Complaint of Capital One Services, Inc., 46339-46341 [E8-18292]
Download as PDF
Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
5.0 Alternatives to the Proposed
Action
The staff considered denial of Rio
Algom’s request (i.e., the no action
alternative) as the only reasonable
alternative to the proposed action.
Denial of the Licensee’s request would
result in no protection from the
spreading of contaminants from the
capped mill tailing cells or the
contaminants in Ponds 4, 5, and 6 from
potential flooding in the Arroyo del
Puerto floodplain.
pwalker on PROD1PC71 with NOTICES
6.0
Agencies and Persons Consulted
This EA was prepared by the NRC
staff, and coordinated with the NMDEQ.
NRC staff provided a draft of its EA to
NMDEQ for review. NMDEQ had
multiple comments on the Draft EA and
the overall design of the proposed
channel. Several discussions were held
with the staff of NMDEQ and their
comments were incorporated into the
Draft EA and the technical evaluation
report which would accompany the
license amendment.
A cultural resource survey was
conducted on the archeological site
discovered during the site inspection,
and concluded that no cultural resource
sites are present, and that the area is
ineligible for inclusion in the National
Register. Rio Algom sent a letter to the
State of New Mexico Department of
Cultural Affairs (NMDCA), Historic
Preservation Division (HPD), notifying
them of the archeological site and the
redesign of the channel and 1000-year
(flood control) berm to avoid disturbing
the area. The NRC staff contacted the
NMDCA, HPD, which stated that the site
was eligible for inclusion in the
National Register, but concurred with
the proposed realignment of the channel
project to avoid the archeological site,
and stated that, as long as the site is
avoided, the project would not affect
historic properties. The NRC staff has
determined that no further consultation
would be required under Section 106 of
the National Historic Preservation Act.
The NRC staff has determined that the
proposed action would not affect any
federally- or state-listed (threatened and
endangered) species or their critical
habitat. Therefore, no further
consultation would be required under
Section 7 of the Endangered Species
Act. The NRC staff advised the Licensee
to contact the U.S. Army Corps of
Engineers (USACE) to inquire if this
project would require a Section 404
(Clean Water Act) permit. The NRC staff
contacted the USACE about the Section
404 permit and they requested that NRC
send the technical memoranda from the
licensee, the concurrence from NMDCA,
VerDate Aug<31>2005
17:25 Aug 07, 2008
Jkt 214001
HPD on the proposed channel design,
and the Federal Register Notice (FRN)
with the EA (See ADAMS
ML081890038). The NRC staff sent the
technical memorandums and
concurrence from NMDCA, HPD to the
USACE and will send the FRN when it
is finalized. The USACE will then
decide if a Section 404 permit is
required.
7.0
For The Nuclear Regulatory Commission.
Rebecca Tadesse,
Acting Deputy Director, Decommissioning
and Uranium Recovery, Licensing Directorate,
Division of Waste Management, and
Environmental Protection, Office of Federal
and State Materials and Environmental
Management Programs.
[FR Doc. E8–18289 Filed 8–7–08; 8:45 am]
BILLING CODE 7590–01–P
Conclusion
The NRC staff prepared this EA in
support of the proposed action. Based
on the analysis contained in this EA, the
staff concluded that there are no
environmental impacts from the
proposed action, and that the
preparation of an Environmental Impact
Statement is not warranted.
Accordingly, the NRC determined that a
Finding of No Significant Impact is
appropriate.
III. Further Information
For further details with respect to the
proposed action, see the Licensee’s
letter and report dated October 24, 2007
(See ADAMS ML073060379,
ML073060380, ML073060381,
ML073060382, and ML073060383), a
report from the Licensee dated January
31, 2008 (See ADAMS ML080350250,
ML080350251, ML080350252,
ML080350254, and ML080350259), a
report from the Licensee dated March
21, 2008 (See ADAMS ML080990026,
ML080990027, ML080990034, and
ML080990035), a technical
memorandum from the Licensee
dated May 8, 2008 (See ADAMS
ML081280101), and a revised technical
memorandum from the Licensee dated
May 21, 2008 (See ADAMS
ML081490526), all of which are
available for public inspection, and can
be copied for a fee, at the U.S. Nuclear
Regulatory Commission’s Public
Document Room (PDR), located at One
White Flint North, 11555 Rockville Pike
(first floor), Rockville, Maryland, 20852.
The NRC maintains an Agency-wide
Documents Access and Management
System (ADAMS), which provides text
and image files of NRC’s public
documents. These documents may be
accessed through the NRC’s Public
Electronic Reading Room on the internet
at https://www.nrc.gov.
Persons who do not have access to
ADAMS or who have problems in
accessing the documents located in
ADAMS may contact the PDR reference
staff at 1–800–397–4209, 301–415–4737
or by e-mail at pdr@nrc.gov.
Dated at Rockville, Maryland, this 1st day
of August, 2008.
PO 00000
46339
Frm 00105
Fmt 4703
Sfmt 4703
POSTAL REGULATORY COMMISSION
[Docket No. C2008–3; Order No. 92]
Complaint of Capital One Services, Inc.
Postal Regulatory Commission.
Notice.
AGENCY:
ACTION:
SUMMARY: The Commission has initiated
a case to address allegations of undue
discrimination and other issues raised
by Capital One Services, Inc. (Capital
One) in a formal complaint. The
allegations stem from Capital One’s
interest in obtaining a rate agreement
from the Postal Service on terms that are
the same as or similar to those another
major mailer has received. Accepting
the case will provide an opportunity for
review of pertinent issues.
DATES: Notices of intervention are due
on August 13, 2008. A prehearing
conference will be held on August 14,
2008.
ADDRESSES: Submit comments
electronically via the Commission’s
Filing Online system at https://
www.prc.gov.
FOR FURTHER INFORMATION CONTACT:
Stephen L. Sharfman, General Counsel,
202–789–6820 and
stephen.sharfman@prc.gov.
The
Complaint of Capital One Services, Inc.
Regarding Discrimination and Other
Violations of Law by the United States
Postal Service (Complaint) was filed on
June 19, 2008. The Complaint asserts
several claims concerning Capital One’s
unsuccessful attempts to enter into a
negotiated service agreement similar to
the agreement that the Postal Service
recently commenced with Bank of
America. In support of the Complaint,
Capital One filed the Declaration of Ben
Lamm, and correspondence between
Capital One and the Postal Service
dated May 15, 2008, May 27, 2008, May
30, 2008, and June 4, 2008.1
The Answer of the United States
Postal Service (Answer) in response to
the Complaint was filed on July 21,
SUPPLEMENTARY INFORMATION:
1 The May 30, 2008 correspondence includes a
copy of a negotiated service agreement proffered by
Capital One to the Postal Service.
E:\FR\FM\08AUN1.SGM
08AUN1
46340
Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
2008, together with a Motion of the
United States Postal Service to Dismiss
Complaint (Motion to Dismiss). On July
28, 2008, the Opposition of Capital One
Services, Inc. to Motion to Dismiss of
the United States Postal Service
(Opposition to Dismiss) was filed in
response to this motion.
The Commission finds that the
Complaint raises material issues of fact
and law, and shall begin proceedings to
hear the issues involved. 39 U.S.C.
3662(b). The Motion to Dismiss does not
persuade the Commission that Capital
One should not be provided an
opportunity to present evidence and
argument in support of its Complaint,
and thus, the Motion to Dismiss is
denied.
pwalker on PROD1PC71 with NOTICES
I. The Capital One Complaint
Capital One asserts that it has
repeatedly approached the Postal
Service in attempts to obtain a
negotiated service agreement that is
similar to the agreement that the Postal
Service entered with Bank of America
Corporation.2 It alleges that the Postal
Service refuses to enter into a similar
agreement and insists that any
agreement with Capital One would have
to include mailer-specific baselines and
reduced per-piece discounts.3
Complaint at 3. Capital One contends
that because the Postal Service insists
on an agreement incorporating mailerspecific baselines and reduced per-piece
discounts, Capital One is not being
offered an agreement on similar terms to
Bank of America.
By denying Capital One a negotiated
service agreement under the same terms,
Capital One contends that (1) the Postal
Service has unduly or unreasonably
discriminated among users of the mails
and granted an undue or unreasonable
preference in violation of 39 U.S.C.
403(c); (2) the Postal Service has created
a special classification not available on
public and reasonable terms to similarly
situated mailers, which creates
unreasonable harm to the marketplace
in violation of 39 U.S.C. 3622(c)(10);
and (3) the Postal Service has violated
Commission rules 3010.40 et seq.
because the rules incorporate by
reference the legal standards of 39
U.S.C. 3622(c)(10). Id. at 17–19.
2 See PRC Op. MC2007–1. The Bank of America
negotiated service agreement requires Bank of
America to implement several advanced mailing
practices and provides Bank of America discounts
for proven performance improvements relative to
six negotiated baselines.
3 Capital One argues that requiring Capital One to
use mailer-specific baselines in place of the Bank
of America baselines (which were developed from
dated industry averages) radically alters the
incentives (and implicitly the agreement) available
to Capital One. Complaint at 16.
VerDate Aug<31>2005
17:25 Aug 07, 2008
Jkt 214001
Capital One contends the Postal
Service should not be allowed to deny
an agreement to Capital One on the
same terms granted to Bank of America.
Capital One also argues the Postal
Service should not be allowed to contest
whether the Bank of America agreement
is a pay-for-performance agreement,
arguing that this was fully litigated and
resolved in Docket No. MC2007–1. Id. at
19–20.
Capital One requests relief in the form
of a ruling that the Postal Service has
violated 39 U.S.C. 403(c), 39 U.S.C.
3622(c)(10), and/or Commission rules
3010.40 et seq. It requests a ruling
stating that Capital One is entitled to an
agreement with the same substantive
terms, or at a minimum, includes the
same financial incentives offered to
Bank of America. It requests any other
relief deemed appropriate, including but
not limited to the Commission ordering
approval of a new product (agreement)
substantively identical to the Bank of
America agreement, without further
need for negotiations between the Postal
Service and Capital One. Id. at 22.
II. The Postal Service Motion to Dismiss
The Postal Service argues that the
Complaint fails to establish that the
Postal Service unduly discriminated
against Capital One or otherwise
violated title 39. Motion to Dismiss at 2–
4. In support of this argument, the
Postal Service asserts that it has long
been established that functional
equivalence does not mean identical,
and that all agreements, including
functionally equivalent agreements, are
tailored to each partner’s unique
situation and to how the agreement then
benefits the Postal Service. It quotes
Commission holdings that a proposed
functionally equivalent agreement must
primarily rest on the same substantive
functional elements as the identified
baseline agreement, and must provide a
comparable benefit to the Postal
Service.4 It argues that an analysis of
functional elements would allow for a
far wider range of functionally
equivalent agreements than Capital
One’s argument allows. It concludes
that the Postal Service’s refusal to
approve just one example of a
functionally equivalent agreement as
presented by Capital One does not
constitute an undue or unreasonable
preference or create a special
classification not available on public
4 Id. at 3. See also Docket No. MC2007–4, Order
Regarding Limitation of Issues and Establishing
Procedural Schedule, September 7, 2007, at 2
referencing Docket No. RM2003–5, PRC Order No.
1391, February 11, 2004, at 49–51.
PO 00000
Frm 00106
Fmt 4703
Sfmt 4703
and reasonable terms to similarly
situated mailers.
The Postal Service further contends
that the Complaint is premature because
the parties never engaged in, or
exhausted, reasonable efforts to
negotiate a functionally equivalent
agreement. Id. at 4–7. It asserts that the
Postal Service was and remains
prepared to continue negotiations with
Capital One.
In response, Capital One contends
that reference to its Complaint at 3 and
12–15, and the Opposition to Dismiss at
9–12, present ample indications that
despite its extended good faith efforts to
negotiate, additional discussions would
be futile.
III. Commission Analysis
The Postal Service asserts that Capital
One fails to establish undue
discrimination. Id. at 2–4. Capital One
discusses the importance of the
opportunity to bring complaints under
the Postal Accountability and
Enhancement Act (PAEA) and suggests
a standard for the legal sufficiency of
complaints similar to the standard set
forth in the Federal Rules of Civil
Procedure. Opposition to Dismiss at 4–
5. The Commission has previously
applied a ‘‘colorable claim’’ standard.
See PRC Order No. 1307 at 9. The
Commission finds this an applicable
standard to apply under section 3662.
Under this standard, Capital One does
not have to establish undue
discrimination as argued in the Motion
to Dismiss; it only has to establish a
colorable claim raising material issues
of fact or law for the Commission to
initiate a proceeding. Once a colorable
claim is established, the complainant is
provided an opportunity to develop its
case, and the respondent is given an
opportunity to refute the allegations.
Capital One contends that it has not
been able to obtain a negotiated service
agreement with the Postal Service on
similar terms to the agreement that the
Postal Service has with Bank of
America. Complaint at 3, para. 6. The
Postal Service appears to acknowledge
that any agreement with Capital One
must use mailer-specific baselines, and
that the discounts will have to be
reduced to reflect that Capital One was
not the first adopter. See Complaint at
15, para. 42 and Answer at 7, para. 42.
Capital One alleges this constitutes
undue or unreasonable discrimination
in violation of 39 U.S.C. 403(c).
The Postal Service argues that
negotiations have not been given an
opportunity to run their course. Motion
to Dismiss at 4–7. Capital One contends
that negotiations are at a standstill.
Opposition to Dismiss at 9–12.
E:\FR\FM\08AUN1.SGM
08AUN1
Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
The Commission finds that this
exchange raises issues of both law and
fact relevant to whether or not the
actions, or inactions, of the Postal
Service rise to the level of undue or
unreasonable discrimination among
users of the mails, or to the granting of
undue or unreasonable preferences to
any such users in violation of 39 U.S.C.
403(c).
The pleadings raise several other
mixed issues of law and fact. These
include whether Capital One and Bank
of America are ‘‘similarly situated,’’
what constitutes a ‘‘functionally
equivalent’’ agreement in this situation,
and what, if any, harm Capital One has
or will incur.
Capital One contends that because the
Postal Service only addresses one of the
six claims presented by Capital One, the
claims that were not addressed are
properly before the Commission. Id. at
14–15. For example, Capital One raises
claims concerning the factor of the
PAEA that encourages special
classifications, available on public and
reasonable terms to similarly situated
mailers, which do not cause
unreasonable harm to the marketplace.
See 39 U.S.C. 3622(c)(10). The Postal
Service does not specifically address
these claims other than offering a
denial. Motion to Dismiss at 3. The
Commission shall hear all issues
presented by the Complaint.
IV. Opportunity for Intervention
Any interested person may file a
notice of intervention, consistent with
the Commission’s rules of practice, as a
full or limited participant. See 39 CFR
3001.20 and 3001.20a. The notice of
intervention shall be filed using the
Internet (Filing Online) at the
Commission’s Web site (https://
www.prc.gov), unless a waiver is
obtained for hard copy filing. See 39
CFR 3001.9(a) and 3001.10(a). Notices of
intervention are due no later than
August 13, 2008.
pwalker on PROD1PC71 with NOTICES
V. Discovery
Capital One, the Postal Service, and
the Public Representative may begin
discovery immediately. Discovery may
begin upon intervention by others. See
39 CFR 3001.25–28.
VI. Prehearing Conference
A prehearing conference is scheduled
for August 14, 2008, at 2:30 p.m. in the
Commission’s hearing Room. Capital
One shall be prepared to discuss any
additional time needed for discovery,
and the time needed to prepare to
present its case. In light of the
representations made as to the potential
for further negotiations (Motion to
VerDate Aug<31>2005
17:25 Aug 07, 2008
Jkt 214001
Dismiss at 6), the parties are encouraged
to search for common ground and report
on any progress during the prehearing
conference.
46341
It is Ordered
1. The Commission finds that the
Complaint of Capital One Services, Inc.,
Regarding Discrimination and Other
Violations of Law by the United States
Postal Service, filed June 19, 2008,
raises material issues of fact or law and
shall begin proceedings in this
Complaint.
2. The Motion of the United States
Postal Service to Dismiss Complaint,
filed July 21, 2008, is denied.
3. The Commission will sit en banc in
this proceeding.
4. The deadline for filing notices of
intervention is August 13, 2008. Notices
shall indicate whether the intervening
party intends to participate in the
hearing and the nature of that
participation.
5. A prehearing conference will be
held in the Commission’s hearing Room
on August 14, 2008, at 2:30 p.m.
6. The Commission appoints E. Rand
Costich as Public Representative to
represent the interests of the general
public in this proceeding.
7. The Secretary shall arrange for
publication of this order in the Federal
Register.
The General Counsel of the
Commission, or his designee, has
certified that, in his opinion, one or
more of the exemptions set forth in 5
U.S.C. 552b(c)(5), (7), 9(B) and (10) and
17 CFR 200.402(a)(5), (7), 9(ii) and (10),
permit consideration of the scheduled
matters at the Closed Meeting.
Commissioner Casey, as duty officer,
voted to consider the items listed for the
Closed Meeting in closed session, and
determined that no earlier notice thereof
was possible.
The subject matter of the Closed
Meeting scheduled for August 5, 2008
will be: Institution and settlement of
injunctive actions; and other matters
related to enforcement proceedings.
At times, changes in Commission
priorities require alterations in the
scheduling of meeting items.
For further information and to
ascertain what, if any, matters have been
added, deleted or postponed, please
contact:
The Office of the Secretary at (202)
551–5400.
Dated: August 5, 2008.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–18394 Filed 8–7–08; 8:45 am]
VII. Representation of the General
Public
Pursuant to 39 U.S.C. 505, E. Rand
Costich is appointed to serve as officer
of the Commission (Public
Representative) to represent the
interests of the general public in the
above-captioned docket.
By the Commission.
Steven W. Williams,
Secretary.
[FR Doc. E8–18292 Filed 8–7–08; 8:45 am]
BILLING CODE 7710–FW–P
SECURITIES AND EXCHANGE
COMMISSION
Sunshine Act Meeting
Notice is hereby given, pursuant to
the provisions of the Government in the
Sunshine Act, Public Law 94–409, that
the Securities and Exchange
Commission will hold a Closed Meeting
on August 5, 2008 at 5 p.m.
Commissioners, Counsel to the
Commissioners, the Secretary to the
Commission, and recording secretaries
will attend the Closed Meeting. Certain
staff members who have an interest in
the matters also may be present.
PO 00000
Frm 00107
Fmt 4703
Sfmt 4703
BILLING CODE 8010–01–P
UNITED STATES SENTENCING
COMMISSION
Sentencing Guidelines for United
States Courts
United States Sentencing
Commission.
ACTION: Notice of proposed priorities.
AGENCY:
SUMMARY: As part of its statutory
authority and responsibility to analyze
sentencing issues, including operation
of the federal sentencing guidelines, and
in accordance with Rule 5.2 of its Rules
of Practice and Procedure, the
Commission is seeking comment on
possible priority policy issues for the
amendment cycle ending May 1, 2009.
DATES: Public comment should be
received on or before September 8,
2008.
Send comments to: United
States Sentencing Commission, One
Columbus Circle, NE., Suite 2–500,
South Lobby, Washington, DC 20002–
8002, Attention: Public Affairs-Priorities
Comment.
FOR FURTHER INFORMATION CONTACT:
Michael Courlander, Public Affairs
Officer, Telephone: (202) 502–4590.
SUPPLEMENTARY INFORMATION: The
United States Sentencing Commission is
ADDRESSES:
E:\FR\FM\08AUN1.SGM
08AUN1
Agencies
[Federal Register Volume 73, Number 154 (Friday, August 8, 2008)]
[Notices]
[Pages 46339-46341]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18292]
=======================================================================
-----------------------------------------------------------------------
POSTAL REGULATORY COMMISSION
[Docket No. C2008-3; Order No. 92]
Complaint of Capital One Services, Inc.
AGENCY: Postal Regulatory Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Commission has initiated a case to address allegations of
undue discrimination and other issues raised by Capital One Services,
Inc. (Capital One) in a formal complaint. The allegations stem from
Capital One's interest in obtaining a rate agreement from the Postal
Service on terms that are the same as or similar to those another major
mailer has received. Accepting the case will provide an opportunity for
review of pertinent issues.
DATES: Notices of intervention are due on August 13, 2008. A prehearing
conference will be held on August 14, 2008.
ADDRESSES: Submit comments electronically via the Commission's Filing
Online system at https://www.prc.gov.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820 and stephen.sharfman@prc.gov.
SUPPLEMENTARY INFORMATION: The Complaint of Capital One Services, Inc.
Regarding Discrimination and Other Violations of Law by the United
States Postal Service (Complaint) was filed on June 19, 2008. The
Complaint asserts several claims concerning Capital One's unsuccessful
attempts to enter into a negotiated service agreement similar to the
agreement that the Postal Service recently commenced with Bank of
America. In support of the Complaint, Capital One filed the Declaration
of Ben Lamm, and correspondence between Capital One and the Postal
Service dated May 15, 2008, May 27, 2008, May 30, 2008, and June 4,
2008.\1\
---------------------------------------------------------------------------
\1\ The May 30, 2008 correspondence includes a copy of a
negotiated service agreement proffered by Capital One to the Postal
Service.
---------------------------------------------------------------------------
The Answer of the United States Postal Service (Answer) in response
to the Complaint was filed on July 21,
[[Page 46340]]
2008, together with a Motion of the United States Postal Service to
Dismiss Complaint (Motion to Dismiss). On July 28, 2008, the Opposition
of Capital One Services, Inc. to Motion to Dismiss of the United States
Postal Service (Opposition to Dismiss) was filed in response to this
motion.
The Commission finds that the Complaint raises material issues of
fact and law, and shall begin proceedings to hear the issues involved.
39 U.S.C. 3662(b). The Motion to Dismiss does not persuade the
Commission that Capital One should not be provided an opportunity to
present evidence and argument in support of its Complaint, and thus,
the Motion to Dismiss is denied.
I. The Capital One Complaint
Capital One asserts that it has repeatedly approached the Postal
Service in attempts to obtain a negotiated service agreement that is
similar to the agreement that the Postal Service entered with Bank of
America Corporation.\2\ It alleges that the Postal Service refuses to
enter into a similar agreement and insists that any agreement with
Capital One would have to include mailer-specific baselines and reduced
per-piece discounts.\3\ Complaint at 3. Capital One contends that
because the Postal Service insists on an agreement incorporating
mailer-specific baselines and reduced per-piece discounts, Capital One
is not being offered an agreement on similar terms to Bank of America.
---------------------------------------------------------------------------
\2\ See PRC Op. MC2007-1. The Bank of America negotiated service
agreement requires Bank of America to implement several advanced
mailing practices and provides Bank of America discounts for proven
performance improvements relative to six negotiated baselines.
\3\ Capital One argues that requiring Capital One to use mailer-
specific baselines in place of the Bank of America baselines (which
were developed from dated industry averages) radically alters the
incentives (and implicitly the agreement) available to Capital One.
Complaint at 16.
---------------------------------------------------------------------------
By denying Capital One a negotiated service agreement under the
same terms, Capital One contends that (1) the Postal Service has unduly
or unreasonably discriminated among users of the mails and granted an
undue or unreasonable preference in violation of 39 U.S.C. 403(c); (2)
the Postal Service has created a special classification not available
on public and reasonable terms to similarly situated mailers, which
creates unreasonable harm to the marketplace in violation of 39 U.S.C.
3622(c)(10); and (3) the Postal Service has violated Commission rules
3010.40 et seq. because the rules incorporate by reference the legal
standards of 39 U.S.C. 3622(c)(10). Id. at 17-19.
Capital One contends the Postal Service should not be allowed to
deny an agreement to Capital One on the same terms granted to Bank of
America. Capital One also argues the Postal Service should not be
allowed to contest whether the Bank of America agreement is a pay-for-
performance agreement, arguing that this was fully litigated and
resolved in Docket No. MC2007-1. Id. at 19-20.
Capital One requests relief in the form of a ruling that the Postal
Service has violated 39 U.S.C. 403(c), 39 U.S.C. 3622(c)(10), and/or
Commission rules 3010.40 et seq. It requests a ruling stating that
Capital One is entitled to an agreement with the same substantive
terms, or at a minimum, includes the same financial incentives offered
to Bank of America. It requests any other relief deemed appropriate,
including but not limited to the Commission ordering approval of a new
product (agreement) substantively identical to the Bank of America
agreement, without further need for negotiations between the Postal
Service and Capital One. Id. at 22.
II. The Postal Service Motion to Dismiss
The Postal Service argues that the Complaint fails to establish
that the Postal Service unduly discriminated against Capital One or
otherwise violated title 39. Motion to Dismiss at 2-4. In support of
this argument, the Postal Service asserts that it has long been
established that functional equivalence does not mean identical, and
that all agreements, including functionally equivalent agreements, are
tailored to each partner's unique situation and to how the agreement
then benefits the Postal Service. It quotes Commission holdings that a
proposed functionally equivalent agreement must primarily rest on the
same substantive functional elements as the identified baseline
agreement, and must provide a comparable benefit to the Postal
Service.\4\ It argues that an analysis of functional elements would
allow for a far wider range of functionally equivalent agreements than
Capital One's argument allows. It concludes that the Postal Service's
refusal to approve just one example of a functionally equivalent
agreement as presented by Capital One does not constitute an undue or
unreasonable preference or create a special classification not
available on public and reasonable terms to similarly situated mailers.
---------------------------------------------------------------------------
\4\ Id. at 3. See also Docket No. MC2007-4, Order Regarding
Limitation of Issues and Establishing Procedural Schedule, September
7, 2007, at 2 referencing Docket No. RM2003-5, PRC Order No. 1391,
February 11, 2004, at 49-51.
---------------------------------------------------------------------------
The Postal Service further contends that the Complaint is premature
because the parties never engaged in, or exhausted, reasonable efforts
to negotiate a functionally equivalent agreement. Id. at 4-7. It
asserts that the Postal Service was and remains prepared to continue
negotiations with Capital One.
In response, Capital One contends that reference to its Complaint
at 3 and 12-15, and the Opposition to Dismiss at 9-12, present ample
indications that despite its extended good faith efforts to negotiate,
additional discussions would be futile.
III. Commission Analysis
The Postal Service asserts that Capital One fails to establish
undue discrimination. Id. at 2-4. Capital One discusses the importance
of the opportunity to bring complaints under the Postal Accountability
and Enhancement Act (PAEA) and suggests a standard for the legal
sufficiency of complaints similar to the standard set forth in the
Federal Rules of Civil Procedure. Opposition to Dismiss at 4-5. The
Commission has previously applied a ``colorable claim'' standard. See
PRC Order No. 1307 at 9. The Commission finds this an applicable
standard to apply under section 3662. Under this standard, Capital One
does not have to establish undue discrimination as argued in the Motion
to Dismiss; it only has to establish a colorable claim raising material
issues of fact or law for the Commission to initiate a proceeding. Once
a colorable claim is established, the complainant is provided an
opportunity to develop its case, and the respondent is given an
opportunity to refute the allegations.
Capital One contends that it has not been able to obtain a
negotiated service agreement with the Postal Service on similar terms
to the agreement that the Postal Service has with Bank of America.
Complaint at 3, para. 6. The Postal Service appears to acknowledge that
any agreement with Capital One must use mailer-specific baselines, and
that the discounts will have to be reduced to reflect that Capital One
was not the first adopter. See Complaint at 15, para. 42 and Answer at
7, para. 42. Capital One alleges this constitutes undue or unreasonable
discrimination in violation of 39 U.S.C. 403(c).
The Postal Service argues that negotiations have not been given an
opportunity to run their course. Motion to Dismiss at 4-7. Capital One
contends that negotiations are at a standstill. Opposition to Dismiss
at 9-12.
[[Page 46341]]
The Commission finds that this exchange raises issues of both law
and fact relevant to whether or not the actions, or inactions, of the
Postal Service rise to the level of undue or unreasonable
discrimination among users of the mails, or to the granting of undue or
unreasonable preferences to any such users in violation of 39 U.S.C.
403(c).
The pleadings raise several other mixed issues of law and fact.
These include whether Capital One and Bank of America are ``similarly
situated,'' what constitutes a ``functionally equivalent'' agreement in
this situation, and what, if any, harm Capital One has or will incur.
Capital One contends that because the Postal Service only addresses
one of the six claims presented by Capital One, the claims that were
not addressed are properly before the Commission. Id. at 14-15. For
example, Capital One raises claims concerning the factor of the PAEA
that encourages special classifications, available on public and
reasonable terms to similarly situated mailers, which do not cause
unreasonable harm to the marketplace. See 39 U.S.C. 3622(c)(10). The
Postal Service does not specifically address these claims other than
offering a denial. Motion to Dismiss at 3. The Commission shall hear
all issues presented by the Complaint.
IV. Opportunity for Intervention
Any interested person may file a notice of intervention, consistent
with the Commission's rules of practice, as a full or limited
participant. See 39 CFR 3001.20 and 3001.20a. The notice of
intervention shall be filed using the Internet (Filing Online) at the
Commission's Web site (https://www.prc.gov), unless a waiver is obtained
for hard copy filing. See 39 CFR 3001.9(a) and 3001.10(a). Notices of
intervention are due no later than August 13, 2008.
V. Discovery
Capital One, the Postal Service, and the Public Representative may
begin discovery immediately. Discovery may begin upon intervention by
others. See 39 CFR 3001.25-28.
VI. Prehearing Conference
A prehearing conference is scheduled for August 14, 2008, at 2:30
p.m. in the Commission's hearing Room. Capital One shall be prepared to
discuss any additional time needed for discovery, and the time needed
to prepare to present its case. In light of the representations made as
to the potential for further negotiations (Motion to Dismiss at 6), the
parties are encouraged to search for common ground and report on any
progress during the prehearing conference.
VII. Representation of the General Public
Pursuant to 39 U.S.C. 505, E. Rand Costich is appointed to serve as
officer of the Commission (Public Representative) to represent the
interests of the general public in the above-captioned docket.
It is Ordered
1. The Commission finds that the Complaint of Capital One Services,
Inc., Regarding Discrimination and Other Violations of Law by the
United States Postal Service, filed June 19, 2008, raises material
issues of fact or law and shall begin proceedings in this Complaint.
2. The Motion of the United States Postal Service to Dismiss
Complaint, filed July 21, 2008, is denied.
3. The Commission will sit en banc in this proceeding.
4. The deadline for filing notices of intervention is August 13,
2008. Notices shall indicate whether the intervening party intends to
participate in the hearing and the nature of that participation.
5. A prehearing conference will be held in the Commission's hearing
Room on August 14, 2008, at 2:30 p.m.
6. The Commission appoints E. Rand Costich as Public Representative
to represent the interests of the general public 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. E8-18292 Filed 8-7-08; 8:45 am]
BILLING CODE 7710-FW-P