In the Matter of the Complaint Against IDENTOFAX P. O. Box 55829 at Fort Washington, MD 20744 P.S. Docket No. 13/56; 04/20/82 Duvall, William A. APPEARANCE FOR COMPLAINANT: Ann Gallant, Esq. Doreen Crowell Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Walter Trueheart, Jr. Business Manager Identofax P. O. Box 55289 Fort Washington, MD 20744
This proceeding was initiated on March 4, l982, when the Law Department of the United States Postal Service, the Complainant, filed a complaint in which it is alleged that IDENTOFAX, Post Office Box 55289, Fort Washington, Maryland 20744, is engaged in conducting a scheme for obtaining remittances of money through the mails by means of false representations in violation of 39 U. S. Code 3005.
Despite the fact that in the Answer the business manager of the Respondent stated that he would appreciate the opportunity to present evidence to show that he is not engaging in or conducting a scheme to obtain remittances of money through he mails by means of false representation in violation of 39 USC 3005, there was no person present to represent the Respondent as the hearing.
In this situation the matter proceeded as provided in Section 952.11(b) of the Rules of Practice, which is: "If the Respondent files an answer but rails to appear at the hearing, the Respondent may, unless timely indications to the contrary are received, be deemed to have abandoned the intention to present a defense to the charges of the complaint, and the Judicial Officer, without further notice to Respondent, may issue the order sought in the complaint."
Because the Respondent had denied the charges of the complaint, the testimony of the Complainant's witnesses was heard and at that time Complainant exhibits were received in evidence. Upon the completion of the testimony, Complainant's attorney orally submitted proposed findings of fact, conclusions of law and reasons in support thereof.
In the complaint it is alleged that the Respondent attracts public attention to its scheme by means of advertisements appearing in publications of general circulation. It is alleged that the advertisements invite the reader to remit $9.98 for details and guidelines for use of the new resume which replaces the Standard Form 171, used by applicants for federal employment.
Attached to the complaint as Exhibit 1 to the complaint is an advertisement which is said to be typical of the type of advertise ment used by the Respondent in the manner just described. That is Exhibit 3 as it was received in evidence.
It is further alleged in the complaint that by means of the advertisement just described and others similar thereto, Respondent expressly or impliedly represents to the public in substance and effect that:
a) Respondent will introduce the reader to a new resume, which is currently accepted by the federal government in lieu of the SF-171;
b) the new resume began replacing the SF-171 in October 1981; and
c) the new resume would have widely replaced the SF-171 by the end of January 1982.
It is further alleged that the foregoing representations are materially false as a matter of fact.
At the hearing, Postal Inspector Gerald R. Siler testified that he saw one of Respondent's advertisements and that he had his secretary, at his direction, order the product and remit the required amount of $9.98.
In due time there was received from the Respondent the printed matter which was received in evidence as Respondent's Exhibit 8. This exhibit describes the new form of the resume which is being sold by the Respondent, and the new resume is a tape cassette. In other words, the idea is that the person who wants to apply for employment with he government will substitute a tape cassette on which the applicant has made a recording or statement of his qualifications. This cassette, in lieu of the Standard Form 171, is to be submitted either to OPM or to the agency in which the person wants to be employed.
There was also presented by the Complainant as a witness in this proceeding, Mr. Allan Heuerman who has been with the Civil Service Commission, now the Office of Personnel Management, since 1962. His present position is that of Chief of the Recruiting and Examining Division.
Mr. Heuerman stated that the Standard Form 171 which is Com plainant's Exhibit No. 9 is the form that is now used for persons who are seeking employment with the Federal Government. Something about SF-171 suggests the liturgical phrase "is now and ever shall be," but that is somewhat out of context in this proceeding. The crux of Mr. Heuerman's testimony is that Standard Form 171 does now and, so far as he is aware, will for the foreseeable future, rule the field of application for Federal employment as Britannia once ruled the waves. There is no substitute for SF-171 in sight.
The short of it is that the Respondent in this case has consi derably misrepresented the value of his advice as it appears on Complainant's Exhibit 8, which is the product being offered for sale.
Based on the evidence that has been received in this case I make the following findings of fact:
1. The Respondent does employ the promotional literature which is attached to the complaint and is comprised of Complainant's Exhibit 3 and Complainant's Exhibit 8;
2. The Respondent seeks remittances of money through the mails for its product;
3. The Respondent does make the representations which are alleged in the complaint; and
4. The representations made by the Respondent are materially false as to matters of fact.
Conclusions of law are:
1. The meaning of advertising literature is to be determined by the impact that the language used has upon persons of ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178, 188-9.
2. The ultimate impression that an advertising piece makes upon the mind of the person by whom it is read is a result not only of statements that are explicitly made but also of statements that may reasonably be implied from the reading of the advertisement, of the circular matter, whatever its form may be. Vibra-Brush v. Schaffer, 152 Fed. Supp. 461.
3. The Complainant has established its case by a preponderance of the reliable and probative evidence that is in this record.
Upon the bases of the foregoing findings of fact and conclusions of law, it is found that the 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 Section 3005 of Title 39 of the United States Code.
It follows that an order of the type provided for in that provision of law, and substantially in the form as attached to this decision, should be issued against this Respondent.
1/ This Decision was rendered orally at the close of the hearing. It has been edited and transcribed for formal issuance.