In the Matter of the Complaint Against

OMNITRONICS Omnitronics
Research Corporation
3085 West Market Street
at Akron, Ohio 44313

P.S. Docket No. 12/9;

04/23/82

Bernstein, Edwin S.

APPEARANCE FOR COMPLAINANT:
H. Richard Hefner, Esq.
Steven B. Caver, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Gary D. Pearch, Esq.
William R. Holland, Esq.
Omnitronics Research Corporation
3085 West Market Street
Akron, Ohio 44313

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Complainant alleged and Respondent denied that Respondent is engaged in a scheme to obtain money or property through the mails by means of false representations in violation of 39 United States

Code § 3005 in connection with Respondent's advertising and sale of its "Voice Stress Computer" ("VSC").

A hearing was held on February 2, l982 in Akron, Ohio. Following the hearing, the parties filed proposed findings of fact, proposed conclusions of law and memoranda, all of which have been considered in arriving at this decision. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

FINDINGS OF FACT

I. The Use of the Mails

Respondent solicits money through the mails in connection with its sale of its Voice Stress Computer. Complainant's Exhibit (CX) 1, an advertisement that Respondent uses for the VSC, directs consumers to mail the order form and a check to Respondent.

II. The Advertising Representations

Respondent's advertisements make the representations alleged in Paragraph III of the Complaint for the following reasons:

(a) The Voice Stress Computer is an effective and reliable means of detecting falsehood.

In large, bold-faced type, Respondent's advertisement (CX01), proclaims, "WHAT ARE THEY REALLY SAYING?" Also, in large type the advertisement represents that this product "Reveals the hidden message in every voice" and that its user can "Find out what they're really saying". The advertisement states in paragraph one that many people ". . .mask their real feelings, their true emotions", however "Now you can unmask this hidden stress . . . with a Voice Stress Computer. . ." The advertisement also states in the second paragraph of column two that the VSC's presence "promotes honesty." The impact of this language is to represent, as alleged, that the VSC is an effective and reliable method of detecting falsehood.

(b) The Voice Stress Computer may be relied upon in the conduct of business and personal affairs.

This representation is made by the following language in CX-1:

"WHAT ARE THEY REALLY SAYING? Now you can detect hidden stress in others . . . before it costs you money, time, and trouble." (Heading)

"As you know, many people are able to hide stress in their voices when answering questions or discussing sensitive matters. They mask their feelings, their true emotions . . . and the results can be very costly." (Column 1, Paragraph 1)

"Now you can unmask this hidden stress, and you can do it easily and affordably. With a Voice Stress Computer" from Omnitronics (Column 1, Paragraph 2).

And you'll find out quickly that the mere presence of the VSC promotes honesty and cooperation. Which is what you're really after" (Column 2, Paragraph 2).

"To order your Voice Stress Computer - and to take the first step away from those people-problems that can eat up so much time and money - fill out the coupon and mail it today" (Column 2, last paragraph).

(c) The Voice Stress Computer is an accurate, reliable means of detecting and registering stress communicated by vocal utterance.

Statements in (CX-1), including several previously quoted, which substantiate this allegation, are "Now you can detect hidden stress in others..."; "Now you can unmask this hidden stress, and you can do it easily and affordably"; "...you'll be able to distinguish high stress in the voice of almost anyone who is trying to conceal it"; and ". . .picks up a high level of stress in a voice."

Additionally, Postal Inspector Tom Meaux testified that an employee of Omnitronics told him the Voice Stress Computer measures stress in the voice of individuals (Tr. 10).

III. The Truth or Falsity of the Representations

I further find that the representations referred to in Article III of the Complaint are materially false.

At the hearing, Postal Inspector Thomas Meaux, Dr. Marilyn Van Graber, Postal Inspector Norman Robbins and Postal Inspector Donald Schneider testified for Complainant while Mr. John Williamson, Mr. Howard Robbins, Dr. Merle Szucs, Mr. Loren Campbell and Sgt. Samuel Pennington testified for Respondent.

Of these witnesses, Dr. Van Graber, Mr. Robbins, Sgt. Pennington and Dr. Szucs provided testimony regarding tests of the VSC. Inspector Meaux testified regarding this investigation of Respondent. Inspector Schneider testified that he assisted during

Inspector Robbins' tests. Mr. Williamson, who developed the machine and is a consultant for Respondent, testified that the VSC is a hand-held version of a larger machine that he also developed (Tr. 161). He stated that the VSC is designed to detect stress (Tr. 167) and detects stress (Tr. 170). Mr. Howard Robbins, a specialist in Patent law, stated that patents for Respondent's more sophisticated device, the SA-3 voice stress analyzer, also cover the VSC (Tr. 186) and under Patent law when a patent is granted, the device is presumed to be valid and useful (Tr. 187). Mr. Campbell, Respondent's Treasurer, testified regarding Respondent's sales and finances (Tr. 200-206).

I found Dr. Van Graber to be the most impressive witness. She is a consultant in the communications and security field. She has studied, written in professional publications, lectured, and testified before he Congress and Courts concerning stress evalua tion and testing (Tr. 13-16, CX-6). The fact that Respondent listed Dr. Van Graber as one of its intended witnesses in its Request for Change of Place of Hearing indicates Respondent's respect for this witness' expertise.

Dr. Van Graber described four tests that she made with the VSC. In the first test, eight subjects discussed various words and phrases including several that had known stressful connotations to the individuals (Tr. 79-81). The percentage of red lights, which are supposed to indicate stress, did not increase measurably when the subjects discussed words and phrases which were known to be stressful to them (Tr. 81).

In the next test, Dr. Van Graber read lists of letters and numbers to a VSC to determine the effect on the VSC's readouts of variations in pitch, duration of the utterance, and angle of the microphone (Tr. 18). She found that longer sounds, higher pitches, and different microphone angles caused greater percentages of red flashes in the VSC (Tr. 82-83).

In the third test, subjects read lists of words to the machine. Dr. Van Graber found a high percentage of green lights - about 65 percent - for known stress-related words (Tr. 87).

In the fourth test she played 20 different pre-recorded tapes containing known deceptive passages to the VSC. There was no correlation between percentages of the VSC's red signals and known deceptive and stressful passages in the tapes (Tr. 88). Based upon these tests, Dr. Van Graber reached the following conclusions:

"First of all, I was unable to find any consistent relationship between the readouts on the voice stress computer and the presence of stress in the subject in known stress situations.

Second, I was unable to find any consistent relationship between the readout on the voice stress computer and known deception on the part of the subject.

Third, I found that some variables, such as the placement of the microphone, the pitch of the utterance, and the duration of the utterance, had an impact on the readout, which was apparently unrelated to either deception or stress.

The fourth conclusion that I reached was that when the same taped material, without changing the distance between the tape recorder and the microphone of the voice stress computer or changing any other variable, when that same tape was played on subsequent --pardon me, several times over and over, that the readout on the voice stress computer was different.

In other words, there was no consistency of response on the part of the instrument when the input was the same." (Tr. 19-20)

With regard to the use of the VSC for a business interview, Dr. Van Graber stated:

". . .it is extremely difficult to make concrete, relatively objective observations concerning the percentage of red and green lights while you are at the same time conducting the interview.

For that reason, on a purely mechanical basis, and since there is no permanent record of any kind left to you once the interview has been conducted or once the utterance has been made, I would say it would be extremely chancy, difficult to draw concrete, objective conclusions based on what the lights are telling you, particularly in continuous discourse." (Tr. 25)

In summary, Dr. Van Graber concluded that the VSC is not an effective and reliable means of detecting falsehoods; can not be relied upon in the conduct of business and personal affairs; is not an accurate, reliable means of detecting and registering stress emitted by vocal utterances; and is difficult to utilize (Tr. 24-25).

Inspector Robbins coordinates the Postal Service's polygraph program. He has taken many courses, written articles, and lectured in polygraph testing (Tr. 93-95). He tested two VSCs on separate occasions. He played tapes that contained known deceptive utterances to VSC's. Inspector Schneider assisted him. One person took notes and watched the tape while the other noted the VSC's red and green flashes (Tr. 98). Based on these tests, Inspector Robbins concluded that the VSC is not an effective and reliable means of detecting falsehood; can not be relied upon in the conduct of business and personal affairs; and is not an accurate and reliable means of detecting and registering stress communicated by vocal utterances (Tr. 108-109). He stated that there were no correlations between stress and deception as indicated on the tapes and the results registered on the VSC machines (Tr. 126). He testified that the results varied each time the test was run (Tr. 107) and the same questions produced different results (Tr. 127).

The weight of this testimony was not overcome by any of Respon dent's witnesses.

Sgt. Samuel Pennington presented the most impressive testimony for Respondent. Sgt. Pennington is a sergeant in the Mobile, Alabama Police Department who owns a polygraph consulting company. He attended ploygraph school, is a certified polgraphist and belongs to several polygraphist associations (Tr. 207-208). Sgt. Pennington stated that he tested the VSC during eight polygraph examinations (Tr. 216). He seemed quite impressed by Respondent's more sophisticated device, the SA-3, but less enthusiastic about the VSC. Thus he stated about the SA-3, "It is very, very effective, very reliable. I found not even one instance where the SA-3 gave me a deceptive response or a truthful response that the polygraph did not give me the same response" (Tr. 214). He also wrote letters praising the SA-3, a machine not in issue in this case (RX-5 and 6). However, Sgt. Pennington's direct testimony failed to give similar praise to the VSC and his laudatory letters did not mention the VSC. On cross-examination Sgt. Pennington stated that the VSC "is not nearly as useful as the SA-3" (Tr. 223). When asked about problems that he encountered with the VSC he stated:

"The small one has no way of keeping a recorded chart. There is no way to keep an accurate record of when a flash occurred.

For instance, I'm doing a polygraph examination, that's my main job, polygraph. I give a polygraph examination, I am watching the instrument itself. If I have the SA-3 running in real time, I am also watching it. I am also having to keep a eye on the subject. If I have a computer like device lying on the desk, then that's something else I have to watch. Then it becomes a guessing game." (Tr. 225-226)

Later, Sgt. Pennington stated about the VSC:

"I have use it, yes, sir, but it was something that I didn't have any use for, because I had another device with the SA-3 that did the same thing it did, and it had three lights on it, I believe. I think it had three lights on it." (Tr. 227)

When pressed for a conclusion about the VSC, Sgt. Pennington continued:

"I didn't conclude it one way or the other, because --I found it to be in the way of what I was doing. I was still working with the SA-3. That was the one I enjoyed using the most." (Tr. 227)

Although later when I questioned him, Sgt. Pennington stated that he similarly found the VSC reliable, these and other portions of his testimony, as well as RX-5 and RX-6, indicate that his enthusiasm was directed toward the SA-3 rather than the VSC. It seemed to me that he found it difficult to generate much enthusiasm for the VSC's capabilities. In summary, his testimony brings to mind the expression, "damning with faint praise."

Dr. Szucs, a retired medical doctor whose office is located in Respondent's office, stated that the VSC detects stress because he tried it several times although he had no opinion as to whether the VSC detects stress caused by deception (Tr. 197). I was not impressed by Dr. Szucs' testimony. He is not an expert in the field of stress detection and I also found his testimony about the VSC confusing. In describing a test he first said the VSC "was all red, all the time, the light . . . It did not turn green" (Tr. 198), and later said "When the activity was there, they were under stress, the disease was more active" (Tr. 199). When asked what disease has to do with stress, his answer that question was no less confusing (Tr. 199).

In summary, I credited Dr. Van Graber's and Inspector's testimony about their tests of the VSC. These tests indicated that the VSC is inconsistent and unreliable as a detector of either stress or falsehood. This testimony was not overcome by Sgt. Pennington's somewhat equivocal and Dr. Szucs unreliable testimony or by any other evidence that Respondent produced.

Thus, as alleged in Paragraph III of the Complaint, the follow ing representations are false:

(a) The Voice Stress Computer is an effective and reliable means of detecting falsehood.

(b) The Voice Stress Computer may be relied upon in the conduct of business and personal affairs.

(c) The Voice Stress Computer is an accurate, reliable means of detecting and registering stress communicated by vocal utterances.

CONCLUSIONS OF LAW

1. Since Respondent has sought remittances of money through the mail, the jurisdictional requirement of 39 U.S.C. § 3005 has been fulfilled.

2. The representations made by an advertisement are considered to be those that the purchaser to whom it was directed, presumed to be of ordinary intelligence, would understand from viewing the adver- tisement as a whole. What has been omitted and what may be reasonably implied from the advertisement are considered in assessing its meaning. Donaldson v. Read Magazine, Inc., 333 U. S 178, 184 (1948).

3. The average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph III of the Complaint.

4. The representations specified in Paragraph III of the Complaint are materially false.

5. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. l978).

6. Postal Service mail stop orders are constitutional. Donaldson v. Read Magazine, Inc., supra; Lynch v. Blount, 330 F. Supp. 689 (S.D.N.Y. l971); Hollywood House International , Inc. v. Klassen, 508 F.2d 1276 (9th Cir. l974); and United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir. l972). In the latter case, the Court held "Advertisers possess no constitutional right to disseminate false or misleading materials. Therefore, Congress has the power to prohibit such deceptions through appropriate legisla tion." p. 807

Therefore, I conclude that Respondent is engaged in conducting a scheme for obtaining money through the mail by false representations in violation of 39 U.S.C. § 3005 and that a False Representation Order, substantially in the form attached, should be issued against Respondent.