In the Matter of the Complaint Against

 EDUCATIONAL RESEARCHERS,
 EDUCATIONAL RESEARCH EDUCATIONAL
 RESEARCH ASSOCIATES RESEARCH
 P. O. Box 4391, at
 Takoma Park, Washington, D.C.  20012

 P.S. Docket No. 3/53

 07/31/75

 Lussier, Edward F.  

 APPEARANCES:
 Thomas A. Ziebarth, Esq.;
 Law Department, U. S. Postal Service,
 Washington, D.C. 20260 for Complainant

 Mr. William J. Halterman,
 Research Data Publishers,
 Post Office Box 4374,
 Silver Spring, Maryland 20904 for Respondent  

The subject proceeding arises out of a Complaint filed by the Postal Service charging that Respondent is in violation of 39 U.S.Code § 3005 which prohibits the use of the mails for conducting a scheme or device for obtaining money or property through the mails by means of false representations. A hearing was held and an Initial Decision rendered by Administrative Law Judge Herbert L. Stewart in which he concluded that there was a violation of law and recommended a remedial order be issued under the statute. Appellant has filed an appeal from that Initial Decision in accordance with the applicable Rules of Practice, 39 Code of Federal Regulations Part 952.20.

In the instant case the record is clear that the Respondent has been advertising in at least five and, at certain points in time, as many as twenty-five college newspapers (Tr. 32). One advertisement in the University of Maryland "Diamondback" reads as follows:

"Research. Many topics on file: $2.25/page. Original research from $4.50/page. Customer satisfaction guaranteed. Ten day service w/special rush service available. Send order to Educational Researchers, Box no. 4391, Washington, D.C. 20012 or call (202) 723-1715."Another advertisement in a different issue of the same newspaper reads as follows:

RESEARCH

Professional

On Time

Competitive Prices

Research on File

Call for Catalog

Educational Research

(202) 723-1715

P. O. Box No. 4391

Takoma Park

Washington,D.C. 20012"

The "catalog of research topic discussions" which Respondent sends to prospective purchasers in response to these ads lists a cost of $2.50 per page followed by the statement "We will also do original research on the following price scale:

$5.00 per page lower division

$6.25 per page upper division

Respondent admits that one could draw the inference from use of the words "lower division", "upper division" that this compares to undergraduate and graduate levels (Tr. 33). As found in the Initial Decision Respondent's catalog lists approximately a thousand titles of prewritten papers indexed by subject matter generally covering courses of study found at institutions of higher learning and each title describes the subject, number of pages and whether or not footnotes and/or bibliographies are included. The front page of the catalog also contains the following pertinent information:

" LENGTH OF TIME REQUIRED

10 days is the minimum period of time required to complete a research project. We offer a 5 day rush service for an additional $2.00 per page. On the rush service this means that we will complete the project within 5 days, it does not mean that you will receive the project within that period of time since we cannot control the mail. In unusual circumstances we will arrange for the project to be hand carried to the recipient at additional cost.

ORDERING

On research from our catalog the full price is required before we will mail the material. Payment may be made by money order or by certified check. NO PERSONAL CHECKS ARE ACCEPTED.

On original research projects we require a deposit of 50% of the cost of the research project. We will send the work to you C.O.D.

When ordering original research BE AS SPECIFIC AS POSSIBLE. We will be pleased to work from your outline. While we attempt to use the sources you specify we cannot guarantee our ability to find them.

All material is typed and double-spaced with approximately 250-300 words per page. Any special requirements must be requested in advance and given written confirmation by our staff.

We serve a large number of people. Thus, it is best to call and notify us before sending in an order for an original research project.

DUE OT OUR HEAVY WORKLOAD WE REQUEST THAT YOU USE A CATALOG PAPER WHEREVER POSSIBLE. Catalog papers are mailed out within 72 hours (usually 24 hours).

ALL ORDERS SHOULD BE SENT TO US VIA SPECIAL DELIVERY, CERTIFIED MAIL TO PREVENT MISTAKES."

Respondent's principal argument made in its proposed findings of fact prior to the Initial Decision in this case as well as in its appeal brief is that the Complainant has failed to carry its burden of proof. Respondent also contends that the matter is "outside of the domain of the Postal Service". The basis for this latter contention appears to be that the Respondent is not responsible for what its customers might do with the product Respondent sells. This question has previously been resolved by the First Circuit Court of Appeals in the case of United States v. International Termpapers, Inc., 477 F.2d 1277 (1973), followed by the Postal Service in Termpapers, P.S. Docket No. 2/188(1974). As pointed out by the court in that case "For the statute to apply to a sender, where a third party is deceived by a recipient, the sender must contemplate a 'scheme' which involves a misrepresentation based upon the materials which he sends".

Respondent contends that "It is our inherent constitutional right as writers to write and sell whatever we choose to whomever providing we do not violate the standards of community decency". The law is quite clear that commercial enterprises do not enjoy the right to use of the mails to further a scheme of misrepresentation. Lynch v. Blount, 330 F.Supp. 689, aff'd 404 U.S. 1007 (1972); United States v. Outpost Development Corp., 396 F.Supp. 399, aff'd 414 U.S. 1105 (1973).

A bona fide research company which has no intention of promoting the sale of its products by deliberately cooperating in the subversion of the educational process through student intellectual dishonesty and cheating, is not placed in an unreasonable position if it must merchandise its product in a way that does not intentionally encourage the third party misrepresentation. Respondent's testimony at the hearing is pertinent in this respect:

"MR. ZIEBARTH: Now, do you sell to University of Maryland students the same paper, or do you warn them, 'I already sold it to Maryland'

"MR. HALTERMAN: I will tell them yes.

"MR. ZIEBARTH: Have you, in fact, sold any papers, the same paper, to two students at the same university?

"MR. HALTERMAN: In what sense? I mean, we are dealing as far as the mails are concerned; aren't we?

So, I don't really think that the question is germane.

"MR. ZIEBARTH: Well, have you mailed the same paper to the same school?

"MR. HALTERMAN: No, not to the best of my knowledge.

"MR. ZIEBARTH: And, in fact, is it not true that this is a kind of security measure to prevent --

"MR. HALTERMAN: You can interpret it that way."

(Tr. pp. 38, 39)

Furthermore, the exchange of correspondence between a Postal Service Inspector posing as a college student and Respondent, as well as the inspector's testimony with regard to an oral conversation with Respondent, which Respondent admitted was in essence accurate (Tr. 36), confirms quite clearly that Respondent was aware that the particular purchase was intended to be turned in to the college as the student's own termpaper (Comp. Exs. 8, 11, 15, 18, 22; Tr. 19 & 20).

It is not the intent of the Postal Service to interfere with the business of an individual or company properly engaged in the sale of research papers. However, the statute would be frustrated if the seller of such materials uses the mails to sell its materials to the college student market under circumstances giving rise to the intended use of such materials as the student purchaser's own termpaper. There is sufficient evidence here to support the ultimate conclusion of Administrative Law Judge Stewart that Respondent is engaged in a third party misrepresentation scheme in violation of 39 U.S. Code § 3005. Respondent also alleges that the record shows bias on the part of Judge Stewart. This allegation is totally unsupported by the record.

The Initial Decision is hereby affirmed and an appropriate order under 39 U.S. Code § 3005 is being issued contemporaneously with this decision. The fact that Respondent may, as it alleges, advertise in non-student publications and also sell to other than students does not legitimize the activity which is the subject of the instant Complaint. Mail orders and remittances from business firms and non-students are obviously not within the scope of these proceedings or the order issued thereunder. Any inconvenience to Respondent in carrying out its responsibility to clearly distinguish one from the other before being entitled to receive the mail is a necessary consequence of its own actions.

Respondent contends in its Appeal Brief that the issue of violation of the statute has been rendered moot by virtue of alleged changes in its advertising in the unusually long interim between hearing of the case and Judge Stewart's Initial Decision. Whether the changes are cosmetic or real is an issue of fact not properly raised at this time. However, if Respondent can satisfactorily show that it is no longer engaged in the prohibited activity and joint examination of the mail over a reasonable period of time confirms no further need for the protection of the order, an appropriate motion for modification or suspension will be then entertained.