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Additional Details on Mailer Groups’ Reply Briefs

Our coalition of mailing groups filed a reply brief on July 19th to the PRC’s brief, and the USPS filed one too.  Major steps remaining include final briefs on July 26th, and oral arguments on September 13th.  The appeals court decision will be sometime after that.  ACMA’s co-litigant, the Alliance of Nonprofit Mailers detailed summary below:

  • The Commission claims that modern rate regulation as set forth in the Postal Accountability & Enhancement Act (PAEA) of 2006 (heretofore referenced as 39 U.S.C. §3622(d)(3) ) “unambiguously” and “expressly” authorized it to replace the inflation-based price cap and other statutory requirements as part of its ten-year review. But it concedes that the provision does not “spell [this] out,” and it inserts missing words while ignoring existing ones to support its erroneous interpretation. The Court cannot “add words to the law to produce what is thought to be a desirable result. That is Congress’s province.”
  • The Commission claims that its power to adopt an “alternative system” “necessarily” allows it to jettison statutory requirements because 39 U.S.C. §3622(d)(3) would otherwise be “superfluous.” Nothing in the statute supports that radical result and the statute leaves much for the Commission to do, both initially and upon its 10-year review, even with the statutory requirements intact.
  • The Commission insists that 39 U.S.C. §3622(d)(3) refers to a statutory “system established by the entirety of 39 U.S.C. §3622(d)(3).” But there is no statutory system; the only “system” contemplated by the statute is the one created by regulation — and it is the regulatory system, not the statutory requirements, that the Commission has the power to alter or replace.
  • Finally, the Commission does not seriously contend with the mailers’ argument that any delegation should be narrowly interpreted so as to avoid constitutional infirmities. Absent a price cap that coheres Congress’ policies, the Commission is left with statutory objectives that it concedes are in tension with one another, and thus cannot reasonably be said to provide clear policy and boundaries.
  • The Commission’s density adjustment is arbitrary and capricious because the Commission failed to assess the adjustment’s effects on the very problem — volume decline — that the Commission was ostensibly solving, and it ignored record evidence showing that the adjustment would actually exacerbate the problem.
  • The Commission also ignored revenues in the density-adjustment formula, which is irrational when the goal of the entire enterprise is to account for insufficient revenues to cover total costs. Providing rate authority regardless of whether USPS revenues are increasing severs the rational connection between the problem and the solution.
  • In addition, the Commission’s rules are arbitrary and capricious because they do not reasonably account for, let alone balance, the statutory objectives of maximizing incentives to reduce costs and maintaining stable and predictable rates. Having prices rise by amounts that double and triple past increases, based on annual modifications that are unknown until the USPS files its calculations and the Commission approves them, and that go into effect mere months later, will leave the USPS with little incentive to cut costs and will render rates anything but predictable and stable. So, the Commission falls back on USPS’s “inherent incentive” “to exercise business judgment about what rates the market can bear.” But preventing USPS from pricing monopolistic products at what the market will bear is why Congress limited rates in the first place.

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Lynn Noble

President & Executive Director

New Member Development & Acquisition; Postal Affairs

Lynn Noble is ACMA’s Vice President, Industry Relations, having joined the ACMA in May 2015, following an extensive direct marketing career in private industry as well as the US Postal Service. He is responsible for leading the membership development efforts for the ACMA through new member acquisitions and providing enhanced member value.

Throughout his career, Lynn has held key marketing & sales positions with several leading direct marketers, as well as several high-level management positions with the US Postal Service.

In 2009, at the request of the ACMA, the US Postal Service initiated a new position of Catalog Manager to lead the Service’s efforts to stabilize and grow the catalog industry. Lynn returned to the USPS to lead those efforts and was instrumental to developing a stronger industry partnership between the Postal Service and the catalog industry. Serving as the product manager for catalogs, Lynn helped to raise the awareness of catalog-specific business challenges within the executive ranks of the USPS. During his tenure, the ACMA and catalog companies enjoyed a collaborative and progressive environment that produced more stabilized rates and inclusion in key USPS promotional opportunities.

Just prior to joining the ACMA Lynn was the USPS’s Manager, Strategic Account Operations, leading a team of senior sales professionals who focused exclusively in the Catalog, Mail Order, and E-commerce arena. In addition to his Postal positions, Lynn previously held key positions with leading direct marketing companies, including Cox Target Media, Market Logic, Catalina Marketing, Freesamples.com, and Advantage Direct.

Paul Miller

Vice President & Deputy Director

Association Matters, Marketing / Communications, Membership Relations

Named Vice President & Deputy Director in January 2010, Miller came to the ACMA following a lengthy career of more than two decades following the catalog/multichannel/e-commerce/retail businesses. Reporting to ACMA president & executive director Hamilton Davison, Miller oversees marketing and communications, membership development, and organizes and oversees ACMA’s National Catalog Forum, while working with Davison on most of ACMA’s postal-related efforts.

Miller started his career as a reporter with Catalog Showroom Business, following a form of retailing that was led by the likes of the Service Merchandise and Best Products retail chains.

After several years of editor/reporter roles with business magazines that followed the toy and gift industries, Miller was named associate editor of Catalog Age magazine (now Multichannel Merchant) in 1986. He rose up the ranks at Catalog Age over the next 18 years to be the magazine’s senior news editor.

Beginning in the late ’80s, Miller became Catalog Age’s postal beat reporter, where he’d follow key postal events and pull out the key catalog mail-related issues for readers. During that time, he attended many Mailers Technical Advisory Committee (MTAC) meetings and National Postal forums.

After leaving Catalog Age in 2004, Miller consulted with several catalogers and multichannel suppliers for a time, he was named news/website editor at Commercial Property News. Less than a year later, he was asked to take the reigns at Catalog Success (now All About ROI) where he served as editor-in- chief from 2006 till the end of 2009.

 

Mike Plunkett

President & Executive Director

Washington, legislative, lobbying matters

ACMA appointed Michael K. Plunkett as its President and Executive Director in January 2024, succeeding founder Hamilton Davison. Mr. Davison moved on to own and run a company. Mr. Plunkett brings years of executive leadership experience having been the President and CEO of the Association for Postal Commerce (PostCom) since 2017.  In the newly-formed dual role, he will continue his current role with PostCom and the two organizations will operate separately.

During his tenure, PostCom has continued to lead the mailing and shipping industry on policy and regulatory matters and to work with Government agency partners to advance issues of importance to members. Mr. Plunkett is also President of the Delivery Technology Advocacy Council, a nonprofit launched in 2020 to concentrate on delivery and logistics technologies.

Prior to PostCom, Mr. Plunkett accumulated more than 25 years Postal experience with the United States Postal Service in numerous executive roles in operations, marketing, product development and pricing.  As a leader within the Postal Service’s management team, Mr. Plunkett developed a well-earned reputation for innovation by leading efforts to develop pricing agreements for domestic services and in the development of the forever stamp and the priority mail flat rate box.

Mr. Plunkett has testified on pricing and policy issues before the Postal Regulatory Commission and Congressional subcommittees.  He has authored and presented papers on postal policies, economics, and operations for National and International conferences.

Mr. Plunkett holds Masters Degrees in Business from the Wharton School at the University of Pennsylvania and the Massachusetts Institute of Technology, where he was a Sloan Fellow. He earned a Bachelor Degrees in Economics and Finance from the Pennsylvania State University.