In the Matter of the Complaint Against:

 ANGLER'S, ANGLER'S FRIEND,
 Post Office Box 5232 at
 Trenton, New Jersey 08638

 P.S. Docket No. 5/58
 
 10/18/76
 
 Grant, Quentin E.; Administrative Law Judge

 Thomas A. Ziebarth, Esq.
 
 Law Department
 United States Postal Service
 Washington, D.C., for Complainant 

 M. I. Bergman, for Respondent 
 
 Before: Quentin E. Grant, Administrative Law Judge

Complainant initiated this proceeding on August 17, 1976 by filing a complaint alleging that respondent, doing business under the names and at the address set forth in the caption hereof, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005.

The complaint alleges that respondent attracts attention to said scheme by means of classified advertisements appearing in publications of general circulation; that such advertisements invite the reader to send for "Free Details" on how to obtain "free fishing tackle" while others offer a "secret system" on how to obtain "free fishing tackle" to those who remit $5.25; that persons requesting the "free details" are sent an advertising brochure offering a "secret filled" book, entitled "How to Get Free Fishing Tackle" to those who remit $5.50.

The complaint further alleges as follows:

"(3) By means of such materials, and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statement, omission or implication that:

(a) Over one hundred manufacturers of fishing tackle regularly furnish free samples of their products to any person who asks for them in the 'correct way';

(b) Persons utilizing the 'secret system revealed' in the book, 'HOW TO GET FREE FISHING TACKLE' will receive 'free fishing tackle, rods ... reels ... lures ... and more'; and

(c) The 'secrets' outlined in 'HOW TO GET FREE FISHING TACKLE' are guaranteed to work."

Finally, the complaint alleges that such representations are materially false as a matter of fact.

Respondent filed an answer to the complaint signed by M. I. Bergman. In substance, the answer denied the misrepresentations alleged.

A hearing in the matter was held on September 21, 1976. Respondent did not appear thereat in person or by an attorney. Complainant's evidence was received pursuant to 952.11 of the Rules of Practice. Complainant placed in the record oral proposed findings of fact and conclusions of law.

1. Respondent's advertisements (CX-1), admissions in respondent's answer to the complaint, and the testimony of Inspector Roderick P. Sullivan, Jr., support a finding that respondent is engaged in conducting a scheme or device for obtaining money or property through the mail.

2. Respondent's classified advertisements read as follows:

"FREE. Fishing Tackle] Rods ... Reels ... More] No Gimmick - Free Details] A.F. Box 5232F, Trenton, New Jersey 08638."

"FREE FISHING TACKLE] RODS ... REELS ... more] Secret system revealed] Money-saving book tells how] No Gimmick] Guaranteed] Only $5.25. Send today] ANGLER'S, Box 5232N, Trenton, N.J. 08638."

3. Persons who respond to the first of the foregoing advertisements receive a 5-page brochure and order forms. The tenor of the brochure is that respondent publishes a book in which purchasers thereof will find the secret of how to obtain fishing tackle free from manufacturers thereof. The order form is headed by the words "No Risk Order Form." Persons sending the order form to respondent together with a remittance of $5.50 receive an 18-page booklet which purports to advise recipients how to obtain free fishing tackle direct from 104 manufacturers listed therein (CX-2).

4. The booklet (CX-3) advises purchasers thereof to write letters to fishing tackle manufacturers offering a field test and evaluate specific items of tackle made by individual manufacturers and states that the results of writing such letters will be the receipt of a minimum of $100.00 worth of free tackle within the first month.

5. The entire thrust of respondent's advertisements, the 5-page brochure and the 18-page booklet of secrets corresponds with the representations alleged in the complaint as set forth above.

6. Postal Inspector Sullivan followed the procedure set forth in respondent's brochure. He wrote the suggested letters to 104 fishing tackle manufacturers listed in the booklet (Tr. 7, 8; CX-5). He received twenty replies, all negative. No affirmative replies were received. No fishing tackle was received (Tr. 8). Thereafter, Mr. Sullivan sent a questionnaire to the same 104 companies asking among other things (1) whether they accept unsolicited requests for field testing, and (2) whether they send fishing tackle in exchange for field testing by individuals and fishing clubs. Mr. Sullivan received replies from about 40 of the 104 manufacturers. One company stated that it would give free tackle in exchange for field testing but only after a personal interview. The other companies replied that they did not send free tackle in exchange for field testing (CX-6, CX-7; Tr. 8-10).

7. Based on the findings of fact in paragraph 6, supra, I find that the representations made by respondent as alleged in the complaint and found above are materially false in fact.

1. Respondent 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 39 U.S.C. 3005. Such representations are materially false in fact.

2. Respondent's advertisements, brochure and booklet make the materially false representations alleged and will be so understood by the average reader. The meaning of advertising representations is to be judged from a consideration of the advertisement in its totality and the impression it will most probably create in ordinary minds. See Donaldson v. Read Magazine, 333 U.S. 178 (1948).

3. The illegal taint of respondent's representations is not removed by the inclusion of a money back guarantee. G. J. Howard v. Cassidy, 166 F. Supp. 568 (USDC ED NY 1958).

4. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued against respondent.