In the Matter of the Complaint Against

The Respondent:
TRADERS INDUSTRIAL TRADE DIRECTORY
Box 100-268, 2 Bloor St. W.
at Toronto, Ontario, Canada

P.S. Docket No. 15/153;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
John F. Ventresco, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Valerie J. Fulton Traders
Industrial Trade Directory
Box 100-268, 2 Bloor St., West
Toronto, Ontario, Canada M4W 3E2

POSTAL SERVICE DECISION
AND ORDER

On January 26, 1983, a Complaint was filed alleging that Respondent is in violation of 39 U.S.C. § 3005(a) through the distribution of solicitations in the form of bills, invoices or statements of account due which are nonmailable under 39 U.S.C. § 3001(d). On February 1, 1983, Tentative Decision and Order No. 83-22 was issued which concluded that the Order authorized by 39 U.S.C. § 3005(a) should be issued against Respondent. Accompanying the Tentative Decision and Order was a Notice which advised Respondent that unless it presented good cause for dismissing the Complaint, the Tentative Decision and Order would become final.

On February 28, 1983, Respondent filed a letter response to the Tentative Decision and Order which denies that the solicitations make false representations. Respondent argues generally that the solicitation form could not reasonably be mistaken for a bill, invoice, or statement of account due, and that it meets Canadian and United States mailing requirements. Citing statements in the body of the form, the disclaimer language at the bottom, and letters it has received from recipients of the solicitation, it contends that the form should be read as an offer rather than as a bill, invoice, or statement of account due.

Complainant argues that Respondent's solicitation is in the form of and reasonably could be construed as a bill, invoice or statement of account due, but fails to comply with the requirements of 39 U.S.C. § 3001(d) and the implementing regulation, § 123.41 of the Postal Service Domestic Mail Manual (DMM). Complainant recognizes that some perceptive addressees may understand the true nature of the solicitation, but argues that this does not vitiate the purpose of 39 U.S.C. § 3001(d) and the DMM to protect those who might not detect the true nature of the solicitation. Complainant also points out that the disclaimer is located in a position to be rendered unintelligible or less prominent by folding, which is proscribed at § 123.41(d) of the DMM.

The relevant portion of 39 U.S.C. § 3001(d) provides:

"(d) matter otherwise legally acceptable in the mails which -

(1) is in the form of, and reasonably could be interpreted or construed as, a bill, invoice, or statement of account due; but

(2) constitutes, in fact, a solicitation for the order by the addressee of goods or services, or both;

is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs, unless such matter bears on its face, in conspicuous and legible type in contrast by typography, layout, or color with other printing on its face, in accordance with regulations which the Postal Service shall prescribe --

(A) the following notice: 'This is a solicitation for the order of goods or services, or both, and not a bill, invoice, or statement of account due. You are under no obligation to make any payments on account of this offer unless you accept this offer.'; or

(B) in lieu thereof, a notice to the same effect in words which the Postal Service may prescribe."

Under 39 U.S.C. § 3005(a), the mailing of matter which is nonmailable under § 3001(d) "shall constitute prima facie evidence that such person is engaged in conducting a scheme or device for obtaining money through the mail by false representations."

Respondent's solicitation form appears to be a bill or invoice. It has a block marked "AMOUNT" in which the amount allegedly due is shown. The form also prominently states "Make All Payments To: Traders Industrial Trade Directory," and "Please Return Top Copy With Payment Showing Your Ad Copy." Although it contains the disclaimer language prescribed at 39 U.S.C. ?3001(d)(2)(A), the disclaimer is neither positioned nor in the type print required by § 123.41 of the DMM. Moreover, it could be rendered less prominent than it is by folding which is prohibited by the DMM.*

Thus, the solicitations are in the form of and reasonably could be construed as a bill or invoice and do not contain the required disclaimer. As Complainant has submitted affidavits attesting to the receipt through the mail of the solicitations from Respondent and that the service was not ordered, Complainant has established a prima facie case that Respondent is engaged in a scheme or device for obtaining money through the mail in violation of 39 U.S.C. § 3005.

Respondent's arguments and the evidence it has submitted are not sufficient to overcome the prima facie case established by Complainant. Respondent does not allege that the services were ordered by those to whom the solicitations were sent. The language of the solicitations relied on by Respondent does not overcome the impression created by the overall wording and form of the solicitations that they are bills or invoices. Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948).

The letters submitted by Respondent which indicate that some recipients did not construe the solicitation forms as bills or invoices is also not persuasive. Complainant has submitted affidavits stating that other recipients construed the forms as invoices requesting payment. In determining whether consumers to whom these solicitations are directed would be misled, the test is not the interpretation placed on them by the majority of recipients. The trusting are to be protected as well as the wary. Donaldson v. Read, supra; Telex & twx Directory, P.S. Docket No. 13/6 (P.S.D. April 1, 1983). The letters, therefore, fail to rebut the prima facie case established by Complainant. Moreover, Respondent advances no reason for using a form of this type which is likely to mislead instead of a direct solicitation that would not be misleading or confusing. "It is not difficult to choose statements, designs and devices which will not deceive." United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924).

Since the solicitations are in the form of, and reasonably could be interpreted or construed as, bills, invoices or statements of account due and do not comply with the notice requirements of 39 U.S.C. § 3001(d) as implemented by § 123.41 of the DMM, they are nonmailable under 39 U.S.C. § 3001(d) and in violation of 39 U.S.C. § 3005(a). Accordingly, good cause for revoking or modifying Tentative Decision and Order No. 83-22 has not been shown. Therefore, the Tentative Decision and Order is now the Final Decision and Order of the Postal Service.

* The provisions of the DMM are authorized by 39 U.S.C. § 3001 and their purpose and enforceability are reinforced by the legislative history. S. Rep. 1077, 95th Cong., reprinted in 1978 U. S. CODE CONG. & AD NEWS 1366. As such, they are regulations which have the force and effect of law. Jeffries v. Olesen, 121 F. Supp. 463 at 476 (S.D. Cal. 1954).