United States Postal Service(TM) 


 In the Matter of the Complaint Against the Respondent:

 TELEPOST/INTERNATIONAL TELEX COMMUNICATIONS SYSTEM,
 P. O. Box 529,
 FL - 9490 Vaduz/ via Switzerland

 P.S. Docket No. 25/194

 February 17, 1987

 James A. Cohen Judicial Officer

 APPEARANCE FOR COMPLAINANT:
 Jerry Belenker, Esq. 
 Consumer Protection Division
 Law Department
 U. S. Postal Service
 Washington, DC 20260-1112 

 APPEARANCE FOR RESPONDENT:
 Telepost/International
 Telex Communications System
 P. O. Box 529
 FL - 9490 Vaduz/ via Switzerland

POSTAL SERVICE

DECISION AND ORDER
On November 5, 1986, a Complaint was filed alleging that Respondent is in violation of 39 U.S.C. 3005(a) through the distribution of solicitations in the form of bills, invoices, or statements of account due which are nonmailable under 39 U.S.C. 3001(d). On November 13, 1986, Tentative Decision and Order No. 86-131 was issued which concluded that Respondent's solicitations are nonmailable matter under 39 U.S.C. 3001(d) as implemented by Section 123.41 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.

By letter dated December 23, 1986, Respondent filed a reply to the Tentative Decision and Order which denied that the solicitations are nonmailable under 39 U.S.C. 3001(d) or in violation of 39 U.S.C. 3005. Respondent argues that it did not intend its mailings to be deceptive or fraudulent and that its solicitations are similar to those of its competitors.

Respondent's contentions do not show good cause for dismissing the Complaint. The Postal Service statutes do not require a showing of intent to deceive in order to establish a violation of 39 U.S.C. 3001(d) and 3005. In addition statutory violations by others do not excuse Respondent's conduct or serve as a valid defense to the allegations of the Complaint.

The mailability portion of the Postal Service statute which is relevant to this proceeding, 39 U.S.C. 3001(d), provides:

(d) Matter otherwise legally acceptable in the mails which -

(1) 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.

Under 39 U.S.C. 3005(a), the mailing of matter which is nonmailable under 3001(d) "shall constitute prima facie evidence that such person is engaged in conducting a scheme or device for obtaining money or property through the mail by false representations."

Respondent's mailings are in the form of and reasonably could be construed as a bill or invoice, and do not contain the required disclaimer. Complainant has submitted affidavits attesting to the receipt through the mail of solicitations from Respondent for services which were not ordered. Complainant has thus established a prima facie case that Respondent is engaged in a scheme or device for obtaining money through the mail in violation of 39 U.S.C. 3005.

Since the solicitations are in the form of, and reasonably could be interpreted or construed as, bills, invoices or statements of account due and do not comply with the notice requirements of 39 U.S.C. 3001(d) as implemented by 123.41 of the DMM, they are nonmailable under 39 U.S.C. 3001(d) and in violation of 39 U.S.C. 3005(a). Accordingly, good cause for revoking or modifying Tentative Decision and Order No. 86-131 has not been shown. Therefore, the Tentative Decision and Order is now the Final Decision and Order of the Postal Service.