In the Matter of the Complaint Against

 AMERICAN BOARD OF TROPICAL MEDICINE
 AMERICAN COLLEGE OF TROPICAL MEDICINE
 P. O. Box 1794
 at Toledo, OH 43603-1794

 P.S. Docket No. 17/74;  
 
 02/23/84
 
 Bernstein, Edwin S.  

 APPEARANCE FOR COMPLAINANT:
 H. Rich ard Hefner, Esq.
 Steven B. Caver, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1100

 APPEARANCE FOR RESPONDENT:
 David J. Lloyd, Esq.
 1828 L Street, N.W.
 Suite 260
 Washington, DC 20036-5104

 BEFORE: Judge Edwin S. Bernstein

Complainant alleged and Respondents denied that Respondents are engaged in conducting a scheme or device to obtain money through the mails by false representations in violation of 39 U.S.C. § 3005. The hearing was held in Washington, D.C., on November 2 and 3, 1983. Postal Inspector Thomas L. Meaux and Dr. Stanley R. Mohler testified for Complainant while Dr. Ben Alli testified for Respondents. Both sides filed proposed findings of fact, proposed conclusions of law, and legal memoranda. These have been considered. To the extent indicated, they have been adopted. Otherwise they have been rejected as irrelevant or not supported by the evidence.

I. The Use of the Mails

Respondents use the mails to seek and receive remittances in connection with their business of conferring certifications in tropical medicine. Respondents stipulated to this at the hearing and various exhibits (e.g., CX-1 through CX-7) show that articles placed by Respondents in publications and Respondents' promotional materials direct interested persons to send inquiries, applications and remittances to P. O. Box 1794, Toledo, OH 43603.

II. The Advertising Representations

Respondents' advertising materials make the representations alleged in Paragraph 3 of the Complaint.

Dr. Stanley R. Mohler received his medical degree in 1956 and his board certification in Preventive Medicine in 1968. He has been a Professor of Medicine at Wright State University since 1978. Dr. Mohler is a member of various medical societies and has written approximately 100 published papers relating to medicine, aging, health, diseases relating to our travel and related factors. Since 1976, he has been a member of the American Board of Preventive Medicine and since 1980, he has been Secretary-Treasurer of that board. (Tr. 53-57) I found Dr. Mohler to be well experienced, knowledgeable, and a truthful witness.

Dr. Ben Alli is an organizer, partner, and the current president of Respondents, American Board of Tropical Medicine (ABTM) and American College of Tropical Medicine (ACTM). (Tr. 136, 139) He testified that these businesses are operated from his home. (Tr. 137). It appears that Dr. Alli devotes a good deal of time to these businesses and will be financially effected by the outcome of this matter. Thus, Dr. Alli is not a disinterested witness.

In testifying, Dr. Alli made several false statements under oath. He testified, "I have my M.D. degree from Michigan State University." Upon cross-examination, after Complainant's Counsel proposed to offer evidence from Michigan State University contradicting this testimony and after several evasive answers, Dr. Alli, testified:

"Q. Answer this yes or no: Do you have a medical degree from Michigan State University?

A. No." (Tr. 179)

Dr. Alli also testified, "Then I have a Master Degree from Illinois State University in Zoology and Anthropology." (Tr. 129-130) He confirmed this on cross-examination. (Tr. 174) However, later when confronted with facts from Illinois State University, Dr. Alli admitted that his degree was in Sociology. (Tr. 258-260)

When asked if he had a license to practice medicine in the United States, at first Dr. Alli answered, "yes". However, when asked a second time, he contradicted himself, stating, "I don't have a full license. I have a temporary license." (Tr. 185)

Dr. Alli also testified that he took a residency program at two hospitals, nine months at one and three months at the other (Tr. 187-188). However, he admitted that the usual length of residency programs in the United States is "Three years, except surgery which is four." (Tr. 189)

When asked if he completed an application for a post office box in Michigan, Dr. Alli denied this replying "I have a brother who lives in Michigan. He is a medical doctor too." (Tr. 221) However, he could not explain why the application for the box contained the identical student identification number of the witness - 77799099445858. (Tr. 222-224, CX-9A, CX-8) I find that the likelihood of Dr. Alli's brother coincidently using a 14 digit number identical to Dr. Alli's number is miniscule and more likely the application was completed by Dr. Alli himself or by someone who used Dr. Alli's number with Dr. Alli's assistance.

Based upon these important prevarications under oath, I found Dr. Alli to be a witness who would not hesitate to testify falsely, exaggerate or misrepresent to present Respondents' activities in the best possible light. Clearly, where his testimony conflicted with that of Dr. Mohler, I accepted Dr. Mohler's testimony as more accurate and reliable. And where Dr. Alli's testimony conflicted with logic, I was unable to accept his testimony.

I find that Respondents' advertising materials make the following representations alleged in Paragraph 3 of the Complaint for reasons set forth below:

(a) Respondent(s) is an organized international body capable of granting board certification status which is recognized by the medical profession in the field of tropical medicine.

(b) Respondent(s) is capable of recommending and validating standards of training which are officially recognized by the medical profession in the field of tropical medicine.

(d) Persons receiving "Diplomate" or "Fellow" status from Respondent(s) are generally recognized by the medical profession as having demonstrated expertise in the field of tropical medicine.

CX-3, a brochure that Respondents send to prospective applicants, states:

"The American Board of Tropical Medicine (ABTM) and the American College of Tropical Medicine (ACTM) organized as an international body to cater for the tropical medicine sic as a profession by providing opportunities to attain BOARD CERTIFICATION STATUS . . ."

CX-3 goes on to state that certification categories include "Diplomate", a category, "exclusively reserved for physicians," and "Fellow Of The American College of Tropical Medicine (FACTM)." The brochure "recommends that prospective fellows be certified as Diplomates before progress to the Fellowship."

I find, as Dr. Mohler testified, that in the medical profession and to medical doctors the terms, "certification", "diplomate" and "fellow" have clear and definite connotations and imply attainment of accomplishments generally recognized by the medical profession.

Dr. Mohler testified:

"Certification means that a physician has achieved a certain specified training, certain specified experience, has been brought before a group of competent peers who either through written or oral exam . . . demonstrates adequate contemporary knowledge to competent peers in the field for which certification is sought." (Tr. 60)

Dr. Mohler testified about the term "diplomate":

It is historically a term used in the medical profession for those who have a particular body of knowledge in a special area such as surgery or internal medicine or opthomology and who have achieved recognition by their peers through testing by certifying boards of successfully passing the exam and demonstrating competency in the specialty. The public views the terms as a person with accomplishments in the field of medicine." (Tr. 80)

Dr. Mohler testified as to the connotation in the medical profession of "Fellow":

"In the medical specialties, once a person is certified by one of the boards, there are so-called colleges related to the field in which the person was certified but separate from the board . . . It is understood that a fellow of those organizations has previously been certified a specialist by one of the appropriate boards to that area." (Tr. 81)

Dr. Mohler stated that in the medical profession, one who has achieved certification as a "fellow" or "diplomate" from a recognized medical board is recognized as a specialist in that field of medicine by the hospitals and other peer groups. (Tr. 88)

Because the terms "certification", "fellow", "diplomate" and "member of medical board" carry recognized connotations of great professional accomplishments and respect throughout the medical profession, Respondents' representations that they are bodies that certify applicants as diplomates and fellows and award board membership impliedly represents that their certifications are generally and officially recognized by the medical profession as representing such achievements in the field specified - tropical medicine - and that Respondents are capable of making such evaluations and validating standards in that field which will be so recognized.

I further find that Respondents' advertisements also represent:

(c) Respondents are an organization capable of evaluating the qualifications of practitioners who render care in the field of tropical medicine.

Language in Respondents' advertising brochure (CX-3) supporting this representation includes:

CLASSICAL TRADITION

The American College of Tropical Medicine is patterned after the distinguished tradition of the Royal College of Physicians and the Royal College of Surgeons in England. ACTM is proud to be the only professional college established in the world honoring the field of Tropical Medicine as a medical specialty.

PHILOSOPHY AND INTRODUCTION

The American Board of Tropical Medicine (ABTM) and the American College of Tropical Medicine (ACTM) organized as an International body to cater for the tropical medicine as a profession by providing opportunities to attain BOARD CERTIFICATION STATUS without regard to race, color, class, or national origin. The ABTM & ACTM are strictly a certification Board, dedicated to the preservation of quality and the protection of the public interest through established evaluation process, recommendation and validation of standard of training, and qualification of practitioners rendering care in Tropical Medicine. The Board will endorse qualified practitioners and issued ATTRACTIVE PARTCHMENT CERTIFICATE as evidence of qualification in the field of Tropical Medicine.

In the Waiver of the Examination section of CX-3, Respondents further emphasize their capability to evaluate the qualifications of practitioners in this field. The brochure states:

At the discretionary power of the Board, grandfather's clause may be applied to certain candidates with distinguished professional accomplishments, skill, competency and integrity in the chosen field.

Candidates with additional professional degrees and/or several years of teaching, research and clinical training with evidence of published or unpublished works may be considered for EXAM WAIVER.

The Exams may be WAIVED in WHOLE or in PART at the discretion of the Board. Documentary educational and professional evidence along with resume or biodata and at least two letters of recommendations are necessary for EXAM WAIVER's CONSIDERATION. Candidates must submit copies of books, published articles and exhibits. These will not be returned. Four to six weeks is required for this determination. INQUIRY FOR WAIVER ELIGIBILITY IS WELCOME from every candidate. We encourage application to have been on file before determination is requested.

III. The Truth or Falsity of the Representations

I further find that all of the above representations are materially false.

The testimony of all three witnesses indicates the American Board of Tropical Medicine and the American College of Tropical Medicine are disorganized and poorly operated organizations not capable of granting board certification status nor of recommending or validating standards of training which are recognized by the medical profession in the field of tropical medicine. The organizations also are not capable of evaluating the qualifications of practitioners who render care in the field of tropical medicine.

Numerous people have attempted to contact Respondents and obtain information concerning the organizations, including such basic information as a street address, telephone number, and a list of officers. Exhibit CX-9D is a copy of a letter mailed by D. A. Deshaw, Executive Directgor of the Michigan Association of Osteopathic Physicians & Surgeons, Inc., to Mr. A. A. Ben requesting information about Respondents. Mr. Ben of "The Doctor Company" had requested Mr. Deshaw to place an advertisement in the Association's publication for Respondents. Mr. Deshaw never received a response. (Tr. 12) Dr. Alli testified that A. A. Ben is his cousin, Albert. (Tr. 214) Dr. Alli admitted the announcement (CX-9B) mailed by "The Doctor Company" to the Michigan Association of Osteopathic Physicians & Surgeons, Inc. was Respondents'. (Tr. 215) Dr. Alli admitted he had seen the letter from Mr. Deshaw and stated he did not respond to it because he thought Mr. Deshaw was a fool. (Tr. 219)

Inspector Meaux testified that he mailed a letter dated June 9, 1983, to Christie Baker, M.D., Secretary-Treasurer of the American Board of Tropical Medicine, requesting an address and phone number. (Tr. 14; CX-10C) After receiving no response, Inspector Meaux mailed a second letter (CX-10E) on June 30, 1983, to Ben Alli, M.D., Executive Director, American Board of Tropical Medicine, requesting the same information. Respondents did not furnish an address and telephone number, but sent a letter (CX-10H) to Inspector Meaux requesting a copy of his file on Respondents.

Inspector Meaux testified that in addition to Mr. Deshaw and himself, Dr. Colvin Gibson, publisher of the Tropical Medicine and Hygiene News, Dr. Mark Hoekenga, American Society of Tropical Medicine Hygiene, and Dr. Donald G. Langsley, Executive Vice-President of American Board of Medical Specialties, all attempted unsuccessfully to obtain information concerning board members, directors, or trustees of the American Board of Tropical Medicine. Respondents' stationary (CX-10H) and promotional materials do not contain a telephone number, street address or list of officers, directors or trustees.

Dr. Alli expressed confusion as to who the officers of the organizations are and what their backgrounds are. He stated Dr. Christie Baker, the secretary-treasurer, is retired and he doesn't know where she practiced. (Tr. 192-193) Although S. Quad's name appears on Respondents' documents, it was not clear who S. Quad is. Dr. Alli testified he did not know what S. Quad's first name is. He just calls him Mr. Quad. (Tr. 196) After stating "she types letters for me and does auxillary services for us," Dr. Alli was asked if Mr. Quad was a male or female. He replied "Himself or his wife? They both work for us." (Tr. 197) S. Quad's name was on the box application with Dr. Alli's for P. O. Box 1794 in Toledo. (CX-8) When Dr. Alli was questioned about Afro-Asia International appearing on the box application, he stated S. Quad might have completed it. (Tr. 212) When asked if he opened the box, Dr. Alli stated "I don't know if I did, but I might have allowed him to go and open it without my knowledge." (Tr. 213) Dr. Alli stated he did not know what Afro-Asia International was, even though he completed the box application. (Tr. 213) S. Quad's name also appears on the box application with A. Alli's for P. O. Box 36081 in Grosse Point, Michigan. (CX-9E) Dr. Alli did not know S. Quad's occupation (Tr. 197) nor his address (Tr. 198). He stated S. Quad's title is administrative coordinator (Tr. 199) and he is not paid for his services. (Tr. 200) When asked about a letter listing S. Quad, Esq., as Corresponding Secretary, Dr. Alli stated his title was changed from correspondent secretary to administrative coordinator. (Tr. 210)

Dr. Alli testified that he did not complete the box application for P. O. Box 36081, Grosse Point, Michigan for "The Doctor Company". (Tr. 221) He testified he has a brother, Ade, in Michigan who is also a medical doctor. The 14 digit student identification number on the application completed by Dr. Alli for Box 1794 in Toledo is identical to the identification number on the application completed by A. Alli for Box 36081 in Grosse Point, Michigan. When asked if he had ever given his brother his student identification number, Dr. Alli stated, "Sometimes, when I travel he stays at my homes to guard my home for me." (Tr. 224)

Dr. Alli expressed confusion and disorganization when questioned about Respondents' files and documents. (Tr. 229-232) When asked where he keeps these documents, Dr. Alli stated, "It is with either of the members of the directorate. Some of them are with me, some of them are with the secretaries, some of them with Mr. Quad. It depends on the documents that we need." (Tr. 229-230) Dr. Alli stated that he had "15 or so" of the 40 files of the members. He testified he thinks S. Quad has some of the files and he was not sure if Christie Baker has any of the files. When asked if anyone else had any files of Respondents, Dr. Alli replied, "It is possible. Maybe Sir Boyle." He identified Sir Boyle as "the British guy." (Tr. 231) Dr. Alli stated Mr. Quad has a registry of where the files are kept, but when asked where the registry is, he replied, "Maybe in a mail deposit box, maybe his home. I don't know about that." (Tr. 232) When asked who he would consider the keeper of the records, he stated, "At this time we don't have specific people for keeping." (Tr. 232) Although Dr. Alli stated that he depends on Mr. Quad to keep a registry of the files, he testified that he did not know Mr. Quad's address or telephone number. (Tr. 232, 198)

There are no bylaws for the American Board of Tropical Medicine or the American College of Tropical Medicine. Dr. Alli testified they have some "crude" ones in his basement in Toledo, but they have never given them to members. (Tr. 365-366)

Exhibit CX-5 and the second page of Exhibit CX-3 are applications utilized by persons who wish to become a member, fellow or diplomate of or receive board certification from Respondents. Dr. Mohler, secretary-treasurer of the American Board of Preventive Medicine, reviewed the applications and testified they are extremely brief, short and totally inadequate. When asked if the information requested on that form is adequate to enable an organization to judge whether a person should be certified as a specialist, Dr. Mohler responded, "Absolutely not." (Tr. 78) Dr. Mohler reviewed Exhibit CX-4, Respondents' "Requirements and Qualifications", and described it as "... a grossly unplanned, unprepared and unprofessional document" (Tr. 79) Respondents' printed materials contain many grammatical mistakes and appear to me to be carelessly and unprofessionally written.

According to Dr. Alli, the completed applications received by Respondents first go to the Evaluation Committee. (Tr. 248) The Evaluation Committee consists of Dr. Christie Baker, Dr. Rubio, Dr. Khan, and Mr. Quad. Dr. Alli did not know where Dr. Baker practiced before she retired. (Tr. 193) Dr. Alli thinks Dr. Rubio practices somewhere in Indiana, but does not know where he attended medical school. (Tr. 63) He does not know Mr. Quad's address or telephone number. (Tr. 198) Dr. Alli stated Mr. Quad has a Masters Degree in Social Work. (Tr. 262) Dr. Alli testified the Evaluation Committee met three times last year, but could not recollect when they met. (Tr. 264) He stated one meeting was held at the Toledo Public Library, one at the Holiday Inn in Toledo, and he could not recall where the third meeting was held.

Dr. Alli stated that after the applications are reviewed by the Evaluation Committee, they are referred to the Validation Committee with recommendations. (Tr. 271 and 280) Dr. Alli is chairman of the Validation Committee which consists of Dr. Baker, Dr. Robert, Sir Boyle, Dr. Herman Bueno and Dr. Seneca. Dr. Bueno and Dr. Seneca are new members of the Validation Committee and have not participated. Dr. Alli stated Dr. Robert is an M.D. from Cincinnati, but he did not know where Dr. Robert attended medical school nor where his practice is located. (Tr. 275) Dr. Alli was not sure if Dr. Bueno was still practicing medicine and did not know where he attended medical school.

It is obvious Dr. Alli has limited knowledge of the backgrounds and whereabouts of the members of the Evaluation Committee and Validation Committee. Although he testified that he knew practically all 40 members and knows the credentials "off of his head", Dr. Alli does not even know the credentials and backgrounds of committee members that he purports to have met with numerous times.

The committees determine if an applicant can become a member or be board certified without an examination. Dr. Alli testified that of Respondents' 45 members, 10 were certified without an examination. (Tr. 282) Dr. Mohler stated all 23 boards of the American Board of Medical Specialties require a written examination for the applicant to demonstrate adequate contemporary knowledge to competent peers in the field for which certification is sought. (Tr. 60) Dr. Mohler testified that all the people he talked with who were certified by Respondents never were tested by Respondents. They sent their money and received a certificate. (Tr. 87)

When questioned about security provided for the preparation, administration and grading of the examinations, Dr. Alli stated they have some "trusted people", members of the organization. (Tr. 314) After the examinations are prepared, they are kept in the basement of Dr. Alli's home. (Tr. 316) One of the members proctors the examinations. (Tr. 316) Although Dr. Alli testified that candidates taking an oral examination meet with at least three people (Tr. 359), he admitted he was the only person that administered the oral examination in the Philippines. (Tr. 320 and 369)

Copies of Respondents' examinations were admitted into evidence as Exhibits RX-8A, RX-8B and RX-8C. (Tr. 152) Exhibit RX-8A was on obstetrics/gynecology examination, Exhibit RX-8B is a general category examination, and Exhibit RX-8C is a surgery examination. When asked which questions pertain to tropical medicine, Dr. Alli stated "There is no tropical medicine surgery." (Tr. 320) He stated he could find about three questions in Exhibit RX-8A related to tropical medicine. (Tr. 322) Dr. Alli also stated "When you are talking with OB, obstetrics, women are women anywhere. Surgery is surgery anywhere." (Tr. 324) When asked if everything in the general category examination has to do with tropical medicine, Dr. Alli stated "Yes, sir. All of them." (Tr. 339) I take administrative notice, even as a layman, that Respondents' examinations do not particularly test a person's knowledge in tropical medicine, but consist mainly of questions applicable to other areas of medicine.

In contract, Dr. Mohler testified that the examinations for the American Board of Preventive Medicine are prepared by the National Board of Medical Examiners by contract with assistance by their board members and specialists called in. The Board of Medical Examiners provides seven skilled staff members who go over their questions. They are checked individually for reliability and for validity of the questions. The psychometric scoring is developed by persons trained in that area. Each question costs several hundred dollars to get to its final form. (Tr. 62) Dr. Alli testified he used to sell questions for 50 cents per question to top medical schools. (Tr. 307) I find that the preparation, content and security of Respondents' examinations are unprofessional and inadequate.

The only witness to testify for Respondents was Dr. Ben Alli, an interested party who made false statements that he later changed when confronted with the truth. Dr. Mohler testified and I find that there is no recognized specialty of tropical medicine. (Tr. 59-60) No evidence was presented that anyone recognizes the American Board of Tropical Medicine and the American College of Tropical Medicine other than Dr. Alli. Respondents' attorney stipulated that neither the American Medical Association nor the American Board of Medical Specialties recognizes Respondents. (Tr. 33-34)

I find that because Respondents are so unprofessionally operated and staffed, they are not capable of either granting board certification status, validating standards of training or evaluating qualifications of practitioners in the field of tropical medicine which will be recognized by the medical profession. Furthermore, as Dr. Mohler testified, persons receiving diplomate or fellow status from Respondents will not be recognized by the medical profession as having demonstrated expertise in tropical medicine and probably will be looked at negatively by the medical profession. (Tr. 183) The evidence, therefore, clearly established that all of the representations alleged in Paragraph 3 of the Complaint are false.

1. Since Respondents have sought remittances of money through the mail, the jurisdictional requirement of 39 U.S.C. § 3005 has been fulfilled.

2. The representations made by an advertisement are considered to be those that the purchaser to whom it was directed, presumed to be of ordinary intelligence, would understand from viewing the advertisement as a whole. Donaldson v. Read Magazine, Inc., 333 U. S. 178, 189 (1948); G. J. Howard Co. v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958). What has been omitted and what may be reasonably implied from the advertisement are considered in assessing its meaning. 333 U. S. at 188; Spiegal, Inc. v. F.T.C., 411 F.2d 481, 483 (7th Cir. 1969).

3. The average person in the medical profession reading Respondents' advertisements and promotional materials would interpret them substantially as characterized in Paragraph 3, subparagraphs (a) through (d) of the Complaint.

4. A promise to refund, if a customer is dissatisfied, will not dispel the effect of false advertisements. Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 751 (S.D.N.Y. 1959).

5. The representations specified in Paragraph 3, subparagraphs (a) through (d) of the Complaint are materially false.

6. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. 1978); S.E.C. v. National Student Marketing, 457 F. Supp. 682, 701 n. 43 (D.C. 1978); Wilmont Products, P.S. Docket No. 6/46 at 7 (1979).

Therefore, I conclude that Respondents are engaged in conducting a scheme for obtaining money through the mail by false representations in violation of 39 U.S.C. § 3005 and that a mail stop order, substantially in the form attached, should be issued against Respondents.