In a ruling earlier this week the DC Circuit Court of Appeals was highly critical of the Postal Regulatory Commission’s order terminating a licensing arrangement between the USPS and Lepage’s Products. The Court found that “The Commissionâ€™s order is rife with anomalies, any one of which is sufficient to justify a remand, and all of which, when considered together, demonstrate the Commission was proceeding in a slapdash manner.”
The USPS had licensed Lepage’s to use the USPS brand on bubblewrap that it sells in retail outlets. Under the 2006 PAEA law, the PRC was required to review “non-postal” activities of the USPS, and terminate any that were found not to fill a public need, or that the private sector could satisfy. The PRC decided that the bubblewrap program was a non-postal activity, since the only activity the USPS was engaged in was the act of licensing its brand. But even though the Commission had already held that licensing served a public need (providing funds for the USPS), and was, by definition, something the private sector could not provide, it ordered the USPS to terminate the bubblewrap program.
The Commission had previously approved other similar licensing schemes, like ReadyPost and greeting cards, but found that the bubblewrap program didn’t provide a service that the private sector couldn’t fulfill. The problem with the Commission’s finding was that it had seemingly forgotten that the activity it was being asked to rule on wasn’t the sale of bubblewrap, but simply the licensing of the USPS brand- something the private sector obviously couldn’t provide!
The Court found the Commission’s order was inconsistent with its own previous decisions, as well as with the law: “The Commission does not explain how it can read the same evidence differently when applied to different aspects of the same program.”
The Court ordered the PRC to revisit its decision, and suggested none too subtly that it had a lot of work to do:
For the foregoing reasons, we grant the petitions to review he Phase II order, vacate the order, and remand for further proceedings consistent with this opinion. The Commission has much work to do on remand remedying the abundant inconsistencies in its order.