------------------
In Docket No. RM2004-1, the Commission adopted a definition of the
term postal service. That definition became effective February 16,
2006. In light of this and in summary fashion, the task of the parties
in this proceeding is to develop a record demonstrating that, by the
nature of the service provided, electronic postmark falls within (or
outside) that meaning. The parties' contentions lack factual support
needed before the Commission can fairly determine whether electronic
postmark service is (or is not) a postal service. In addition to the
foregoing, the parties may also wish to develop a record, to the extent
deemed relevant, on the experience of foreign posts in offering
electronic postmark as a postal service or not. Accordingly, the
Commission shall set this matter for hearing.
IV. DigiStamp's Third Claim
Neither party devotes much attention to DigiStamp's third claim,
that the Postal Service failure to request an advisory opinion on
electronic postmark service violates 39 U.S.C. 3661. DigiStamp
predicates this claim on electronic postmark being a postal
service.\41\ It argues that electronic postmark service may have an
adverse affect on the use of various mail services, such as First-Class
Mail, Express Mail, Certified Mail, Return Receipt, and Delivery
Confirmation. DigiStamp contends that by cannibalizing these services,
electronic postmark will generally affect service on a nationwide
basis. Id. at 7-8, paras. 49-50.
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\41\ Complaint at 7, para. 48.
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The Postal Service addresses the claim in a footnote, arguing that
the claim is without merit because section 3661 does not apply to
nonpostal services.\42\ In addition, the Postal Service argues that,
while unstated by DigiStamp, this claim must be in the alternative to
the first claim ``because there is no basis in the Act * * * that a new
service proposed to be established in accordance with sections 3622-
3625 also be the subject of a request for an advisory opinion pursuant
to section 3661.'' Ibid. DigiStamp does not address the Postal
Service's arguments in its reply to the Service's motion to dismiss.
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\42\ Motion to Dismiss at 2, n.1.
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It is not apparent that premising this claim on electronic postmark
being a postal service is necessary to support a claim based on section
3661. If the Commission finds electronic postmark service to be a
postal service, section 3623, change in mail classification, would
apply, rather than section 3661, concerning a change in the nature of
postal services. On the other hand, if electronic postmark is found not
to be a postal service, section 3661 may apply if, as DigiStamp
alleges, there is a nationwide or substantially nationwide affect on
existing postal services. Nonetheless, since DigiStamp premises its
third claim on electronic postmark being a postal service and further
chose not to reply to the Postal Service's arguments, the Commission
will dismiss this claim from this proceeding without prejudice to
reconsidering this issue, on motion or otherwise, should the record
developed herein support it.\43\
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\43\ A similar issue arose in Docket No. C99-1. The Commission
found that considering the issue would not exceed the scope of its
authority under section 3662, noting that ``to the extent that the
Sec. 3662 complaint mechanism has been viewed as a remedial
supplement to the review of substantially nationwide service changes
required under Sec. 3661, consideration of a Postal Service action
purportedly in violation of Sec. 3661 in a complaint proceeding
appears compatible with the statutory scheme of the Reorganization
Act.'' PRC Order No. 1239, May 3, 1999 at 14 (footnote omitted).
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V. Procedural Matters
Hearing. For the reasons discussed above, the Commission concludes
that consideration of DigiStamp's complaint is authorized under 39
U.S.C. 3662. Accordingly, this matter will be set for hearing.
Notice. Pursuant to Rule 17 of the Commission's rules of practice
and procedure, 39 CFR 3001.17, this order provides notice of this
proceeding.
[[Page 12411]]
Intervention. Those wishing to be heard in this matter are directed
to submit a notice of intervention, on or before March 21, 2006, via
the Commission's Filing Online system, which can be accessed
electronically at https://www.prc.gov. Persons needing assistance with
Filing Online may contact the Commission's Docket Section at 202-789-
6846. Notices shall indicate whether participation will be on a full or
limited basis. See 39 CFR 3001.20 and 3001.20a.
Statement. To facilitate the development of a procedural schedule
for this docket, DigiStamp is directed to provide a statement, due on
or before March 20, 2006, estimating the amount of time it will require
to develop and file a case-in-chief. The Commission will thereafter
issue a procedural schedule and, if need be, special rules of practice.
Representation of the general public. In conformance with Sec.
3624(a) of title 39, the Commission designates Shelley S. Dreifuss,
director of the Commission's Office of the Consumer Advocate, to
represent the interests of the general public in this proceeding.
Pursuant to this designation, Ms. Dreifuss will direct the activities
of Commission personnel assigned to assist her and, upon request, will
supply their names for the record. Neither Ms. Dreifuss nor any of the
assigned personnel will participate in or provide advice on any
Commission decision in this proceeding.
Public notice. The Commission directs the Secretary to arrange for
publication of this order in the Federal Register.
Ordering Paragraphs
It is ordered:
1. The Motion of the United States Postal Service to Dismiss, filed
April 26, 2004, is denied, in part, and granted, in part, as set forth
in the body of this order.
2. Proceedings in conformity with 39 U.S.C. 3624 shall be held in
this matter.
3. The Commission will sit en banc in this proceeding.
4. Notices of intervention are due no later than March 21, 2006.
5. Shelley Dreifuss, director of the Commission's Office of the
Consumer Advocate, is designated to represent the interests of the
general public in Docket No. C2004-2.
6. Complainant shall provide a statement, due on or before March
20, 2006, estimating the amount of time it will require to develop and
file a direct case in this proceeding.
7. The Secretary shall arrange for publication of this Order in the
Federal Register.
By the Commission.
Steven W. Williams,
Secretary.
[FR Doc. E6-3403 Filed 3-9-06; 8:45 am]
BILLING CODE 7710-FW-P
