In the Matter of the Petition by                                )
                                                                               )
BENJAMIN B. BARNES, JR.                                    )
P. O. Box 58374                                                     )
New Orleans, LA 70158-8374                               )
                                                                                )
Termination of Post Office Box Service                 )    P. S. Docket No. 40/163

APPEARANCE FOR PETITIONER:                            David Band, P.C.
422 South Broad Street
New Orleans, LA 70119-7411

APPEARANCE FOR RESPONDENT:                        Daniel S. Bryant
Consumer Protection Law
475 L'Enfant Plaza, S.W.
Washington, DC 20260-1147

INITIAL DECISION

On July 6, 1993, Respondent Postal Service filed an Answer And Motion For Summary Judgment pursuant to 39 C.F.R. § § 958.3 (c) and (d). By order dated July 7, 1993, the undersigned Acting Chief Administrative Law Judge granted Petitioner ten (10) days from the date of receipt of the order to file a response to the Motion For Summary Judgment. A Domestic Return Receipt ( P.S. Form 3811) shows that Petitioner's attorney received a copy of the order on July 13, 1993. Petitioner's response was therefore due on July 23, 1993. To date Petitioner has filed no response. The petition and answer filed herein present no genuine or material issues of fact requiring an evidentiary hearing. Disposition of the case pursuant to 39 C.F.R. § 958.3 (d) is, therefore, appropriate.

FINDINGS OF FACT

1. Petitioner sent copies of a solicitation through the mail offering to sell a report explaining how anyone can legally send all of their first-class mail for only two cents postage per letter. The text of the solicitation reads as follows

( Exhibit 2) :

Dear Friend,

Check the envelope this letter came in. Notice the postage...It's ONLY 2 cents. That's right! This letter was mailed to you by FIRST CLASS mail for only 2 cents postage! But that's not the best part! NOW YOU TOO CAN SEND ALL YOUR LETTERS VIA FIRST CLASS MAIL FOR ONLY 2 CENTS EACH! HOW?? First let me assure you that this is no trick or gimmick. This letter did not come to you by an oversight at the Post Office. I pay no fees nor do I use bulk mailing. In fact, I now mail all my letters by speedy FIRST CLASS mail for only 2 cents each! Imagine the money I'm saving! Exactly $27.00 for every 100 letters! You can now mail 100 letters for only $2.00!! I and others like me, who know this unique procedure, have mailed THOUSANDS of letters via FIRST CLASS mail-ALL FOR ONLY 2 cents each!! And I have NEVER had one returned with postage due, or any postage due to the addressee, either!

This special mailing process does indeed work! This special mailing process is 100% legal, upright, honest, moral and ethical! And with the complete cooperation of the U.S. Postal Service....I assure you that this process works and is 100% legitimate. If it was not, the Postal Service would not have delivered this letter to you! You see, you are holding undeniable, physical proof right in your own hand!

What more proof could you possibly need? Just look at the postage on the envelope! This is not some kind of trick, gimmick, or scam. I promise that anyone can mail all their letters for only 2 cents each! If you would like to know how I, or anyone else, can mail all my letters FIRST CLASS for only 2 cents each, just fill out the order form below and sent it back to me along with the proper payment and I will rush all the information back to you the same day I receive it. Find out how I do it! Mail your order NOW! Start saving hundreds of dollars immediately!...

At the bottom of the letter was an order blank for the payment of $15 ($10 if the order was placed within a certain time limit) for Petitioner's "report on How to Mail FIRST CLASS LETTERS for only 2 CENTS EACH". Recipients were directed to send their orders to Petitioner's post office box--58374.

2. On May 27, 1993, the Postmaster at New Orleans, Louisiana, issued a Determination pursuant to Domestic Mail Manual (DMM) § 951.83, advising Petitioner that P.O. Box 58374 would be closed. The stated ground for the closing was that Petitioner was in violation of DMM § 951.82(c) which provides for box closing when the customer has violated a regulation concerning the use of the post office box.^1/

3. By letter dated June 2, 1993, Petitioner's attorney, David Band, Esq., filed a petition in opposition to the proposed post office box closing. In his petition, Mr. Barnes does not deny that he mailed copies of the solicitation quoted above or that he used only two cents postage for the mailings. Rather, Petitioner contends that he "had no idea that his mailing a solicitation with the post office box as his return address would be considered a violation of postal regulations". Petitioner further argues that the solicitation is "merely an offer to share information with the recipient for a fee, which may or may not be true, but in any event would be within the ambit of [his] First Amendment Rights to free speech."

4. The postmaster forwarded the petition to the Recorder for the U.S. Postal Service, pursuant to 39 C.F.R. § 958.3 (a).

CONCLUSIONS OF LAW

1. Postal Service regulations provide that a post office box may not be used for, or in connection with, a scheme or enterprise that violates any Federal, state or local law. DMM § 951.163 (a). In this case Petitioner used his post office box to promote a scheme that violated a number of Federal laws. The foundation of Petitioner's scheme was to mail copies of his solicitation via first-class mail with only two cents postage, when Postal regulations require twenty-nine cents postage for first class letters weighing one ounce or less. DMM § R000.1.0. Postal Service regulations also provide that "[t]he mailer is responsible for proper payment of postage", and with certain exceptions not relevant here, "[p]ostage on all mail must be fully paid at the time of mailing...." DMM P011.1.1. Petitioner's intentional mailing with insufficient postage violates these regulations. See, David S. DeRiemer, P.S. Docket No. 39/141, sl.op. at 4-5 (P.S.D. Nov. 10, 1992). Deliberately mailing letters with insufficient postage has also been held to constitute a false claim under the Program Fraud Civil Remedies Act, 31 U.S.C. 3802 (a) (1). Frank R. Pepper, d/b/a/ Credit Data Auditing Group, P.S. Docket No. PF-54 (I.D. April 9, 1993).

2. In addition to the postage rate violation, Petitioner was also engaged in soliciting money through the mails by means of false representations, using his post office box to receive payments. Thus, as shown above, Petitioner falsely stated, inter alia, that he had a legal method for mailing first-class letters with two cents postage and that this method had the complete cooperation of the Postal Service. Petitioner solicited $10 or $15 from recipients for the sale of his allegedly legal mailing system. Since, as shown above, it is unlawful to intentionally mail letters via first class mail with only two cents postage, Petitioner's statements about his so-called legal mailing procedure are patently false. Petitioner's solicitation of money through the mails by means of false representations violated 39 U.S. C. § 3005 (1988 & Supp. II 1990).

3. Petitioner contends that whether or not his solicitation is truthful, it constitutes protected speech under the First Amendment. Petitioner's contention is without merit. Petitioner's false representations constitute speech which is unprotected by the First Amendment. See, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772 (1976); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 389 (1973).

4. Petitioner further claims that he did not know that mailing a solicitation using his post office box as a return address would violate Postal Service regulations. Petitioner obviously knew that the first-class letter rate is twenty-nine cents because he refers to saving twenty-seven cents per letter in his solicitation. ( "Imagine the money I'm saving! Exactly $27.00 for every 100 letters!" ) Petitioner also knew or had reason to know that mailing letters with less that twenty-nine cents postage is unlawful. By undertaking such unlawful conduct and encouraging others to do so, Petitioner assumed all of the consequences of his conduct, which includes the loss of his post office box. It is well established that "[p]ost office boxes are a premium service offered only to those who comply with the regulations." See William H. Lahan, P.S. Docket No. 24/156, sl.op. at 6-7 (P.S.D. Dec. 31, 1986); Mrs. Junior E. Powell, P.S. Docket No. 21/159 , sl.op. at 2 (P.S.D. Nov. 29, 1985).

5. Petitioner violated Postal Service regulations and he is not entitled to continued use of the post office box. The Postmaster's determination is sustained.

Judith A. Dowd
Acting Chief Administrative Law Judge

1/ "Section 951.82 Termination of Service. A postmaster may close a post office box when the box customer has...
c. Violated any regulation on the care or use of the box."