In the Matter of the Complaint Against UNIVERSAL TELEX REGISTER, Published by; SAGER PUBLISHING GROUP, International Business, Register Ottikerstrasse, 53 8006 Zurich, Switzerland P.S. Docket No. 1/35January 31, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: James J. Robertson, Esq. Law Department Consumer Protection Office United States Postal Service Washington, D.C. 20260 for Complainant No appearance for Respondent
This proceeding was initiated on November 3, 1971, when the Senior Assistant Postmaster General and General Counsel for the Postal Service, the Complainant, through the Assistant General Counsel in charge of the Consumer Protection Office, filed a complaint against Universal Telex Register, published by Sager Publishing Group, the Respondent.
The complaint charged the Respondent with conducting a scheme for obtaining money or property through the mails by means of false representations contrary to the provisions of 39 U. S. Code 3005. In particular, the objectionable conduct alleged in the complaint was the multiple mailing of an improperly identified solicitation composed and designed to resemble a bill requesting the addressee to remit a specified amount of money for insertion of a business notice in editions of the publication entitled Universal Telex Register.
The complaint and notice of hearing were served on the Respondent in Zurich, Switzerland, on or before November 17, 1971.
An answer was filed by Respondent on November 26, 1971, in which it is stated on behalf of Respondent, in effect, as follows: (1) that there is a need for the service it offers; (2) Respondent is trying to meet that need; and (3) Respondent has no wish to, and feels that it does not, contravene the provisions of the laws and regulations governing the Postal Service.
In the answer there is no indication of an intention to appear at the hearing, and, in fact, no person was present to represent the Respondent at the hearing.
At the hearing, Counsel for Complainant introduced as evidence samples of the items mailed by Respondent to various firms in the United States. Copies of each of two of such solicitations are attached hereto as Appendices A and B identified as Sub-appendices as follows: A-1 (front side, first sheet), A-2 (reverse side, first sheet), A-3 (front side, second sheet), B-1 (front side, first sheet), B-2 (reverse side, first sheet), and B-3 (front side, second sheet).1/
When mailed by Respondent and received by prospective advertisers, the first and second sheets of each exhibit are attached to each other at the top in such a manner that the printed matter on the reverse side of sheet one is upside down to the reader when he turns the sheet to look at the second sheet. This fact increases the strong likelihood that the person or firm to whom these communications are sent will overlook item 3 appearing in small print on the back of the first sheet, which is the only indication on the entire notice that the communication is a solicitation, only, and not a statement of account.
Evidence was also received that mail is addressed to Respondent at 60 East 42nd Street, New York, New York, 10017, from which address, presumably, the mail containing remittances was to be forwarded to Respondent in Switzerland.
Section 3005 of Title 39, U. S. Code, provides, in pertinent part:
"(a) Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, or is engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property, by lottery, chance, or drawing of any kind, the Postal Service may issue an order which--
"(1) directs the postmaster of the post office at which mail arrives, addressed to such a person or to his representative, to return such mail to the sender appropriately marked as in violation of this section, if the person, or his representative, is first notified and given reasonable opportunity to be present at the receiving post office to survey the mail before the postmaster returns the mail to the sender; and
"(2) forbids the payment by a postmaster to the person or his representative of any money order or postal note drawn to the order of either and provides for the return to the remitter of the sum named in the money order or postal note. ***"
Section 3001(d) of Title 39, U. S. Code, provides as follows:
"(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, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs, 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.]; or
"(B) in lieu thereof, a notice to the same effect in words which the Postal Service may prescribe."
Since Respondent's material does not on its face bear the required legend, it is obvious that this material does not meet the requirements of 39 U. S. Code 3001(d).
Upon the basis of all the foregoing facts and circumstances, the Hearing Examiner makes the following findings of fact and conclusions of law:
1. Sager Publishing Group, under the name Universal Telex Register, Ottikerstrasse 53, 8006 Zurich, Switzerland, and at 60 East 42nd Street, New York, New York, 10017, the Respondent, is engaged in soliciting entries which allegedly are to be published in an international business register.
2. In connection with the activity described in Finding of Fact No. 1, Respondent sends, by means of the United States mails, solicitations to persons whose business notices are allegedly sought for publication in an international business register.
3. The solicitations mailed by Respondent as described in Finding of Fact No. 2, look like, and give the impression that they are, bills, invoices or statements of account due.
4. The solicitations mailed by Respondent as described above do not contain on their face any notice that they are solicitations for orders of goods or services and not bills, invoices or statements of account due.
1. The solicitations mailed by Respondent as described in Findings of Fact Nos. 1 through 4 do not meet the requirements of 39 U. S. Code 3001(d), and they are, therefore, nonmailable.
2. The Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of 39 U. S. Code 3005.
A remedial order of the type provided for by sections 3001(d) and 3005 of Title 39 U. S. Code should issue against this Respondent.
Because of the peculiar nature of this type of operation, it is the recommendation of this Hearing Examiner that the usual procedural steps between the issuance of the Initial Decision of the Hearing Examiner and the final Postal Service Decision by the Judicial officer be eliminated in this proceeding. This decision will be transcribed and sent to the parties immediately upon its transcription. In addition, a copy will be sent to the Judicial Officer with the recommendation that he use this decision, if he agrees with the conclusions reached herein, as the basis for a final Postal Service Decision and that he issue with such expedition as he may deem appropriate, the remedial order herein recommended.
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1/ There is no printing on the reverse side of the second sheet of either Appendix.