In the Matter of the Complaint Against

ASSOCIATED TELEPHONE DIRECTORY PUBLISHERS, INC.

and

ATD

and

ATD ADVERTISING DEPARTMENT-YELLOW PAGES
P. O. Box 3309
Corpus Christi, TX 78404-0309

and

P. O. Box 3387
Corpus Christi, TX 78404-0387

and

P. O. Box 6170
at Huntsville, TX 77340-2270

P.S. Docket No. 13/191;

Cohen, James A.

APPEARANCES FOR COMPLAINANT:
H. Richard Hefner, Esq.
Clark C. Evans, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Clyde J. Jackson, Jr., Esq.
3210 S. Alameda Corpus
Christi, TX 78404-2508

POSTAL SERVICE DECISION
ON MOTION FOR RECONSIDERATION

The Postal Service Decision in this case, Associated Telephone Directory Publishers, Inc., etc., P.S. Docket No. 13/191 (P.S.D. Jan. 25 1984), held that Respondent is engaged in a scheme or device to obtain money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005. However, the Postal Service Decision overruled the portions of an Administrative Law Judge's Initial Decision in this case which concluded that Respondent's circulars constitute nonmailable matter under 39 U.S.C. § 3001(d). Complainant has filed a Motion for Reconsideration contending that the Postal Service Decision erred in overruling the findings and conclusions of the Initial Decision relating to the mailability issue. Although afforded the opportunity to reply to the Motion, Respondent has not done so.

The issue of nonmailability under 39 U.S.C. § 3001(d) is whether Respondent's advertising circulars or solicitations are "in the form of, and reasonably could be interpreted or construed as, a bill, invoice, or statement of account due." In its Motion for Reconsideration Complainant asserts that the testimony of its witnesses that they believed the circulars were bills, invoices or statements of account due must have been disregarded on appeal. It argues that only the Administrative Law Judge had the opportunity to observe the demeanor of the witnesses, to assess their reliability, to accord appropriate weight to their perceptions, and to determine whether the witnesses were representative of ordinary readers. Complainant cites Coscia v. Willard, 257 F.2d 105 (2d Cir. 1958), cert. denied, 358 U.S. 885; Gooding v. Willard, 209 F.2d 913 (2d Cir. 1954); Kwasizur v. Cardillo, 175 F.2d 235 (3d Cir. 1949) to support its argument that the findings of the initial trier of fact should not be overturned on the reliability and credibility of the witnesses.

The cases cited by Complainant involve court review of agency decisions. As those cases illustrate, reviewing courts are not to substitute their own differing view of the evidence for that of an administrative agency. Instead, a court is to review the record to determine whether the agency decision is supported by substantial evidence. In contrast, an agency reviewing an Administrative Law Judge's decision under the Administrative Procedure Act is authorized to decide all issues de novo. See, F.C.C. v. Allentown Broadcasting Corp., 349 U.S. 358 (1955); Containerfreight Transp. Co. v. I.C.C., 651 F.2d 668 (9th Cir. 1981); Hamlin Testing Labs., Inc. v. A.E.C., 357 F.2d 632 (6th Cir. 1966). The Judicial Officer is the "agency" under the Administrative Procedure Act for the purpose of making final Postal Service decisions under 39 U.S.C. ??3001 and 3005. See, 39 U.S.C. § 204; 39 C.F.R. § 224.1(c)(4). The Judicial Officer's review of an Administrative Law Judge's decision is conducted under the preponderance of the evidence" standard. Telex and twx Directory, P.S. Docket No. 13/6 (P.S.D. April 1, 1983) and cases cited therein.

The entire record in this case was reviewed in considering Respondent's appeal from the Administrative Law Judge's initial Decision and in making the final agency decision (see 39 C.F.R. § 952.26). The issue raised under 39 U.S.C. § 3001(d) was not resolved on the basis of the credibility of the witnesses. Rather, the solicitations themselves were found to be more persuasive than the testimony of Complainant's witnesses on the issue of whether they were in the form of and could reasonably be construed by an ordinary reader to be a bill, invoice or statement of account due. See Telex and twx Directory, supra, at 9.

Accordingly, the Motion for Reconsideration is denied.