In the Matter of the Complaint Against

N.E.S.T., INC. NEST EGG SOCIETY TODAY
P.O. Box 100129
at Ft. Lauderdale, FL 33310-0129

P.S. Docket No. 14/89;

Dicus, Carroll C. Jr.

APPEARANCES FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Clark C. Evans, Esq.
Consumer Protection Division
Law Department
U. S. Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Roger Barry Davis, Esq.
Davis & Feig 20451 N.W.
2nd Avenue Suite 101
Miami, FL 33169-2539

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that Respondent is in violation of 39 U.S.C. § 3005 by conducting a scheme or device for obtaining money or property through the mail by means of materially false representations and by conducting a lottery or scheme for distribution of money by chance.

Background

This proceeding was initiated by the Consumer Protection Division, Law Department, United States Postal Service (Complainant), filing a Complaint alleging that Respondent, by means of brochures soliciting remittances of money through the mail, is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations as well as a lottery or scheme for the distribution of money by chance. Specifically, Count One of the Complaint alleges that Respondent makes the following materially false representations:

"(a) Persons who become members and participate in the program are likely to earn as much as $98,415, within a few months; and

(b) Each member is likely to be able to recruit three new members."

Count Two of the Complaint alleges that Respondent's brochures "advise and encourage the recipients to become members and make further distribution of brochures" which contain the same false representations as those set forth in Count One and that "under this scheme Respondent knowingly seeks remittances of money through the mails as a result of the further distribution of the brochures made by Respondent's participating members at its express direction." Finally, Count Three of the Complaint alleges that Respondent is conducting a lottery or scheme for the distribution of money by chance through the mail in that:

"10. A prize of up to $98,415 is offered to persons who elect to become participating members.

11. Prospective members are required to pay a consideration of $15.00 in order to participate.

12. Winning a prize of $98,415 or any amount depends on the chance that persons subsequently receiving the brochures will elect to participate and be able to participate in accordance with Respondent's instructions."

Attached to the Complaint as Exhibit A was a copy of Respondent's Plan 1 brochure. ^1/

Respondent filed an Answer in which it denied the allegations of the Complaint and asserted several affirmative defenses, including that its business is not so dependent on chance as to be legally proscribed and that the brochure attached to the Complaint is no longer in use.

At a hearing before an Administrative Law Judge at which neither party presented testimony, Respondent admitted the allegations set forth in the first two counts of the Complaint (Tr. 5-6; 16-17). Accordingly, only the Count Three lottery issue remained in dispute (id.).

After the hearing, the Complaint was amended to incorporate Respondent's new materials (Plans 2 and 3), copies of which were attached thereto as Exhibits 2 and 3. ^2/ Count One of the Amended Complaint alleged that Respondent makes the following materially false representations:

"(a) Persons who elect to become participating members or distributors are likely to earn substantial amounts of money by selling memberships in NEST or sponsoring new distributors and by ultimately receiving large 'down-line' commissions as a result of sales efforts by these new members or distributors and those under them; and

(b) Each successive participating member or distributors is likely to be able to recruit sufficient numbers of new members to insure substantial earnings."

Count Two contained the same allegations as Count Two of the original Complaint, supra, except that it incorporated "distributors" as well as "members." Count Three alleged that Respondent is conducting a lottery or scheme for the distribution of money by chance through the mail in that:

"10. A prize consisting of substantial 'down-line' commissions is held out to prospective members or distributors as an inducement to participate in the NEST membership drive.

11. Respondent's scheme requires consideration in the form of substantial time and effort on the part of participating members or distributors as well as payment of membership fees by a substantial percentage of those who participate.

12. Winning a prize of any amount depends on the chance a substantial percentage of the persons subsequently receiving the brochures will elect to become participating, dues paying members and recruit ever increasing numbers of such new members through nine levels in accordance with Respondent's instructions and projections."

Respondent filed an Answer in which it denied the allegations contained in the Amended Complaint and set forth a number of affirmative defenses, including those contained in the original Answer.

A second hearing was held before the Administrative Law Judge on the allegations contained in the Amended Complaint, at which both parties presented testimony. In a subsequently issued Initial Decision (I.D.), the Administrative Law Judge concluded that all three of Respondent's plans incorporate a lottery for distribution of money or property in violation of 39 U.S.C. § 3005 (I.D. at 20). He also concluded that, under Plan 1, Respondent made the representations contained in Counts One and Two of the original Complaint and that such representations are false, based on Respondent's admission regarding these counts (I.D. at 20). However, he declined to consider the false representation allegations in the Amended Complaint, stating that a decision on these allegations was rendered unnecessary by his conclusion that Respondent's three plans incorporate an illegal lottery (id.).

Respondent timely filed an appeal from the Initial Decision to the Judicial Officer. Both parties have filed briefs. Respondent's specific exceptions to the Initial Decision are discussed below.

Exception 1

Respondent argues that the Administrative Law Judge should not have included references to Plan 1 in Findings of Fact (F.O.F.) 3-7 in the Initial Decision, as Respondent admitted the allegations in the original Complaint as to Plan 1. Plan 1 was the subject of allegations contained in both the original and Amended Complaints and was therefore properly before the Administrative Law Judge for determination. While Respondent admitted the allegations in the original Complaint regarding this plan, the Administrative Law Judge was not precluded from formally finding that false representations were made based on the admissions or describing the plan as background for this finding. Moreover, the description of Plan 1 contained in the findings to which Respondent objects is relevant to the determination of whether this plan constitutes a lottery, which was not admitted by Respondent. Accordingly, this exception is denied.

Exception 2

Respondent argues that F.O.F. 9 is inconsistent with F.O.F. 8 and also does not address activities proscribed by 39 U.S.C. § 3005 or any Federal law. In F.O.F. 8, the Administrative Law Judge found that Respondent's Plan 2, as described in its brochure, places greater emphasis on money saving opportunities than Plan 1 and states NEST's primary objective as "a source and services, opportunities, and information for its membership. It claims to be operating a 'marketing program' . . ." (I.D. at 6). In F.O.F. 9, he found that:

" d despite the increased emphasis on marketing and money saving the principal immediate purpose of the brochure is the same as the Plan 1 brochure, i.e., to persuade persons to become NEST 'distributors' and participate in the NEST Membership Drive. The lure presented is a 'part-time income' . . ." (id.).

Respondent's argument regarding inconsistency is without merit, as the principal purpose of the plans remains unchanged. Therefore, despite changes in emphasis in F.O.F. 8 and 9, they are consistent. Regarding the argument that Plan 2 does not concern activities proscribed under 39 U.S.C. § 3005, as discussed infra, the Administrative Law Judge's ultimate conclusion that Plan 2 constitutes a lottery in violation of the statute is correct. Accordingly, this exception is denied.

Exception 3

Respondent takes exception to F.O.F. 11 in which the Administrative Law Judge forecasts maximum earnings under Plan 2 despite the recognition in F.O.F. 10 that the relevant brochure does not guarantee income. In F.O.F. 11, the Administrative Law Judge found that a prospective Plan 2 member should have no difficulty in determining that he could receive $98,415 in management bonuses, although the Plan 2 brochure does not specify that figure. In so finding, the Administrative Law Judge relied on the following example contained in the Plan 2 brochure and set forth at F.O.F. 10:

"If you choose to focus your management efforts to working directly with a group of three promising new Distributors and concentrate on teaching and assisting them to do the same (i.e. 3 sponsoring 3 = 9 new Distributors each sponsoring 3 = 27 new Distributors, etc.) through your continuing efforts and influence, you might establish an organization varying from as few as one to as many as 6,561 Distributors for whom you can become Membership Coordinator. You would then be eligible to earn a $5.00 Management Bonus for each NEST membership they sell . . ." (I.D. at 7).

Using the information in this example, the Administrative Law Judge made the simple arithmetic calculation that 6,561 X 3 X $5 = $98,415 (F.O.F. 11, I.D. at 8). While, as Respondent argues and F.O.F. 10 itself notes, the Plan 2 brochure explicitly states that such "examples are theoretical" and " t these materials are not intended to imply or guarantee income," this attempted disclaimer does not adequately offset the overall effect of the specific language contained in the quoted example. See United States Postal Service v. Thielbar, No. C 80-4016 (N.D. Iowa, Feb. 28, 1980); Sara Michaels, P.S. Docket No. 5/95 (P.S.D. Feb. 2, 1978); The New Body Boutique, Inc., P.S. Docket No. 10/169 (P.S.D. July 7, 1982). The exception is denied.

Exception 4

Respondent takes exception to F.O.F. 14 because the Administrative Law Judge did not enumerate computer shopping and comparative pricing among the benefits of NEST membership. In F.O.F. 14, the Administrative Law Judge found that "NEST presently offers members a wide variety of discount purchasing opportunities as set forth in its pamphlet entitled 'FOR A BRIGHTER TOMORROW' (RX-2)" (I.D. at 8). While access to computer shopping and comparative pricing are not specifically mentioned, these services - termed the Reference and Information Shopping Exchange (RAISE) - are part of the variety of discount purchasing opportunities noted. The pamphlet "FOR A BRIGHTER TOMORROW," specifically referenced in F.O.F. 14, states:

"The RAISE service of NEST is a totally unique concept in computer shopping available exclusively for members. RAISE provides you the opportunity to price, compare and shop to buy from a selection of over 50,000 brand name products. These products are available to members at substantial discounts, ranging from 20% to 40% off manufacturer's suggested list price." (RX-2 at 3).

While this service may also be attractive to certain individuals for other reasons, it may reasonably be characterized as a discount purchasing opportunity. The exception is denied.

Exception 5

Respondent takes exception to F.O.F. 15 and 16 because the testimony reviewed therein relates only to Plan 1 during a time not specifically defined and because the testimony does not support the conclusion that substantial time and effort are necessary in participating in Respondent's program. In F.O.F. 15 and 16, the Administrative Law Judge summarized testimony by South Carolina Assistant Attorney General William Joseph Isaacs, Complainant's sole witness at the second hearing. This testimony concerns agreements reached between the State of South Carolina and NEST members in which the members agreed not to engage in pyramid sales activities and to pay civil penalties determined by the amounts received by them from pyramid organizations.

There is no indication that the Administrative Law Judge relied on the testimony in reaching his ultimate conclusions. As discussed infra, these conclusions are supported without regard to Mr. Isaacs' testimony. F.O.F. 15 and 16 therefore did not prejudice Respondent. The exception is denied.

Exception 6

Respondent excepts to the first conclusion of law wherein the Administrative Law Judge found that Respondent's Plans 2 and 3 constitute lotteries in violation of 39 U.S.C. § 3005. In Conclusion of Law 1, the Administrative Law Judge held that "Respondent's Plans 1, 2, and 3 incorporate a lottery for distribution of money or property by lottery or chance in violation of 39 U.S.C. § 3005." (I.D. at 20). This conclusion was based on his determination that both plans contained the three necessary elements of a "lottery" - consideration, prize, and chance (I.D. at 16). With respect to Plan 2, he found that the $16.50 ^3/ paid by new members to participate in a nine-level membership recruitment program constituted "consideration for the possibility of receiving substantial amounts of money for members reaching the No. 1 position." (I.D. at 16). He also found the receipt of money by persons in the No. 1 position constituted a prize (I.D. at 17). Regarding chance, he found:

" t he amount of money a member receives is dependent to some extent on the amount of time and energy he expends on selling, and helping other members to sell, memberships . . . his arrival in the No. 1 position and the amount of money he will receive on reaching that position are largely dependent upon contingencies beyond his control, i.e., the success of other members in selling new memberships and influencing new members to participate fully in the pyramid. These contingencies clearly constitute the element of chance. . . ." (I.D. at 17).

With respect to Plan 3, the Administrative Law Judge determined that while "a person may become a NEST distributor and participate fully in the 9-level program and its 'management bonuses' without payment of any monetary consideration to NEST or other participants," the recruitment of new members required in order for a distributor to earn the bonuses and the Plan 3 brochure's repeated emphasis on "effort" as the means for obtaining earnings on memberships make time and effort a substantial portion of the distributor's participation. He concluded that " i f time and effort can ever constitute consideration in a lottery case, and I believe they can, their magnitude in this case is clearly sufficient to do so." (I.D. at 17-20). ^4/ The record strongly supports the expenditure of considerable time and effort by participants (I.D. at 14-16; Tr. 109-20).

Respondent contends that the Administrative Law Judge erroneously based Conclusion of Law 1 on a postal bulletin issued on June 4, 1953, ^5/ which was referenced by the United States Supreme Court in F.C.C. v. American Broadcasting Co., Inc., 347 U.S. 284 (1954). The Administrative Law Judge correctly characterized the F.C.C. decision as citing the bulletin "without explicit criticism or other indication of disapproval . . ." (I.D. at 18). See 347 U.S. at 294. There is no indication that the Administrative Law Judge relied on this postal bulletin as providing independent legal justification for his conclusion that time and effort constituted "consideration" under Plan 3. He stated, after citing the bulletin, that:

" t he question whether consideration may be found in a substantial amount of time and effort required of a participant in an alleged lottery appears not to have been finally disposed of by the federal courts . . . It appears to me that the federal courts to this date have left the door open to finding time and effort to be consideration in an appropriate case." (I.D. at 17-18, 19).

Despite Respondent's arguments to the contrary, the Administrative Law Judge's view of the present state of Federal law as to whether time and effort can constitute consideration is correct. The cases cited by Respondent - United States v. Rich, 90 F.Supp. 624 (E.D. Ill. 1950); Peek v. United States, 61 F.2d 973 (5th Cir. 1932); and Post Pub. Co. v. Murray, 230 F. 773 (1st Cir. 1916) - involved different types of activities and therefore are not dispositive with respect to the multi-level marketing plans at issue here. See F.C.C. v. American Broadcasting Co., Inc., supra, 347 U.S. at 292-93.

Several states have found lotteries to exist where consideration was non-monetary and involved less time and effort than is apparent here. See, for example, Lucky Calendar Co. v. Cohen, 117 A.2d 487 (N.J. 1955), reh'g granted in part, 119 A.2d 14, aff'd. 120 A.2d 107 (1956); Maughs v. Porter, 161 S.E. 242, 157 Va. 415 (1931). In Brooklyn Daily Eagle v. Voorhies, 181 F. 579 (E.D.N.Y. 1910), the Court commented: "It is only necessary that the person entering the competition shall do something or give up some right." Id. at 581 (dictum).

It is concluded that F.C.C. v. American Broadcasting and other Federal cases are consistent with Complainant's contention that time and effort can constitute consideration in a lottery scheme. The Administrative Law Judge's conclusion that the level of time and effort involved in Respondent's program in Plans 2 and 3 constitute consideration is affirmed. Cf. Collegedale Diversified Enterprises, Inc., P.S. Docket No. 14/29 (P.S.D. Oct. 25, 1983) at 5.

It is further concluded that consideration is present under these plans even apart from time and effort. Under Plan 2, the membership fee of $16.50 constitutes independent consideration. While payment of a fee is not explicitly required under Plan 3, earnings of distributors are still dependent upon commissions paid for selling new memberships. No commission is earned if a nonpaying distributor is recruited (Tr. 97). Thus, a distributor has a strong motivation to sell memberships (id.). Respondent did not know how many non-member distributors it had and was evasive when asked whether the number would be high (Tr. 108-09). Such information should be readily available to Respondent, and the failure to produce it establishes a reasonable inference that Plan 3 does not attract non-paying distributors. United States v. Denver & Rio Grande R.R. Co., 191 U.S. 84, 92 (1903); Delta Enterprises, P.S. Docket No. 14/72, et al. (P.S.D. July 3, 1984). Accordingly, as a practical matter, payment of a membership fee constitutes consideration for becoming a distributor under this plan. See Central States Theatre Corp. v. Patz, 11 F.Supp. 566 (D.C. Iowa 1935).

Respondent further argues that Plans 2 and 3 cannot constitute lotteries because the required element of chance is lacking. It contends that a finding that substantial time and effort are required negates the element of chance:

"as effort is found to be an essential requisite in order to gain 'prize,' then the 'prize' is gained not by chance, but as a result of the 'time and effort' of the participant." (Resp.Brief on Appeal at 7-8).

However, this is not necessarily true here. While the Administrative Law Judge correctly found that substantial effort is contemplated and therefore would probably be expended under these plans in the pursuit of bonuses, it does not necessarily follow that expenditure of this time and effort will result in the bonuses. As the Administrative Law Judge points out, while the money a member - or distributor - receives may be dependent to some extent on his time and effort, his ultimate success largely depends on contingencies beyond his control. (I.D. at 17, quoted supra). See also Public Clearing House v. Coyne, 194 U.S. 497, 513, 515 (1904).

Respondent's contention that these contingencies relate to the participant's personal efforts and those of others and therefore should not be attributed to chance is unpersuasive. See Tenpen Sales Corp., P.O.D. No. 2/35 (D.D. May 10, 1961). Respondent's further argument that its enterprises do not constitute lotteries because the benefits of membership include a bona fide product is rejected (see Horner v. United States, 147 U.S. 449 (1893); Collegedale Diversified Enterprises, Inc., supra, at 4), as is its argument that members are not required to participate in the sales program. Respondent's brochures highlight the sales program; it is definitely a primary, if not the sole, incentive to membership (see I.D. at 6 and 8; CX 1 and 2).

Finally, the argument that since only members participate in the management bonus plan under Plan 2, no chance is involved under that plan is unpersuasive. The fact that non-members may participate in Plan 3 does not legitimate Plan 2. It only increases the element of chance under the third plan, since management bonuses are tied to receipt of membership fees.

Despite Respondent's assertion that any chance involved under these plans is permissible, it is concluded that, on balance, it is chance rather than skill which determines the results realized by participants under both plans. See Public Clearing House v. Coyne, supra; National Football League v. Governor of State of Delaware, 435 F.Supp. 1372, 1383-84 (D. Del. 1977); United States v. 21 Items of Mail, et al., Nos. 79-114M et al. (W.D. Pa., Oct. 14, 1980) (unpublished), aff'd Mem. 649 F.2d 861 (3rd Cir. 1981).

Respondent also argues that the "commission" given to participants under these plans does not constitute a "prize." This argument is rejected. Cf. Public Clearing House v. Coyne, supra. The promise of reward by way of "commissions" and bonuses is clearly a primary lure and "prize" for participation in Respondent's enterprises. This exception is denied.

Exception 7

Respondent takes exception to the Administrative Law Judge's ruling on Respondent's objection to the testimony of Complainant's witness, William J. Isaacs. The hearing transcript reflects that Respondent objected to Mr. Isaacs' testimony on grounds of relevancy. The Administrative Law Judge overruled the objection, finding that "there is probable relevance," but also stated that he would further consider the objection as he read the record and arrived at his decision (Tr. 26-27). The Administrative Law Judge's ruling was proper, as the evidence had some tendency to make facts of consequence more or less probable. Fed. R. Evid. 401. Moreover, there is no indication that his ultimate conclusions were based on this testimony, and these conclusions are supportable without reference thereto. The exception is denied.

Exception 8

Respondent excepts to the alleged exclusion of certain evidence. At page 11 of the Initial Decision, the Administrative Law Judge noted Respondent's failure to place in evidence details of the Amway and Shaklee operations, two multi-level programs which Respondent sought to analogize to its own programs. Respondent contends that, at the prehearing conference held immediately before the second hearing, the Administrative Law Judge rejected proffered evidence regarding multi-level programs, including Amway and Shaklee, as irrelevant and immaterial to the proceeding. It asserts that the statement in the Initial Decision indicates that had details of the Amway and Shaklee operations been placed in evidence, Respondent's analogy between those programs and its own might have been decisive. At the least, it argues, this statement indicates that the Administrative Law Judge ultimately determined the Amway and Shaklee programs to be relevant to the instant matter despite his earlier ruling to the contrary.

Complainant contends, however, that the Administrative Law Judge did not rule on the admissibility of those programs at the prehearing conference. Rather, it asserts that at the prehearing conference Respondent merely sought a stipulation from Complainant that these materials be received in evidence without formal proof, which Complainant declined.

It is incumbent upon a party in preserving its rights to make a record of evidentiary rulings. The prehearing conference in question was not transcribed. Respondent should have offered the evidence at trial, and if precluded, made an offer of proof. As it failed to do so, the claim of judicial error must be rejected. United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979). As Complainant points out, at the hearing Respondent was twice specifically afforded the opportunity to offer additional evidence (see Tr. 18, 21-22) but failed to do so or to reference any prior ruling by the Administrative Law Judge. Accordingly, the exception is denied as unproven.

Exception 9

Respondent excepts to the Administrative Law Judge taking judicial notice of the Readers Digest Sweepstakes Plan, while failing to take judicial notice of the plans addressed in Exception 8. In the Initial Decision, the Administrative Law Judge referenced Readers Digest and other "sweepstakes legally conducted by mail as promotional adjuncts to the sale of their products." (I.D. at 12). He stated that:

"Complainant has not placed in the record evidence showing how these sweepstakes promotions actually work but since both parties make reference to such promotions which have been conducted for so many6 years and on such a vast scale that the details of their operations are generally known I take discretionary judicial notice thereof." Id.

He then proceeded to summarize the Readers Digest Sweepstakes procedure.

Respondent does not argue that the Administrative Law Judge erred in his representation of the facts regarding the Readers Digest Sweepstakes, or that it was improper to take judicial notice of those facts. Rather, it is argued that the Administrative Law Judge's decision to take judicial notice of only the Readers Digest program was improper. Respondent again complains of the alleged exclusion of evidence on the Amway and Shaklee programs, and argues that excluding that evidence while taking judicial notice of related facts constituted an abuse of discretion as well as a breach of neutrality.

It is not established on this record that the Administrative Law Judge excluded proffered evidence. However, the Administrative Law Judge's determination to take "judicial" notice of the Readers Digest Program was questionable. Nonetheless that action did not rise to a breach of neutrality and, at the most, constituted harmless error since the record supports the ultimate conclusions contained in the Initial Decision without reference to the Readers Digest Sweepstakes program.

False Representation Allegations in the Amended Complaint

The Administrative Law Judge declined to decide whether the false representations allegations in the Amended Complaint were proven, concluding that his determination that all three of Respondent's plans incorporated an illegal lottery rendered such a decision unnecessary (I.D. at 20-21). Although neither party has raised the false representation issues on appeal, these issues have nonetheless been considered based on the Judicial Officer's authority to conduct a de novo review of the record. Peoria Scale Service, P.S. Docket No. 14/31 (P.S.D. Dec. 27, 1983). Respondent admitted Counts One and Two of the original Complaint. Thus, as to Plan 1, Respondent admitted making the representations alleged therein, and that they are materially false. Based on a review of Respondent's brochures relating to Plans 2 and 3, and Respondent's admissions concerning the false representation allegations in the original Complaint relating to Plan 1, it is concluded that Respondent also makes the representation alleged in paragraph 3(b) of Count One of the Amended Complaint and that it is materiallly false.

Respondent admitted, in connection with paragraph 3(b) of Count One of the original Complaint, that the representation that each member is likely to be able to recruit three new members under Plan 1 was materially false. It is concluded that Respondent makes a similar representation in the Plan 2/Plan 3 brochure, implicit in the earnings "example." Based on Respondent's prior admission it is further concluded that this representation is materially false with respect to Plans 2 and 3. Accordingly, Respondent falsely represents successive members or distributors are likely to recruit sufficient new members to insure substantial earnings as alleged in Count One of the Amended Complaint.

Conclusion

After consideration of the entire record and Respondent's exceptions to the Initial Decision, it is concluded that Respondent is engaged in the conduct of a lottery or scheme for the distribution of money by chance in violation of 39 U.S.C. § 3005 and is engaged in a scheme to obtain money through the mail by means of materially false representations, also in violation of this statute. Accordingly, Respondent's appeal is denied. A remedial order under 39 U.S.C. § 3005 is being issued with this decision.

1/ As in the Initial Decision, Respondent's three programs will be referred to as Plans 1, 2, and 3. These plans are fully described in the Initial Decision and in the exhibits thereto.

2/ Exhibit 1 to the Amended Complaint was the brochure for Plan 1.

3/ $1.50 of this amount is for "postage and handling." See CX-2, p. 2.

4/ While the Administrative Law Judge doe not specifically so state, the reasons given for finding a "prize" and "chance" under Plan 2 are equally applicable under Plan 3. Also see infra.

5/ In the postal bulletin, the Office of the Solicitor stated that it "will continue to hold that the element of consideration is present in a prize scheme when a substantial expenditure of time and effort is involved," but that in view of the lower court decision in F.C.C. v. American Broadcasting Co., 110 F.Supp. 374 (S.D.N.Y. 1953) and Garden City Chamber of Commerce v. Wagner, 100 F.Supp. 769 (E.D.N.Y. 1951), postmasters should "exercise caution in applying previous rulings of this office in prize plans involving consideration only in 'time and effort' expended." (I.D. at 18-19, n. 1).