February 01, 1999
In the Matter of the Complaint )
UMS United Media Services GmbH )
P.O. Box 343 Baarerstr. 43 )
CH 6301 ZUG )
SWITZERLAND ) P. S. Docket No. FOR 98-421
APPEARANCE FOR COMPLAINANT: Michael Mumbach, Esq.
Alan B. Ostroff, Esq.
United States Postal Service
Civil Practice Section
Washington, DC 20260-1127
APPEARANCE FOR RESPONDENT: R. Zwahlen
P.O. Box 343 Baarerstr. 43
CH 6301 ZUG
POSTAL SERVICE DECISION
ON MOTION FOR RECONSIDERATION
On September 15, 1998, Tentative Decision and Order No. 98-89 (hereinafter "Tentative Decision") was issued which concluded that Complainant had made a prima facie showing that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. §3005 (1994). Respondent filed a timely reply to the Tentative Decision in which it denied it is engaged in any conduct in violation of the United States postal false representation and lottery law. On November 6, 1998, the Judicial Officer issued an Order (hereinafter "Final Order") in which he concluded that Respondent had not shown good cause for dismissing the Complaint and that Tentative Decision and Order No. 98-89 should become the Final Decision and Order of the Postal Service. Respondent has filed a Motion for Reconsideration of the Final Order.
Respondent distributes solicitations and seeks remittances through the United States mail for listings in its International Yellow Pages. In the Tentative Decision, affirmed by the Final Order, the Judicial Officer determined that Complainant had made a prima facie showing that Respondent's solicitations were in the form of and reasonably could be construed as bills, invoices, or statements of account due that do not comply with the statutory and regulatory notice requirements of 39 U.S.C. §3001(1)(d) and Domestic Mail Manual (DMM) §CO31, Parts 1.1 through 1.6.(2) Respondent asserted in its reply and again in its Motion for Reconsideration that its mailing is merely an offer to be listed in its directory and not a solicitation in the form of a bill, invoice or statement of account due. According to Respondent, the nature of its offer is clearly reflected in the language of the solicitation and, therefore, recipients could not reasonably construe the mailing to be a bill or invoice.
Respondent has not shown that the Final Order should be modified or revoked. The overall impression created by Respondent's mailing is that it is a bill or invoice. This impression is created by both the text and format of the mailing, which contains an identification number, a date of dispatch, a personalized description of the information to be inserted in the directory, details of payment and a total amount due that includes a 3% discount if paid within 21 days, all of which suggest a continuing business relationship between Respondent and the recipient(3) for which a bill is being sent. Although the "Terms and Conditions" language on the back of the solicitation might raise some question about the nature of the mailing, it is not likely to lead the ordinary recipient to conclude that the mailing is an offer rather than a bill or invoice. The ordinary recipient does not have the obligation to critically scrutinize every sentence of the solicitation to determine exactly what is being offered.(4) The language of the solicitation relied on by Respondent does not overcome the impression created by the overall wording and form of the solicitation that it is a bill, invoice or statement of account due.
Since the solicitation is in the form of, and reasonably could be interpreted or construed as a bill, invoice or statement of account due which does not comply with the notice requirements of 39 U.S.C. §3001(d) or §CO31 Parts 1.1 through 1.6 of the DMM, it is nonmailable under 39 U.S.C. §3001(d) and its distribution in the United States mail constitutes prima facie evidence that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. §3005(a). Accordingly, Respondent's Motion for Reconsideration is denied and Tentative Decision and Order No. 98-89 remains the Final Decision and Order of the Postal Service.
James A. Cohen
(d) Matter otherwise legally acceptable in the mails which -
(1) is in the form of, and reasonably could be interpreted or construed as a bill, invoice or statement of account due; but (2) constitutes in fact, a solicitation for the order by the addressee of goods or services, or both;
is nonmailable matter...unless such matter bears on its face, in conspicuous and legible type in contrast by typography, layout, or color with other printing on its face, in accordance with regulations which the Postal Service shall prescribe-
(A) the following notice: "This is a solicitation for the order of goods or services, or both, and not a bill, invoice, or statement of account due. You are under no obligation to make any payments on account of this offer unless you accept this offer."
2. DMM § CO31, Part 1.2 states that "[t]he solicitation must bear on its face either the disclaimer required by 39 U.S.C. 3001(d)(2)(A) or the notice: 'THIS IS NOT A BILL. THIS IS A SOLICITATION. YOU ARE UNDER NO OBLIGATION TO PAY THE AMOUNT STATED ABOVE UNLESS YOU ACCEPT THIS OFFER.' The statutory disclaimer or the alternative notice must be displayed in conspicuous boldface capital letters of a color prominently contrasting with the background against which it appears, including all other print on the face of the solicitation and that are at least as large, bold, and conspicuous as any other print on the face of the solicitation but not smaller than 30-point type."
3. The solicitation itself is the best evidence concerning whether it has the appearance of a bill or invoice. Erica Lynn Kortje d/b/a Employment Classifieds, P.S. Docket No. 40/176 (P.S.D. Sept. 27, 1995), at 3.
4. Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994), at 20; Charles Smith, et al., P.S. Docket No. 37/180 (P.S.D. Jan. 31, 1994), at 15; Directory Publishing Services, P.S. Docket No. 38/122 (P.S.D. Feb. 28, 1994), at 14-15.