76Implications of ElectronicMail and Message Systems forthe U.S. Postal Service
Legality of USPS Role in EMS
From a strictly legal perspective, some pri
vate firms have argued that a USPS role in
EMS (other than delivery of hardcopy output)
is beyond the mandate of the Postal Reorgani
zation Act of 1970, and is in direct conflict
with Federal Communications Commission
(FCC) regulations promulgated pursuant to
the Communications Act of 1934 and with Of
fice of Management and Budget regulations
concerning Federal Government procurement
of goods and services from and competition
with the private sector.
The Postal Reorganization Act mandates
USPS to "provide prompt, reliable, and effi
cient service," "give the highest consideration
to the requirement for the most expeditious
collection, transportation, and delivery of im
portant letter mail," and "emphasize the need
for facilities and equipment designed to create
. a maximum degree of convenience for effi
cient postal services . . . and control of costs
to the Postal Service."'Thus, USPS views its
use of electronic equipment and technology as
consistent with the Postal Act and as a sim
ple extension of its prior use of, for example,
automated sorting machines to carry outpost
al policy as defined in the act. From this
perspective, EMS technology would be consid
ered, along with the stagecoach, pony express,
railroad, truck, and airplane, as another step
in a long succession of new technologies used
to expedite the provision of postal services. No
private firm or Government agency has suc
cessfully challenged the USPS interpretation
on legal grounds. In its original Opinion and
Recommended Decision, PRC supported the
use of EMS technology by USPS although it
differed with USPS in the application of that
technology. More specifically, the PRC recom-
mended that USPS provide only the printing,
enveloping, and hardcopy delivery functions
and not the telecommunication function."
'"Public Law 91-375, sec. 101(a), (e), and (g).
"'U.S. Postal Rate Commission, Opinionand Recommended
Decision on Electronic Mail Classification Proposal docket No.
MC78-3, Dec. 17, 1979, pp. 278ff.
The PRC Recommended Decision was based
substantially on its finding that "the general
obligation imposed on regulatory agencies to
consider and promote competitive policies ap
plies to this Commission.""2 The PRC decision
was also based on the clearly procompetitive
policy of FCC and the fact that the FCC as
serted jurisdiction over the original USPS
E COM proposal, primarily on the grounds
that it included telecommunication transmis
sion functions to be provided by a telecom
munication firm (Western Union), which was
subject to FCC jurisdiction under the Commu
nications Act of 1934."PRC concluded that
competition would be best served if USPS did
not provide telecommunications. This also per
mitted PRC to avoid both a possible regula
tory impasse with FCC and any direct conces
sion of FCC jurisdiction over postal services
USPS subsequently appealed the FCC rul
ing which asserted jurisdiction over E COM.
However, the appeal was dismissed and the
FCC ruling vacated as moot by the court in
view of the PRC Recommended Decision and
USPS cancellation of the Western Union con
tract.* Thus, the court did not rule on the
merits, and the legal jurisdiction of FCC over
USPS involvement in EMS remains unclear.
However, regulatory developments since the
FCC ruling on E COM suggest that so called
"enhanced services" such as electronic mail
may not be subject to active FCC regulation
under title II of the Communications Act. In
other words, as long as USPS does not own
and operate its own telecommunication trans
mission system and uses telecommunication
services of firms who are regulated as pro
viders of so called "basic services, " the USPS
EMS offerings would not necessarily be regu
lated by FCC."4The applicable FCC decision,
known as Computer II, is still under
regulatory reconsideration and judicial chal
lenge, and also may be affected by congres
"Ibid., p. 52 (caps and underlining removed).
"Ibid., pp. 36-51.
*See related discussion in ch. 3.
"Dec. 8, 1980, letter to USPS from Philip L. Verveer of FCC.
United States. Congress. Office of Technology Assessment. Implications of Electronic Mail and Message Systems for the U.S. Postal Service. [Washington D.C.]. UNT Digital Library. http://digital.library.unt.edu/ark:/67531/metadc39480/. Accessed September 24, 2016.