In the Matter of the Complaint Against MID-AM. MARKETING, INC., A Corporation d/b/a, NASHVILLE DIRECTORY COMPANY, THE NASHVILLE DIRECTORY, 2120 Crestmoor at Nashville, TN 37215-2513 and WADE L. WHITE, Individually, R.R. 4, Box 58 at Lincoln, NE 68528-8821 P.S. Docket No. 24/12 May 7, 1987 James A. Cohen Judicial Officer APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Alan B. Ostroff, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1100 APPEARANCES FOR RESPONDENTS: William D. Coston, Esq. Karen Abrams, Esq. Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W. Washington, DC 20036-3006
Respondents have filed a Motion for Reconsideration of the Postal Service Decision dated January 5, 1987. Complainant opposes the Motion. All of Respondents' arguments have been considered. For the reasons set forth below, the Motion for Reconsideration is denied.
Respondents first argue that the Judicial Officer improperly evaluated the testimony of Complainant's witnesses because he failed "to give any credence to the Administrative Law Judge's resolution of witness credibility." Contrary to Respondents' argument, the Judicial Officer did not fail to give credence to the Administrative Law Judge's resolution of witness credibility since credibility determinations played no part in arriving at the conclusion that Respondents made the representations alleged in the Complaint. Rather, the conclusion that Respondents made the misrepresentations alleged in the Complaint 1/ was based primarily on the solicitation itself. The inferences drawn from the testimony of Complainant's witnesses were found to be generally supportive of this conclusion.
The solicitation itself, without the assistance of lay or expert testimony, provides the best evidence of whether repre- sentations are made, their effect on the ordinary mind, and their materiality. Vibra Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds , 256 F.2d 681 (2d Cir.
1958); Standard Research Labs , P.S. Docket No. 7/78 (P.S.D. Oct. 27, 1980); The Robertson-Taylor Co. , P.S. Docket Nos. 16/98-102, 16/120-121 (P.S.D. March 31, 1986). The aspects of the solicitation which created the overall impression that Respondents are the publishers of the yellow pages directory supplied to all telephone subscribers in the Nashville area were fully explained in the Postal Service Decision.
Respondents additionally argue that the testimony of Complainant's witnesses supports Respondents' position that the disclaimer language in their solicitation was sufficient to dispel any false impression. Respondents place unwarranted emphasis on certain inferences that they argue should be drawn from the testimony and disregard the location and size of the disclaimers. The disclaimers were in very small print (approximately 1/16 inch per line) toward the bottom of the solicitation. The conclusion in the Postal Service Decision that the disclaimers were inconspicuous and not sufficient to dispel the effect of the false representations alleged in the Complaint is affirmed.
Respondents argue that the cases 2/ supporting the conclusion relating to the disclaimers are distinguishable because they considered "patently absurd" claims and products.
The argument fails, for regardless of the product involved the rule remains that inconspicuous or fine print disclaimers are insufficient to dispel the effect of a false representation. See, Scott Wilcox , P.S. Docket No. 18/147 (P.S.D. Oct. 16, 1985); New Generation, California Pacific Research, Inc. , P.S. Docket No. 11/152 (P.S.D. May 13, 1983); Raymond Milo , P.S. Docket No. 12/168 (P.S.D. Dec. 31, 1981).
Respondents next contend the Postal Service Decision is erroneous as it relies on facts not contained in the record. While as phrased this argument addresses the use of facts outside the record, Respondents for the most part take exception to the consideration of certain facts in the record, the emphasis given to those facts, and the conclusion reached that false representations were made. Thus, Respondents object to the consideration given to the size, format, logos and color of their solicitation, and the reference to the pages from the Bell South Directory included as part of Complainant's Exhibits 10 - 15.
To the extent Respondents contend that reliance was placed on facts outside the record their contention is unfounded. Only evidence in the record was considered by the Judicial Officer. Moreover, the various aspects of Respondents' solicitation, such as size, format, logos and color, and the comparison to the pages from the Bell South Directory included as part of Complainant's Exhibits 10 - 15 were proper matters to consider in connection with the issues raised in this proceeding. Thus, no error was committed.
Respondents specifically object to the emphasis given to the logos, contending they should be disregarded as they are not copyrighted and are used by others. This argument was previously addressed and it was concluded that the use of the logos contributed to the impression that the false representations are made. Respondents' argument on reconsideration is not persuasive that this conclusion is erroneous.
In their final argument, Respondents contend that they should not be punished since there is no evidence in the record that recipients of their advertisements were prejudiced.3/ Prejudice, however, has no application to a determination of a violation of the False Representation statute. The law is clear that it is not necessary to show actual deception in order to establish the existence of a false representation. Farley v. Heininger , 105 F.2d 79 (D.C. Cir. 1939), cert. denied , 308 U.S. 587 (1939). It is the likelihood of deception or the advertisement's capacity to deceive which must be judged. Montgomery Ward & Co. v. FTC , 379 F.2d 666 (7th Cir. 1967). Using this standard, Respondents' solicitations are in violation of 39 U.S.C. 3005.
Respondents additionally request "clarification" of the Cease and Desist Order, seeking advice as to modifications which could be made to its solicitation to remedy the false representations. The terms of the Cease and Desist Order are clear and need no revision or explanation. Moreover, the Judicial Officer does not issue advisory opinions or give approval to proposed advertisements. See , George M. Ernst, Jr. , P.S. Docket No. 13/88 (P.S.D. May 1, 1984), aff'd Many Interested Savers, Inc. v. United States Postal Service , Civil Action No. 84-304 (E.D. KY Feb. 20, 1986); Paul Harvey , P.S. Docket No. 8/10 (P.S.D. Aug. 29, 1980). Respondents' request for an advisory ruling is therefore denied.
While the Judicial Officer does not issue advisory opinions, the parties are encouraged to confer and attempt to arrive at a satisfactory understanding concerning necessary modifications to Respondents' solicitation. The stay of the return portion of the False Representation Order which was issued on January 22, 1987, will remain in effect for 30 days from the date of this decision in order to allow the parties time to arrive at a satisfactory understanding.
Since Respondents have not demonstrated any error of fact or law in the Postal Service Decision the Motion for Reconsideration is denied.
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1/ An agency reviewing an Administrative Law Judge's decision
under the Administrative Procedure Act is authorized to decide
all issues de novo . See , FCC v. Allentown
Broadcasting Corp. , 349 U.S. 358 (1955); Starrett v. Special Counsel , 792 F.2d 1246
(4th Cir. 1986); Containerfreight Transp. Co. v. ICC , 651 F.2d
668 (9th Cir. 1981). The Judicial Officer is the "agency" under the
Administrative Procedure Act for the purpose of making a final
Postal Service decision under 39 U.S.C. 3001 and 3005. See
, 39 U.S.C. 204; 39 C.F.R. 224.1(c)(4). Under 39 C.F.R. 952.26, in
determining appeals from an Initial Decision, the entire official
record will be considered before a final agency decision is
rendered.
2/ Kurzon v. United States Postal Service , 539
F.2d 788 (1st
Cir. 1976); Vibra Brush Corp. v. Schaffer , 152 F. Supp. 461
(S.D.N.Y. 1957); Gottlieb v. Schaffer , 141 F. Supp. 7
(S.D.N.Y.
1956); Leo Daboub , P.S. Docket No. 19/185 (P.S.D. July 10,
1986).