In the Matter of the Complaint Against The Respondent: TELEX CABLE SERVICES EST. FL 9490 at Vaduz, POB 880, Switzerland P.S. Docket No. 14/119; 02/09/83 Cohen, James A. APPEARANCE FOR COMPLAINANT: John F. Ventresco, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Telex Cable Service Est. FL-9490 VADUZ P.O.B. 880 Switzerland
On November 1, 1982, a Complaint was filed alleging that Respondent is in violation of 39 U.S.C. § 3005(a) through the distribution of solicitations in the form of bills, invoices or statements of account due which are nonmailable under 39 U.S.C. § 3001(d). On November 3, 1982, Tentative Decision and Order No. 82-162 was issued which concluded that the Order authorized by 39 U.S.C. § 3005(a) should be issued against Respondent. Accompanying the Tentative Decision and Order was a Notice which advised Respondent that unless it presented good cause for dismissing the Complaint, the Tentative Decision and Order would become final.
On November 30, 1982, Respondent filed a letter response to the Tentative Decision and Order which denies that the solicitations "offend the false representation law." Respondent argues that the language of the solicitations could not reasonably be mistaken for a bill, invoice, or statement of account due.
Under 39 U.S.C. § 3001(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 face, 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."
Under 39 U.S.C. § 3005(a), the mailing of matter which is nonmailable under section 3001(d) "shall constitute prima facie evidence that such person is engaged in conducting a scheme or device for obtaining money or property through the mail by false representations."
In determining whether Respondent's solicitations "reasonably could be interpreted or construed as a bill, invoice, or statement of account due" they are to be judged in their totality and by the impression they would most probably create in the ordinary minds of those to whom they are directed. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959). Such solicitations as a whole may be completely misleading although every sentence separately considered is literally true. Donaldson v. Read Magazine, supra. They are to be interpreted according to their effect on the ordinary reader including both the wary and the gullible. Gottlieb v. Schaffer, 141 F. Supp. 7, 16 (S.D.N.Y. 1956). Oriental Nurseries, P.S. Docket No. 8/24 (P.S.D. March 31, 1981); All Products Unlimited, Inc., P.S. Docket No. 6/43 (P.S.D. March 29, 1978).
Read as a whole, Respondent's solicitations are in the form of, and reasonably could be construed as, bills, invoices or statements of account due. On the right side of each solicitation are boxes which are titled "Previous Balance", "Gross Amount", "Discount (by payment within 21 days)" and "Net Amount." Amounts are shown in each of the last three boxes. The net amount shown is $621. In bold print under the four boxes is the direction "Please keep original for your bookkeeping and send us the copy with your Cheque." Nowhere do the solicitations contain the notice required by § 3001(d) or the notice prescribed by the Postal Service in § 123.41 of the Domestic Mail Manual.
Respondent's argument that its solicitations would not be construed as either a bill, invoice, or statement of account due is not persuasive. The language of the solicitations relied on by Respondent and the fact that some recipients of the solicitations may not have been misled, does not overcome the impression created by the overall wording and form of the solicitations that they are bills, invoices or statements of account due.
Since the solicitations are in the form of, and reasonably could be interpreted or construed as, bills, invoices or statements of account due and do not comply with the notice requirements of 39 U.S.C. § 3001(d) or § 123.41 of the Domestic Mail Manual, they are nonmailable under 39 U.S.C. § 3001(d) and in violation of 39 U.S.C. § 3005(a). Accordingly, Tentative Decision and Order No. 82-162 is now the Final Decision and Order of the Postal Service.