SCOTT DAVID MILCOX d/b/a
TELCO DIRECTORIES, INC.
1601 East Main Street

           at

Plainfield, IN 46168-1811

P.S. Docket No. 18/147

APPEARANCES FOR COMPLAINANT:
Geoffrey A. Drucker, Esq.
Robert L. Collins, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Frank J. Shannon, III, Esq.
Henritze & Shannon
Suite 422, Candler Building
127 Peachtree Street, N.E.
Atlanta, GA 30305-1810

POSTAL SERVICE DECISION ON
MOTION FOR RECONSIDERATION

Respondent has filed a Motion for Reconsideration of the Postal Service Decision on Petition for Supplemental Orders^1/  alleging that the Judicial Officer erred in concluding that a supplemental order should be issued. Respondent also contends that a further hearing should have been held prior to the issuance of the Postal Service Decision on Petition for Supplemental Orders.

In the Postal Service Decision it was concluded that Respondent, using different names and addresses, is evading or attempting to evade the provisions of False Representation Order No. 85-86 by conducting a similar enterprise using the same representations previously found to be false. On the basis of this conclusion, supplemental False 88-36, was issued against Respondent.

Respondent first contends that the supplemental False Representation Order issued with the Postal Service Decision detains mail in response to solicitations not used by Respondent which seek remittances to addresses which do not belong to Respondent. The Postal Service Decision specifically considers the use of these solicitations and the addresses to which they seek remittances. The undisputed evidence in the record supports the conclusion reached in the Postal Service Decision that Respondent distributed certain of the solicitations and that remittances to both addresses were the property of Respondent Wilcox (P.S.D. at pp. 3, 4 & 6). Respondent's arguments on reconsideration do not establish that any error was committed with regard to this conclusion.

Respondent next contends that the False Representation Order detains mail which is not related to the activity covered by the Order and improperly shifts to Respondent the burden of establishing which mail it is entitled to receive. According to Respondent this "burden shifting" violates its due process rights under the Constitution. Respondent is partially correct inasmuch as the False Representation Order requires it to share the burden of determining which mail is subject to the Order. However, there is no impropriety in this regard, and certainly no violation of Respondent's due process rights.

Respondent argues at some length that the walking fingers logo is a generic symbol which it has a right to use. It also argues it is entitled to use the name Pacific Directory Publishing. Both of these contentions were previously presented by Respondent and considered and rejected in the Postal Service Decision (P.S.D. at p. 8). Respondent's arguments in support of its Motion for Reconsideration do not provide any basis for altering the conclusions reached in the Postal Service Decision.

Respondent argues that certain solicitations attached to the Petition for Supplemental Orders relate to the sale of its directory and that under 39 U.S.C. §3005 a False Representation Order may not be issued in connection with the sale of a book unless there is a misrepresentation on the face of the solicitation. Respondent further argues that the solicitations have not been alleged to contain misrepresentations and that the Postal Service Decision does not even discuss the solicitations nor the prohibition contained in 39 U.S.C. §3005.

The Petition refers to various attachments which are alleged to establish that Respondent is evading the provisions of False Representation Order No. 85-86. Certain of these attachments are solicitations for Respondent's directory (see Pet. Exhs. 31 - 37). While these exhibits were not specifically cited, they were referred to along with a reference to 39 U.S.C. §3005 (d)(3)(B) and found to make "essentially the same false representations as the solicitations for listing in the directory. " (P.S.D. at pp. 8 - 9). Thus, Respondent is in error in contending that the solicitations were not alleged to contain misrepresentations and that the solicitations and the statute were not discussed in the Postal Service Decision. Accordingly, no error regarding this issue was committed in the Postal Service Decision.

Respondent also argues on reconsideration, as it did previously, that there are material issues of fact in dispute on which a hearing should be held. In the Postal Service Decision it was concluded that no genuine issue of material fact existed with respect to the issues raised by the Petition for Supplemental Orders. While Respondent disagrees, the issues in connection with a petition for supplemental order are generally limited to determining the similarity of the promotion and the identity of the promoter (P.S.D. at p. 5). Because Respondent has previously been given a full evidentiary hearing, the burden of establishing the existence of a genuine issue of material fact justifying a further hearing with respect to the issues raised by the Petition rests with Respondent (id.). Respondent has not satisfied this burden (P.S.D. at pp. 5 - 6). Respondent argues that it has been deprived of the opportunity to challenge the falsity of the representations it is accused of making. Respondent was previously given a full opportunity to present evidence relating to the falsity issue.^2/  Respondent's slight and insubstantial changes to its solicitations and its allegation of changed market conditions do not establish the existence of a genuinely disputed issue of material fact. Neither in response to the Petition for Supplemental Orders nor on Motion for Reconsideration has Respondent made a credible showing that a genuine exists and that a further hearing is warranted.^3/  Accordingly, the prior ruling in this regard is affirmed.

Contrary to Respondent's assertion, the evidence relied on in concluding that a supplemental order should be issued is cited in the Postal Service Decision and no evidence outside the record was considered. The evidence cited fully supports the conclusion reached. While Respondent urges that the consideration of the documents attached to may, and has been, relaxed to permit the evidence to determine the existence of a genuine issue of material fact and to support the issuance of a supplemental order (see 39 C.F.R. §9S2.18; P.S.D. at p. 6).

All of Respondent's contentions have been considered and none have been found to have merit. Accordingly, Respondent's Motion for Reconsideration, Motion for Stay and Renewed Motion for Hearing are denied.

James A. Cohen
Judicial Officer

^1/  With its Motion for Reconsideration, Respondent has also filed a Motion for Stay and Renewed Motion for Hearing. The decision on Respondent's Motion for Reconsideration disposes of Respondent's other motions.

^2/  Although given this full opportunity, Respendent elected to present no evidence. In its various filings, Respondent has not shown what, if any, evidence it would have presented if a hearing had been held.

^3/  In a supplemental memorandum in support of its Motions, Respondent asks that Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966) and United States v. Cheramie Bo-Truc # 5, Inc., 538 F.2d 696 (5th Cir. 1976) be reviewed. Neither case holds that a hearing is required where there are no genuine issues of material fact in dispute.