In the Matter of the Complaint Against

GEORGE M. ERNST, JR.
d/b/a MANY INTERESTED SAVERS, INC.
P. O. Box 361
at Georgetown, KY 40324-0361

P.S. Docket No. 13/88;

Cohen, James A.

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

APPEARANCE FOR RESPONDENT:
John C. Anggelis, Esq.
Anggelis & Philpot
139 Market Street
Lexington, KY 40507-1176

POSTAL SERVICE DECISION
ON MOTION TO REVOKE FALSE REPRESENTATION ORDERS

By motion dated March 28, 1984, Respondent has renewed its request for revocation of False Representation Order Nos. 82-112 and 82-121. Respondent contends that it has revised its program and its "new" program does not contain false representations in violation of 39 U.S.C. § 3005. Respondent also requests that a hearing be held to present evidence on its "new" program.

Complainant opposes Respondent's motion on the following grounds: (1) it has not been shown, or even alleged, that the original promotion has been terminated; (2) the new solicitation materials have not been drafted, so that it cannot be determined whether they will continue to make the same false representations; (3) Respondent seeks an advisory opinion which does not constitute the type of controversy appropriate for consideration by the Judicial Officer; and (4) the "new" program appears to contain some of the representations previously found to be false.

Respondent's original motion to modify and/or revoke False Representation Order Nos. 82-112 and 82-121, dated November 1, 1983, indicated that its program had been revised but failed to furnish any specific information on the new program. On November 18, 1983, a Postal Service Decision was issued which denied the motion but stated that any refiled motion would be expected to contain, in part, evidence of the revised program in the form of attachments to the motion. It is now clear that Respondent has only formulated the basic concept for a new program and has not drafted the language or published any solicitation materials. Without the benefit of the advertising language it cannot be determined whether Respondent continues to make the representations which were previously found to be in violation of 39 U.S.C. § 3005. Furthermore, in the absence of published solicitations seeking remittances through the mail, Respondent is essentially asking for an advisory opinion from the Judicial Officer. The Judicial Officer does not issue advisory opinions. Paul Harvey, P.S. Docket No. 8/10 (P.S.D. On App. for Mod. of Mail Stop Order, Aug. 29, 1980). The Judicial Officer serves in a quasi-judicial capacity and his functions are limited to adjudicating cases in which there is a justiciable controversy which could result in actual injury. Since Respondent's renewed motion to revoke does not raise this type of controversy, it is not appropriate for consideration by the Judicial Officer.

Finally, the False Representation Orders will not be revoked until it has been shown that they have completely served their purpose, or that the parties have reached an agreement obviating the necessity for such Orders. Rejuvnir, Inc., P.S. Docket No. 3/105 (P.S.D. on Motion for Recon., Jan. 30, 1975). In this case, Respondent has not even asserted that the original promotion has been completely terminated. Moreover, the original promotion encouraged members to order additional "cards" at any time, and there is no assurance that these re-orders would not continue after the False Representation Orders were revoked. Under these circumstances, a revocation of the Orders in question at this time would be premature. Id.

Accordingly, Respondent's renewed motion to revoke False Representation Order Nos. 82-112 and 82-121, which includes a request for hearing, is denied.