In the Matter of the Complaint Against GOVERNMENT LAND DIGEST Post Office Box 2217 at Norman, Oklahoma 73069 and Post Office Box A at Minco, Oklahoma 73059 P.S. Docket No. 3/196 August 28, 1975 William A. Duvall Chief Administrative Law Judge Thomas A. Ziebarth, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No appearance by Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was commenced on April 24, l975, when the Assistant General Counsel in charge of the Consumer Protection Office, Law Department, United States Postal Service, filed a complaint in which it was charged that Government Land Digest at Norman, Oklahoma, and at Minco, Oklahoma, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of Section 3005 of Title 39, United States Code.
In the complaint, the Respondent is charged with making the following representations which are alleged to be both material and false:
"(a) That he is the bonafide publisher of a magazine called 'Government Land Digest';
"(b) That this publication is furnished regularly to any person remitting the annual subscription price of three dollars;
"(c) That the publication will inform the subscriber how Public Lands can be obtained free of charge and how recreational sites may be obtained for prices ranging from $1.25 to $15.00 per acre; and
"(d) That he will furnish a publication entitled, 'Government Lands Opportunity' as a 'bonus' to any person who subscribes immediately to 'Government Land Digest.'"
The last of these four charges has been withdrawn from the complaint by Counsel for the Complainant. It remains to be determined, therefore, whether the Respondent, in the conduct of his business, makes the three representations which remain in the complaint - whether he uses them in the conduct of his business, and whether the representations, if made, are materially false.
Testifying on behalf of the Complainant was Inspector Wallace E. Pugsley, Jr., who is domiciled at Oklahoma City. Inspector Pugsley testified that he had received numerous complaints in regard to the operations of this Respondent. He has received correspondence from people who have complained that they feel they have not received for their three dollars that which they expected to get from the Respondent.
Complainant's Exhibit 1 is a copy of a form letter sent by the Respondent to the owners or operators of various radio stations. The Respondent authorizes the owner or operator of the radio station to make a certain commercial announcement on behalf of the Respondent. Part of the radio advertisement is an invitation to the listening public to write to the Respondent in respect to the enterprise which is the subject of this hearing.
Complainant's Exhibit 2 is another circular in the lower right hand corner of which is a subscription order form in which the reader of the circular is asked to remit three dollars in exchange for which he will receive the Government Lands Digest for one year, and a bonus in the form of an item designated "Government Land Opportunities."
Elsewhere in Complainant's Exhibit 2, it is stated that Government Land Digest is published quarterly.
In Complainant's Exhibit 2, the prospective subscriber is asked to write to Government Land Digest in Norman, Oklahoma, whereas in the radio commercial, which is identified as Complainant's Exhibit 1, the prospective customer is asked to write to the Respondent at Minco, Oklahoma.
The charge which is in paragraph 3 of the complaint is that this Respondent represents that he is a bona fide publisher of the magazine called "Government Land Digest." Complainant takes the position that the average reader would assume that what the Respondent is offering is a magazine. Complainant then translates the word "magazine" into a "periodical." It has not been stated whether that term "periodical" is sued in the sense in which it is used in the laws and regulations governing eligibility for second-class mail rates, but that is the sense in which I understand the Complainant to use the term.
I agree with the interpretation of the Complainant in regard to this issue. To begin with, the publication is described as a digest. There are digests which are both magazines and periodical publications within the meaning of the second-class mail rate laws and regulations. Although there are digests which are not magazines and which are not periodical publications, I find that Respondent does represent that the item that he is selling is a periodical within the meaning of postal laws and regulations governing second-class mail.
Additionally, the impression that one would receive from reading these circulars or hearing these radio advertisements is that Government Land Digest, or the owner of it, is the bona fide publisher. Part of Inspector Pugsley's testimony was that until October or November of 1974, which is less than a year ago, Charles T. Emerson, the owner and operator of the enterprise under examination today, would make copies of information contained in a different publication that is published in the State of Washington and Mr. Emerson would simply send that information out to his customers. Thus, it is clear that Mr. Emerson was not the publisher of the information which he sent out in response to his customers' orders. He was simply the conduit through which that information flowed.
There is evidence in the record that, beginning in October or November of 1974, the Respondent continued to operate the business, but he began to gather his own information and publish it. (See Complainant's Exhibit No. 9)
The fact that Mr. Emerson began latterly to gather and publish this information himself does not, in my opinion, excuse his adoption for an extended period of time of the practice of simply copying somebody else's material and then selling that. He can not absolve himself in that fashion from having made the representation that he is the bona fide publisher, because if he could change it so that he now is the actual publisher, it would be just as easy - perhaps easier, for him to change next month back to the practice of copying from somebody's else's work.
The second representation charged as being false is that the publication is furnished regularly to any person remitting the annual subscription price of three dollars. Since it has been found that the publication has been represented to be in such form as to meet the requirements for eligibility as second-class mail, one of which requirements is regularity of issuance as frequently as four times a year, the question then becomes does the Respondent furnish a publication to a person who remits the three dollars? There has been no evidence received in this proceeding of failure to deliver the publication to persons who remit the required amount.
With respect to paragraph 3(b) of the complaint, therefore, I find that the representation is made, but that the representation is true as to delivery for three dollars, but false as to the quarterly issuance of the publication.
This leaves to be considered the charge which is set forth in paragraph 3(c) of the complaint, which is that the publication would inform the subscriber how public lands can be obtained free of charge and how recreational sites may be obtained for prices ranging from $1.25 to $15 per acre.
Also testifying as a witness in this proceeding at the call of the Complainant was Mr. Louis S. Hillman, who is a legal assistant in the Division of Land Realty, Bureau of Land Management, Department of the Interior of the United States Government. Mr. Hillman has been employed in the Bureau of Land Management for a period of over 37 years. One of his functions is to keep current in regard to the the information as to public lands that are available for sale or lease to members of the public.
Mr. Hillman testified that there is absolutely no land in the public domain that is available to the public free of charge. There is absolutely no land in the public domain that is available for purchase at a price as low as $1.25 an acre. Such lands as are available for recreational purposes of the type that are emphasized in the circular matter of the Respondent are homesteads or desert land entries, which Mr. Hillman also emphasizes are available only upon the payment by the prospective homesteader or desert land entrant of a fee of a minimum of five dollars per acre for the life of the original entry of three years. The homesteader and the entrant must cultivate a portion of the land, must build a habitable dwelling and in the case of an entrant on desert land, he must show that he has obtained, or that he has, water rights. There are, also, requirements for residence on the land for certain miminum terms. This, of course, is information that is not specified in the circular matter employed by the Respondent.
Reference is made from time to time in Respondent's publication to the various agencies of the Government which have jurisidiction over the public lands. At times certain statutes are mentioned, but no detail is given in the information that is supplied to his customers by the Respondent.
Certainly the representation that is charged in paragraph 3(c) of the complaint is made, and it is material and false.
The findings that have been made with respect to the making of the various representations are based upon the holding in Donaldson v. Read Magazine , which is reported in 333 U. S. 178. The Supreme Court of the United States held there that advertising matter is to be interpreted on the basis of the impact that the reading of the advertising matter would have upon persons of average minds. In other cases, the average mind has been held to reside in the unwary and the unsuspecting, those who are trusting, the ignorant, the unthinking, and the credulous. That description is found in the case of Charles of the Ritz v. Federal Trade Commission , 143 F.2d 676.
Having the foregoing criteria in mind, it is clear that this Respondent is, as charged, 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.
It follows that an order of the type provided in Section 3005 of Title 39 of the United States Code should be issued against this Respondent.
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1/ Transcribed, with changes, from oral decision rendered at close of hearing held August 8, l975.