In the Matter of the Complaint Against

SCOTT DAVID WILCOX
d/b/a TELCO DIRECTORIES, INC.,
1601 East Main Street at
Plainfield, IN 46168-1811

P.S. Docket No. 18/147

James A. Cohen Judicial Officer

APPEARANCES FOR COMPLAINANT:
H. Richard Hefner, 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 30303-1810

POSTAL SERVICE DECISION ON
PETITION FOR SUPPLEMENTAL ORDERS

Complainant has filed a Petition for Supplemental Orders, alleging that Respondent Scott David Wilcox (hereafter referred to as Respondent) is evading or attempting to evade the provisions of a False Representation Order previously issued in this proceeding. In the Petition, Complainant contends that Respondent is continuing to seek remittances through the mail for business listings in a yellow page directory by means of solicitations which are virtually identical to those previously found to be in violation of 39 U.S.C. 300l(d) and 3005. Complainant requests that a supplemental false representation order be issued against the following names and addresses currently being used by Respondent to obtain money or property through the mail: Pacific Directory Publishing, 2265 Westwood Boulevard, Los Angeles, California 90064 and Telco National Business Directory and Telco Directories, 350 South Figueroa Street, Los Angeles, California 90071.

Respondent filed an Answer in which he denied the allegations of the Petition. In addition Respondent asserted various affirmative defenses and also requested a hearing on the issues raised by the Petition. Complainant opposed a hearing, contending there are no material issues of fact in dispute.^1/

Background

This proceeding was initiated by the filing of a Complaint which alleged that Respondent, through the use of solicitations in the guise of invoices or statements of account due for listings in a yellow page directory, was engaged in a scheme or device to obtain money through the mail in violation of 39 U.S.C. 300l(d) and 3005. Specifically, the Complaint alleged that Respondent's solicitations were nonmailable under 3001(d) and contained the following materially false representations in violation of 3005:

(a) The addressee has previously authorized a business listing in Respondents' classified directory;

(b) The amount set forth on the face of the solicitation is due and owed to Respondent;

(c) Telco Directories, Inc. is a part of or affiliated with the telephone company serving the recipient's area; and

(d) Telco Directories, Inc. is the publisher of the classified directory or 'yellow pages' normally supplied to all telephone subscribers in the recipient's area."

After a hearing at which both parties were given a full opportunity to present evidence, an Administrative Law Judge issued an Initial Decision in which he concluded that Respondent's solicitations were nonmailable and that they made the representations alleged in the Complaint. Respondent filed a timely appeal from the Initial Decision which was denied in a Postal Service Decision issued October 16, 1985. False Representation Order No. 85-86 was issued with the Postal Service Decision.

The New Promotion

Subsequent to the issuance of the Postal Service Decision and False Representation Order, Respondent engaged in business under the names Telco National Business Directory, Telco Directories, Pacific Directory Publishing and Pacific West Coast Yellow Page Directory (Wilcox Aff. paras. l, 4 & 5). In late April or early May 1986, Respondent was responsible for the mailing of solicitations seeking remittances for listings in a yellow page directory (Wilcox Aff. para. 2; Pet. Exhs. 2, 3, 7, 8, 10, 11, 13-28, 30) and thereafter distributed solicitations for orders for the yellow page directory (Wilcox Aff. para. 16; Pet. Exhs. 31-37). Respondent's solicitations for listings in the directory and for the directory itself, sought the remittance of money to 350 S. Figueroa Street, Los Angeles, California 90071 (Pet. Exhs. 2, 3, 7, 8, 10, 11, 13-28, 30-37). As of May 1986, remittances to 2265 Westwood Boulevard, Los Angeles, California 90064 were the property of Respondent Wilcox (Wilcox Aff. paras. 3, 4, 17 & 18; Pet. Exh. 40).

Respondent's current solicitations are similar in form and content to its prior solicitations (compare Complaint Exhs. 1 & 2 to Pet. Exh. 2, et. al). Respondent's current solicitations prominently display the black and yellow walking fingers logo over the words "Pacific yellow pages" (Pet. Exh. 2, et. al; Attachs. to Complainant's Answer to Respondent's Motion for a Hearing, March 9, 1987). The walking fingers logo is also included on the return address portion of the solicitation envelope (see e.g. Pet. Exh. 7) and next to the address on the self-addressed business reply envelope included with the solicitation (Id). The solicitations also prominently represent that they are distributed by "Pacific Directory Publishing," and that they are a "BUSINESS LISTING FORM" for "CLASSIFIED ADVERTISING" (Pet. Exh. 2, et. al.). The solicitations contain the addressee's telephone number, inquire about an address change, and refer to a listing in the 1987 "Pacific West Coast Yellow Page Directory" under the indicated heading (Id). At the bottom and on the reverse side of the solicitations, the addressee is advised that Pacific Directory Publishing is not affiliated with AT&T or "your" local telephone company (Id). Except for the disclaimer regarding affiliation with AT&T and the local telephone company, the representations included in the current solicitations are essentially the same as those included on the solicitations which served as the basis for the issuance of False Representation Order No. 85-86 (see Complaint Exhs. 1 & 2).

Discussion

The issue to be decided in connection with a Petition for Supplemental Order is whether a person is evading or attempting to evade the provisions of a previously issued false representation order or cease and desist order by conducting the same or a similar enterprise under a different name or at a different address. (See 39 C.F.R. 952.30). A hearing in connection with a Petition for Supplemental Order will be held only on a showing of good cause ^2/ (Id). Good cause has been consistently interpreted as requiring the existence of a genuine issue of material fact. Sammy Y. Ip , P.S. Docket No. 20/65 (P.S.D. Sept. 30, 1987); United States Testing Authorit y, P.S. Docket Nos. 14/77 & 14/114 (P.S.D. Oct. 2, 1985). Although Respondent requested that a hearing be held, he has not shown the existence of a genuine issue of material fact with respect to the dispositive issue raised by the Petition. ^3/ Accordingly, good cause has not been shown for a hearing to be held in connection with this Petition for Supplemental Order.

It is undisputed that Respondent is responsible for the distribution of direct mail solicitations for classified listings and directories using the names Telco National Business Directory and Telco Directories at the Figueroa Street address. It is also undisputed that Respondent is the recipient of remittances sent to Pacific Directory Publishing at the Westwood Boulevard address. Thus, it is not genuinely disputed that the person subject to the previously issued order is the same person, Respondent Wilcox, who is engaged in the current enterprise which Complainant contends is in violation of that order.

Complainant has not alleged that Respondent's current solicitations are nonmailable under 39 U.S.C. 3001(d). Therefore, that issue will not be considered in this proceeding. The only issue in dispute is whether Respondent's current solicitations make the representations which were previously found to be false.

While Respondent alleges that changes have been made to its solicitations, the solicitations themselves are the best evidence of their contents. Neither lay nor expert testimony is necessary to establish whether the solicitations make the representations alleged in the Petition or the effect of those representations on the ordinary reader. Standard Research Labs, P.S. Docket Nos. 7/78 & 7/86 (P.S.D. Oct. 27, 1980); United States Testing Authority, supra . See Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387, 1389 (5th Cir. 1977). A review of Respondent's current solicitations and a comparison with the solicitations which supported the issuance of False Representation Order No. 85-86 establish that Respondent continues to make the representations previously found to be false. Despite the addition of the disclaimer regarding AT&T and the local telephone company ^4/ the overall impression conveyed to the ordinary reader ^5/ by the current solicitations is that Respondent continues to make the representations alleged in the Complaint. This conclusion is derived from the language, coloring, envelopes and format of the current solicitations.

Respondent disagrees that he is making the false representations alleged in the Complaint because he claims he has the right to use the name Pacific Directory Publishing, and the walking fingers logo in his current solicitations. However, whether Respondent has a "right" to use the name and logo is not the issue in this proceeding. See Telco Directories, Inc. , P.S. Docket No. 22/111 (P.S.D. Feb. 25, 1987). As previously stated, the question in connection with a Petition for Supplemental Order is whether Respondent's current solicitations, viewed as a whole continue to make the representations previously found to be false. See United States Testing Authority , supra . Respondent's arguments concerning the use of the walking fingers logo and the corporate or trade names were considered and rejected in the companion case of Telco Directories, Inc., et al. , supra . The findings and conclusions of that case pertaining to use of the name and logo are equally applicable here. The use of the name Pacific Directory Publishing, rather than Telco, in some of the solicitations is not a legally significant distinction. The name Pacific Directory Publishing, used in conjunction with the walking fingers logo, when viewed in the context of the entire solicitation would be understood by the ordinary reader to refer to the local telephone company, Pacific Bell.

Respondent claims that his solicitations for the sale of a yellow page directory are exempt from the coverage of 39 U.S.C. 3005 because they are advertisements for the sale of a book. However, under 3005(d)(3)(B), if such solicitations describe the publication using materially false or misleading representations they are covered by the statute. Since Respondent's solicitations for his directory make essentially the same false representations as the solicitations for listing in the directory, they also constitute an attempt to evade the provisions of False Representation Order No. 85-86 and are proscribed by 39 U.S.C. 3005.

Conclusion

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. Accordingly, the Petition for Supplemental Orders is granted and an additional False Representation Order is issued herewith.

___________________

1/ For purposes of this proceeding, Complainant has stipulated to a withdrawal from consideration of Pet. Exhs. 5 & 6, which Respondent contends are two exhibits about which there is a disputed factual issue.

2/ A showing of good cause is required because the parties have already been afforded a full opportunity to present evidence in support of their respective claims or defenses (see 39 C.F.R 952.7(a). As previously stated, a hearing before an Administrative Law Judge was held in this proceeding. However, Respondent elected to present no evidence at that hearing (see Tr. p. 199).

3/ Respondent argues that the survey evidence presented at the hearing before the Administrative Law Judge would not be applicable to his current solicitations and that hearsay should not be allowed to support the allegations of the Petition. The survey evidence has not been considered since the mailability question is not in issue. Documentary evidence may be used to ascertain whether there is a genuine issue of material fact.

4/ The disclaimer is not sufficiently positioned nor prominent to dispel the overall impression that remittances are being solicited for inclusion in the yellow page directory of the local telephone company. See Gottlieb v. Schaffer , 141 F. Supp. 7 (S.D.N.Y. 1956); Raymond Milo d/b/a Directory Publishing Division, P.S. Docket No. 12/168 (P.S.D. Dec. 31, 1981).

5/ The meaning of an advertising representation is to be judged from a consideration of the advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, Inc . 333 U.S. 178 (1948); Borg-Johnson Electronics v. Christenberry , 169 F. Supp. 746 (S.D.N.Y. 1959); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y. 1957).