In the Matter of the Complaint Against INDENTOFAX P. O. Box 55289 at Fort Washington, MD 20744 P.S. Docket No. 13/56; 06/30/82 Cohen, James A. APPEARANCE FOR COMPLAINANT: Anne Galla C L U Wnt, Esq. onsumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: W B I P F alter Trueheart, Jr. Business Manager dentofax P.O. Box 55289 Fort Washington, MD 20744
Respondent's request for reconsideration of an Initial Decision of an Administrative Law Judge has been treated as an appeal under 39 C.F.R. § 952.25. The Initial Decision concluded that by its advertisements of a "New Resume," Respondent is engaged in a scheme or device to obtain money or property through the mail by means of false representations in violation of 39 U.S.C. § 3005.
On March 4, 1982, the Consumer Protection Division of the Law Department, United States Postal Service (Complainant), filed a Complaint alleging that Respondent, by advertisements for use of a new resume, makes the following materially false representations:
"(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." (Complaint, para. 3.)
Respondent filed an Answer to the Complaint in which it denied it was in violation of 39 U.S.C. § 3005. In its Answer, Respondent requested an "opportunity to oppose issuance of the order requested in Complaint." A hearing was scheduled for and held on April 6, 1982, before an Administrative Law Judge. Although Respondent was served with a notice of the hearing, no appearance was made on its behalf. The Administrative Law Judge received Complainant's evidence which included 8 exhibits, the testimony of Gerald S. Siler, a Postal Inspector, and the testimony of Allan Heuerman, Chief of the Recruiting and Examining Division of the Office of Personnel Management (OPM). At the conclusion of Complainant's case the Administrative Law Judge issued an oral Initial Decision, subsequently edited and issued in writing, in which he found that the advertisement makes the representations alleged in the Complaint. He also found that the representation are materially false.
Respondent's advertisement (CX 3, identified in the Complaint as Exhibit 1) appeared in the "Employment" section of the Federal Times publication on January 4, 1982. It states in its entirety:
"IDENTOFAX
Introduces the . . .
NEW RESUME
New. Different. Now in use.
Replaces the old resume, SF-171 by Oct.
1981. Wide use of system by employers
is expected by Jan. 1982. Stop using horse and buggy techniques to get that job. Start using modern techniques available to you. For details & bonus guidelines for using the new resume, send $9.98 to: Identofax, PO Box 55289F, Ft. Washington, MD 20744."
Respondent denies that its advertisement makes the representations alleged in the Complaint. Although it points to no specific errors in the Administrative Law Judge's decision, it contends that a fair and equitable consideration of its position will show that it has not violated 39 U.S.C. § 3005. Many of Respondent's statements are evidentiary in nature. For example, it makes assertions regarding its intentions and attempts to explain the language of the advertisement and its "New Resume" program which involves the use of a tape cassette resume system in lieu of a paper resume system. However, Respondent had the opportunity to attend and present evidence at the hearing, but failed to do so. No reason has been shown to excuse its failure, or to allow it to present evidence at this stage of the proceeding.
Nevertheless, for the purpose of this decision, its statements of intentions and explanations shall be assumed, to be true. Respondent explains the goals of its business and its desire to introduce its concept of using tape cassettes for resumes. It offers its own business explanations of why it used the October and January dates in the advertisement. It also explains that the advertisement is a condensation of language in its literature made to save it advertising expense. Generally, it asserts with respect to the alleged misrepresentations that it did not intend its advertisement or materials sent in response to the advertisement to expressly or impliedly represent that the "New Resume" is currently accepted by the Federal Government, or that it would begin to replace the SF-171 in October 1981, or widely replace it by January 1982.
All of Respondent's assertions have been considered. As the Administrative Law Judge properly concluded, the meaning of an advertisement is to be determined by the impact that the language used has on the ordinary reader. E.g., Donaldson v. Read Magazine, 333 U.S. 178 (1948); Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387 (5th Cir. 1977). Intent to deceive is not required in order to find a violation of 39 U.S.C. § 3005. Contemporary Mission, Inc., P.S. Docket No. 8/159 (P.S.D. June 30, 1981), at 12, and cases cited therein. Respondent's subjective intentions concerning the advertisement are, therefore, irrelevant.
An ordinary reader of Respondent's advertisement would conclude that its "New Resume" is currently accepted by the Federal Government as alleged by paragraph (a) of the Complaint, because the advertisement states it is now in use and "Replaces the old resume, SF-171 by Oct. 1981." The advertisement was published January 4, 1982, therefore, an ordinary reader would believe it began replacing the SF-171 in October 1981 as alleged in paragraph (b) of the Complaint. In view of the reference to the SF-171 and the statement "Wide use of system by employers is expected by Jan. 1982," an ordinary reader would also infer that the Federal Government is such an employer and its SF-171 would be replaced by the "New Resume" by the end of January 1982, as alleged in paragraph (c) of the Complaint. Respondent's contentions that the advertisement does not make these representations have no merit under the ordinary reader test.
Respondent does not deny that the representations, if made, are false. The testimony of Mr. Heuerman of OPM as to the past, current and projected Federal use of Standard Form 171 as a resume for Federal job applicants and the unacceptability of cassette resumes for Federal jobs demonstrated the falsity of the representations.
The use of advertisements containing false representations to obtain money through the mail for the sale of the advertiser's product suffices to establish the scheme under 39 U.S.C. § 3005. See M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F.Supp. 1180, 1183 (E.D.N.Y. 1978).
Accordingly, after consideration of the entire record and Respondent's contentions, it is concluded that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued with this decision.