In the Matter of the Complaint Against The Respondent, INTERNATIONAL TRADE INFORMATION, P. O. Box 529, FL 9490 at Vaduz/Liechtenstein P.S. Docket No. 26/29 February 17, 1987 James A. Cohen Judicial Officer APPEARANCE FOR COMPLAINANT: Jerry Belenker, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: International Trade Information ITI P. O. Box 529 FL 9490 Vaduz/Liechtenstein
On December 2, 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 December 11, 1986, Tentative Decision and Order No. 86-136 was issued, which concluded that the Order authorized by 39 U.S.C. 3005(a) should be issued against Respondent. 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 January 13, 1987, a letter was received from Respondent which, although referring to the Complaint, is considered to be a timely response to the Tentative Decision and Order. In its letter Respondent contends that the wording and format of its mailing clearly shows that it is a solicitation for a listing in its directory and that payment is required only if the recipient agrees to accept the offer for a directory listing.
Respondent's contention does not show good cause for dismissing the Complaint. The relevant portion of 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 represen- tations."
Respondent's mailing is to be judged in its totality and the impression it would most probably create in the minds of those to whom it is directed. Donaldson v. Read Magazine, Inc. , 333 U.S. 178 (1948), Telex Cable Services, Est., P.S. Docket No. 14/119 (P.S.D. Feb. 9, 1983). The overall impression created by Respondent's mailing is that it is a bill or invoice. This impression is created by both the text and format of the mailing which includes a column entitled "Details of Payment" with headings "Previous Balance", "Gross Amount", "Credit (Discount by payment within 20 days)", and "Net Amount Total". Under each heading a dollar amount is shown which most probably would be construed by the recipient as the amount due and owing. The solicitation or offer language appears in small print at the bottom of the mailing and is insufficient to dispel the overall impression that the mailing is a bill or invoice. Contrary to Respondent's assertion, the two red arrows between the solicitation language and the "Net Amount Total" do not emphasize the offer language but rather highlight the total amount due. The "Terms of Business and Delivery" on the back of the solicitation would not lead the ordinary recipient to conclude that the mailing is an offer rather than a bill or invoice.
Since the solicitation is in the form of, and reasonably could be construed as, a bill, invoice, or statement of account due, and does not comply with the notice requirements of 39 U.S.C. 3001(d) as implemented by 123.41 of the Domestic Mail Manual, it is nonmailable under 39 U.S.C. 3001(d) and in violation of 39 U.S.C. 3005(a). Accordingly, Tentative Decision and Order No. 86-136 is now the Final Decision and Order of the Postal Service.