In the Matter of the Complaint Against

 ASSOCIATED TELEPHONE DIRECTORY PUBLISHERS, INC.

 and

 ATD

 and

 ATD ADVERTISING DEPARTMENT-YELLOW PAGES
 P. O. Box 3309 P. O. Box 3387
 at Corpus Christi, TX 78404

 and
 P. O. Box 6170
 at Huntsville, TX 77340

 P.S. Docket No. 13/191;  

 12/20/82

 Bernstein, Edwin S.  

 APPEARANCE FOR COMPLAINANT:
 H. R ichard Hefner, Esq.
 Clark C. Evans, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 Clyde J. Jackson, Jr., Esq.
 3210 South Alameda
 Corpus Christi, Texas 78404

 BEFORE: Judge Edwin S. Bernstein

Complainant alleged and Respondents denied that Respondents are engaged in conducting a scheme to obtain money through the mails by means of false representations in violation of 39 United States Code ?3005. I held a hearing in Corpus Christi, Texas on September 29 and 30, 1982. Warren J. Heikes, Rev John J. Montgomery, Joseph E. Gardner, Larry F. Wilhelm and Dr. Al E. Birdwell testified for Complainant while Charles A. Lewis, Steven K. Clark and Maurice Lewis testified for Respondents. The parties filed proposed findings of fact, proposed conclusions of law and written arguments on October 27, 1982. These have all been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

Respondents solicit remittances of money through the mails in connection with their sale of advertising space and listings in various classified telephone directories that they publish. The Answer admits this and the testimony of the witnesses, and many exhibits (e.g. CX-A through N, Q and R) support this conclusion.

I further find that Respondents' written solicitations for listings in its classified telephone directories (CX-A, B, F, G, I, J, K, L, Q, R, and similar forms) make the representations alleged in Paragraph III, subparagraphs (a), (b), (c) and (d) of the Complaint.

The meaning of advertising representations is to be judged from a consideration of the advertising material in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, 333 U. S. 178 (1948); Vibra-Brush Corp v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959). Express representations are not required. It is the net impression which the advertising material is likely to make upon purchasers to whom it is directed which is important, and even if the material is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it, the mail fraud statutes are applicable. G. J. Howard Co. v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958).

Subparagraphs (a) and (b) of paragraph III of the Complaint read:

(a) Respondent represents or is affiliated with the Bell Telephone System.

(b) The amount set forth on the solicitation is for advertising to be published in the Bell Telephone Company Yellow Pages telephone directory.

Respondents' solicitation creates the overall impression that it is a solicitation from the Bell System or one of its agents for a listing to be published in a Bell System classified telephone directory. Although the solicitation does not expressly state that Respondents are associated with the Bell System, by implication it conveys that impression to the average recipient. It uses the walking fingers logo. It emphasizes the words "Yellow Page". It is printed on yellow paper. Additionally, it attaches a duplicate or "tear sheet" of an advertisement that was previously placed in a Bell System Telephone Directory. Although the walking fingers logo and the words "Yellow Page" are not the exclusive property of the Bell System, that company has devoted a large amount of money and effort to associating itself with this logo and this phrase in the public's minds. As Complainant's expert, Dr. Birdwell stated, the ordinary person tends to associate this logo and the words "Yellow Page" with the Bell System (Tr. 135-136). The logo is prominently displayed in Respondents' solicitations and the words "Yellow Page" appear five times. Each time, the words are emphasized by being printed either in block capitals or in red type. The use of yellow paper reinforces the impression. Finally and importantly the attachment to the solicitation of a copy of an advertisement previously placed in the Bell System's yellow pages further reinforces the impression that the solicitation is from the Bell System or one of its agents for a Bell System directory.

Respondents argue that its directories state that Maurice Lewis is the publisher (RX-7), p. 3). However, by the time a customer receives such a directory, he has already purchased advertising space. Nowhere does the solicitation itself attempt to dispel the impression that it is from the Bell System for Bell System advertising.

Several intelligent business and professional people testified that at first they believed that these were Bell System solicita- tions (Tr. 50, 87, 100, 129). Although Respondents submitted as exhibits returned solicitations from 38 prospects declining to advertise (RX-4), these do not disprove that a substantial number of the approximately 210,000 recipients (Tr. 186) of Respondents' solicitations were mislead, as alleged in Paragraph III of the Complaint.

Subparagraphs (c) and (d) of Paragraph III of the Complaint read:

(c) The directory advertising set forth on the face of the solicitation was previously ordered from the Respondent by the addressee.

(d) The amount of money specified on the face of the solicitation constitutes an obligation owed by the addressee to Respondent.

Respondents' solicitations (CX-A, B, F, G, I, J, K, and similar forms) also make the representations alleged in these subparagraphs of the Complaint. I find that the use of a photocopy of an advertisement previously placed with the Bell System, together with the words, "Yellow Page" and the walking fingers logo used by the Bell System, coupled with the listing of a specific monetary amount creates the overall impression in the minds of a substantial number of average recipients that the solicitation is a bill for an adver tisement previously ordered.

As the Supreme Court held in Donaldson v. Read Magazine, supra, "That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature" of the representation does not bar findings of fraud. p. 188. To the same effect, in Gottlieb v. Schaffer, 141 F. Supp. 7, 16 (S.D.N.Y. 1956) the Court held:

"The purpose of the statute is to protect the unwary and unsuspecting as well as the knowledgeable and worldly wise---those who are 'trusting as well as the suspicious'. The public includes 'that vast multitude ...the ignorant, the unthinking and the credulous'. The fact that informed and sophisticated persons would readily recognize, laugh off, or even be amused by, obviously false and absurd statements in an advertisement does not detract from the power to deceive the ignorant, gullible, and less experienced."

Moreover, the testimony of some of Complainant's witnesses shows that some intelligent and experienced professional and business people initially believed, as alleged, that the solicitations were invoices for advertisements previously ordered (Tr. 58, 61, 77, 85, 88, 100, 106); and Mr. Birdwell testified that such an initial impression would be reasonable (Tr. 130).

The representations alleged in Paragraph III of the Complaint are all false. In their Answer, Respondents stated:

1. "Respondent sic is not a part of or affiliated with, or connected with, any Telephone Company" (Paragraph I).

2. "Respondents deny that there was unsolicited mail to the public by Respondents in such form that could be interpreted as a bill. . ." (Paragraph III).

3. "Respondent sic would further show that the solicitor is in no way associated with Bell Telephone or Bell Telephone Yellow Pages Directory. . ." (Paragraph V (b))

4. "Respondent sic would show this Court that the money specified in the advertisement indicates that this would be the cost of future, not past, advertising . . ." (Paragraph V (d))

5. "Respondents would further show that the solicitation was for money previously owed Respondent sic is totally false and of Respondent sic denies the same. . ." (Paragraph VI).

CONCLUSIONS OF LAW

1. The legal test to be applied to interpretation of advertising representations is the probable impact of the advertisement, taken as a whole, upon ordinary minds. An advertisement may be deceptive because its statements are untrue or because statements which ought to be contained are omitted. The total impression of an advertisement may be false though each word considered individually may be true. Donaldson v. Read Magazine, Inc., supra; Vibra-Brush Corp. v. Schaffer, supra.

II. Respondents' circulars make the representations alleged in the Complaint.

III. The representations are material. Their natural effect is to induce readers of the advertising to purchase Respondents' program. F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 387 (1965).

IV. False advertising representations are not protected by the freedom of speech guarantees of the First Amendment to the Constitution of the United States. Lynch v. Blount, 330 F. Supp. 689 (S.D.N.Y. 1971), aff'd. 404 U.S. 1007 (1972); Hollywood House International v. Klassen, 508 F.2d 1276 (9th Cir. 1975).

V. Complainant's burden of proof is substantial credible evidence of record. Leach v. Carlisle, 258 U.S. 138 (1922); Donaldson v. Read Magazine, Inc., supra. Complainant has met that burden.

VI. Respondents' circular constitute matter which is nonmailable under 39 U.S.C. § 3005(d).

Therefore, I conclude that Respondents are engaged in conducting a scheme to obtain money through the mail by false representations in violation of 39 U.S.C. §§ 3005 and 3001(d); and that a False Representation Order, substantially in the form attached, should be issued against Respondents.