The Postal Regulatory Commission has denied a request from the Newspaper Association of America’s motion to stay the deal between USPS and Valassis..
NAA seeks a stay of Order No. 1448 pending resolution of its petition for review filed in the United States Court of Appeals for the District of Columbia Circuit. 6 See Newspaper Association of America v. Postal Regulatory Commission, No. 12-1367 (D.C. Cir.) (NAA v. PRC).7 It argues that if a stay is not granted, there is a strong likelihood that NAA’s members will be irreparably harmed within 90 days because they would be unable to take advantage of the discounted rates granted only to Valassis by the Order. Id. at 4. NAA claims that although the Order anticipates that the NSA will grant discounts in only a limited number of markets, nothing in the NSA limits the availability of the discounts. Id. It proposes that factors recently used by the Commission in another proceeding8 form the appropriate standard of review here, namely, (1) NAA has a substantial likelihood of success on the merits; (2) NAA would suffer irreparable harm if the preliminary injunction is not granted; (3) the balance of equities favor issuing an injunction; and (4) the issuance of an injunction is in the public interest. Id. at 2. NAA’s claim of irreparable harm is not persuasive. It presents no new evidence to bolster this claim. Instead, it merely refers to “harms demonstrated in the record of this proceeding by the unprecedented number of declarations and affidavits submitted by newspapers from across the nation, both large and small businesses.” Motion at 3.
The Commission carefully considered and rejected the newspapers’ assertions that the NSA would cause unreasonable harm to the marketplace. See Order No. 1448 at 26-33. The Commission determined that the market for the distribution of advertising circulars is competitive; that the NSA would provide a net financial benefit to the Postal Service; that it would not cause unreasonable harm to the marketplace; and that it would be available on reasonable terms to similarly situated mailers. Ultimately, the Commission found that the NSA is in the public interest because it protects competition and benefits consumers, in this context, national retailers advertising durable and semi-durable goods. Id. at 26. Thus, on balance, the public interest outweighs NAA’s more narrow interests.
NAA’s claim of irreparable harm, like the newspapers’ general contention of unreasonable harm to the marketplace, remains unpersuasive. Although no new evidence was filed in this matter, in its contemporaneously filed Emergency Motion, NAA refers to “detailed survey data demonstrating that newspaper companies stand to lose about $1 billion in advertising revenues, out of a category of $2.5 billion (resulting in an approximately 40 percent decrease in business), if the Valassis NSA becomes effective.” Emergency Motion at 9. This claim cannot be reconciled with the limited reach of the NSA.