In the Matter of the Complaint Against:

JOSEPH N. WILKINSON
d/b/a UNITED AIR SERVICES,
P.O. Box 412086,
Kansas City, MO 64141-2086

P.S. Docket No. 38/183

06/02/92

Grant, Quentin E.

APPEARANCE FOR RESPONDENT: James H. Ensz, Esq., Ensz and Jester,
Suite 2121 City Center Square, 1100 Main Street,
Kansas City, MO 64105-2112

APPEARANCE FOR COMPLAINANT: Wendy A. Hocking, Esq., Consumer
Protection Division, Law Department, United States Postal Service,
Washington, DC 20260-61144

INITIAL DECISION

On February 3, 1992, Complainant filed an administrative complaint with the Recorder of the United States Postal Service alleging that Respondent Joseph N. Wilkinson d/b/a United Air Services is engaged in a scheme or device to obtain money or property through the mail by means of false representations in violation of 39 U.S.C. § 3005. Complainant filed a Notice of Correction to the complaint on February 11, 1992, after learning that Joseph N. Wilkinson's middle initial had been mistakenly provided as "W" throughout the complaint.

Respondent filed a timely answer to the complaint on February 26, 1992, which admitted the Postal Service's jurisdiction in this matter, the facts regarding Respondent's identity and mailing address, and the procedural mechanics of the airline employment scheme, but denied Complainant's allegations regarding false representations contained in Respondent's promotion and their materiality. Respondent also denied that he advertises his promotion through college placement offices.

Respondent's counsel stated during a conference call with the presiding officer on February 27, 1992, and in his letter to the presiding officer dated February 25, 1992, that Respondent would not appear at a hearing in this matter or present any defense other than the Answer and various motions filed with the Answer.

On Complainant's motion, the presiding officer issued an order on February 28, 1992, allowing Complainant to submit its case for initial decision on the written record. Thereafter, Complainant filed a brief with proposed findings of facts and conclusions of law, and attached exhibits CX-1 through CX-14. Simultaneously, Complainant filed a motion to amend the complaint to conform to the evidence and to modify the proposed order to cease and desist attached to the complaint. Respondent did not file objection to the motion and on May 18 it was granted. The following findings of fact are based on the pleadings and Complainant's exhibits CX-1 through CX-14. The specific allegations of false representation alleged in the First Amended Complaint are set forth below (underscored) in conjunction with the related findings of fact.FINDINGS OF FACT

The Respondent

1. The Respondent, Joseph N. Wilkinson, is an individual residing at 2525 Main St., Apt. 506, Kansas City, MO 64108. [CX-4; CX-5] Respondent uses the business trade name United Air Services to solicit money or property through the mail to P. O. Box 412086, Kansas City, MO 64141-2086. [Answer, 1; CX-6; CX-9, Attachment C]

The Scheme

2. Respondent places advertisements in publications of general circulation that offer employment with United Air Services. [CX-7; CX-8] In addition, Respondent contacts various college placement offices and instructs them to list openings for individuals who are interested in employment with United Air Services. [CX-1] The jobs listed as available in these ads include flight attendants, ticket agents, reservationists, food service workers, and baggage handlers. The advertisements and listings instruct consumers to send a self-addressed, stamped envelope to United Air Services, P.O. Box 412086, Kansas City, MO 64141, in order to receive an application. [Answer, 2; CX-1; CX-2; CX-7; CX-8]

3. Persons who respond to Respondent's advertisements and listings receive an employment application packet seeking the remittance of a "processing fee" of $20.00 through the mail to United Air Services at Air World Plaza, P. O. Box 412086, Kansas City, MO 64141. [CX-2]

4. Persons who remit the required "processing fee" to Respondent in response to the instructions contained in Respondent's employment application package are sent a second set of materials which instructs them to send resumes and application forms directly to various airline companies, not to United Air Services. [CX-3]

The False Representations

REPRESENTATION 6(a): United Air Services is a commercial airline.

5. By way of his advertisements, listings, materials, and the very name of his business, Respondent represents that United Air Services is a commercial airline. This is found in the words "Airline" or "Airline Position" which appear at the top of each ad. Further, Respondent's mailing address includes the line "Air World Plaza," which conveys the impression that the business is operated out of a physical location shared with other airlines. "Air World Plaza" is a fiction in that the address Respondent uses in conjunction with this promotion is a post office box. Many consumers have understood Respondent's advertisements to be those of a commercial airline or a branch or affiliate of a commercial airline called United Air Services. Some consumers specifically understood United Air Services to be United Airlines, a widely known and recognized commercial airline. Respondent's ads clearly imply that the entity named in the ad, United Air Services, is a commercial airline. [CX-1; CX-2; CX-7; CX-8; CX-9; Attachments D5 and D9; CX-10; CX-11; CX-12; CX-14]

6. United Air Services is not an airline, commercial or otherwise, and is not affiliated with any airline, despite the confusing similarity between the name United Air Services and one of the nation's largest commercial airlines. United Air Services is merely a business trade name used by Respondent to conduct an employment scheme. [Answer, 1; CX-13; CX-14] Therefore, this representation is false.

7. This representation is material because consumers are more likely to respond to an employment advertisement for airline jobs if they believe that the advertiser is the airline rather than a one-man operation selling general information and applications to assorted airlines for $20. [CX-9, Attachments D10 and D11].

REPRESENTATION 6(b): United Air Services hires persons for specific positions in its own airline.

8. Respondent's advertisements and listings make the representation that United Air Services hires persons for specific positions with its own airline. The advertisements solicit responses from persons who want to apply for specific airline jobs; these persons are instructed to send for applications to an entity named United Air Services, which many consumers assume is the hiring airline. While the advertisements do not state explicitly that the positions listed are for employment with United Air Services, they do imply that United Air Services is the employer. [CX-1; CX-2; CX-7; CX-8; CX-10; CX-11; CX-12]

9. As found in Finding 6, above, United Air Services is not an airline, does not operate an airline, is not affiliated with an airline, and does not hire any persons for the specific airline positions it lists in its advertisements and promotional materials. [Answer, 1; CX-13; CX-14] Thus, this representation is false.

10. This representation is material because consumers are more likely to be induced to respond to an advertisement for airline employment if they believe that the party with whom they are applying is the employer, not a third party who has no connection to any airline and no hiring authority for airline jobs. [CX-9, Attachments D10 and D11]

REPRESENTATION 6(c): United Air Services has jobs available for persons who remit the application fee and the completed application.

11. Respondent's materials (those sent to consumers who respond to the advertisements and listings by sending a self-addressed stamped envelope to Respondent), in conjunction with the representations made in the initial advertisement, make the representation that United Air Services has jobs available for persons who remit the $20.00 application fee and a completed application form. [CX-1; CX-2; CX-7; CX-8]

12. United Air Services does not hire anyone for its own airline operations, which are nonexistent, and persons who remit the application fee with a completed form will not be considered for any airline position with United Air Services. [CX-3; CX-13; CX-14]

13. Consumers are induced to send in the application fee and completed application because they believe this action will lead to their to their being considered for employment by an entity that is actually hiring employees. Consumers could reasonably believe that the employing airline will consider only those applicants for the airline jobs specified in the ads and materials who send in the fee and the completed application. [CX-9, Attachments D5 and D9; CX-10, CX-11 and CX-12] This, this representation is material.

REPRESENTATION 6(d): Persons who remit the application fee will be considered for jobs with the commercial airline which placed the advertisement.

14. Respondent represents that persons who remit the application fee will be considered for jobs with the commercial airline which placed the initial advertisement. There is no indication in the advertisement or the first set of materials subsequently received by consumers who respond to the ad that the jobs listed are for airlines in general. The ads and materials themselves imply that United Air Services is the employer, or, in the alternative, that United Air Service is a branch, division, or affiliate of the employer. [CX-1; CX-2; CX-7; CX-8]

15. United Air Services is not a commercial airline and is not affiliated with one, and can therefore consider no one for the positions listed in its advertisements. United Air Services has nothing to do with the hiring of persons for any airline jobs. [Answer, 1, CX-3; CX-13, CX-14]

16. Consumers are prompted to remit the application fee because they think the fee is necessary in order to be considered for employment with United Air Services or its affiliated commercial airline. Thus, the representation is material. [CX-9, Attachments D1, D3, D5, D6, D7, D10, and D11]

REPRESENTATION 6(e): United Air Services has been asked or authorized to screen applicants for positions with other airlines.

17. Respondent represents in its materials supplied prior to the remittance of money by consumers that United Air Services has the authority to screen applicants for positions with commercial airlines, "processes" consumer applications to determine whether consumers qualify for airline positions, and makes a decision as to the applicant's qualifications for airline jobs. [CX-1; CX-2, p. 1; CX-3; CX-7; CX-8]

In addition, the language, "Interview decisions will be made by recruiting agents of the respective airlines after reviewing your application," found in the set of materials received before payment is made [CX-2, p. 1], implies that United Air Services has a special relationship with various airlines in the hiring and/or referral of qualified applicants.

18. Respondent's second set of materials sent to consumers who have remitted $20.00 (CX-3) makes it obvious that Respondent has no authorization from airlines to screen applicants in that the consumer is again advised that interview decisions are made by the respective airlines and the sample letter the consumer is told to send with his application to a specific airline makes no reference to Respondent or to any screening by Respondent. The representation is false.

19. This representation is material in that the consumer fills out and mails the two page application form with the $20 only because he believes that either Respondent is the employer who placed the ad, or that Respondent plays some significant, official role in the hiring process for the airline jobs it advertises. [CX-9, Attachments D10 and D11; CX-10; CX-11; CX-12]

REPRESENTATION 6(f): Persons who remit the application fee and this receive the second set of materials from Respondent have been evaluated and are qualified to apply for positions with United Air Services and/or other airlines.

20. Respondent represents that persons who remit the application fee and receive the second set of materials have been evaluated on the basis of the first application they submitted and been found qualified to apply for positions with United Air Services and/or other airlines. [CX-2; CX-3] Before consumers remit their money and complete and mail the application form provided with the first set of materials, they are led to believe that their qualification for airline positions will be determined by Respondent on the basis of their completed application. [CX-2]

21. In fact, there is no evidence that any evaluation process has been attempted or completed by Respondent with regard to consumers' initial applications. Respondent has no authority to "pre-qualify" persons for positions with commercial airlines. [Finding 18, supra; CX-13; CX-14] It is obvious from CX-3 that persons who receive the second set of materials from Respondent have not been deemed qualified for any airline position by any commercial airline or its representative. [See Finding 18, supra] Receipt of the second set of materials merely indicates that the consumer has sent in the fee, application, and self-addressed stamped envelope required by Respondent [CX-2, p. 4]. In order to be considered for airline jobs, consumers must make application directly to the airlines currently offering jobs; neither a prequalification application fee nor a screening process conducted by a third party is requested or necessary. [CX-13]

22. This representation is material because persons are unlikely to remit $20 and take the time to complete an application form if they think that doing so is an empty and unnecessary step toward the procurement of an airline job. [Cx-9, Attachments D8 through and including D12]

REPRESENTATION 6(g): The airline jobs listed in the advertisements do not require relocation.

23. Respondent states in its newspaper advertisements that relocation for the airline jobs listed is not necessary. [CX-7; CX-8]

24. Because Respondent has no special knowledge about which positions are available with which airlines, or where such positions are available, there is no basis for the advertising claim that relocation is not necessary. Respondent's newspaper ads appeared in such diverse locations as Miami, Florida; Denver, Colorado; Cincinnati, Ohio; Tulsa, Oklahoma; and Phoenix, Arizona. Respondent, not being employed by or affiliated with any commercial airline, cannot represent knowledgeably or truthfully that relocation would not be necessary in order for persons in all of these locations to accept employment with airlines. [CX-10; CX-11; CX-13]

25. This representation is material because consumers' personal circumstances may be such that they cannot accept employment outside their current geographic area. These consumers would be induced to respond to Respondent's ads if they were led to believe that they would not have to relocate in order to be hired by an airline. [CX-10; CX-11]

REPRESENTATION 6(h): United Air Services will provide training for the airline jobs listed in Respondent's advertisements.

26. Respondent's newspaper advertisements prominently state, just below the list of airline positions available, that "TRAINING IS PROVIDED." The ads imply that training for these positions is provided by the employer, ostensibly United Air Services. The first set of materials consumers receive, before they remit the fees with their completed application forms, reinforces the notion that training is provided by the airline employer. [CX-2, p. 4; CX-7; CX-8]

27. Respondent is not an airline, nor does it provide training programs for employees of the airline industry. While commercial airlines may very well provide training for persons who are hired for the types of positions listed in Respondent's advertisements, Respondent is not affiliated with any commercial airline and therefore is not in a position to make any representations about what may or may not be offered in conjunction with commercial airline employment. [CX-9, Attachment D1; CX-10; CX-13, CX-14]

28. This representation is material because it will induce persons who do not have experience relating to any of the listed positions to respond to Respondent's advertisement.

CONCLUSIONS OF LAW

1. The Postal Service has jurisdiction of this matter under 39 U.S.C. § 3005.

2. The meaning of advertising representations is to be judged from a consideration of an 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); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959). Express representations are not required. It is the net impression that the advertisement is likely to make upon purchasers to whom it is directed that is important. Even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the false representation statute is applicable. G.J. Howard v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958). See, also, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Vibra-Brush Corp. v. Schaffer, supra; Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir. 1942).

3. An advertisement as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because the advertisement is composed or purposefully printed in such a way as to mislead. Donaldson v. Read Magazine, Inc., supra.

4. It is not each separate word or a clause here and there of an advertisement that determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace. Donaldson v. Read Magazine, Inc., supr a, at 185-86 (1948); Gottlieb v. Schaffer, 141 F. Supp. 7, 17 (S.D.N.Y. 1956).

5. The foregoing standards of interpretation have been applied in arriving at the findings that the representations alleged in the complaint are made by Respondent in its advertisements and the first set of materials sent to consumers responding to the ads.

6. Although the Administrative Law Judge may determine whether representations are made, their effect on the ordinary mind and materiality without the assistance of lay or expert testimony, Standard Research Labs, P.S. Docket No. 7/78 (P.S.D. October 27, 1980); The Robertson-Taylor Company, P.S. Docket Nos. 16/98-102, 129-21 at 29 (P.S.D. March 31, 1986); Vibra-Brush v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957); rev'd on procedural grounds, 256 F.2d 681 (2d Cir. 1958) he may also consider testimony of consumers in conjunction with the advertisements in making his determination. See, e.g., Beatrice Bayley, Inc., P.S. Docket No. 22/113 (P.S.D. 9/16/86). Therefore, as reflected in the findings, consumer statements submitted by Complainant, corroborating my independent determination, have been considered.

7. The representations alleged in the complaint and found above to have been made are false in fact and are material in that they tend to induce readers to remit the fee requested by Respondent.

8. False commercial advertising, such as that employed by Respondent, is not protected by the First Amendment of the United States Constitution. Andersen Pharmacals, P.S. Docket No. 28/90 (P.S.D. March 3, 1989, citing, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 (1976)); Konigsberg v. State Bar, 366 U.S. 36, 49 (1961); United States Postal Service v. Athena Products, Ltd., 654 F.2d 362, 366-67 (5th Cir. 1981) cert. den'd, 456 U.S. 915 (1982).

9. Where Respondent should be in possession of proof of the positive, failure to adduce it may establish the negative. Standard Research Labs, P.S. Docket Nos. 7/78, 7/86 (P.S.D. 1980); Standard Research Labs, P.S. Docket No. 7/48 (P.S.D. 1980); Athena Products, Ltd., P.S. Docket 7/99 (P.S.D. 1981); Project Prayer, P.S. Docket 8/68 (P.S.D. 1981); Nutrition Headquarters, Inc., P.S. Docket 12/156 (I.D. June 14, 1982); Delta Enterprises, et al., P.S. Docket Nos. 14/72-75 (P.S.D. 1984). Respondent has failed and refused to offer any evidence tending to refute Complainant's allegations of representation, falsity and materiality.

10. Respondent, as alleged in the complaint, is engaged in a scheme to obtain money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

11. Respondent, in "suggestions" filed on March 16, 1992, argues that Paragraph I of Complainant's proposed Order to Cease and Desist is overbroad in that it would extend, without limitation, to unnamed and uncharged activities carried on in the future by those covered in Paragraph II. The suggestion is incorrect. The scope of the order is limited by Paragraph III which specifies the conduct prohibited.

12. The attached proposed orders, from the First Amended Complaint, should be issued.

Grant, Quentin E.,
Chief Administrative Law Judge