In the Matter of the Complaint Against
 MICHAEL NARCUM,
 individually and as president of
 INTERNATIONAL SUCCESS
 DEVELOPMENT CORPORATION, etc.,
 1954 Hilltop Ct. at
 Woodstock, IL 60098-2539, et. al.  

 P.S. Docket No. 23/75

 January 30, 1987

 James A. Cohen Judicial Officer

 APPEARANCES FOR COMPLAINANT:
 H. Richard Hefner, Esq. 
 Timothy J. Kruthaupt, Esq. 
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1112 

 APPEARANCES FOR RESPONDENTS:
 Stephanie W. Kanwit, Esq. 
 Jerome S. Lamet, Esq. 
 600 South Federal Street,#201
 Chicago, IL 60605-1842

Complainant has filed a Motion to Affirm an Initial Decision of an Administrative Law Judge on the grounds that Respondents have not filed a timely appeal. Respondents oppose Complain- ant's Motion, arguing that their appeal was timely filed and, alternatively, that being one or two days late should not deprive them of an opportunity to take an appeal from the Initial Decision.

In the Initial Decision, the Administrative Law Judge found that Respondents make the following representations alleged in paragraph 9 of the Complaint:

(a) Each person who elects to participate in Respondents' program will earn substantial sums of money (i.e. $360. per week);

(b) Very little work and time will be required to make substantial sums of money (i.e. $360. per week);

(c) The expenditure of very little money is required to receive substantial sums of money through Respondents' program (i.e. $360. per week);

(d) The major expense involved is the purchase price to be sent to Respondents for their plan;

* * *

(f) The plan Respondents sell is legal.

The Administrative Law Judge also found that these representations are materially false, that Respondents urge and cause participants to make these same materially false representations to third parties, and that Respondents' "Plan B" incorporates the elements of chance, prize and consideration. Based on these findings, the Administrative Law Judge concluded that Respondents were engaged in a scheme to obtain money through the mail by means of materially false representations and that they were engaged in the operation of a lottery enterprise, both in violation of 39 U.S.C. 3005.

The Initial Decision and an accompanying Notice of Right to Appeal were dated November 12, 1986, and delivered to Respond- ents' attorney on November 17, 1986 (see Certified Receipt No. 589 407 811). The Notice of Right to Appeal advised Respondents that an appeal could be taken by filing exceptions contained in a brief on appeal within fifteen days from the date the Initial Decision was received. The Notice further advised that if no appeal was taken within the prescribed time, the Initial Decision would become final. The fifteen day period elapsed on December 2, 1986. On December 3, 1986, Respondents' attorney mailed a Brief on Appeal which arrived in the Recorder's office on December 4, 1986.

Complainant filed its Motion to Affirm the Initial Decision on December 8, 1986. In the Motion, Complainant argues that Respondents' appeal was not timely filed and that Respondents did not seek or obtain an extension of time for filing their appeal. Respondents, on the other hand, argue that the Initial Decision and Notice were not received until November 19, l986, and that they did not believe their brief was due until December 4, 1986. They also argue that even if the brief was due on December 2, 1986, a one or two day delay in filing the appeal brief is " de minimis " and should not deprive Respondents of the opportunity to file an appeal. They therefore request that the Motion to Affirm be denied.

Respondents' assertion that their brief was timely filed because the Initial Decision was not received until November 19, 1986, is not supported by the record. The certified receipt included in the record reflects that the Initial Decision was received by Respondents' counsel on November 17, 1986. Under the terms of the Notice accompanying the Initial Decision and the Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 C.F.R. 952.25, an appeal may be filed within fifteen days from the date of receipt of an Initial Decision. If an appeal if not filed within the prescribed period, the Notice and Rules provide that the Initial Decision shall become the final Agency decision. Respondents did not file their appeal within the prescribed fifteen day period nor did they seek an extension of the appeal period. Moreover, Respondents have not alleged, let alone shown, that good cause exists for their failure to file a timely appeal. Under such circumstances Respondents' appeal was not timely filed. See ViAids Laboratories, Inc. v. United States Postal Service , 464 F. Supp. 976 (S.D.N.Y. l979).

In the absence of a timely appeal or a showing of excusable cause for an untimely filing of an appeal, Respondents are not entitled to have their appeal considered on the merits. Nonetheless, the entire record has been reviewed and it has been concluded that the Initial Decision is correct as a matter of fact and law. A preponderance of the evidence supports the Administrative Law Judge's findings and conclusions that Respondents make the materially false representations alleged in Paragraph 9(a) - (d) and (f) of the Complaint, that Respondents urge and cause participants to make the same materially false representations to third parties, and that Respondents' "Plan B" constitutes a lottery. In reaching this result, the Administra- tive Law Judge properly weighed the qualifications of the expert witnesses, correctly ruled on evidentiary questions, and accurately evaluated the testimony and documentary evidence presented at the hearing. Further, the Administrative Law Judge, relying on appropriate citation of authority, applied the proper standards for determining whether Respondents' promotion constitutes a violation of the false representation and lottery provisions of 39 U.S.C. 3005 and correctly found no violation of Respondents' First Amendment rights. Finally, contrary to Respondents' argument on appeal, their advertising materials promote their circular mailing program, not the sale of a book or other publication covered by 2(b)(2) of the Mail Order Con- sumer Protection Amendments of 1983, 39 U.S.C. 3005(d). Thus, there is no merit to Respondents' exceptions.

For the foregoing reasons the Initial Decision is affirmed and the Orders authorized by 39 U.S.C. 3005 are issued with this decision.