In the Matter of the Complaint Against VANGUARD WILLIAMS ASSOCIATES, P. O. Box 350, Grand Central Station at New York, NY 10017 P.S. Docket No. 6/31 August 24, 1979 William A. Duvall Chief Administrative Law Judge H. Richard Hefner, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Herbert Monte Levy, Esq. 9 East 40th Street, New York, NY for Respondent Before : Rudolf Sobernheim , Administrative Law Judge Decided by : William A. Duvall , Chief Administrative Law Judge
A Complaint was filed on September 23, 1977, by the Consumer Protection Office of the United States Postal Service (Complainant) in which it is charged that Vanguard Williams Associates, P. O. Box 350, Grand Central Station, New York, New York (Respondent) is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations as proscribed by 3005 of Title 39, United States Code.
Attached to the Complaint is a copy of an advertisement allegedly used by Respondent in conducting the enterprise in question. A copy of the advertisement is attached to this decision as Appendix A hereto.
In the Complaint it is alleged that Respondent, by means of the statements in Appendix A, makes the following representations which are alleged to be materially false as to matters of fact:
(a) The JAPANESE MAGIC SEX RING "Produces a Powerful Erection."
(b) The JAPANESE MAGIC SEX RING "Enlarges the Male Penis."
(c) The JAPANESE MAGIC SEX RING "Prevents Premature Ejaculation."
(d) The JAPANESE MAGIC SEX RING "Increases Sexual Pleasures and Sensations for both Male and Female."
(e) The JAPANESE MAGIC SEX RING is unique and differs significantly from all other products previously offered to assist in the performance of sexual intercourse. (e.g., "Now available for the first time in America, we take pleasure in offering you the new JAPANESE MAGIC SEX RING,..." "...the Greatest Sex Aid Ever Offered..." "NOW - Man's best friend has arrived]" etc.).
Respondent, having been granted an extension of time therefor to November 3, 1977, filed an Answer to the Complaint in which Respondent denied the allegations of the Complaint, except that it admitted the dissemination of the advertisement which is Appendix A. Respondent also alleged that the Complaint fails to state a cause of action.
The hearing theretofore set for October 25, 1977, was continued at the request of Respondent to November 25, 1977, to permit Respondent to determine availability of witnesses, some of whom might be outside the United States.
At Respondent's request, the hearing was further continued to January 5, 1978, on which date the hearing was held before Judge Rudolf Sobernheim.
At the hearing among the exhibits received in evidence were the following:
Comp. Ex. 1 - A copy of the advertisement (order blank having
been clipped) used by Respondent in connection
with this enterprise. The advertisement
appeared in the April, 1977, issue of the
publication "Bronze Thrills."
Comp. Ex. 2 - The mailing wrapper in which material was
received by the investigating inspector in
response to his order (to which order Respondent
stipulated).
Comp. Ex. 3 - Sheet of instructions for use of Japanese Magic
Sex Ring.
Comp. Ex. 4 - The Japanese Magic Sex Ring device and the
plastic cover thereof.
This device (hereafter "the ring") is a
plastic or rubber loop which is almost a perfect
circle. At the top of the ring is a black
plastic device. To tighten the ring, the ends
of the loop are pulled and when the desired
degree of tightness has been reached, the user
operates a locking device by pushing on a small
brass button which acts to lock the loop. To
loosen the ring the user pulls on the brass
button and pushes on the ends of the loop. When
applied, the controls just described point
downward. There is a caution on the directions
(Comp. Ex. 3) advising the user to release the
tension every ten minutes to permit the blood to
circulate. The instructions state that the
relaxation of tightness must be for at least a
minute.
Comp. Ex. 5 - The re-order envelope with the printed name and
address of Respondent.
Resp. Ex. 1 - Pages 141 - 148, inclusive, from a book entitled
"Living is Loving" by Sten Hegeler, and his
wife, whose name was not stated.
Charges III (a), (b), (c) and (d) quoted earlier from the Complaint contain verbatim excerpts from the language of Respondent's advertisements. It is beyond dispute that the Respondent makes the above quoted representations which are set forth in paragraph III of the Complaint. The language of the first part of Charge III (e) expresses the impression which the quotation from Respondent's advertisement found in the last part of that charge would create in the mind of the average person upon reading Appendix A. Donaldson v. Read Magazine , 333 U.S. 178, 188-189.
THE TESTIMONY OF
THE WITNESSES
As its first and only witness, Complainant called Dr. Vincent F. Cordaro, a medical doctor who by virtue of his education, training, experience and the performance of the requirements of his present assignment is qualified to testify as an expert witness concerning the subject matter of this proceeding. (Tr. 8-15; 35-36)
Dr. Cordaro defined "erection" as that state of rigidity of the penis in which it is fully extended as to length and circumference by the influx of blood. (Tr. 17) Conditions which make it difficult for some men to achieve erections are advancing age, medical and surgical diseases, infection, debility and, above all, psychological factors. (Tr. 18) The cause of impotence is determined by taking the patient's history and by examining the patient. If the cause of the impotence is psychological, the treatment prescribed is psychotherapy. (Tr. 18)
After summarizing the instructions for the use of the ring, Dr. Cordaro stated that the use of the ring would not produce an erection. The ring would produce an enlargement due to engorgement, which is different from a true erection. In the latter condition, the enlargement of the penis is caused by increased arterial flow due to sexual stimulus, plus the action of certain muscles which tend to tighten the base of the penis at the rami of the corpora cavernosa. Blood circulates in a penis in a state of erection, but the ring cuts off circulation to the outer two thirds of the penis, that is, to that portion of the penis that is exterior to the body. (Tr. 20-23, 67)
The size of the normal, fully developed penis is determined genetically. The infantile penis, which is underdeveloped, usually is due to a deficiency in male hormones. There is nothing about the ring which, when used as directed, would enlarge the penis beyond its normal erectile size. (Tr. 25)
Premature ejaculation is a condition that is 95 or 96 per cent psychogenic. (Tr. 53) Some cases require psychotherapy, other cases improve upon the development of better rapport and understanding of the male with his sexual partner, and some cases are aided by the application of a topical anesthetic for the diminution of sensation to the glans. The application of the ring would not prevent premature ejaculation. (Tr. 26-27)
The use of the ring would not result in increased sexual pleasures and sensations for both male and female. Those pleasures are not dependent for increase on mechanical devices. (Tr. 28)
In his experience with the Food and Drug Administration, Dr. Cordaro has considered other products which were basically the same as the ring which is the subject of this proceeding. The locking device is only a mechanical difference, but the principle, and the manner of use, are the same as for the other devices he has observed. (Tr. 29)
While there is no scientific literature of which he is aware, Dr. Cordaro's discussions with his colleagues cause him to conclude that the views and opinions he expressed are in accord with the consensus of thought of medical practitioners. (Tr. 30)
There was an appreciable time spent in cross-examination of the medical expert by Respondent's Counsel, but in no significant matter was the import of the testimony given during his direct examination shaken.
The first witness called by Respondent was Ronald A. Stewart, President of Dynamic Distributors, Inc., a corporation of which Vanguard Williams Associates is a division. Among other things Mr. Stewart is in the business of publishing books, including books involving sexual instruction or advice. He first published a marriage manual in 1969 and he now publishes in the United States seven or eight marriage manuals by different authors from different parts of the world. (Tr. 76, 77)
Mr. Stewart has been selling sexually oriented books, devices and products since 1959. He claimed to be one of the largest sellers of sex aids and "maladjust" aids and devices. About 300 products are not being sold by Respondent. Dynamic Distributors, Inc. sells the same 300 products and perhaps some other ones exclusively. A large number of these items are books.
Mr. Stewart received a sample of the ring from a Japanese manufacturer about a year and a half before the hearing. With the sample was a letter telling about the article. (Tr. 79-81) Stewart said that he used the device with his wife and they both liked it. He said it made his penis larger and more sensitive and his wife said she received more pleasure from it. He, therefore, decided to engage in a sales campaign of the item. (Tr. 81-82) Stewart stated, also, that he gave the device to some of his friends who reported to him that "it works." (Tr. 83)
The witness wrote the advertising material which is Appendix A hereto. He wrote this on the basis of his own experience, and on the basis of his awareness of comments in the book "Living is Loving", about which more will later be said. (Tr. 129) Because he knew the problems of people who wrote to him, he knew what the device could do for them. (Tr. 88) He stated that his staff has not found one request for refund, out of the 2000 or so sold, because of dissatisfaction with the item. (Tr. 89)
On cross-examination Mr. Stewart stated that he has sold similar devices in the past, but he thinks that the present ring is the best one he has sold, although he has had no formal scientific training. (Tr. 91-92) The device can result in pain to the user if it is applied too tightly, or worn too long, or worn snugly at the time of ejaculation. Mr. Stewart likened the use of the device to the "squeeze technique," discussed and described in "Human Sexual Response" by Masters and Johnson. The difference is that in the "squeeze technique" the pressure is applied to the head of the penis by the sex partner as opposed to the pressure at the base of the penis exerted by the ring. He said, however, that if the ring is properly used there would be no pain. (Tr. 93-100)
Dr. Sten Hegeler, 2/ the next witness, studied medicine for six years at the University of Copenhagen. Because he was more interested in psychiatry and psychology, he switched to psychology and he received a degree as a Candidate in Psychology, which is not academically the equivalent of Doctoral degree. (Tr. 100-102)
In 1948 Dr. Hegeler published two books dealing with sexual enlightenment of small children. He has published about 15 books altogether. For the past 10 years he has lectured on the subject of sexology at the University of Copenhagen, where he has tenure, and he is the only one who lectures on that subject in Denmark. He is also conducting research on the sex life of impotent men. He and his assistants have been interviewing 1065 men between the ages of 50 and 95. For this study he has been granted some money from the government of Denmark. (Tr. 102-106)
Dr. Hegeler and his wife, who also is a psychologist, had a letter column in four Scandanavian papers - one, each, in Denmark, Finland, Sweden and Norway. This column dealt only with sexual problems. For the past five years Dr. Hegeler has been the editor of "The Consumers' Magazine", a publication oriented toward protecting the customer. (Tr. 106-108)
In 1970 Dr. Hegeler conducted an experiment involving one version of the ring. The inventor of the ring came to Dr. Hegeler and showed it to him. The inventor was very enthusiastic about it. Because he knew that the blood which goes into the penis enters through the middle of the penis and exits near the surface, Dr. Hegeler thought there might be something to the ring.
Through his newspaper column he asked for volunteers for an experiment with it. There were about 20 responses to his solicitation and from this group he picked 10 persons, whose ages ranged from 36 to 70. (Tr. 108-110) Of these ten, one dropped out, but two additional volunteers joined the group. Seven or eight of the 11 said they were helped by the device. The results of this test are reported in the Hegelers' book entitled "Living is Loving." As indicated earlier, an excerpt from this book consisting of pages 141 through 148 was received in evidence. The witness stated that when the writers of the book talk about the experiment, they do so "cautiously" and "skeptically." (Tr. 111-113)
Dr. Hegeler does not know how powerful the erection would be, but he is "rather convinced in a lot of cases it can produce an erection. It can support an erection." For all practical purposes in the sexual act, the witness can see no real
difference between engorgement and erection of the penis. Whether one is a man or a woman it is the anterior two thirds of the penis that is more important than the posterior one-third. Thus if the anterior two-thirds is enlarged or engorged, "it might be a help." (Tr. 115-116)
When asked whether the ring has the capacity of enlarging the penis, he said he believes it has. He continued by saying that "it might have the effect to support an erection, not to given an erection where there is no sign of erection ***. But if there is sign of erection, it might support it." (Tr. 116-117)
Dr. Hegeler did not know whether the ring has the capacity of preventing premature ejaculation in some people. His opinion is that the ring might have such capacity, but he can not prove it and he does not know precisely. It may be that the pain the ring causes at the moment one is going to ejaculate may postpone or prevent ejaculation for a time. (Tr. 117-118)
In response to the question as to whether the ring increases sexual pleasures and sensations for both male and female, Dr. Hegeler said that psychology plays a big role in the matter. "So if you have an erection which you do not have before, or for a longer time than you had before, it may support your sexual feeling. It may give you confidence. It may stimulate you in that way. That is my answer." (Tr. 119-120)
The ring used in what Dr. Hegeler called his "very small experiment" (Tr. 121) has a different method of locking it than the product involved in this case, but "the way of supporting the duration must be the same as far as I can see." (Tr. 125)
A few of the comments from Dr. Hegeler's book are as follows:
"First, we must emphasize that premature ejaculation is not the problem which the pubis ring attempts to solve." (R. Ex. 1, p. 143)
This positive statement clearly is different in tone from the guarded remarks Dr. Hegeler made at pages 117-118 of the transcript. (Supra, p. 11)
On page 148 of R. Ex. 1, the following remarks are found:
"The idea of the pubis ring is to keep the blood in the penis once it has been pumped in and caused an erection. That is why it is easy to understand that it cannot help in cases when there has been no erection at all--or only a very weak one.
"We are therefore prepared to recommend the pubis ring to persons who have semi-erections which only last briefly. Not because we feel one hundred per cent certain that it will help, but only because we believe that there is a chance of its being able to help a failing erection.
* * * *
"We have intentionally expressed ourselves with some reserve in order not to arouse false hopes."
Since this obvious lack of enthusiasm for the pubis ring is apparent in Dr. Hegeler's testimony, it needs no elaboration.
DISCUSSION
A large part, perhaps the greater part, of Respondent's Brief is devoted to an attack upon the qualifications and testimony of Complainant's medical expert. Dr. Cordaro's medical training in human sexuality and reproduction occurred more than 35 years ago. Respondent ignores the fact that Dr. Cordaro is a licensed physician, the period of time which the witness spent in the Air Force, and Respondent hurriedly passes over the private practice in which Dr. Cordaro engaged. Since 1971, when Dr. Cordaro left the practice of anesthesiology, he has been first, a Medical Officer, and later, the Medical Liaison Officer of the Food and Drug Administration with the Postal Service. In this position, Dr. Cordaro reads the literature, old and current, in particular fields of interest, and he consults with appropriate active practitioners, researchers, authors or other qualified professional and scientific sources. He so testified in this proceeding. (Tr. 14) In fact, it would not be unreasonable to conclude that Dr. Cordaro's present assignment affords him more time for reading medical and scientific literature, and consultation with specialists, than is available to the average physician. Judge Sobernheim's recognition of Dr. Cordaro as an expert medical witness is fully justified and supported by the record. Such recognition is concurred in by he undersigned.
Proceeding from his discussion of Dr. Cordaro's qualifications as an expert witness, Respondent seeks to belittle the testimony of the medical expert. For example, much is made of the fact that Dr. Cordaro refers to that portion of the penis which is inside the body. Respondent distinguishes this portion of the organ from the remainder of the organ by saying that "Dr. Cordaro has erroneously considered confused (sic) the root of the penis as being part of the penis." Even persons who were told that expert testimony has been given to the effect that one-third of the penis is inside of the body have engaged in derisive laughter. (Resp. Br., p. 13)
These statements demonstrate the necessity for the testimony of experts, because in The American Illustrated Medical Dictionary, Dorland, 21st Edition, the penis is defined, in pertinent part, as follows:
"The male organ of copulation. It is composed of a root, body, and extremity, or glans penis. ***"
See, also Attorney's Textbook of Medicine, Gordy-Gray, published by Mathew Bender, 301.11 (1969) and 302.1 (1971). In the latter work it is made clear that without the root, so lightly regarded by Respondent, the body and extremity of the penis could not perform their intended function.
Insofar as the question of whether the ring "produces a powerful erection" is concerned, even Respondent's witness gave it as his view that, at best, the ring might support an erection once it has been attained. This, then, is the basis for the distinction between a true erection and an engorgement, a discussion by Dr. Cordaro which Respondent found so amusing. Dr. Cordaro's testimony in the Matter of Skandia Distributors , P.S. Docket No. 6/35, quoted by Respondent at page 17 of the post-hearing brief, makes the distinction clear when he stated that an "erection" is "that state of engorgement, natural engorgement, of the penis which occurs with sexual excitement." The representation in Charge III(a) of the Complaint is false.
As to Charge III(b) of the Complaint, the uncontroverted evidence of record is that the size of the penis is determined genetically. If the penis is small due to a hormonal deficiency, the problem is remedied, if at all, by the administration of hormones. The ring will not enlarge the user's penis. Not even Respondent's witness testified to the contrary. According to Dr. Hegeler, if from sexual stimulation the penis becomes large through engorgement, the ring "might have the effect to support an erection, not to give an erection where there is no sign of an erection." (Tr. 116, emphasis supplied) The representation in Charge III(b) is false.
Based upon the uncontradicted testimony of Complainant's witness, the representation set forth in Charge III(c) of the Complaint is false. Respondent's Dr. Hegeler said at first that he did not know whether the ring would prevent premature ejaculation. (Tr. 117) Later, he speculated on something about the possibility that the attention of the male partner engaging in sexual intercourse " might be distracted by some sort of pain in the moment when you are going to ejaculate" and that this event " may have the same effect as the 'squeeze technique' of Masters and Johnson."
Complainant charges that the language of Appendix A which represents the ring as being "***the new JAPANESE MAGIC SEX RING" and "the Greatest Sex Aid Ever Offered" is analogous to, or comparable to, or the equivalent of, or suggests to the average reader that the device is "unique and differs significantly from all other products previously offered to assist in the performance of the sexual act." The language of the advertisement clearly does not represent the device as being ordinary, usual, run-of-the-mill, or commonplace. Since it is " new " and " MAGIC " and the " Greatest ", the ordinary reader very logically is likely to conclude that, in truth, the device so described is unique and unlike any previous version of such an item. That the ring being sold by Respondent is the same in principle as other devices available is established by Dr. Cordaro's testimony and by the book "Living is Loving" written a few years ago by Dr. Hegeler.
Respondent argues that in Research Laboratories, Inc. v. United States , 167 F.2d 410 (9th Cir., 1948) it was held, in substance, that the law has recognized testimony as to consensus only when given by an expert witness. Respondent continues that since, to Respondent in this case, Dr. Cordaro is not an expert there is a mere difference of opinion, and the issuance of a mail-stop order is forbidden under American School of Magnetic Healing v. McAnnulty , 187 U.S. 94, 105-6 (1902). From this argument, Respondent proceeds to the conclusion that the issuance of any order against Respondent would "violate its First Amendment rights in its advertising, which truthfully represented the advertiser's opinion." Citing Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748 (1976).
It will take a little time to straighten out this argument, but one place to begin is at the word "truthfully." It has been found herein that the representations made by Respondent in this matter are not "truthful," but that they are false. If representations are false, even though they may "truthfully represent the advertiser's opinion," they subject the maker of the representations to having his activities complicated by the issuance of a mail-stop order. Furthermore, as it recently has been stated in Original Cosmetics Products, Inc., et al. v. United States , Civ. No. 78-6165, 2nd Cir., April 30, 1979:
"***The recent Supreme Court decision of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976), does not require a contrary result. See 425 U.S. at 771: Untruthful speech, commercial or otherwise, has never been protected for its own sake."
Respondent's argument to the contrary can not prevail.
Finally, Respondent urges that --
"the banning of the 300 books that respondent sells by the issuance of an order would itself be a violation, a further and additional violation, of respondent's First Amendment rights."
Of course, the horror picture drawn by Respondent does not, will not, and can not exist. The only item the sale of which will be stopped is the ring which is the subject of this proceeding. It is true that if a mail-stop order is issued Respondent's business may be complicated by having to have one of his employees go to the post office to open incoming mail so that mail relating to this enterprise can be removed and returned to the senders. Mail which on its face can be identified as not relating to the ring will not be withheld, but will be delivered promptly to Respondent. The inconvenience to Respondent must be weighed against the harm to the public that could result from the continued operation of this phase of Respondent's business.
It has been said that Respondent has discontinued the sale of the item under consideration and that, therefore, the case is moot. (Letter dated April 4, 1979)
With reference to this point, the Supreme Court said in United States v. W. T. Grant Co. , 345 U.S. 629, at 632, (1953) [footnotes omitted]:
"Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. United States v. Trans-Missouri Freight Assn. , 166 U.S. 290 (1897); Walling v. Helmerick & Payne, Inc. , 323 U.S. 37 (1944); Hecht Co. v. Bowles , 321 U.S. 321 (1944). A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America , 148 F.2d 416, 448 (1945), e.g., a dispute over the legality of the challenged practices. Walling v. Helmerick & Payne, Inc. , supra ; Carpenters Union v. Labor Board , 341 U.S. 707, 715 (1951). The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn. , supra , at 309, 310. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, Labor Board v. General Motors Corp. , 179 F.2d 221 (1950). The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement."
The Grant case has been, and continues to be, cited and followed on this point in many, many District and Circuit Courts, as well as in the following sampling of numerous Supreme Court decisions: United States v. Phosphate Association , 393 U.S. 199, 203 (1968); Allee, et al. v. Medrano, et al. , 416 U.S. 802, 811 (1974); and Hampton v. Mow Sun Wong , 426 U.S. 88, 98 (1976).
Respondent has been advised that procedures exist by which, under certain circumstances, cases could be disposed of by consent agreements which obviate the issuance of mail-stop orders. Obviously, efforts towards such a disposition of this proceeding, if undertaken, ended without success. Whether such measures are available at this stage of the proceeding is a matter which addresses itself to the parties.
Respondent concludes his brief by emphasizing what he regards as the superior qualifications of Dr. Hegeler 3/ over those of Dr. Cordaro. Granted that Dr. Hegeler has written 10 books on sex, that he has tenure as a lecturer on sexology at the University of Copenhagen, that he and his wife had a newspaper column in papers in Denmark, Finland, Norway and Sweden, which dealt only with sex problems, that his only compensation for testifying on behalf of Respondent was the reimbursement of his expenses for his trip to this country and his hotel bill, yet the evidence of record in this case supports the Complainant's position. This is so because Dr. Cordaro's testimony was based upon his medical training, his experience, his research of the scientific literature and his contacts about the device under consideration in this case with specialists in various related medical fields. Moreover, substantial parts of Dr. Hegeler's testimony were more supportive of Complainant's rather than Respondent's case, for the following reasons which are not all-inclusive: because of (a) frank admissions of lack of knowledge as to certain aspects of the case; (b) his description of his investigation with the pubis ring as "a very small experiment"; and (c) his statement that the ring may help support rather than produce an erection, all of which have heretofore been cited to the record.
One particular point raised by Dr. Hegeler was his suggestion that the use of the ring may increase sexual pleasure for male and female because of its psychological effect. (Tr. 119-120) This is but another way of referring to the placebo effect, that is, the chance that a substance or device which has no intrinsic capacity to do so, may cause a person who ingests the substance or uses the product to believe that he has experienced an improvement of the condition that prompted him to ingest or use the substance or device in the first place.
In the Postal Service Decision in the Original Cosmetics Products, Inc., et al. case, P.S. Docket No. 4/120 (Aug. 20, 1976) the Judicial Officer said:
"***From the fact that a doctor may treat a patient with a placebo, where medically indicated, and attain results therefrom it does not follow that a commercial enterprise may sell a product on the basis of false claims of its effectiveness and justify the practice on the theory that the customer may conceivably thereby overcome a possible psychological obstacle. The tool is deception and deception for profit. This the false representation law prohibits.***"
Although in different language, the above thought was expressed in the Magistrate's Recommendation in the same case when it was before the District Court for the Southern District of New York, by which latter court the Magistrate's Recommendation was adopted.
CONCLUSION
The entire record in this case leads to the following Findings of Fact:
1. Respondent seeks remittances of money through the mails in connection with the business which is the subject of this proceeding.
2. In the conduct of the aforesaid business Respondent makes the representations which are set forth in paragraph III of the Complaint.
3. The representations found to have been made by the Respondent are material representations of the type which would cause readers to believe them and to order the merchandise offered for sale by Respondent.
4. The representations found to have been made by Respondent are false as to material matters of fact.
Based upon the foregoing Findings of Fact it is concluded as a matter of law that --
The Respondent herein 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. Code 3005.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. To the extent indicated herein, those proposed findings of fact and conclusions of law are adopted. Otherwise such proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are contrary to the evidence or because of their immateriality.
A mail-stop order as provided in 39 U. S. Code 3005, in substantially the form attached, should issue against this Respondent.
___________________
1/ This case was heard by Administrative Law Judge Rudolf Sobernheim, who transferred to the Civil Aeronautics Board before the decision was written. With the consent of the parties (see Complainant's memorandum dated March 29, 1979, and Respondent's letter to Complainant's Counsel dated May 22, 1979) this decision was written by the undersigned Administrative Law Judge.