BEFORE THE

POSTAL REGULATORY COMMISSION

WASHINGTON, DC 20268

[:]{.smallcaps}

Rules for Complaints : Docket No. RM2008-3

[:]{.smallcaps}

**REPLY COMMENTS OF TIME WARNER INC.**

**IN RESPONSE TO ORDER NO. 101**

> John M. Burzio
>
> Timothy L. Keegan
>
> [Counsel for]{.smallcaps}
>
> [Time Warner Inc.]{.smallcaps}

Burzio McLaughlin & Keegan

Canal Square, Suite 540

1054 31st Street, N. W.

Washington, D. C. 20007-4403

Telephone: (202) 965-4555

Fax: (202) 965-4432

E-mail:bmklaw@verizon.net

October 27, 2008

**TABLE OF CONTENTS**

[Page]{.underline}

1\. Valpak\'s and NAA\'s Extravagant Claims Regarding Procedural
Protections for Complainants Under § 3662 of the PAEA Are Unsupported by
the Text of the Act and Are Belied by the Absence of a Requirement for a
Hearing on the Record Under §§ 556 and 557 of the Administrative
Procedure Act 1

2\. The PAEA Leaves to the Commission\'s Discretion Whether to Designate
Public Representatives on a Case-by-Case Basis or to Create a Permanent
Office of Public Representative Headed by a Single Individual 9

> a\. The PAEA follows the general style of the PRA in its provision for
> designation of an officer of the Commission who shall represent the
> interests of the general public in Commission proceedings 9
>
> b\. The Plain Meaning of § 505 of the PAEA Is Opposite to the \"Plain
> Meaning\" that Valpak Ascribes to that Provision 11
>
> c\. The PAEA does not and cannot implicitly \"ratify\" the Rate
> Commission\'s discretionary creation of a permanent Office of the
> Consumer Advocate under the PRA 23
>
> d\. Subsequent references in the PAEA to an officer of the Commission
> who shall represent the interests of the general public do not bolster
> Valpak\'s interpretation of § 505 26

3\. Section 3662 Does *Not* Require, As Valpak Asserts, \"That the
Commission \'Must Begin Proceedings\' on \[a\] Complaint \[Filed by
\'Any Interested Person\' in the Proper Form and Manner\] If It \'Raises
Material Issues of Fact of Law.\'\" 28

> a\. The language of § 3662 indicates that a finding by the Commission
> that a complaint raises material issues of fact or law is a condition
> precedent for exercise of the Commission\'s complaint authority, not a
> trigger that mandates exercise of that authority 29

Conclusion 36

BEFORE THE

POSTAL REGULATORY COMMISSION

WASHINGTON, DC 20268

[:]{.smallcaps}

Rules for Complaints : Docket No. RM2008-3

[:]{.smallcaps}

**REPLY COMMENTS OF TIME WARNER INC.**

**IN RESPONSE TO ORDER NO. 101**

(October 27, 2008)

Time Warner Inc. (Time Warner) respectfully submits these reply comments
in response to the initial comments of Valpak Direct Marketing Systems,
Inc. and Valpak Dealers' Association, Inc. ("Valpak") and the Newspaper
Association of America (\"NAA\") in response to Order No. 101, Notice
and Order of Proposed Rulemaking Establishing Rules for Complaints
(issued August 21, 2008).

**1. Valpak\'s and NAA\'s Extravagant Claims Regarding Procedural
Protections for Complainants Under § 3662 of the PAEA Are Unsupported by
the Text of the Act and Are Belied by the Absence of a Requirement for a
Hearing on the Record Under §§ 556 and 557 of the Administrative
Procedure Act.**

In their initial comments in response to Order No. 101, Valpak and NAA
each make extravagant claims regarding the process they believe should
be accorded complainants in proceedings under § 3662 of the Postal
Accountability and Enhancement Act (\"PAEA\" or \"Act\"). For the most
part, these claims follow the models of the Federal Rules of Civil
Procedure and of proceedings subject to §§ 556 and 557 of the
Administrative Procedure Act (\"APA\") (such as rate and classification
proceedings conducted under the Postal Reorganization Act of 1970
\[\"PRA\"\]). For example, Valpak argues that:

> • the Commission\'s proposed regulations requiring a statement of "the
> nature of the evidentiary support that the complainant has or expects
> to obtain during discovery" and "an explanation as to why such facts
> \[alleged in the complaint\] could not reasonably be ascertained by
> the complainant where claims are premised on information and belief"
> are \"perhaps too demanding,\" because \"a complainant should not be
> expected to know what the discovery would reveal before it is
> conducted\" and because \"\[t\]here is no requirement that a
> complainant's allegations be based on anything other than information
> and belief, nor should there be\" (pp. 5-6);
>
> • \"except perhaps in cases of grave abuse, no complaint should be
> subject to dismissal prior to an answer by the Postal Service\" (p.
> 6); and
>
> • the Commission is \"without any statutory authority\" to \"carv\[e\]
> out \'rate and service inquiries,\'[^1] as an alternative to
> \'complaints,\'\" or to \"deny \'complaint\' status . . . \'to
> complaints that concern rate or service matters that are isolated
> incidents affecting few mail users\'\" or \"based on whether the
> complaint raises issues of \'public postal policy . . . with
> substantial ramifications\'" (pp. 16-18;internal citations omitted).

These arguments are apparently based on the misconception that the PAEA
is intended to preserve the rights to due process that were afforded to
mailers by the PRA. Thus Valpak makes the following extraordinary (and
entirely circular) argument:

> Prior to PAEA, an omnibus rate case included large numbers of
> intervenors. Many have expressed their belief that the issues formerly
> raised by intervenors in such pre-implementation proceedings now will
> have to be raised in after-the-fact proceedings under PAEA. If the
> Commission's regulations were to transfer some of these issues to the
> Postal Service as a rate or service inquiry (unless there are broad
> policy implications justifying treatment as complaints), then the
> Commission's regulations will have erased a significant mailer
> protection provided by PAEA.

Valpak Initial Comments at 19.[^2]

Had Valpak only concluded that statement with \"PRA\" rather than
\"PAEA,\" it would have been correct (albeit without significance for
the issue Valpak was addressing).

NAA makes essentially the same logic-defying argument, namely that
because certain due process protections that were afforded to mailers by
the PRA are omitted from the PAEA, those protections must somewhere,
somehow be implicit in the PAEA. NAA, for example, offers the following
as one \"of several reasons\" why \"\[i\]t is appropriate for the Postal
Service to bear the burden of proof\" in complaint proceedings:

> The Commission's review of proposed rate changes under the new
> ratesetting system primarily focuses on compliance with the price cap
> at a class level. It does not closely examine individual rate changes.
> Consequently, the current review of proposed rate changes does not
> result in a finding by the Commission that any particular rate is
> lawful. \[footnote omitted\] This contrasts with practice under the
> predecessor Postal Reorganization Act, under which the Postal Rate
> Commission played a far larger role in reviewing rate changes before
> they took effect, including recommending, after an extensive formal
> trial-type hearing pursuant to the now-repealed Section 3624, rates
> that it believed lawful.

NAA Initial Comments at 6-7.

The normal inference when Congress repeals one regulatory regime and
adopts another in its place is that it does not intend provisions of the
repealed regime to continue in force except where it so indicates.

NAA\'s additional reasons for the view that the Postal Service should
bear the burden of proof in a complaint proceeding are similarly ill
conceived. NAA states (at 6) that \"the Postal Service remains a
government service operated by the federal government\" and that
\"\[i\]t is perfectly appropriate to ask that a government service bear
the burden of demonstrating that it acts in accordance with the law.\"
That stands on its head the ordinary presumption of regularity accorded
to agency actions.[^3] NAA states (at 7) that § \"3652(a)(1) requires
the Postal Service to \'demonstrate\' in its annual compliance filing
that its products complied with all applicable requirements, . . .
plainly plac\[ing\] the burden of proving the lawfulness of the products
on the Postal Service\" and thus \"provid\[ing\] further support for the
conclusion that the Postal Service bears the ultimate burden of
persuasion in complaint proceedings under the PAEA.\" This is a non
sequitur. If the Act expressly places the burden of proof on the Postal
Service in one provision, the correct inferences are: (1) that the
burden of proof would not lie on the Postal Service absent such an
express provision; and (2) that a section of the Act that lacks such an
express provision does not place the burden of proof on the Postal
Service. Finally, citing § 3653(e)\'s provision that a determination of
compliance by the Commission shall create a rebuttable presumption of
compliance in a proceeding under § 3662, NAA ingeniously argues that
\"\[t\]he absence of any \[such\] presumption\" in cases where a
complaint is founded on a provision of title 39 that does not come
within the Commission\'s annual compliance review \"implies that
Congress intended for the Postal Service to have the burden of
persuasion in those cases.\" This argument mixes apples with oranges. A
rebuttable presumption of compliance has no effect on the burden of
persuasion, which remains with the party who is the proponent of the
proposition in question (i.e., in a § 3662 proceeding, with the
complaining party who alleges Postal Service noncompliance with the
law). A rebuttable presumption of legality simply relieves the Postal
Service of any burden of producing *some evidence of legality* at the
outset of the proceeding, shifting the initial *burden of production* of
evidence of illegality to the complaining party.[^4]

The mistaken notion that the PAEA was intended to retain process for
mailers equivalent to that formerly afforded in omnibus rate cases, but
on an after-the-fact basis, leads Valpak and NAA to the erroneous
conclusion that the proper models\--indeed, the mandatory models\--for
complaint proceedings under the PAEA are civil litigation in the federal
district courts and adjudicative agency proceedings subject to the
requirement of a hearing on the record under sections 556 and 557 of the
Administrative Procedure Act (\"APA\").[^5]

Both Valpak and NAA fail to note or discuss a glaring omission from the
text of § 3662. The most notable feature of § 3662 is what is absent
from it\--the dog that did not bark in the night, so to speak. *Section
3662 does not require a hearing on the record under sections 556 and 557
of the Administrative Procedure Act.* Unless a statute either expressly
references §§ 556 and 557 of the Administrative Procedure Act or
requires a hearing by its own terms, what is required by \"proceedings\"
does not extend beyond the requirements of §§ 553 and 554 of that Act,
which govern \"informal\" rulemakings and adjudications.[^6]
Consequently, § 3662 does not *require* the Commission to permit
discovery, to receive testimony or other sworn evidence, to base its
decision exclusively on the record before it, or to make findings that
are supported by a preponderance of the evidence.[^7] All that is
required of the Commission, as regards the legal sufficiency of its
decisions under § 3662, is that it must not unlawfully withhold or
unreasonably delay action mandated by law, must observe procedures
required by law, and that its actions, findings, and conclusions not be
arbitrary and capricious, an abuse of discretion, or be based on a
misinterpretation of an unambiguous statutory provision.[^8]

If Congress had wished to guarantee by law that proceedings on
complaints would include the incidents of a hearing on the record, such
as the right to present testimony, conduct discovery, and receive a
decision that is supported by substantial evidence and based solely on
the record of the proceeding\" (*see* 5 U.S.C. § 706), it could easily
have provided\--and would have had to provide\--that upon determining
that a complaint raises material issues of fact or law, the Commission
\"shall provide the opportunity for a hearing on the record under
sections 556 and 557 of the Administrative Procedure Act\" (*see, e.g*.,
former 39 U.S.C. \[PRA\] § 3624).

**2. The PAEA Leaves to the Commission\'s Discretion Whether to
Designate Public Representatives on a Case-by-Case Basis or to Create a
Permanent Office of Public Representative Headed by a Single
Individual.**

> **a. The PAEA follows the general style of the PRA in its provision
> for designation of an officer of the Commission who shall represent
> the interests of the general public in Commission proceedings.**

Like the PRA (§§ 3624 and 3661), the PAEA (§§ 505, 3653, and 3662) does
not include a single provision creating an \"O*ffice* of the Public
Representative\" but rather a series of separate provisions for the
appearance of \"an officer of the Commission\" in specified proceedings
as representative of the public. In the PRA, § 3624 provides that in
rate and classification cases under §§ 3622 and 3623, \"the Commission
shall not recommend a decision until opportunity for a hearing on the
record under sections 556 and 557 of title 5 has been accorded the
Postal Service, users of the mails, and an officer of the Commission who
shall be required to represent the interests of the general public.\"
Section 3661 of the PRA, which concerns Commission review of changes
\"in the nature of postal services which will generally affect service
on a nationwide or substantially nationwide basis,\" contains, in the
identical language, the PRA\'s only other reference to a public
representative. The PAEA repeals former § 3624 but retains § 3661 of the
PRA. It also adds three new references to a public representative: in §§
505, 3653, and 3662.[^9] Each of these references employs essentially
the same language as §§ 3624 and 3661 of the PRA.[^10]

We will discuss in section 2.C below the reliance that Valpak places on
the alleged \"plain meaning\" of § 505 for its conclusion that the PAEA
requires a permanent office of Public Representative under a single
director. Here, we make a more general observation. Both the PRA and the
PAEA contain a series of provisions requiring the appearance of an
officer of the Commission as representative of the interests of the
general public in specific proceedings.[^11] Neither contains what one
would certainly expect to find if Valpak\'s interpretation of the PAEA
were right, namely a provision that requires, or even alludes to,
creation of an \"office\" within the Commission to represent the
interests of the public, or a permanent director of such office along
the lines of such statutory officers as \"the Chairman of the
Commission\" and \"the Postmaster General.\"

> **b. The Plain Meaning of § 505 of the PAEA Is Opposite to the \"Plain
> Meaning\" that Valpak Ascribes to that Provision.**

According to Valpak:

> By the ordinary meaning of its plain language, then, section 505
> authorizes the designation of "an" officer --- that is, one officer
> --- to represent the interests of the general public in "all" public
> proceedings before the Commission, not the designation of several such
> officers to represent the interests of the public, "each" of which
> would be designated as an officer to represent the interests of the
> general public in "each" of several public proceedings, docket by
> docket.

Valpak Initial Comments at 10.

One cannot but admire the audacity of arguing that a meaning that has
suggested itself exclusively to Valpak is \"plain.\"[^12] But contrary
to its assertions, Valpak\'s constructions of the meaning of § 505 do
not correspond to the \"plain,\" or \"ordinary,\" or \"common,\" or
\"natural,\" or likely meaning of the text.

Section 505, in its entirety, provides as follows:

> The Postal Regulatory Commission shall designate an officer of the
> Postal Regulatory Commission in all public proceedings (such as
> developing rules, regulations, and procedures) who shall represent the
> interests of the general public.

Valpak focuses on two features of this provision: the use of the
singular form *an officer* in the phrase \"an officer of the . . .
Commission,\" and the choice of the plural form and of the adjective
*all* in the phrase \"all public proceedings.\"

Valpak\'s argument that the use of the singular \"an officer\" \"implies
one person heading a permanent office\" defies the ordinary conventions
of both statutory interpretation[^13] and English grammar. Valpak
emphasizes the fact that \"officer\" is singular, but more significant
are that it is preceded by \"an\" and that it is in lower case. The word
\"an\" is what grammarians call an \"indefinite article.\" (English
possesses two indefinite articles, \"a\" and \"an,\" and one definite
article, \"the.\") Commonly, the indefinite article is used with the
singular to refer to someone or something whose individual identity is
indefinite or unfixed.[^14] When an individual\'s generic or
institutional identity is specific or fixed, the definite article is
used with a singular noun (e.g., \"the principal of John\'s high
school\"). When the individual occupant of a particular office is
referred to, the definite article is used with a singular upper-case
noun (e.g., \"the Postmaster General\"). Consider, for instance, the
following statements:

> \"You should see *an attorney* to make sure that your Will was
> properly executed.\"
>
> \"I\'ve heard that *the attorney* who is representing your wife was
> abandoned in the forest as an infant and raised by wolves.\"
>
> \"Mr. Colson, *the Attorney Genera*l will see you now.\"

These usages are conventional, that is to say, usual. They are not
universal or without known exception. But the following excerpts from
title 39 demonstrate that it follows these ordinary conventions of
English usage. Provisions that create a permanent office use the
indefinite article with an upper-case, singular noun. Subsequent
references to that officer use the definite article with an upper-case,
singular noun.

> § 204 There shall be within the Postal Service *a General Counsel,* .
> . . *a Judicial Officer*, and *a Chief Postal Inspector*. *The General
> Counsel* . . . shall be appointed by, and serve at the pleasure of,
> *the Postmaster General*.
>
> § 504 *The Chairman* of the Postal Regulatory Commission shall be the
> principal executive officer of the Commission. *The Chairman* shall
> exercise or direct the exercise of all the executive and
> administrative functions of the Commission. . . .
>
> § 3216(e)(2) . . . *the Postmaster Genera*l shall send to *the Chief
> Administrative Officer* of the House of Representatives . . . a
> statement . . . .

When a reference is to an individual whose identity is indefinite or
unfixed, when the individual in question could be one person today and
someone else tomorrow, title 39 commonly uses an indefinite article with
a lower-case, singular noun (as in \"an officer of the . . .
Commission\").

> § 404(c) No letter of such a class of domestic origin shall be opened
> except under authority of a search warrant authorized by law, or by
> *an officer or employee* of the Postal Service.
>
> 504(f)(4) For purposes of this subsection, the term 'covered person'
> means *an officer, employee, agent, or contractor* of the Postal
> Service.

Valpak\'s representation of the \"plain meaning\" of the phrase \"all
public proceedings\" in § 505 is similarly ill founded. To begin with,
consider the flimsiness of Valpak\'s evidence for the alleged \"plain\"
or \"ordinary\" meaning of the word *all*. Citing no authority, Valpak
asserts that \"the ordinary meaning\" of *all* is \'the whole amount, or
quantity\" and that the Commission has \"in effect, construed section
505\" as if it used the words \"**each** public proceeding\[\]\" rather
than \"**all** public proceedings.\" Initial Comments at 10. Valpak
unhelpfully adds that \"the common meaning of \'each\' is \'being one of
two or more distinct individuals having a similar relation and often
constituting an aggregate.\'\" (We say \"unhelpfully\" because the
common meaning of *each* is simply a red herring. No one argues that the
word *each* appears in the text.)

Valpak\'s argument respecting the \"plain meaning\" of *all* is
insupportable under any standard.

First, an elementary principle in the study of language, long recognized
in applying the plain meaning rule, is that words do not have a single,
determinate \"ordinary\" meaning, but a range of possible ordinary
meanings, depending on their context.[^15] And the more common the word,
the greater the variety of ordinary meanings it is likely to have.
(E.g., the word *arteriosclerosis* appears fairly specific, as words go,
but is by no means limited to one meaning and can be used, for instance,
to describe the condition of an ailing economy or the decline of a
venerable institution. *Arteriosclerosis*, however, plainly has a
narrower range of ordinary meanings than, say, *malady* or *disorder.*)
The word *all*, not unexpectedly, has a large number of ordinary
meanings.[^16] One of those is \'the whole amount, or quantity.\" But
perhaps the *most* common meaning of *all*, when used as an adjective,
is \"each,\" or \"every,\" or \"each and every\" (as in the syllogism
familiar to generations of beginning students of logic: \"Socrates is a
man. All men are mortal. Therefore, Socrates is mortal.\")[^17]

In the dictionary most often used in defining contemporary statutory
terms, [Webster\'s Third New International Dictionary]{.smallcaps} (1st
edn. 1961) ([\"Webster\'s Third\"]{.smallcaps}),[^18] the first three
definitions of the adjective *all* describe three different general
meanings of the word, and a larger number of shades of meaning, all of
them \"ordinary.\"

The first definition in [Webster\'s Third]{.smallcaps} is (but for
Valpak\'s addition of a comma) exactly the definition suggested by
Valpak\--\"the whole amount or quantity.\" The illustrations of the word
*all* used in this sense, however, indicate that it refers to an amount
or quantity that comprises a single, undifferentiated whole, not one
that is composed of distinct, individual, numerable instances or
exemplars (such as \"all . . . proceedings\"). The complete text of the
first definition of the adjective *all* in [Webster\'s
Third]{.smallcaps} follows:

> **1a :** that is the whole amount of quantity of \<*all* rubbish
> should be cleared out of cellars\> \<needed *all* the courage he had\>
> \<it *all* began one rainy afternoon\> **:** that is the whole extent
> or duration of \< *all* the year round\> \<sat up *all* night\> \<one
> of the greatest victories in *all* history\> **b :** as much as
> possible**:** the greatest possible \<wished them *all* happiness\>
> \<traveled with
>
> *all* speed\> \<was told in *all* seriousness\>[^19]

The second definition of the adjective *all* in [Webster\'s
Third]{.smallcaps} appears to fit much better the sense carried by *all*
in the phrase \"all public proceedings\" in § 505.

> **2a :** every member or individual component of **:** each one of \--
> used distributively with a plural noun or pronoun to mean that a
> statement is true of every individual considered \<*all* things to
> *all* men\> \<*all* my friends were there\> \<a film suitable for
> *all* ages\> \<refugees *all* from one thing and another \-- *Punch*\>
> \<they *all* came late\> **b** *of members of a class* **:** each and
> every one of \-- used in logic as a verbalized equivalent of the
> universal quantifier[^20]

Unfortunately, at least for Valpak\'s argument, *all* in § 505\'s phrase
\"all public proceedings\" has every appearance of being \"used
distributively with a plural noun or pronoun to mean that a statement is
true of every individual considered.\" \"Every,\" \"each,\" or \"each
and every\" is precisely the meaning that the Commission has presumably
attributed to *all* in \"all public proceedings\" and is precisely the
meaning that Valpak needs to *rule out* in order to sustain *its*
interpretation of § 505\'s \"plain meaning.\"

The third definition given by [Webster\'s Third]{.smallcaps}, like the
first, comes closer to the meaning that Valpak ascribes to *all* in §
505 than to the meaning that Time Warner (and presumably the Commission)
regard as the more natural reading. But the third definition is
inapposite for much the same reason that the first is inapposite.
Definition 3 is:

> **3 :** the whole number or sum of \-- used collectively with a plural
> noun or pronoun to mean that a statement is true of the sum of the
> individuals considered \<*all* the angles of a triangle are equal to
> two right angles\> \<*all* these together are not worth 10 dollars\>
> \<after *all* these years\>[^21]

This definition is close to Valpak\'s \"the whole amount, or quantity,\"
in the sense that it indicates the total possible aggregate of whatever
*all* is modifying. Moreover, \"proceedings\" *is* a plural noun. But
the definition is inconsistent with any plausible reading of *all* in §
505, because it is *limited to* the collective sense of the word,
whereas *all* in § 505 plainly at least *includes* the distributive
sense. Thus, if Valpak were asked whether it would be a violation of §
505 if the Commission failed to designate a public representative in
some particular public proceeding, it would presumably answer in the
affirmative. An affirmative answer to that question carries with it an
acknowledgment that the phrase \"all public proceedings\" at least
includes the distributive sense \"every public proceeding,\" a sense
that is *excluded* by definition 3. (It would be an absurdity to say
that \"*every* angle of a triangle is equal to two right angles.\") That
is to say, *all* as used in § 505 must carry a distributive sense
(meaning *each* or *every*). Moreover, that sense rather than a
collective sense (*the whole amount or quantity*) is its natural and
dominant sense in the context in which it is used.

The discussion thus far concerns only § 505\'s diction, i.e., its
particular choice of vocabulary. We now turn to its grammar and syntax.
Recall that the full text of

§ 505 is as follows:

> § 505
>
> The Postal Regulatory Commission shall designate an officer of the
> Postal Regulatory Commission in all public proceedings (such as
> developing rules, regulations, and procedures) who shall represent the
> interests of the general public.

Both the grammar of the sentence and the ordinary meaning of the
preposition *in* dictate that the prepositional phrase \"in all public
proceedings\" must modify the verb *shall designate*. If one pays
attention to the grammar of the sentence, it is plain that what happens
*in* the public proceedings is the *designating* of the officer.[^22] If
one wishes, as a grammatical matter, to locate the particular
\"officer,\" rather than the act of \"designating\" the officer, *in*
the \"public proceedings,\" and to do so in good idiomatic English, one
would speak of designating an officer \"*for* all public proceedings,\"
not \"*in* all public proceedings.\" In the one case, the designating
takes place outside the public proceedings in order that the officer may
appear in the public proceedings. In the other, both the designating and
the appearance of the officer take place in the public proceedings. The
first is Valpak\'s interpretation. The second is what the grammar of §
505 requires.

When an advocate of following the "plain meaning" of statutory texts
consistently prefers paraphrases over direct quotations, and invariably
changes the arrangement of the parts in order to express the alleged
\"plain meaning,\" the reader is well advised to keep the actual
statutory language constantly in view, and to be alert to the
possibility that some of the purported paraphrases may turn out to be
something else.

If Congress intended § 505 to have the meaning that Valpak ascribes to
it, a more likely way of expressing that intention would have been to
state that the \"Commission shall designate an officer of the Postal
Regulatory Commission to represent the interests of the public in all
public proceedings.\" That hypothetical formulation is *similar* to what
§ 505 actually states (i.e., that the \"Commission shall designate an
officer of the Postal Regulatory Commission in all public proceedings .
. . who shall represent the interests of the general public\"). But the
hypothetical formulation changes the antecedent of \"*in* all public
proceedings\" from \"designating\" to \"representing,\" transforming
Valpak\'s interpretation into *one* possible *natural* reading of the
text, a reading that the actual text excludes by placing the
\"represent\[ing\]\" in a concluding \"who shall . . . represent\"
clause that is in apposition with the noun \"officer,\" which in turn is
the object of \"shall designate.\" To put it more plainly: § 505 states
that *the Commission shall designate an officer in all public
proceedings, who shall represent the interests of the public*; Valpak
interprets § 505 as if it stated that *the Commission shall designate an
officer, who shall represent the interests of the public in all public
proceedings*.

Valpak repeatedly paraphrases § 505 as if it followed the hypothetical
formulation above rather than its actual syntax. Valpak removes the
phrase \"represent the interests of the general public\" from the \"who
shall\" clause at the end of the sentence and relocates it immediately
following the word \"officer.\" For example, Valpak states:

> the plain language of the statute mandates that the designated officer
> r*epresent the interests of the general public in "**all** public
> proceedings*."

Initial Comments at 10 (italics added for emphasis).

Two paragraphs later, it states:

> By the ordinary meaning of its plain language, then, section 505
> authorizes the designation of "an" officer --- that is, one officer
> --- *to represent the interests of the general public in "all" public
> proceedings* before the Commission. . . .

*Id.* (emphasis added).

In the next paragraph, it states:

> there are additional compelling reasons for construing section 505 as
> having authorized the designation of only one Public Representative
> *to represent the interests of the general public in "all" matters
> before the Commission*. . . .

*Id*. at 11 (emphasis added).

By relocating qualifying phrases, Valpak obstructs correct
identification of the antecedents to which they refer.[^23] This flouts
one of the most fundamental and venerable principles of statutory
construction, namely that \"\[i\]t must be assumed that language has
been chosen with due regard to grammatical propriety and is not
interchangeable on mere conjecture.\"[^24]

> **c. The PAEA does not and cannot implicitly \"ratify\" the Rate
> Commission\'s discretionary creation of a permanent Office of the
> Consumer Advocate under the PRA.**

By following the exact style of the PRA\'s provisions for the appearance
of a public representative, the Congress that enacted the PAEA may be
deemed to have implied that it did not view the Postal Rate
Commission\'s interpretation of that provision as contrary to its
intention in the PRA, and that it did not mean to change the intended
meaning of the nearly identical language in the PAEA. Contrary to
Valpak\'s misleading history of the Commission\'s practice under the
PRA, it is entirely clear that the Commission did not view itself as
required by law to create an Office of the Consumer Advocate under the
direction of a single individual. It did create such an office, but only
in the exercise of its discretion, and not until twelve years subsequent
to the passage of the PRA.[^25]

Relying on two false premises\--its misinterpretation of the \"plain
meaning\" of § 505 and its erroneous history of the Commission\'s
provision for a public representative under the PRA\--Valpak reaches a
conclusion that could not be correct under any possible set of factual
premises. According to Valpak:

> The only reasonable conclusion that can be drawn from the PAEA
> language referring in the singular to **an officer of the Commission**
> is that Congress ratified the long-standing, consistent practice of
> the Postal Rate Commission to have one person heading a permanent
> office who would be responsible for the important function of
> representing the interests of the general public in all public
> proceedings that come before the Commission serve in that capacity.

Valpak Initial Comments at 15.

The problem with Valpak\'s analysis is that it applies the theory of
Congressional ratification to matters entirely outside its scope. Under
the theory of Congressional ratification, if an agency maintains a
longstanding and consistent *interpretation* of language in its enabling
statute, and it can be shown that Congress was aware of this fact, and
if Congress then re-enacts the identical language without indicating an
intention to disturb the agency\'s interpretation, Congress is assumed
to have \"ratified\" the agency\'s interpretation. (The theory tends to
come into play in cases where there is at least some plausible evidence
that the Congress that originally enacted the language in question
intended something different from the interpretation the agency
subsequently adopted.) But the theory has no application in the case of,
to use Valpak\'s word, a longstanding, consistent agency \"*practice,*\"
i.e., a course of action that is, and that the agency regards as,
discretionary. The reasonable interpretation of § 505, in light of the
Commission\'s practice under the PRA, is that Congress intended to
permit the practice to continue, not that it intended to make it
mandatory.[^26]

Had Congress wished to write the Commission\'s practice into law, it
could easily have done so, not by re-enacting the language of the PRA
but by adopting the language of the Commission\'s regulation at 39
C.F.R. § 3002.7.[^27]

> **d. Subsequent references in the PAEA to an officer of the Commission
> who shall represent the interests of the general public do not bolster
> Valpak\'s interpretation of § 505.**

Valpak believes that § 3662\'s authorization that a complaint may be
filed by \"\[a\]ny interested person (including an officer of the Postal
Regulatory Commission representing the interests of the general
public),\" along with § 3653\'s provision for a public representative to
file comments on the Postal Service\'s Annual Compliance Report,
bolsters the case for its interpretation of § 505 in two ways.

First, according to Valpak, since, \"\[u\]nder the Commission's current
rotating system of officers designated to represent the public interest,
no such officer could ever initiate a complaint --- for the simple
reason that no such officer would be designated by the Commission until
after such a complaint was filed,\" \"the Commission\'s construction of
. . . § 505 . . . \'would effectively vitiate\' the role that such an
officer is assigned by section 3662.\" Valpak Comments at 11-12
\[citation omitted\]. There are two interpretations of the relevant
provisions, however, that suggest themselves more readily than Valpak\'s
supposition that Congress intended to make mandatory under the PAEA a
practice that was followed as a matter of discretion under the PRA,
without mentioning that practice expressly. First, the Commission may
interpret § 3662\'s mention of \"an officer of the Postal Regulatory
Commission representing the interests of the general public\" as
referring to an officer who has appeared in that capacity in some
*other* Commission proceeding and who desires to lodge a complaint that
is in some way grounded in that representation.\" One point in favor of
that interpretation is that it would avoid making a public
representative into a kind of roving prosecutor, one who would not have
to weigh the kinds of costs and trade-off\'s that face other parties
when they consider pursuing a complaint. Second, even if Valpak were
correct in thinking that Congress intended the creation of such a
prosecutorial entity, it would follow only that the Commission should
*designate a public representative for that purpose*, not that it must
designate a *single* public representative *for all purposes*.

Valpak\'s second argument is that the two provisions respecting a public
representative in §§ 3653 and 3662 reinforce Valpak\'s interpretation of
§ 505 because they indicate that \"the role of the public interest
officer has been . . . expanded and enhanced\" under the PAEA. Diffusing
that responsibility \"\[b\]y dispersing \[it\] among several officers,\"
Valpak says, \"would not foster --- and indeed could be considered
\'destructive\' of --- PAEA's overall purpose.\" Valpak Comments at 15.
Again, Valpak\'s premise is dubious: it is by no means obvious that the
role played by the Office of Consumer Advocate as a litigant in rate and
classification cases under the PRA is \"enhanced\" or \"expanded\" under
the provisions of the PAEA. In any event, such enhancement as there may
be must be determined with reference to what the PAEA itself provides.
To say that an office or function is enhanced in one respect by an
express provision of the Act does not entail saying that it is also
enhanced in other, unmentioned respects. There is no reason to think
that Congress could not have intended to enlarge the number of
proceedings in which a public representative will appear and at the same
time intended not to concentrate that function in a single, permanent
officer. Again, the most telling point is that if Congress intended what
Valpak says it intended, it would have been easy for Congress to say so.

**3. Section 3662 Does *Not* Require, As Valpak Asserts, \"That the
Commission \'Must Begin Proceedings\' on \[a\] Complaint \[Filed by
\'Any Interested Person\' in the Proper Form and Manner\] If It \'Raises
Material Issues of Fact of Law.\'\"**

According to Valpak, the Commission\'s exercise of its authority under §
3662 is *mandatory* whenever the threshold jurisdictional requirements
of that section are satisfied. Thus Valpak interprets § 3662 as
*requiring* the Commission to provide a hearing on *every* complaint
filed by \"any interested party\" that meets such \"form and manner\"
requirements as the Commission adopts and that raises *any* material
issue of fact or law respecting whether the Postal Service has failed to
comply with any provision of chapter 36, with the other specified
provisions of title 39, or with any regulations promulgated under any of
those provisions. Valpak states that the Commission \"does not have the
power\" to base its decision whether to grant a hearing on \"whether the
complaint raises issues of \'public postal policy . . . with substantial
ramifications,\'\" but may only consider \"whether the complaint raises
\'material issues of fact or law\' relating to a violation of specified
laws\" (*id*. at 18-19 \[internal citation omitted\]). Valpak summarizes
its view as follows:

> section 3662 provides that "\[a\]ny interested person" may file a
> complaint (in the proper form and manner), and that the Commission
> must "begin proceedings" on such complaint if it "raises material
> issues of fact or law."

*Id*. at 20.

\"The only discretion that the statute gives to the Commission with
respect to complaints,\" Valpak says, \"is to impose reasonable form and
manner requirements.\" *Id*. at 18.

> **a. The language of § 3662 indicates that a finding by the Commission
> that a complaint raises material issues of fact or law is a condition
> precedent for exercise of the Commission\'s complaint authority, not a
> trigger that mandates exercise of that authority.**

Valpak grossly understates the Commission\'s discretion with respect to
how it may proceed after a complaint is filed. Notably, in light of its
reliance on textual exegesis and doctrines of statutory construction
elsewhere in its comments, Valpak pays little attention to the language
of § 3662(b). That section provides:

> § 3662
>
> \(b\) Prompt Response Required.---
>
> > \(1\) In general.---The Postal Regulatory Commission shall, within
> > 90 days after receiving a complaint under subsection (a)---
>
> > \(A\) either---
>
> > \(i\) upon a finding that such complaint raises material issues of
> > fact or law, begin proceedings on such complaint; or
>
> > \(ii\) issue an order dismissing the complaint; and
>
> > \(B\) with respect to any action taken under subparagraph (A) (i) or
> > (ii), issue a written statement setting forth the bases of its
> > determination.
>
> > \(2\) Treatment of complaints not timely acted on.---For purposes of
> > section 3663, any complaint under subsection (a) on which the
> > Commission fails to act in the time and manner required by paragraph
> > (1) shall be treated in the same way as if it had been dismissed
> > pursuant to an order issued by the Commission on the last day
> > allowable for the issuance of such order under paragraph (1).

To begin with, the ambiguity of the word \"proceedings\" (in preference
to \"hearing\" or \"hearing on the record\"), a term which lacks a
statutory definition either within or without the PAEA, in itself
conveys considerable discretion. Section 3662(c)\'s grant of remedial
authority, in the event the Commission finds a complaint to be
justified, to order \"such action as the Commission considers
appropriate\" also conveys extremely broad discretion. But let us
suppose for the sake of argument that Valpak intended its remark about
the Commission\'s discretion as nothing more than a restatement or
amplification of its view that \"the Commission *must* \'begin
proceedings\' on such complaint *if it \'raises* material issues of fact
or law\'\" \[emphasis added\]. Does that assertion, standing alone,
survive a critical examination?

The assertion that \"the Commission must \'begin proceedings\' on such
complaint if it \'raises material issues of fact or law\'\" goes well
beyond what § 3662(b) itself states or can fairly be interpreted to
require. That provision does not indicate any circumstances under which
the Commission *must* begin proceedings on a complaint. Rather, it
states that the Commission \"shall\" (i.e., must) choose *one of two
options* \"within 90 days after receiving a complaint.\"

The Commission\'s first option, after receiving a complaint, is \"upon a
finding that such complaint raises material issues of fact or law,
\[to\] begin proceedings on such complaint.\" The question immediately
posed by that language is whether it states a condition precedent
without which the Commission\'s lacks *authority* to begin proceedings
(i.e., a jurisdictional threshold that must be met before the Commission
may \"begin proceedings\"), or a threshold that, when met, *obliges* the
Commission to begin proceedings (i.e., whether § 3662 invests the
complainant who raises material issues of fact or law with a right to
proceedings).

The second option open to the Commission after it receives a complaint
is to \"issue an order dismissing the complaint.\" No standards or
conditions are specified respecting the Commission\'s exercise of that
option. For instance, it is not stated that the Commission may dismiss a
complaint: if the complaint fails to state a claim for which the
Commission has the authority to order a remedy for; or if the complaint
is fundamentally deficient in form; or if the complaint fails to raise
material issue of fact or law; or if *the Commission finds that* the
complaint fails to raise material issues of fact or law; or if the
complaint would be subject to dismissal in a federal civil action under
the Federal Rules of Civil Procedure.[^28]

The language and grammatical construction of § 3662(b) support the view
that the first option states a jurisdictional precondition for exercise
of the Commission\'s discretion to begin proceedings on a complaint
rather than a statutory obligation to institute further proceedings.
Consider first the words \"upon a finding that such complaint raises
material issues of fact or law.\" They appear in a subsection whose
application to any given complaint is itself not mandatory. That is to
say, the language of subsection (b) imposes no conditions on the
Commission\'s choice of option (i) or option (ii). Nothing in the
language of subsection (b) prohibits the Commission from bypassing
option (i) entirely. Nothing requires the Commission to *make* a finding
as to *whether* the complaint raises material issues of fact or law.
Thus, the grammatical structure of subsection (b) grants the Commission
what appears to be the unconditioned choice of going straight to option
(ii), and option (ii) appears to give the Commission unfettered
discretion to dismiss a complaint.

Second, the PAEA does provide an example of a provision that *directs*
the Commission to *make a determination* of fact and then to take one or
another action depending on that determination. Section 3653 (\"Annual
determination of compliance\") shows that Congress knew how to draft a
provision requiring the Commission to make a finding, and then requiring
particular action depending on what finding it made. That section
provides in relevant part:

> § 3653
>
> \(b\) Determination of Compliance or Noncompliance.---Not later than
> 90 days after receiving the submissions required under section 3652
> with respect to a year, the Postal Regulatory Commission *shall make a
> written determination as to*---
>
> > \(1\) *whether* any rates or fees in effect during such year (for
> > products individually or collectively) were not in compliance with
> > applicable provisions of this chapter (or regulations promulgated
> > thereunder); *or*
>
> > \(2\) *whether* any service standards in effect during such year
> > were not met.
>
> *If*, with respect to a year, *no instance of noncompliance is found*
> under this subsection to have occurred in such year, *the written
> determination shall be to that effect*.
>
> \(c\) Noncompliance With Regard to Rates or Services.---*If*, for a
> year, *a timely written determination of noncompliance is made* under
> subsection (b), *the Postal Regulatory Commission shall take
> appropriate action in accordance with subsections (c) and (e)*
> \[scrivener\'s error for (d)\] *of section 3662* (as if a complaint
> averring such noncompliance had been duly filed and found under such
> section to be justified).

(Emphasis added.)

If Congress had wished to mandate that the Commission begin proceedings
on every complaint that raises material issues of fact or law, it had
available at least two obvious ways of expressing that intention.
Congress could quite easily have followed the model of § 3653 and stated
that, after a complaint is filed, the Commission \"shall make a
determination whether the complaint raises material issues of fact or
law,\" and that \"if the Commission finds that the complaint raises
material issues of fact or law, it shall begin proceedings.\" But that
is not what Congress did.

A less unambiguous but still possible way of indicating such an
intention would have been to provide in § 3662(b) that \"If a complaint
raises material issues of fact or law, the Commission shall begin
proceedings.\" By replacing the actual words of the provision, \"Upon
finding that,\" with the single word \"If,\" Congress could have (at
least arguably) created an implicit obligation for the Commission to
determine *whether* a complaint raises such issues, and to begin
proceedings *if* it does. However, the actual language makes the
Commission\'s *finding* of material issues, rather than the *existence*
(or not) of such issues, the contingency on which the beginning of
proceedings rests.

The difference between these two readings is not a matter of mere
semantics. It profoundly affects the responsibilities that the
Commission must bear when complaints are filed. Under Valpak\'s reading,
the Commission must make a determination whether a complaint raises
material issues of fact or law and, if the determination is that it
does, must (subject, presumably, to some *de minimis* exception) begin
proceedings. That is the Commission\'s irreducible burden under the Act,
whether it has before it one complaint or 1,000 (assuming all are in the
proper form).

Under the alternative interpretation, the Commission is permitted to do
what its proposed rules contemplate\--i.e., to winnow out from the
universe of complaints that may be filed those that raise issues of
\"public postal policy . . . with substantial ramifications\" or
\"claims of unfair competition\" (Order No. 101 at 5), to determine
whether these claims raise \"material issues of fact or law,\" and, if
they do, to institute proceedings to determine whether the claims are
justified. The latter interpretation seems to Time Warner to better
comport not only with the language and structure of § 3662 but with the
intentions of Congress regarding the more limited role to be played by
the Commission in regulating postal rates and services under the PAEA
than under the PRA.

Finally, we take note of § 3662(b)(2)\'s provision that if the
Commission fails to exercise one of its two options within the
prescribed 90 days after a complaint is filed, the complaint \"shall be
treated in the same way as if it had been dismissed pursuant to an order
issued by the Commission on the last day allowable for the issuance of
such order.\" That provision does not appear to give an appellate court
any manageable standard of review, unless the Commission\'s authority to
dismiss complaints rests within its own sound discretion. We can imagine
someone making the argument that a reviewing court\'s standard for
review of such an imputed dismissal should be whether the complaint
raises material issues of fact or law. But any such argument must fail,
because there are various *other* grounds that would warrant dismissal,
and thus for review under 5 U.S.C. 706 (which, under § 3663 of the PAEA,
provides the applicable standard of review of final Commission orders).
Under § 706 of the APA, a dismissal of a complaint brought under § 3662
of the PAEA could be reviewed with respect to whether it was arbitrary
and capricious or constituted an abuse of discretion. It could be
reviewed with respect to whether it was \"contrary to constitutional
right\" (e.g., if it were alleged that the Commission had dismissed a
complaint to punish a complainant\'s expression of a political opinion).
It could be reviewed with respect to whether the complaint stated
material issues of fact or law, whether it followed the form and manner
requirements prescribed by the Commission, or whether the complaining
party falls within the statutory meaning of \"\[a\]ny interested
person.\" It could be reviewed with respect to whether the dismissal had
been based on a misinterpretation of law (e.g., if it were alleged that
the Commission dismissed a complaint because it erroneously interpreted
§ 3662(b)(1)(A)(i) as stating a jurisdictional prerequisite for the
initiation of proceedings). On which of these possibilities should a
reviewing court focus in the absence of an order of dismissal? Only if
the authority to dismiss is largely discretionary does a reviewing court
have a sufficiently narrow standard\--whether the Commission has abused
its discretion, acted arbitrarily and capriciously, or failed to observe
procedures required by law\--to make its task manageable.

Conclusion

Time Warner reiterates here what it said in its initial comments in
response to Order No. 101:

> so extensive is the enhancement of the Commission\'s remedial
> authority under the PAEA that this proceeding confronts the Commission
> primarily with the challenge of placing sensible limits on its
> exercise of its complaint jurisdiction, so that the system will not be
> overwhelmed by the volume of complaint proceedings and the Commission
> will not be transformed into a sort of constabulary or small claims
> court for complaints against the Postal Service.

Time Warner adds to those sentiments its assurance that it takes no
exception to the provision of the proposed rules that provide for a full
and fair hearing, once the Commission has determined to institute
proceedings on a complaint under § 3662(b). Time Warner supports those
provisions of the proposed rules, in particular the application of
subpart A of the Rules of Practice to complaints, once the Commission
has determined to institute proceedings on a complaint.

We respectfully dissent, however, from interpretations of the PAEA that
would place the Commission in the position of a court of general
jurisdiction and to requirements that it hold proceedings that are
subject to elaborate and burdensome requirements of due process whenever
any interested person is able to cross the extremely low threshold of
stating a claim, however local, transient, or limited in significance,
that raises a material issue of fact or law.

> Respectfully submitted,
>
> [s/]{.underline}
>
> John M. Burzio
>
> Timothy L. Keegan
>
> [Counsel for]{.smallcaps}
>
> [Time Warner Inc.]{.smallcaps}

Burzio McLaughlin & Keegan

Canal Square, Suite 540

1054 31st Street, N. W.

Washington, D. C. 20007-4403

Telephone: (202) 965-4555

Fax: (202) 965-4432

E-mail:bmklaw@verizon.net

[^1]: Valpak states (at 16): \"if this rulemaking seeks to establish
    \'rate or service inquiries\' as something other than a complaint,
    the Commission's statutory authority cannot be derived from 39
    U.S.C. section 3662.\" This is correct, as far as it goes. However,
    Valpak\'s suggestions (at 16-17) that the Commission\'s proposed
    rules for rate and service inquiries are not based on \"a statutory
    delegation \[of\] . . . the power to promulgate substantive rules\"
    and that the Commission must be relying for its rulemaking authority
    on some \"source other than the statute\" are in error. The
    Commission plainly identifies the statutory source of its authority:

    > The rate or service inquiry process will help the Commission in
    > deciding whether to address these matters in a more formal manner,
    > which could potentially include the initiation of a complaint
    > proceeding by a public representative or the appointment of an
    > investigator to explore the matter. 39 U.S.C. 503 allows the
    > Commission to promulgate these regulations to carry out its
    > enhanced responsibilities under the PAEA.

    Order No. 101 at 11.

    Section 503, which provides that \"\[t\]he Postal Regulatory
    Commission shall promulgate rules and regulations and establish
    procedures, subject to chapters 5 and 7 of title 5, and take any
    other action they deem necessary and proper to carry out their
    functions and obligations to the Government of the United States and
    the people as prescribed under this title,\" is also cited by the
    Commission as the statutory authority for its proposed rules
    allowing the appointment of a Commission investigator in complaint
    proceedings. *Id*.

[^2]: Valpak also states erroneously that the PAEA \"changed 39 U.S.C.
    section 3662 to provide a broader jurisdictional basis for
    complaints.\" Initial comments at 2. In fact, the PAEA narrowed the
    PRA\'s jurisdictional basis for complaints (which included the
    entirety of title 39). Order No. 101 discusses in some detail the
    significance of the provisions omitted from the Commission\'s
    complaint jurisdiction by the PAEA. *See* Order No. 101 at 7-9.

[^3]: Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
    (1971) (\"the Secretary\'s decision is entitled to a presumption of
    regularity\" \[*citing* Pacific States Box & Basket Co. v. White,
    296 U.S. 176, 185 (1935); and United States v. Chemical Foundation,
    272 U.S. 1, 14-15 (1926)\]).

[^4]: *See* Berman, Mitchell N., \"Constitutional Decision Rules,\" 90
    Va. L. Rev. 1, 139, n. 402 (March 2004) (\"the dominant view,
    sometimes called the \"bursting bubble\" theory, holds that a
    rebuttable presumption shifts only the burden of producing evidence
    with respect to the presumed fact; if and when that burden is
    satisfied, the presumption disappears\"). *Accord* [Black\'s Law
    Dictionary]{.smallcaps} 1224 (8th ed. 2004) (defining a rebuttable
    presumption as \"\[a\]n inference drawn from certain facts that
    establish a prima facie case, which may be overcome by the
    introduction of contrary evidence\") (citations omitted).

[^5]: Valpak\'s arguments that a party should be able to lodge a
    complaint on the basis of nothing more than general allegations of
    counsel, based on information and belief, that the Postal Service
    has acted inconsistently with some provision of the Act or some
    regulation of the Commission, and proceed directly to discovery
    against the Postal service, mirror the extraordinarily liberal
    system of \"notice pleading\" used by the federal district courts
    under the Federal Rules of Civil Procedure. So too does NAA\'s
    attempt to resurrect the \"colorable claim\" standard, which the
    Commission, before it had had the opportunity to formulate or
    propose rules governing PAEA complaints, carried forward from its
    precedents under the PRA in the course of disposing of a motion to
    dismiss a complaint under the PAEA but which it has wisely omitted
    from the rules it now proposes. *See* NAA initial comments at 3, n.
    2; Order No. 92, Docket No. C2008-3 (issued Aug. 1, 2008), at 4.

    The system of notice pleading allows the parties to civil actions in
    federal courts to develop the factual record and refine the issues
    in a case through mutual discovery without engaging significant
    resources of the district courts (of which there are 94, with 678
    authorized judgeships). The same system, if applied to complaints
    under the PAEA, would threaten to swamp the single, 5-member Postal
    Regulatory Commission with an unmanageable flood of litigation
    (witness the ongoing proceeding in which the Commission employed the
    \"colorable claim\" standard) and to impose enormous administrative
    burdens on the Postal Service. It is perhaps the worst model for
    PAEA complaint proceedings that one can think of.

[^6]: *See* Berry, Melissa M., \"Beyond Chevron\'s Domain: Agency
    Interpretations of Statutory Procedural Provisions,\" 30 Seattle
    Univ. L. R. 541, 549, n. 51 (Spring, 2007):

    > \[I\]nformal adjudications, which are not labeled as such in the
    > APA, \"constitute a residual category, including \'all agency
    > actions that are not rulemaking and that need not be con ducted
    > through \'on the record\' hearings.\'\" City of West Chicago v.
    > NRC, 701 F.2d 632, 644 (7th Cir. 1983) (quoting Izaak Walton
    > League v. March, 655 F.2d 346, 361-62 n.37 (D.C. Cir. 1981)).

    *See also* Stanley, John F., \"Note: The \'Magic Words\' of § 554: A
    New Test for Formal Adjudication Under the Administrative Procedure
    Act,\" 56 Hastings L.J. 1067, 1073 (May, 2005):

    > The distinction between formal and informal adjudication is . . .
    > dependant upon whether the statute requires that the hearing be on
    > the record. . . .

[^7]: *See* Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633,
    655-56 (1990) (holding that, in an informal adjudication, an agency
    has no obligation to advise the parties of the material upon which
    it intends to rely or to invite the submission of contrary evidence,
    unless the Due Process Clause so requires):

    > \[T\]he trial-type procedures set forth in §§ 5, 7 and 8 of the
    > APA, 5 U.S.C. §§ 554, 556-557, which include requirements that
    > parties be given notice of \"the matters of fact and law
    > asserted,\" § 554(b)(3), an opportunity for \"the submission and
    > consideration of facts \[and\] arguments,\" § 554(c)(1), and an
    > opportunity to submit \"proposed findings and conclusions\" or
    > \"exceptions,\" § 557(c)(1), (2). . . . The determination in this
    > case, however, was lawfully made by informal adjudication, the
    > minimal requirements for which are set forth in § 555 of the APA,
    > and do not include such elements. \[some internal citations
    > omitted\]

    *See also* Berry, \"Beyond Chevron\'s Domain,\" at 549 (\"Agency
    procedures in \'informal\' adjudications . . . are limited to those
    procedures adopted by the agency, required by the enabling statute,
    or required by due process\" \[footnote omitted\]); Stanley, \"Note:
    The \'Magic Words,\'\" at 1073 (\"unless specific procedures are
    required by the relevant statute, informal adjudication is generally
    only subject to the minimum procedures required to meet the due
    process limitations imposed by the Fifth Amendment\").

[^8]: Various formulations have been used to describe the applicable
    standard of review of informal agency adjudications under § 706 of
    the APA. The leading cases on the issue are Vermont Yankee Nuclear
    Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519
    (1978) (holding that, in reviewing agency action under § 706 of the
    APA, the courts may not impose procedural requirements beyond those
    specified by § 706 itself, another statute, or the Constitution);
    Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
    415-16 (1971) (holding that even in an informal adjudication the
    agency must give an adequate explanation and supply a sufficient
    factual record to permit a reviewing court to determine if the
    agency has engaged in reasoned decisionmaking); and Pension Benefit
    Guaranty Corp., 496 U.S. 633. 653-55. The latter decision overturned
    a ruling that agency procedures were inadequate because the agency
    \"neither apprised LTV \[a party to informal adjudication before the
    agency\] of the material on which it was to base its decision, gave
    LTV an adequate opportunity to offer contrary evidence, proceeded in
    accordance with ascertainable standards . . . , nor provided \[LTV\]
    a statement showing its reasoning in applying those standards.\" 496
    U.S. at 653. The Court explained:

    > *Vermont Yankee* stands for the general proposition that courts
    > are not free to impose upon agencies specific procedural
    > requirements that have no basis in the APA. See 435 U.S., at 524.
    > At most, *Overton Park* suggests that § 706(2)(A) of the APA,
    > which directs a court to ensure that an agency action is not
    > arbitrary and capricious or otherwise contrary to law, imposes a
    > general \"procedural\" requirement of sorts by mandating that an
    > agency take whatever steps it needs to provide an explanation that
    > will enable the court to evaluate the agency\'s rationale at the
    > time of decision.
    >
    > Here, unlike in *Overton Park*, the Court of Appeals did not
    > suggest that the administrative record was inadequate to enable
    > the court to fulfill its duties under § 706. Rather, to support
    > its ruling, the court focused on \"fundamental fairness\" to LTV.
    > 875 F.2d, at 1020-1021. . . . \[T\]he procedural inadequacies
    > cited by the court all relate to LTV\'s role in the \[the
    > agency\'s\] decisionmaking process. But the court did not point to
    > any provision in ERISA or the APA which gives LTV the procedural
    > rights the court identified. Thus, the court\'s holding runs afoul
    > of *Vermont Yankee* and finds no support in *Overton Park*.

    496 U.S. at 654-55.

    The Commission\'s proposed regulations provide for many of the
    procedural protections that the PAEA fails to require. In
    particular, proposed rule 3030.1 makes subpart A of the
    Commission\'s Rules of Practice generally applicable to complaints.
    Time Warner fully supports this feature of the proposed rules. Our
    difference with Valpak and NAA is that we do not think the
    procedures set out in subpart A of the Rules of Practice, which was
    adopted to carry out the PRA\'s requirements for hearings on the
    record under §§ 556 and 557 of the APA, are *mandatory* under § 3662
    of the PAEA.

[^9]: Both the PRA and the PAEA consistently refer to \"an officer of
    the Commission , , , who shall

    . . . represent the interests of the general public.\" Under the
    PRA, the Postal Rate Commission used the terms Consumer Advocate and
    Office of the Consumer Advocate to refer to this representative.
    Under the PAEA, the Postal Regulatory Commission uses the term
    Public Representative for the same purpose. These are evidently
    titles of convenience chosen by the Commission. They do not appear
    in either statute. We follow that usage here, referring to the
    \"Public Representative\" or \"the Consumer Advocate\" (or \"OCA\")
    depending on whether we are discussing practices under the PRA or
    the PAEA.

[^10]: Section 505 states that \"\[t\]he Postal Regulatory Commission
    shall designate an officer of the Postal Regulatory Commission in
    all public proceedings (such as developing rules, regulations, and
    procedures) who shall represent the interests of the general
    public.\" Section 3653 states that \"the Postal Regulatory
    Commission shall promptly provide an opportunity for comments on
    \[the Postal Service\'s Annual Compliance Report\] by users of the
    mails, affected parties, and an officer of the Commission who shall
    be required to represent the interests of the general public.\"
    Section 3662, in describing those who may file complaints under that
    provision, includes within the term \"\[a\]ny interested person\"
    \"an officer of the Postal Regulatory Commission representing the
    interests of the general public.\"

[^11]: Section 505\'s provision for such an officer to appear \"in all
    public proceedings\" is not to the contrary. A number of proceedings
    provided for in the PAEA, such as annual rate adjustments under §
    3622(d)(1)(C)&(D), contain no requirement of an opportunity for
    public participation.

[^12]: Valpak\'s comments (at 14) lamely explain why its insight into
    the meaning of § 505 dawned so belatedly: \"Not until this
    rulemaking have the parties and the Commission been compelled to
    focus on how the provisions of 39 U.S.C. section 3662(a), dealing
    with who is authorized to file complaints, bear on this issue of
    whether a system of ad hoc, or rotating, Public Representatives is
    consistent with PAEA.\" That may explain why Valpak has failed to
    *focus* on the issue before now. But it does not explain why, over a
    period when seven different persons were appointed to serve as
    public representative in fifteen different dockets (*see* Valpak
    Comments at 7-8), neither Valpak nor any other party even intimated
    a belief that the practice contravened the \"plain meaning\" of §
    505.

[^13]: *See* N. Singer ed., 2A [Statutes and Statutory
    Construction]{.smallcaps} (6th edn. 2000), § 47:34:

    > Common usage in the English language does not scrupulously observe
    > a difference between singular and plural word forms. This is
    > especially true when speaking in the abstract, as in legislation
    > prescribing a general rule for future applications. In recognition
    > of this, it is well established, by statute and by judicial
    > decision, that legislative terms which are singular in form may
    > apply to multiple subjects or objects. \[footnote omitted\]
    >
    > \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
    >
    > Issues over singular or plural interpretation often arise in the
    > form of disputes about whether the article \"a\" restricts the
    > application of the term which it modifies to single objects or
    > subjects. . . . *It is most often ruled that a term introduced by
    > \"a\" or \"an\" applies to multiple subjects or objects unless
    > there is reason to find that singular application was intended or
    > is reasonably understood*. \[emphasis added; footnote omitted\]

[^14]: *See, e.g.,* [The American Heritage Dictionary of the English
    Language]{.smallcaps} (4th edn .2000):

    > *indefinite article*: *n\[oun\]. Grammar.* An article, such as
    > English *a* or *an,* that does not fix the identity of the noun
    > modified.

[^15]: *See* R. Kelso and C. Kelso, \"Appeals in Federal Courts by
    Prosecuting Entities Other than the United States: the Plain Meaning
    Rule Revisited,\" 33 Hastings LJ 187 (1981) (rpt. in N. Singer ed.,
    2A [Statutes and Statutory Construction]{.smallcaps} (6th edn.
    2000), § 48A:16):

    > In the past, the plain meaning rule rested on theories of language
    > and meaning, now discredited, which held that words have inherent
    > or fixed meanings. These theories are unnecessary to the plain
    > meaning rule, however, if the rule is interpreted to direct the
    > court to construe and apply words according to the meaning that
    > they are ordinarily given, taking into account the statutory
    > context, basic rules of grammar, and any special usages stated by
    > the legislature on the face of the statute.

[^16]: The entry for *all* in the [Oxford English
    Dictionary]{.smallcaps} runs just short of ten columns over nearly
    four pages. Compare the following differing uses of *all* in a more
    or less random selection of more or less familiar quotations:

    > \"*All* Gaul is divided into three parts\": J. Caesar (where *all*
    > means *on the whole*).
    >
    > \"So are they *all*, *all* honorable men\": W. Shakespeare (*each
    > and every one*).
    >
    > \"I dare do *all* that may become a man\": W. Shakespeare
    > (*everything*).
    >
    > \"*All* is well\" (*everything*).
    >
    > \"*All* is not well\" (*something*).
    >
    > *\"All* together now\" (*everyone*).
    >
    > \"*All* the way home\" (*for the entire extent \[or duration\]
    > of*).
    >
    > \"*All* work and no play\" (*nothing but*).
    >
    > \"*All* I really want to do / Is, baby, be friends with you\": B.
    > Dylan, song lyric (*one of several things*).
    >
    > \"And down will come baby, cradle and all\": nursery rhyme (\[with
    > *and*\] *inclusive*).
    >
    > \"Who ate *all* the fudge?\" (*the whole amount or quantity of*).

[^17]: In § 505\'s phrase \"all public proceedings,\" *all* is, of
    course, used as an adjective. The *entire* entry for the word *all*
    in the first comprehensive dictionary of American English is: \"All
    *a.* \[*adjective*\] every one; *n*. \[*noun*\] the whole; *ad*.
    \[*adverb*\] wholly.\" Noah Webster, [A Compendious Dictionary of
    the English Language: A facsimile of the first (1806)
    edition]{.smallcaps}, (rpt. 1970).

[^18]: In the three Supreme Court terms from 1998-1999 through
    2000-2001, [Webster\'s Third]{.smallcaps} was relied on most
    frequently for the definition of terms\--30 times in opinions by
    seven of the Justices. The closest runner-up was [Black\'s Law
    Dictionary]{.smallcaps}, which was relied on 17 times in opinions by
    eight of the Justices. *See* S. Thumma and J. Kirchmeier, \"The
    Lexicon Remains a Fortress: An Update,\" The Green Bag: An
    Entertaining Journal of Law, 5 Green Bag 2d 51, App. C (Autumn,
    2001).

[^19]: Some students of lexicography prefer to continue using
    [Webster\'s Second New International Dictionary]{.smallcaps} (1st
    edn. 1934) ([\"Webster\'s Second\"]{.smallcaps}), not, as is
    commonly supposed, because [Webster\'s Third]{.smallcaps} admits
    certain Anglo-Saxon vulgarisms and some colloquialisms such as
    \"ain\'t\" (which in fact has an entry in [Webster\'s
    Second]{.smallcaps}), but because many entries and much scholarly
    commentary that appeared in [Webster\'s Second]{.smallcaps} were
    omitted from [Webster\'s Third]{.smallcaps} for reasons of cost. To
    accommodate any such diehards, we include the corresponding
    definitions of the adjective *all* from [Webster\'s
    Second]{.smallcaps}. The full text of the first definition given by
    [Webster\'s Second]{.smallcaps} is:

    > **1.** The whole of; \--used with a singular noun or pronoun, and
    > referring to amount, quantity, extent, duration, quality, or
    > degree; as, *all* the wheat; *all* the year; *all* this; specif.,
    > as much as, or the greatest, possible; complete; perfect; as,
    > *all* happiness; with *all* speed; in *all* kindness.

    This is an inapt definition to apply to \"all public proceedings\"
    in § 505, because that term refers to distinct, individual,
    numerable proceedings\--the same reason that the first definition in
    [Webster\'s Third]{.smallcaps} is inapt\--and for the additional
    reason that \"proceedings\" is not \"a singular noun or pronoun.\"

[^20]: The corresponding definition in [Webster\'s Second]{.smallcaps}
    is the third definition of the adjective *all*::

    > **3.** Every member or individual component of; each one
    > of;\--used with a plural noun. In this sense, *all* is used
    > generically and distributively, meaning that a statement is true
    > of every individual or case; as, *all* men are mortal.

[^21]: The corresponding definition in [Webster\'s Second]{.smallcaps}
    is number 2:

    > **2.** The whole number or sum or;\--used collectively, with a
    > plural noun or pronoun expressing an aggregate, to mean, esp. in
    > logic, that a statement is true of the sum of the individuals or
    > cases considered; as, *all* the angles of a triangle are equal to
    > two right angles.

[^22]: It is true that *in* can occasionally bear the meaning Valpak
    ascribes to it in § 505. For instance, if one describes entering
    into a blind bargain as \"buying a pig in a poke \[i.e., a
    sack\]\"\--\"referring to the former practice of trying to palm off
    a cat as a suckling pig to a greenhorn\"\--it is not the \"buying\"
    that is located within the sack but the alleged \"pig.\" That
    expression is memorable, however, in part precisely because its
    colloquial use of *in* deviates from the expected. *See* [Brewer\'s
    Dictionary of Phrase and Fable]{.smallcaps} (16th edn. 1959; rev.
    Adrian Room), at 910. (The seller in such a transaction, by the way,
    must be careful not to expose the deception by inadvertently
    \"letting the cat out of the bag.\" *Id.*)

[^23]: *See* N. Singer ed., 2A [Statutes and Statutory
    Construction]{.smallcaps} (6th edn. 2000), § 47:33:

    > Referential and qualifying words and phrases, where no contrary
    > intention appears refer solely to the last antecedent. \[footnote
    > omitted\] The last antecedent is \"the last word, phrase, or
    > clause that can be made an antecedent without impairing the
    > meaning of the sentence. \[footnote omitted\] Thus a proviso
    > usually is construed to apply to the provision or clause
    > immediately preceding it. \[footnote omitted\]

[^24]: See Hines v. Mills, 187 Ark. 465, 60 SW 2d 181 (1933); and Black,
    [Construction and Interpretation of Laws]{.smallcaps} § 75 (2d edn.
    1911). The principle may be stated alternatively as: \"\[w\]ords are
    to be interpreted according to the proper grammatical effect of
    their arrangement within the statute\" See Harris v. Commonwealth,
    142 Va. 620, 1288 SE 578 (1925); Black, [Construction and
    Interpretation of Laws]{.smallcaps} § 55 (2d edn. 1911); and
    Sutherland, [Statutory Construction]{.smallcaps} § 408 (2nd edn.
    1904).

[^25]: Moreover, when the Commission created a permanent \"Office of the
    Officer of the Commission,\" it expressly indicated that this office
    was intended not to *constitute* the statutory \"officer of the
    Commission\" referenced in §§ 3624 and 3661 but rather to *support*
    that officer, who would continue to be \"*designated at the
    commencement of each rate and classification proceeding*\" (emphasis
    added). *See* Docket No. RM82-2, Order No. 433, Organization (June
    1, 1982), at 2 (\"This statement provides policy guidelines for the
    Officer of the Commission (OOC) designated at the commencement of
    each rate and classification proceeding, and the supporting
    permanent \'Office of the Officer of the Commission\'\"). *See also*
    Docket No. RM99--3, Order No. 1255 (64 Fed Reg. 37401 \[July 12,
    1999\]), where the Commission described Order No. 433 as having
    \"issued policy guidelines for the officer of the Commission (OOC)
    (and for the permanent staff assigned to the OOC)\" and then added:

    > *Subsequently, the Commission designated a staff unit as the
    > Office of the Consumer Advocate (OCA).* The director of the OCA is
    > *generally* appointed as the officer of the Commission responsible
    > for representing the interests of the general public. \[Emphasis
    > added.\]

    Order No. 1255\'s statement that the director of that office was
    \"generally\"\--i.e., not invariably or necessarily\--\"appointed as
    the officer of the Commission responsible for representing the
    interests of the general public\" disproves Valpak\'s assertion that
    the Commission\'s practice was \"to have one person heading a
    permanent office who would be responsible for the important function
    of representing the interests of the general public in all public
    proceedings.\"

[^26]: Valpak cites North Haven Board of Education v. Bell, 456 U.S.
    521, 535 (1982), in support of its argument that \"the visibility of
    the single consumer advocate under PRA before Congress, gives rise
    to the inference that Congress intended, by its enactment of 39
    U.S.C. section 505, the continued appointment of a single
    individual.\" Initial Comments at 13. That case actually states a
    somewhat different proposition:

    > Where \"an agency\'s *statutory construction* has been \'fully
    > brought to the attention of the public and the Congress,\' and the
    > latter has not sought to alter *that interpretation*, although it
    > has amended the statute in other respects, then presumably *the
    > legislative intent \[of the original statute\] has been correctly
    > discerned*.

    464 U.S. 535 (emphasis added; internal citations omitted).

    The logic underlying this canon of construction plainly has no
    application to longstanding *discretionary practices* of agencies.

    Valpak points to no evidence that the Postal Rate Commission
    interpreted the PRA as *requiring* that there be \"one person
    heading a permanent office\" of public representative (Valpak
    Initial Comments at 15), nor can any provision of the PRA plausibly
    be interpreted in that fashion. Without evidence of a longstanding,
    publicly known view on the Commission\'s part *that it was required
    by some provision of the PRA* to follow the practice, the most that
    the re-enactment of the identical language could imply is that
    Congress did not view the practice as legally impermissible.

[^27]: That regulation provided, in relevant part, as follows:

    > Office of the Consumer Advocate.
    >
    > \(a\) The Office of the Consumer Advocate provides representation
    > for the interests of the general public in Commission proceedings.
    > The office prepares and litigates before the Commission legal and
    > evidentiary presentations in all formal Commission dockets under
    > chapter 36 of title 39, U.S. Code. It also is responsible for
    > maintaining a continuing litigation capability including
    > preparation for consideration of issues likely to reflect the
    > interests of the general public in subsequent proceedings.
    >
    > \(b\) The head of this office is responsible for directing both
    > legal and technical personnel to fulfill its functions. The office
    > includes both litigation attorneys and a broad spectrum of
    > technical expertise to analyze and evaluate the diverse economic,
    > cost and market issues before the Commission. During the pendency
    > of a proceeding, personnel serving in the Office of the Consumer
    > Advocate are prohibited from participating or advising as to any
    > intermediate or Commission decision in that proceeding pursuant to
    > the Commission Rules of Practice.
    >
    > \[48 FR 13168, Mar. 30, 1983, as amended at 64 FR 37402, July 12,
    > 1999\]

[^28]: Note that the Federal Rules of Civil Procedure are not
    presumptively or inferentially applicable to § 3662 proceedings,
    which are not \"formal\" or \"trial type\" proceedings subject to
    the requirements of a hearing on the record under §§ 556 and 557 of
    the APA but rather \"informal\" proceedings subject to the minimal
    procedural requirements of §§ 552 and 553 of the APA. *See* note 7
    above.