In the Matter of the Complaint Against

NATIONAL ZIP CODE DIRECTORY
and P. O. BOX 1518
at
Washington, D. C.  20013
and
NATIONAL ZIP CODE DIRECTORY
and P. O. BOXES 328 and 509
at
Silver Spring, Maryland  20907
P.O.D. Docket No 3/54

APPEARANCES:
Daniel S. Greenberg, Esq.
Office of the General Counsel
Washington, D. C.  20260
for the Complainant

Stanley N. Tashoff, Esq.
467 North Frederick Avenue
Gaithersburg, Maryland  20760
for the Respondent

DEPARTMENTAL DECISION[1]

            M/B Limited of Silver Spring, Maryland, is the owner of an enterprise known as National Zip Code Directory.  This enterprise has addresses at Post Office Box 1518 and Post Office Box 1612 in Washington, D. C., and it has addresses at Post Office Boxes 328 and 509 in Silver Spring, Maryland.

            The National Zip Code Directory, which hereafter sometimes will be referred to as the Respondent, is engaged in the advertising and sale through the mail of a Zip Code Directory.  The General Counsel's Office of the United States Postal Service has alleged in the complaint attached hereto as attachment 1 to this decision that the Respondent, in the conduct of this business, is engaged in the conduct of a scheme or a device for obtaining money or property through the mails by means of false representations in violation of Section 4005 of Title 39, United States Code.

            The specific charges are set forth in the complaint, but in substance the Complainant, the General Counsel, charges that the Respondent makes the following representations:

            First, that the Zip Code Directory published by the Respondent is a publication by or on behalf of the United States Government.

            Second, that the Zip Code Directory sold by the Respondent is a complete zip code directory and will serve all of the purposes which the official National Zip Code Directory, which is a publication of the United States Government Postal Service, is designed to serve.

            These two statements constitute the substance of the charges in regard to the representations made by the Respondent.

            The General Counsel goes further to charge that these representations are false, and they are, in fact, misrepresentations.

            The evidence that has been received in this proceeding are the originals of Appendices A, B and C to the complaint, which is attachment No. 1 (Comp. Exs. A, B and C); the Zip Code Directory, which is sold through the mail by the Respondent (Comp. Ex. D); and two solicitations mailed by the Respondent in seeking remittances for the Zip Code Directory which it sells (Comp. Exs E &F).  An example of the latter two exhibits is copied here at this point in this decision, and it is Complainant's Exhibit F and bears the post mark Washington, D.C., November 1, 1970.

(See next page)

            The Respondent objected to the receipt of Complainant's Exhibits E and F, but these exhibits were received inasmuch as they established the continued use of the mails by the Respondent, and they also show the manner in which the business of the sale of these Zip Code Directories was carried out.

            The testimony on behalf of the Respondent was to the effect that this enterprise had its inception in October of 1968, at which time a particular solicitation, which they designated as mailing form number one, was used.  (See Resp. Exhibit 2)  That form is very similar to the solicitation which is Exhibit B to attachment 1 to this decision.  This form was used for a period of ten months until August of 1969 when form two was adopted.

            The President of the Respondent, Frank E. Miller, indicated that he had had some conversations with a postal inspector who suggested that a disclaimer be put on the solicitation literature to indicate that the publication being sold was not an official Government publication.  In response to this suggestion there was adopted for Respondent's sales literature a legend which is in very small type down at the bottom right hand corner of that sales literature which reads "M/B Ltd."  That form, and a companion form, were used respectively for one and two months; that is, the months of August and September, 1969, when another form was adopted.  And again, this form four, which was adopted in September of 1969, has what Respondent regards as a disclaimer, but it is not the same as the disclaimer previously used.  The disclaimer for form four consists of the words in the same type as that used in the bulk of the advertising circular "Not a P.O.D. Pub."

            Then in September of '69 another form was adopted.  This form was used until March of 1970.  The disclaimer in the form five adopted in March is the same as that which was used in the mailing form number four.

            The question now to be determined is whether the Respondent makes in substance and effect the representations as set forth in the complaint.  In making a determination of this question, one has to bear in mind the admonition in the case of  Donaldson v. Read Magazine, 333 U.S. 178 at page 1 88, in which the court said that "Advertisements are to be interpreted in the light of the effect they would most probably produce on ordinary minds."

            Using this statement by the court as a guideline, the only conclusion that one can make is that when the statements in the advertising material used by the Respondent are reasonably construed they do lead to the understanding expressed in the charges set forth in the complaint.  In other words, the make-up and the language are such as to leave the ordinary reader to believe that this publication is in some way connected with the United States Government.  In making this statement I have in mind the return address used by the Respondent.  For Example, the main Post Office, either Washington or Silver Spring.  This is on Complainant's Exhibit F for one instance.  It is on other exhibits that the Respondent uses.  There is the stamped legend "Use Zip Code" which the postal service has been pressing so avidly for a long time.  There is a picture of Mr. Zip on the address side of the card, and I have looked carefully at Complainant's Exhibit F and I fail to find any disclaimer in regard to the publication being connected in someway with the Federal Government.  For example, there is no notification that this is "not a P.O.D. Pub."  There is no notification that the article for sale is an "M/B Limited" publication.  The very title of the article that is for sale, "National Zip Code Directory," is the identical title of the official publication which is Publication 65 of the United States Postal Service.

            All of these factors, among others, lead, I think, irresistibly, to the idea in the mind of the reader that this is a publication which is being offered for sale by the Postal Service, or by the Government, or some agency of the Government.

            Certainly the representation is made that the Zip Code Directory being sold is complete in Exhibit 2 of the Respondent.  The representation is simply stated "It is a complete National Zip Code Directory."  So, there is no question that that representation is made.

            Now, having found that these representations are made, the next question to be determined is whether they are true or false.  We might examine the Respondent's answer in this connection.  The Respondent admits in the answer that the Zip Code Directory sold by the Respondent is not complete and statements by the Respondent's own witnesses at this hearing indicate that the zip code being sold by the Respondent is not complete, and that fact would appear by simple examination of the documents in question.  The Zip Code Directory being sold by the Respondent is in small type, it is true, and consists of 128 pages, whereas the official National Zip Code Directory, which is Publication No. 65 of the Postal Service, also is in small type and consists of 1,733 pages.  So, in terms of completeness it would be physically impossible to set forth in Respondent's publication all of the information that is contained in the Government's publication.

            Now, in regard to the defense by the Respondent, Respondent claims to have been guided all along the way by advice received from a postal inspector, and in support of this claim the Respondent has offered and has had received in evidence at least these two exhibits, Respondent's Exhibit 1, which is a letter from Postal Inspector G. A. Mailloux to Mr. Brown, who is or has been connected with the Respondent; a letter in which Inspector Mailloux suggests that the words "This is not a Government Publication," in all capital letters, be put on all notices or all advertising circulars used by the Respondent.  Now, this is a suggestion of the Inspector for consideration by the Respondent.  They did not adopt that suggestion.  They substituted for that suggestion a legend, which is in ordinary type, that is used in the bulk of the advertising circulars, this is "Not a P.O.D. Pub." which takes up much less space and certainly has much less of a tendency to catch the eye of the reader.

            Now, another of the exhibits that was introduced by the Respondent is another letter from this same postal inspector addressed to a Miss DiMatteo on April 1, 1970, in which the inspector makes the point that the Respondent has adopted the use of the phrase "Not a P.O.D. Pub."  And inspector makes this statement:  "It is hoped that this will prevent further patrons from being mislead by this promotion."

            In this letter from Inspector Mailloux to Miss DiMatteo the next paragraph reads as follows:  "The Directory is of limited value as pertains to small post offices with only one zip code.  It is of no value for addresses in larger cities."  I assume that, since this exhibit was introduced by the Respondent, Respondent is as willing to be bound by one part of it as it is by another.  So, while it is true that the inspector has made certain suggestions to the Respondent, it is not true that the Respondent has acted on these suggestions, and it is further demonstrated by the fact that in the advertising literature currently in use, or the most recent of which we have examples, the last one being November 1, 1970, there is no disclaimer of Government connection, so that, even though they have in the past assertedly acted upon the advice or suggestion of a postal inspector, they have abandoned following that advice based on present evidence.

            Now, upon the basis of all of the foregoing considerations, I make the following findings of fact:

            One, the Respondent, National Zip Code Directory, is engaged in the sale of a document entitled National Zip Code Directory.

            Two, in connection with the sale of this document the Respondent employs advertising material and other material which has been received in evidence as Complainant's Exhibits A, B, C, E and F.

            Three, by using exhibits, Complainants Exhibits A, B, C, E and F it is the purpose of the Respondent to induce persons to make remittances of money through the mails for the National Zip Code Directory sold by the Respondent.

            Four, in the advertising literature used by the Respondent it is represented in substance and effect that the publication sold by the Respondent is a publication by or on behalf of the United States Government, or the United States Postal Service.

            Five, the representations found to have been made by the Respondent are false in that the publication sold by the Respondent is in no way a publication by or for the United States Government or the United States Postal Service, and by the Respondent's own admission, and upon the basis of evidence received in this hearing, the National Zip Code Directory sold by the Respondent is not a complete zip code directory.

            Six, the persons who purchase the National Zip Code Directory from the Respondent receive less than that to which they have been led to believe they are entitled.

            My conclusions of law are as follows:

            One, the representations made by the Respondent are to be judged in the light of the effect that they would most probably produce upon ordinary minds as held by the Supreme Court of the United States in Donaldson v. Read Magazine, 333 U.S. 178 at 188.

            Two, the Respondent is engaged in a scheme or a device for obtaining money through the mails by means of false representations in violation of 39 U. S. Code 4005.

            Proposed findings of fact and conclusions of law submitted by the parties are adopted to the extent herein indicated.  Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons stated herein or because they are not supported by the weight of the evidence or because they are immaterial.

            A remedial order as provided for in the statute will be issued.

                                                                                                William A. Duval
                                                                                                Acting Judicial Officer

[1]  This decision is transcribed from the decision that was dictated into the record at the close of the hearing held November 25, 1970.  Certain language and typographical corrections have been made, but the substance and effect of the decision remain unchanged.