In the Matter of the Complaint Against

SAMMY Y. IP,
5628 Montezuma Road, at
San Diego, CA, 92115-2828, et al.

P.S. Docket No. 20/65

James A. Cohen Judicial Officer

APPEARANCE FOR COMPLAINANT:
Norma J. Brown, Esq.
Nan K. McKenzie, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
John P. Murphy, Esq.
Imperial Bank Building
701 B Street, Ste. 1300
San Diego, CA 92101-8103

POSTAL SERVICE DECISION ON
MOTION FOR RECONSIDERATION

Respondent has requested reconsideration of the Postal Service Decision granting Complainant's Petition for Supplemental Orders. In the Postal Service Decision, the Judicial Officer concluded that Respondent was evading the provisions of False Representation Order No. 85-94 and Cease and Desist Order No. CD-599 by conducting an envelope stuffing promotion similar to the promotion which was previously found to be in violation of 39 U.S.C. 3005.

Background

Prior proceedings in this matter led to the issuance of False Representation Order No. 85-94 and Cease and Desist Order No. CD-599 in connection with Respondent's work-at-home envelope stuffing program. These Orders were issued after a full evidentiary hearing had been held before an Administrative Law Judge and an Initial Decision and Postal Service Decision issued finding that Respondent makes the representations alleged in the Complaint and that those representations are materially false in violation of 39 U.S.C. 3005. Thereafter a Postal Service Decision on Petition for Supplemental Orders was issued which found that Respondent continued to falsely represent that participants in Respondent's program:

"4. a. Will earn $360 a week or more; and

b. The money earned is for work consisting primarily of mailing circulars."

* * *

"7. a. Will be paid for work consisting primarily of stuffing circulars into pre-addressed stamped envelopes and mailing them;

b. Will typically make hundreds of dollars weekly in net earnings;

c. Will receive an income limited only by the amount of time spent stuffing and mailing circulars;

d. Will be paid by the CMA and/or CM/NA for their at-home work;

e. Will be paid for each circular stuffed and mailed; and

f. Will receive from the CMA and/or CM/NA any amount of envelopes and circulars that they want."

It is this Postal Service Decision on Petition for Supplemental Orders which Respondent seeks to have reconsidered.

Respondent's Contentions

Respondent contends that the Postal Service Decision on Petition for Supplemental Orders is in error in several respects. According to Respondent, the Judicial Officer incorrectly found in the Postal Service Decision that Respondent continues to represent that participants in his envelope stuffing program "will earn $360 a week or more." Respondent also argues that the Judicial Officer improperly denied Respondent a hearing on the allegations of the Petition, that he failed to recognize that Respondent made a good faith effort to comply with the law, and that no intent to deceive has been shown. Finally, Respondent argues that the Judicial Officer erroneously concluded that Respondent continues to make the remainder of the representations alleged in the Complaint and previously found to be false.

Discussion

Respondent's arguments on reconsideration do not establish that the Postal Service Decision on Petition for Supplemental Orders is incorrect as a matter of fact or law. Contrary to Respondent's arguments, his promotional materials continue to convey the impression that participants will earn "$360 a week or more." The language of Respondent's classified advertisements read with his follow-up circulars stating "hundreds weekly" and "$360 and more per week" would lead the ordinary reader to believe that this amount would be earned depending on the time the participant was willing to devote to the program (Pet. Exhs. 1 - 7, 9, 11, 14 & 15). Accordingly, no error was committed regarding this representation.

Respondent's arguments regarding the denial of his request for a hearing are also lacking in merit. Respondent was afforded a full opportunity to present evidence at an oral hearing in connection with the allegations contained in the original Complaint. In order to obtain an additional oral evidentiary hearing, Respondent must show the existence of a genuine issue of material fact. United States Testing Authority, P.S. Docket Nos. 14/77 & 14/114 (P.S.D. Oct. 2, 1985). Respondent's Answer to the Petition for Supplemental Orders did not establish the existence of any genuine issue of material fact. Thus, Respondent's request for an oral evidentiary hearing was properly denied.

Respondent's arguments regarding his good faith efforts to revise his advertisement, the absence of evidence establishing intent to deceive, and the lack of guidance on revisions to his advertising are equally lacking in merit. The issue presented in a proceeding initiated under 39 U.S.C. 3005 is whether the promotional materials are likely to deceive the ordinary reader. Intent to deceive is no longer required in order to show a violation of the statute. See Unique Ideas, Inc. v. United States Postal Service , 416 F. Supp. 1142 (S.D.N.Y. 1976); Lynch v. Blount, 330 F. Supp. 689 (S.D.N.Y. 1971), aff'd, 404 U.S. 1007 (1972). In addition, a showing of good faith will not relieve an advertiser of the consequences of a materially false representation. See Conan Research, P.S. Docket No. 12/7 (P.S.D. July 29, 1982). Finally, while the Judicial Officer does not issue advisory opinions or otherwise provide advice on methods to correct false advertising, George M. Ernst, Jr. , P.S. Docket No. 13/88 (P.S.D. May 1, 1984), "it is not difficult to choose statements, designs and devices which will not mislead." United States v. 95 Barrels of Vinegar , 265 U.S. 438, 443 (1924).

In his last argument, Respondent takes issue with the finding that his current promotional materials continue to make the remaining false representations alleged in the Complaint. Respondent's current advertisements contain representations essentially identical to those previously found to be in violation of 39 U.S.C. 3005. While Respondent has generally denied the existence of these false representations, the advertisements themselves clearly establish their existence. Respondent states that if a hearing had been held, he would have presented evidence to show that some of the representations are true and others are not made in his current advertising. Respondent had a full opportunity to present evidence concerning the existence of the representations and their truthfulness at the hearing previously held. Since the representations included in his current advertising are essentially identical to those previously found to be false, Respondent is not entitled to relitigate these issues in a further hearing. See United States Testing Authority, supra .

Conclusion

Respondent has not shown any error of fact or law in the Postal Service Decision on Petition for Supplemental Orders. Accordingly, Respondent's Motion for Reconsideration is denied.