In the Matter of the Appeal of CLASSIFIED DIRECTORY and NATIONAL DIRECTORY PUBLISHERS, Appellants, Post Office Box 1381, at Niagara Falls, NY 14302, from a ruling under 39 U.S. Code 3001. P.S. Docket No. 6/66 April 18, 1978 William A. Duvall Chief Administrative Law Judge APPEARANCES: Frank R. Cohen, Esq. Farber & Cohen, 488 Madison Avenue, New York, New York 10022 and James L. Newman, Esq. Suite 401, 67 Richmond Street West, Toronto, Canada M5H 1Z5, for Appellant Thomas A. Ziebarth, Esq. Law Department, U. S. Postal Service Washington, D.C. 20260, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
During the hearing of a different, but related, matter 1/ involving Classified Directory and National Directory Publishers, [Appellant's] Respondent's counsel, at the request of Appellant's counsel, agreed to examine two documents received in evidence as Respondent's Exhibits 1 and 2 for the purpose of making a ruling as to whether these documents 2/ are mailable or nonmailable under the provisions of 39 U.S. Code 3001.
After the noon recess, Respondent's counsel announced that he had made the requested examination and that upon the basis of that examination it was his ruling that the documents in question are nonmailable within the meaning of the cited section of the Code, and of postal regulations issued pursuant thereto.
As the parties had also agreed, Appellant was deemed to have taken an appeal from that ruling and the matter was ripe for decision under the Rules of Practice governing such matters. (30 C.F.R. Part 953).
The pertinent portions of 39 U.S. Code 3001 read 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 fact, 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.
Postal Service regulations on the subject, found in 123.41 of the Postal Service Manual, (39 C.F.R. 123.41) have substantially the same provisions but in more detail, as follows:
Any otherwise mailable matter which reasonably could be considered a bill, invoice, or statement of account due, but is in fact a solicitation for an order, is nonmailable unless it conforms to .41a or b, below.
a. The solicitation shall bear on its face the disclaimer prescribed by 39 U.S.C. 3001(d)(2)(A) in 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 at least as large and as bold as any other print on the face of the solicitation, but not smaller than 30-point type; or
b. The solicitation shall bear on its face the notice: THIS IS NOT A BILL, in 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 at least as large and as bold as any other print on the face of the solicitation, but not smaller than 30-point type. The notice shall be located in accordance with one of the following options:
(1) On the center of the diagonal described by a straight line drawn from the vertex of the lower left corner to the vertex of the upper right corner; or
(2) Overprinting each portion of the solicitation which reasonably could be considered to specify a monetary amount due and payable by the recipient.
In addition, the solicitation shall bear on its face the disclaimer: THIS IS A SOLICITATION. YOU ARE UNDER NO OBLIGATION TO PAY UNLESS YOU ACCEPT THIS OFFER. The disclaimer shall be surrounded by clear space of at least one-quarter inch; it shall appear in capital letters no smaller than 18-point type and of the same color as the notice required by the first sentence of this subsection; and it shall not, by folding or any other device, be rendered less prominent than any other information on the face of the solicitation.
c. The disclaimer required by .41a or the notice and disclaimer required by .41b shall not be preceded or followed by words or symbols which introduce, modify, qualify, or explain the prescribed text, such as "Legal notice required by law."
d. Any solicitation which states that it has been approved by the Postal Service or by the Postmaster General or that it conforms to any postal law or regulation is nonmailable. (42 F.R. 58170, Nov. 8, 1977.)
There is in the record testimony of competent witnesses who have described the way in which incoming bills are handled in businesses of various sizes. A large company sees to it that incoming bills go through numerous reviews which would tend to increase the likelihood that an incoming paper would be more susceptible to being identified for its true character, as to whether it is a solicitation for business or whether it is a presentation of an account due for goods delivered or services rendered. On the other hand, Stanley J. Fenvessy, Esq. a Certified Management Consultant, 745 5th Avenue, New York, N.Y., testified that smaller companies have a less stringent review and there is more likelihood that incoming bills are subjected to less scrutiny and that, therefore, there is more likelihood that they will be passed on and approved for payment (Tr. 102).
Based upon a careful and independent examination of them I find, in the words of the statute, that Respondent's Exhibits 1 and 2 are "in the form of, and reasonably could be interpreted or construed as, a bill, invoice or statement of account due." The exhibits are attached to this decision.
At this point, the new regulation comes into play, if I understand the situation correctly, and that new regulation, also, requires that when there is such a piece of mail which meets the statutory definition, it must have certain legends and certain language printed on it in a color and in certain size, style and placement of type which contrast with the rest of the document.
From the papers before me, the originals of Respondent's Exhibits 1 and 2, there is not that required contrast.
For these reasons, it is my view, and I so hold, that Respondent's Exhibits 1 and 2 are nonmailable under 39 U.S. Code 3001, and the regulations issued pursuant thereto.
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