Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Notices 34375 

5See Complaint at para. 2 (the rates and services 

offered to high volume DVD mailers violate sections 

101(d) and 403(c), which prohibit undue 

discrimination, and inequitable rates and 

practices.); see also Answer at para. 2; and see 

generally Docket No. C2001–1, Order Partially 

Denying Motion of United States Postal Service to 

Dismiss Complaint and Notice of Formal 

Proceedings, March 20, 2001, at 9 n.11. 

1Notice of United States Postal Service of Filing 

of Functionally Equivalent Inbound Direct Entry 

Contracts, Negotiated Service Agreement, June 29, 

2009 (Notice). 

2See Docket No. MC2008–6, Decision of the 

Governors of the United States Postal Service on the 

Establishment of Prices and Classifications for 

Inbound Direct Entry Contracts with Foreign Postal 

Administrations (Governors’ Decision No.08–6), 

May 6, 2008. 

3See PRC Order No. 105, Order Concerning 

Prices Under Inbound Direct Entry Contracts with 

Certain Foreign Postal Administrations, September 

4, 2008, at 8 (Order 105). 

101(d) and 403(c), unless the allegations 

otherwise fail to state a colorable claim.5

The Postal Service’s dismissal motion 

overlooks that the contested counts 

expressly include other allegations 

based upon section 101(d). Each count 

plainly has at least one clear statutory 

basis upon which to seek recourse. 

Thus, despite its apparent reliance on 

section 404(b) at the very end of the 

counts, GameFly still satisfies the 

standards of pleading statutory 

authority at this juncture. See 

Complaint at 1, citing 39 U.S.C. 101(d), 

and 403(c). The Commission has 

determined that the Postal Service’s 

Motion for Partial Dismissal must 

therefore be denied. 

The Commission finds that the 

pleadings raise issues of both law and 

fact relevant to whether or not the 

actions, or inactions, of the Postal 

Service violate 39 U.S.C. 101(d) or 

403(c), either by (a) Rising to the level 

of undue discrimination or preferences 

among users of the mails, or (b) charging 

rates inequitably among such mailers. 

39 U.S.C. 3662(b). 

IV. Prehearing Conference and Public 

Representation 

A prehearing conference is scheduled 

for July 23, 2009 at 10 a.m. in the 

Commission’s hearing room. 

GameFly and the Postal Service must 

meet and confer at least two weeks 

before the conference date to consider 

the appropriate scope and timeframes 

for discovery. Discussion should 

separately address each of the categories 

mentioned in the Complaint. See 

Complaint at para. 41. They shall jointly 

prepare a prehearing conference 

memorandum that identifies relevant 

undisputed facts. They shall offer 

suggestions, and be prepared to discuss 

the proper scope of discovery and the 

dates to complete discovery and to 

present their cases. They are urged to 

stipulate to an orderly process that 

streamlines the discovery schedule so as 

to reduce the need for motions on any 

special challenges. Where a mutually 

acceptable process cannot be agreed to, 

GameFly and the Postal Service shall 

fashion a joint statement clarifying areas 

of contention. The joint prehearing 

conference memorandum, with any 

related proposed stipulations, must be 

filed no later than July 20, 2009. 

V. Opportunity for Intervention 

Except as otherwise specified above, 

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 (http:// 

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 July 

22, 2009. 

Pursuant to 39 U.S.C. 505, E. Rand 

Costich and John Klingenberg are 

appointed to serve as officers of the 

Commission (Public Representative) to 

represent the interests of the general 

public in the above-captioned docket. 

VI. Ordering Paragraphs 

It is ordered: 

1. The Commission finds that the 

Complaint by GameFly, Inc., filed April 

23, 2009, regarding violations of law by 

the Postal Service, raises material issues 

of fact and shall begin proceedings in 

this Complaint. 

2. The Motion of GameFly, Inc. for 

Leave to File Reply to Request of the 

United States Postal Service for 

Disposition of Complaint, filed June 2, 

2009, is granted. 

3. The Motion of the United States 

Postal Service for Partial Dismissal of 

Complaint, filed May 26, 2009, is 

denied. 

4. The Commission will sit en banc in 

this proceeding. 

5. The deadline for filing any notices 

of intervention is July 22, 2009. Notices 

shall indicate whether the intervening 

party intends to participate in the 

hearing and the nature of that 

participation. 

6. A prehearing conference will be 

held in the Commission’s hearing room 

on July 23, 2009 at 10 a.m. At least two 

weeks before the conference, the parties 

shall meet and confer on discovery. 

They shall prepare a joint prehearing 

conference memorandum that must be 

filed no later than July 20, 2009. 

7. The Commission appoints E. Rand 

Costich and John Klingenberg as Public 

Representative to represent the interests 

of the general public in this proceeding. 

8. The Secretary shall arrange for 

publication of this order in the Federal 

Register. 

By the Commission. 

Judith M. Grady, 

Secretary. 

[FR Doc. E9–16782 Filed 7–14–09; 8:45 am] 

BILLING CODE 7710–FW–P 

POSTAL REGULATORY COMMISSION 

[Docket No. CP2009–41; Order No. 237] 

New Competitive Postal Product 

AGENCY: Postal Regulatory Commission. 

ACTION: Notice. 

SUMMARY: The Commission is noticing a 

recently filed Postal Service request to 

add an additional Inbound Direct Entry 

Contract to the Competitive Product 

List. The Postal Service has also filed a 

related contract. This notice addresses 

procedural steps associated with these 

filings. 

DATES: Comments are due July 10, 2009. 

ADDRESSES: Submit comments 

electronically via the Commission’s 

Filing Online system at http:// 

www.prc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

202–789–6820 and 

stephen.sharfman@prc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On June 29, 2009, the Postal Service 

filed a notice, pursuant to 39 U.S.C. 

3633 and 39 CFR 3015.5, announcing 

that it has entered into an additional 

Inbound Direct Entry Contract (IDE), 

which it states fits within the previously 

established Inbound Direct Entry 

Contracts.1 The Postal Service states 

that the instant constant is functionally 

equivalent to previously submitted IDE 

contracts and is supported by the 

Governors’ Decision 08–6 filed in 

Docket No. MC2008–6.2 Notice at 2. 

The Notice also references Order No. 

105 which established the individual 

IDE contracts in Dockets Nos. CP2008– 

14 and CP2008–15 as functionally 

equivalent and added the contracts to 

the competitive product list as one 

product under the IDE classification.3

The IDE service allows the Postal 

Service to provide foreign postal 

administrations with the ability to ship 

sacks of parcels that are pre-labeled for 

direct entry into the Postal Service’s 

mail stream, in exchange for applicable 

domestic postage plus a sack handling 


sroberts on DSKD5P82C1PROD with NOTICES
34376 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Notices 

4Attachment 1 was revised by Notice of United 

States Postal Service of Filing Erratum to 

Attachment 1 to Notice of United States Postal 

Service of Filing Functionally Equivalent Inbound 

Direct Entry Contracts Negotiated Service 

Agreement, June 30, 2009. 

5The Postal Service states that the other domestic 

mail services are the same as in Docket Nos. 

CP2008–14 and CP2008–15, but the instant contract 

reflects the updated Priority Mail rate structure 

based on the price adjustments for competitive 

products in Docket CP2009–8. 

fee. The core of the service is the sack 

handling and entry as domestic mail 

and it is not dependent on the 

underlying domestic mail services. The 

Postal Service states that the instant 

contract is functionally equivalent to the 

IDE contracts previously submitted, fits 

within the Mail Classification Schedule 

(MCS) language included as Attachment 

A to Governors’ Decision No. 08–6 and 

should be included within the IDE 

Contracts product. Notice at 2. 

The instant contract. The Postal 

Service filed the instant contract 

pursuant to 39 CFR 3015.5. The contract 

is with P&T Express Mail Service Joint 

Stock Company (VNPE). VNPE is 

established under the auspices of the 

Vietnam Post and Telecommunications 

Group, the public postal administration 

for Vietnam, responsible for Vietnam’s 

compliance with international 

obligations relative to Express Mail 

Service. The Postal Service submitted 

the contract and supporting material 

under seal and attached a redacted copy 

of the contract and certified statement 

required by 39 CFR 3015.5(c)(2) to the 

Notice. Id., Attachments 1 and 2 

respectively.4

The Postal Service will notify the 

customer of the effective date of the 

contract within 30 days after receiving 

all regulatory approvals. The contract 

term is 1 year from the effective date. 

The contract is subject to automatic 

renewal after the 1 year term unless the 

parties determine otherwise. Id., 

Attachment 1. 

The Notice advances reasons why the 

instant IDE contract fits within the Mail 

Classification Schedule language for IDE 

contracts. The Postal Service states that 

the instant contract is functionally 

equivalent to the IDE contracts filed 

previously because it shares similar cost 

and market characteristics and 

therefore, the contracts should be 

classified as a single product. Id. at 3– 

4. It states that in Governors’ Decision 

No. 08–6, a pricing formula and 

classification system were established to 

ensure that each contract meets the 

statutory and regulatory requirements of 

39 U.S.C. 3633. The Postal Service states 

that the costs of each contract must 

conform to a common description and 

the contract language of the MCS 

prescribes that each IDE contract must 

cover its attributable costs. Id. 

The Postal Service reports that the 

instant contract covers the same 

domestic services as those in Docket 

Nos. CP2008–14 and CP2008–15 except 

for the addition of the Priority Mail 

small flat rate box. It asserts that in 

‘‘almost all substantive respects,’’ the 

instant IDE contract resembles the 

contracts in CP2008–14 and CP2008–15. 

Id. at 4. The Postal Service contends 

that even though fees or the underlying 

domestic services offered may be 

different, these distinctions do not affect 

the contracts’ functional equivalence 

because the total costs associated with 

IDE Contracts are volume variable and 

the basic service offered of handling 

inbound sacks in the domestic mail 

stream is the same. Id. Other changes 

include language to update changes in 

policies and product structures and 

terms to clarify the applicability of 

Postal Service export requirements. Id. 

The Postal Service also affirms the 

instant contract has material differences 

reflected in the language of this 

agreement compared to other IDE 

contracts. Id. These differences include: 

(1) The 1 year term of the instant 

contract is subject to automatic renewal 

which differs from the contracts in 

CP2008–14 and CP2008–15 which are 

automatically renewed unless 

terminated; (2) Priority Mail small flat 

rate box has been added as a domestic 

mail type which Vietnam Post can 

access via IDE service while other 

included domestic mail services 

included are the same as in previous 

contracts but have updated rate 

structures; 5 (3) terms are included 

which express the parties’ wish to 

explore future opportunities for volume 

based discounts which the Postal 

Service states does not represent a new 

commitment; (4) terms that clarify 

charges for non-conforming size or 

weight items, and Delivery 

Confirmation charges for First-Class 

Mail parcel items; (5) language which 

explains the need for a permit 

application fee; (6) terms which address 

changes to IDE customer payment 

requirements upon detention or seizure 

of mail by Customs and Border 

Protection; and (7) terms to explain the 

use of the Centralized Trust Account 

payment method as applicable to 

Vietnam’s financial regulatory 

requirements which were not offered in 

the contract for CP2008–14. Id. at 5–6. 

The Postal Service maintains that 

these differences only add detail or 

amplify processes included in previous 

IDE contracts and do not affect the 

fundamental service being offered or the 

essential structure of the contracts. Id. at 

7. It asserts that the contracts are 

substantially equivalent in all pertinent 

respects. Id. 

The Postal Service maintains that 

certain portions of the contract and 

certified statement required by 39 CFR 

3015.5(c)(2), related financial 

information, portions of the certified 

statement which contain costs and 

pricing as well as the accompanying 

analyses that provide prices, terms, 

conditions, and financial projections 

should remain under seal. Id. at 2–3. 

II. Notice of Filing 

The Commission establishes Docket 

No. CP2009–41 for consideration of the 

matters related to the contract identified 

in the Postal Service’s Notice. 

Interested persons may submit 

comments on whether the instant 

contract is consistent with the policies 

of 39 U.S.C. 3632, 3622, or 3642. 

Comments are due no later than July 10, 

2009. 

The public portions of these filings 

can be accessed via the Commission’s 

Web site (http://www.prc.gov). 

The Commission appoints Paul L. 

Harrington to serve as Public 

Representative in this docket. 

III. Ordering Paragraphs 

It is Ordered: 

1. The Commission establishes Docket 

No. CP2009–41 for consideration of the 

issues raised in this docket. 

2. Comments by interested persons in 

these proceedings are due no later than 

July 10, 2009. 

3. Pursuant to 39 U.S.C. 505, Paul L. 

Harrington is appointed to serve as 

officer of the Commission (Public 

Representative) to represent the 

interests of the general public in these 

proceedings. 

4. The Secretary shall arrange for 

publication of this order in the Federal 

Register. 

Dated: July 1, 2009. 

By the Commission. 

Judith M. Grady, 

Acting Secretary. 

[FR Doc. E9–16584 Filed 7–14–09; 8:45 am] 

BILLING CODE 7710–FW–P 

POSTAL REGULATORY COMMISSION 

[Docket No. R2009–4; Order No. 236] 

Postal Service Price Changes 

AGENCY: Postal Regulatory Commission. 

ACTION: Approval of price changes. 

DATES: Implementation is scheduled for 

July 19, 2009. 


sroberts on DSKD5P82C1PROD with NOTICES