In the Matter of the Complaint Against The Respondent: WORLD TELEX P. O. Box N-546 Nassau, Bahamas P.S. Docket No. 21/17; 08/28/85 Cohen, James A. APPEARANCE FOR COMPLAINANT: Nan M. Kalthoff, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-lll2 APPEARANCE FOR RESPONDENT: R. Hoffman P. O. Box N-546 Nassau, Bahamas
On April 30, l985, a Complaint was filed alleging that Respondent distributes solicitations in the form of bills, invoices or statements of account due which are nonmailable under 39 U.S.C. § 3001(d) and constitute a scheme to obtain money through the mail in violation of 39 U.S.C. § 3005. On May 7, l985, Tentative Decision and 1Order No. 85-43 was issued which concluded that Respondent's solicitations are nonmailable matter under 39 U.S.C. § 300l(d) as implemented by ?l23.41 of the United States Postal Service Domestic Mail Manual (DMM) and that Respondent is engaged in conducting a scheme to obtain money through the mail by means of materially false representations within the meaning of 39 U.S.C. § 3005. 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 June l3, l985, Respondent filed a letter reply to the Tentative Decision and Order which denied that the solicitations are nonmailable under 39 U.S.C. § 300l(d) or in violation of 39 U.S.C. § 3005. Respondent argues that a pamphlet accompanying the solicitation form, as well as the printed terms on the reverse side of the form, advise the recipient there is no obligation to make payment. Relying on five attachments to its reply, Respondent further argues that recipients of its form in the New York area obviously understood them to be solicitations and not invoices. Finally Respondent refers to a Western Union solicitation form attached to its letter reply which it believes supports its position that its "pro forma" invoice does not violate the provisions of 39 U.S.C. ??300l(d) & 3005.
Complainant argues that Respondent's solicitation is in the form of and reasonably could be construed as a bill, invoice or statement of account due, and that it does not comply with the requirements of 39 U.S.C. § 300l(d) or DMM ?l23.41. Complainant also argues that it is irrelevant that some addressees may understand the true nature of the solicitation, if the solicitation is likely to deceive others. Complainant further points out that the disclaimers referred to by Respondent are inconspicuous and not in compliance with the statutory or regulatory requirements.
The portion of 39 U.S.C. § 300l(d) which is relevant to the solicitations distributed by Respondent provides:
"(d) Matter otherwise legally acceptable in the mails which -
(l) 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." Domestic Mail Manual § 123.41, which is the regulation issued to implement § 300l(d) requires the statutory disclaimer to be on the face of the solicitation in conspicuous boldface capital letters of prominent contrasting color and in specified print type.
The mailing of nonmailable matter under 39 U.S.C. § 300l(d) serves as a basis for the issuance of a false representation order and cease and desist order under 39 U.S.C. § 3005. Section 3005(a) provides that the mailing of matter which is nonmailable under § 300l(d) constitutes prima facie evidence of a violation of § 3005.
Respondent's mailings are clearly solicitations in the form of and reasonably could be interpreted or construed as a bill, invoice or statement of account due. They are in the format of an invoice, they contain the word "invoice" in bold face print and on the right hand side where the amount due is normally shown on an invoice, they show a gross amount, a 3% discount for payment within fifteen days, and a net amount. The disclaimers found on the reverse side of the solicitation and in the pamphlet which Respondent contends is attached to the solicitation do not comply with the requirements of 39 U.S.C. § 3001(d) as implemented by DMM ?l23.41. They do not appear on the face of the solicitation and are not in conspicuous boldface capital letters of prominent contrasting colors in the requisite print type.
The attachments to Respondent's reply to the Complaint which it argues indicates that some recipients did not construe the solicitation forms as bills or invoices is not persuasive. Although some recipients may not have been misled, others could reasonably construe the solicitations as invoices. That some did is evidenced by the attachments to the Complaint. Under established case law the trusting are to be protected as well as the wary. See e.g., Donaldson v. Read Magazine, Inc., 333 U.S. l78, l89 (l948); Telex & twx Directory, P.S. Docket No. l3/6 (P.S.D. April l, l983). Finally, the Western Union mailing provides no support for Respondent. The terms of the Western Union mailing differ significantly from the language used in Respondent's solicitations. Furthermore, the fact that another mailer may be in violation of Postal Service statutes does not excuse Respondent from a statutory violation.
Since Respondent's solicitations are in the form of, and reasonably could be interpreted or construed as, a bill, invoice or statement of account due and do not comply with the notice require ments of 39 U.S.C. § 300l(d) as implemented by ?l23.41 of the DMM, they are nonmailable under 39 U.S.C. § 300l(d) and constitute prima facie evidence of a violation of 39 U.S.C. § 3005. Respondent has not rebutted this prima facie showing of a violation of § 3005. Accordingly, good cause for dismissing the Complaint and revoking or modifying Tentative Decision and Order No. 85-43 has not been shown. Therefore, the Tentative Decision and Order is now the Final Decision and Order of the Postal Service