In the Matter of the Complaint Against:

SCOTT DAVID WILCOX; VERNON FRAZIER;
ADCO MARKETING CORPORATION
d/b/a AMERICAN PUBLISHING;
781 W. Oakland Park Blvd.; Suite 117
at Fort Lauderdale, FL 33311-1729

P.S. Docket No. 23/70

Cohen, James A.; Judicial Officer

APPEARANCES FOR COMPLAINANT:
H. Richard Hefner, Esq.;
Donald A. Potter, Esq.;
Consumer Protection Division;
United States Postal Service;
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENTS:
Frank J. Shannon, III, Esq.;
Suite 801; The Candler Building;
127 Peachtree Street, N.E.;
Atlanta, GA 30303-1810

POSTAL SERVICE DECISION ON MOTION FOR RECONSIDERATION AND MOTION TO MODIFY

Respondents have filed a Motion for Reconsideration of the Postal Service Decision finding that Respondents are engaged in a scheme to obtain money or property through the mail by means of materially false representations in connection with the sale of books entitled Who's Who in the United States, Who's Who in Society and Who's Who in New York. Respondents have also filed a Motion to Modify Order and a Motion for Stay of Order.

Respondents' Motion for Stay of Order was granted in part by the issuance of a Supplement which stayed the return portion of False Representation Order No. 87-71 while the Motion for Reconsideration was being considered. Respondents request for an order staying enforcement of the entire order was not granted because a showing of good cause in support of the Motion had not been made. Respondents' Motion for Reconsideration and Motion to Modify Order are addressed in this Decision.

Motion for Reconsideration

In their original appeal from the Initial Decision of an Administrative Law Judge, Respondents presented five enumerations of error, all of which were considered and found to be without merit. On reconsideration Respondents contend that the Judicial Officer erroneously rejected these enumerations of error. Respondents' arguments in support of their Motion for Reconsideration are no more persuasive than were their arguments on appeal from the Initial Decision.

Respondents first contend that in connection with enumerations of error 1, 2 and 4, the Judicial Officer improperly concluded that the representations in their advertisements were material misrepresentations of fact rather than mere puffing. According to Respondents the Judicial Officer cited no fact of record to support this position and, in addition, had no knowledge of the industry standards relating to puffing.

It was recognized in the Postal Service Decision that in some contexts opinions and experiences could be considered puffing. However, it was concluded that Respondents' advertisements create the impression that their books have achieved a certain status by means of prior publication. The language of Respondents' advertising and the testimony of the witnesses on which this conclusion was based are referenced or quoted in the Initial Decision and constitute a preponderance of the evidence (I.D., FOF 5, 6 & 8). The achievement of a certain status through prior publication is a representation of fact which has the effect of inducing individuals to remit money through the mail (see I.D., COL 3). The falsity of this representation is not seriously disputed (see I.D., FOF 6). Since the existence of a misrepresentation of fact which induces the purchase of a product is the proper standard for determining whether advertising representations are in violation of 39 U.S.C. 3005, no error was committed in this case. See, Reilly v. Pinkus, 338 U.S. 269 at 274 (1949); Harris v. Rosenberger, 145 Fed. 449 at 455 (8th Cir. 1906); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959); Alaska Employment, P.S. Docket No. 7/166 (PSD April 30, 1981); Oriental Nurseries, Inc., P.S. Docket No. 9/116 (PSD May 19, 1981); Contemporary Mission, Inc., P.S. Docket No. 8/159 (PSD June 30, 1981); G. R. Paro, P.S. Docket No. 6/111 (PSD May 31, 1979). Accordingly, there is no merit to Respondents' arguments in support of their request for reconsideration of enumeration of errors 1, 2 and 4.

While Respondents contend that they were deprived of the opportunity to introduce evidence of industry standards concerning puffing, such evidence was neither offered by Respondents nor rejected by the Administrative Law Judge. The Administrative Law Judge did deny Respondents' Motion for Production (and reconsideration thereof) in which they sought copies of prior Postal Service advertisements. Respondents' Motion did not establish that the information they were seeking pertained to industry standards relating to puffing or that it was in any other way relevant or likely to lead to the discovery of relevant evidence. Thus, Respondents' discovery motion was properly denied and Respondents were not deprived of the opportunity to present relevant evidence.

Respondents next argue that enumeration of error 3 was denied because the Judicial Officer improperly applied the ordinary reader test to their advertisements even though there was no evidence that anyone other than discriminating purchasers ever received, or would receive, their solicitations. Respondents misread the Postal Service Decision. The test applied in interpreting Respondents' solicitations was whether those "solicitations when reasonably read as a whole, would lead the ordinary reader to whom the advertisements are directed to believe that the books have been previously published" (PSD at p. 5, emphasis supplied). While the recipients of Respondents' advertisements may have been "discriminating purchasers", they were both critical and noncritical readers who had a right to assume that advertising traps would not be laid to ensnare them (PSD at pp. 5 & 6, I.D., FOF 8). Thus, the proper standard was applied and the evidence supports the conclusion reached.

Respondents finally contend that a preponderance of the evidence does not support the conclusion that Respondents Vernon Frazier and Adco Marketing Corp., are persons engaged in the conduct of the promotion which is the subject of this proceeding. The evidence supporting this conclusion was properly admitted, and relied on, and constituted a preponderance of the probabilities that these Respondents are integrally involved in the "Who's Who" promotions. (See PSD at pp. 7 & 8 relying on I.D., FOF 3 & COL 7). Respondents' arguments to the contrary on reconsideration are not persuasive that the evidence was erroneously evaluated.

Accordingly, Respondents' Motion for Reconsideration is denied.

Motion to Modify Order

Respondents contend that False Representation Order No. 87-71 is overbroad and vague because it prohibits Respondents from receiving any mail with respect to the sale of their books even if the sale is unrelated to the alleged misrepresentations found in the Postal Service Decision. Complainant agrees that the only mail which should be held is mail pertaining to the "adjudged scheme." However, it opposes Respondents' request because they have not shown that the False Representation Order has been improperly applied.

Generally, a False Representation Order will not be revoked or modified until it is shown that the reasons for its issuance no longer exist so that the public will be protected from the continuation of the scheme. See, Associated Telephone Directory Publishers, Inc., P.S. Docket No. 13/191 (PSD Jan. 3, 1985); New Generation, P.S. Docket No. 11/152 (PSD Sept. 25, 1984); George M. Ernst, Jr., P.S. Docket No. 13/88 (PSD May 1, 1984). The burden to make such a showing is on the party against whom the False Representation Order has been issued. Respondents have not made such a showing in this case. Moreover, Respondents have not established that the Order is overbroad or vague. Accordingly, Respondents' Motion to Modify Order is denied.

Conclusion

Since Respondents' Motions have been denied the Supplement to False Representation Order No. 87-71 is being revoked and the False Representation Order placed in full force and effect.