In the Matter of the Complaint Against

 UNITED STATES TESTING AUTHORITY TELEVISION DIVISION
 1681 Kennedy Causeway at
 North Bay Village, FL 33141-9982

 AMERICAN TESTING INSTITUTE
 6660 Biscayne Boulevard at
 Miami, FL 33138-6231

 and

 GIFT REDEMPTION CENTER Suite #5
 13680 N.W. 19th Avenue at
 Miami, FL 33054-4214
 
 P.S. Docket No. 14/77;
 P.S. Docket No. 14/114;  
 
 05/01/84
 
 Cohen, James A.  
 
 APPEARANCE FOR COMPLAINANT:
 SandraC. McFeeley, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1112

 APPEARANCE FOR RESPONDENT:
 Edward J. Carnot, Esq.
 25 West Middle Lane Rockville, MD 20850-2214

Prior proceedings in these matters led to the issuance of False Representation Order No. 83-16, dated January 17, 1983, against mail addressed to United States Testing Authority, Television Division, 1681 Kennedy Causeway, North Bay Village, FL 33141-9982 and False Representation Order No. 83-113, dated July 6, 1983, against mail addressed to American Testing Institute, 6660 Biscayne Boulevard, Miami, FL 33138-6231, and Gift Redemption Center, Suite #5, 13680 N.W. 19th Avenue, Miami, FL 33054-4214. In both orders, the mail affected related to a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property, by lottery, chance, or drawing of any kind in violation of 39 U.S.C. § 3005 with respect to the awarding of prizes in connection with a survey of television viewers.

On March 21, 1984, Complainant filed what was denominated as a Second Petition for Supplemental Orders (hereinafter referred to as the second Petition), with attachments, alleging that Respondents are evading or attempting to evade the provisions of such orders by conducting the same or a similar enterprise under the name Network Testing Authority at 1750 Pennsylvania Avenue, N.W., Washington, D.C. 20006.

Complainant seeks the issuance of a False Representation Order pursuant to 39 U.S.C. § 3005(a)(1) and (2). It also requests the issuance of a Cease and Desist Order under paragraph (3) of § 3005(a) which was added to the statute by the Mail Order Consumer Protection Amendments of 1983, P.L. 98-186, 97 Stat. 1315 (1983).

Respondents have filed a Motion to Dismiss the Second Petition contending that the request for a Cease and Desist Order under the new statutory provision entitles them to a full adversarial hearing before an Administrative Law Judge with right of appeal to the Judicial Officer. Respondents also argue that case law requires that a full adversarial hearing be held before an Administrative Law Judge in a supplemental order proceeding under 39 C.F.R. § 952.30. Identical arguments were made by Respondents in their motion to dismiss the first petition for supplemental orders, which was denied in the Postal Service Decision dated March 21, 1984. Respondents' motion to dismiss the second petition and their brief thereon furnish no persuasive reasons to alter the views on those arguments as stated in the March 21 decision and affirmed in a Postal Service Decision on Motion for Reconsideration dated May 1, 1984.

In its present motion Respondents advance the following additional arguments:

1. The supplemental proceeding is conducted in a summary manner with no right to a hearing, to conduct discovery, to present evidence or to cross-examine opposing witnesses or affiants. Indeed, Respondents must request a hearing. The issues in any such hearing are limited to those which the Judicial Officer deems to be "material." The imposition of broader relief in such a proceeding than the relief imposed in the earlier full administrative proceedings violates Respondents' rights to due process.

2. Conducting the supplemental proceeding in the manner described above effectively shifts the burden of proof to Respondents, in contravention of case law which holds that the Postal Service bears the burden of proof as to the elements of a lottery.

3. The language of the documents mailed by Network Testing Authority, Inc. ("Network") is significantly different from the language of the other documents cited by the Postal Service.

4. The ordinary person, when reading the Network documents as a whole, would not believe that the purchase of a Pacheco print was required to qualify for or receive a free gift.

With respect to Respondents' first argument (supra), their due process rights will be fully protected by the furnishing of a full adversarial hearing, including such prehearing discovery as may be appropriate and justified, as to any genuine issues of material fact. A determination as to the existence of such issues will be made shortly.

As to Respondents' second argument, there is no improper shifting of the burden of proof in a supplemental proceeding. As correctly pointed out in Complainant's opposition to the motion, Complainant has the burden of proving the alleged evasion or attempted evasion of the provisions of the relevant False Representation Orders. As in the original proceedings in these matters, only the burden of going forward may shift to Respondents to meet and rebut Complainant's evidence.

Respondents' arguments numbered 3 and 4 go to the merits of the supplemental proceeding and will be considered at the appropriate time in reaching a decision thereon.

Accordingly, Respondents' motion to dismiss is denied.