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FN1. The Humane Society's complaint originally addressed both The Feathered Warrior and The Gamecock, but settlement was reached in another case with regard to The Gamecock [dkt # 34].
(c) ... It shall be unlawful for any person to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture except as performed outside the limits of the States of the United States.
*2 (d) ... Notwithstanding the provisions of subsection (c) of this section, the activities prohibited by such subsection shall be unlawful with respect to fighting ventures involving live birds only if the fight is to take place in a State where it would be in violation of the laws thereof.
(e) ... It shall be unlawful for any person to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture.
FN2. Prior to June 18, 2008, subsection (c) made it unlawful for any person to “knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of promoting or in any other manner furthering an animal fighting venture except as performed outside the limits of the States of the United States.”
FN3. Section 601.12.5.7 of the DMM states that “[w]ritten, printed, or graphic matter (e.g., advertisements or other commercial speech) promoting or furthering an animal fighting venture conducted in any state (except a venture involving live birds permitted under the laws of the state in which the fight is conducted) is nonmailable under 7 USC 2156.”
We appreciate your concern and thank you for bringing these matters to our attention. However, we cannot take the requested actions at this time....We interpret our mailing standards to mean that bird fighting magazines are generally mailable; however, advertisements of bird fights are nonmailable if the fights are to take place in states that have outlawed the practice. Based on this interpretation, we cannot identify nonmailable advertising in the [ ] publications that you sent to us.... If you can point to another authority that would suggest alternative interpretations of the AWA statute that gave rise to our mailing standards, we will reconsider our conclusions.
Although the Act did clarify the scope of 7 U.S.C. § 2156(c) as including all instrumentalities “of interstate commerce for commercial speech”, because the Act did not alter its direct application to the Postal Service, I do not believe this change affects my previous interpretation. The absence of any change to the plain language of the statute which addresses the Postal Service prevents me from adopting contrary intentions expressed within the Act's legislative history.
Likewise, the Act's addition of a provision criminalizing the sale, purchase, transport, or delivery in interstate or foreign commerce of bird-fighting accessories did not include among its prohibitions any ban on advertising of such items. 7 U.S.C. § 2156(e).
Therefore, the mailability of these magazines, which appear to contain such advertisements, remains unchanged.