In the Matter of the Complaint		)  October 15, 1992
 Against  	    			)
					)
 WDASS or W.D. AND ASSOCIATES		)
 P.O. Box 25367				)
 Chicago, IL  60625-0367		)
					)
 WILLIAM DAAS  				)
 3747 Clarington Avenue, Apt. 12B	)
 Los Angeles, CA  90034-5858		)  P. S. Docket No. 34/60


 APPEARANCE FOR COMPLAINANT:		Jeannine H. Walter, Esq.
 Law Department
 Consumer Protection Division
 United States Postal Service
 Washington, DC  20260-1144

 APPEARANCE FOR RESPONDENT		William Daas
 27427 Detroit Road
 Apartment E32
 Westlake, OH  44145-2261

The Consumer Protection Division, Law Department, United States Postal Service (Complainant) has filed a Motion for Reconsideration of the Postal Service Decision issued in this proceeding which denied Complainant's Petition for orders based on Respondent's alleged breach of a Settlement Agreement (Agreement), executed on July 21, 1989. In the Postal Service Decision, Respondent was found to be soliciting remittances through the mail by means of advertisements containing the representations which are the subject of the Agreement. The Petition, however, was denied because Complainant had not established the falsity of the representations as required by the terms of the Agreement and paragraph III of Cease and Desist Order No. CD-2648.

Complainant contends that the Postal Service Decision is not consistent with prior agency and court decisions. According to Complainant, prior agency and court decisions hold that the only issue to be decided in connection with a petition for breach of consent agreement is whether a Respondent is continuing to make the representations he agreed to discontinue. Complainant also argues that the Postal Service Decision is inconsistent with the Interim Order issued September 4, 1992, and a prior Postal Service Decision issued in this proceeding in which Respondent was found to be in breach of the same Agreement.

In most cases, the issue to be decided in connection with a petition for breach of consent agreement is whether the party signing the agreement has breached its terms by con- tinuing to make the representations which it agreed to dis- continue. The truth or falsity of the representations is generally not in issue. Associated Writers Guild of Am., et. al., P.S. Docket 12/180 at 8 (P.S.D. June 6, 1990). However, in this case, the language of both the Agreement and the Cease and Desist Order requires Complainant to establish not only that the representations are being made, but that the rep- resentations are false. Therefore, unlike other breach of consent agreement cases, the falsity of the representations is in issue in this proceeding. Id. at 9.

Although an interim order was initially issued in this proceeding, the Judicial Officer in determining whether a final order should be issued, concluded that the Petition and exhibits attached thereto did not establish that Respondent had breached the terms of the Agreement. As stated in the Postal Service Decision, Complainant failed to establish that the representations were false as required by the terms of the Agreement and paragraph III of the Cease and Desist Order. The inconsistency between the issuance of the interim order and the denial of the Petition in the Postal Service Decision does not establish that the interim order was properly issued and that the Postal Service Decision is in error. On the record presented, it is clear that Complainant did not establish that Respondent has breached the terms of the Agreement.

Complainant is correct that the prior Postal Service Decision on breach appears to be inconsistent with the present holding. See WDASS or W.D. and Associates, P.S. Docket No. 34/60 (P.S.D. Nov. 30, 1990). However, the record on which the prior decision was based included evidence establishing the falsity of the representations then being made. There- fore, the holding of the prior decision is not inconsistent with the present holding.

The Postal Service Decision is also not inconsistent with prior court decisions which, in determining whether an agreement had been breached, only required proof that the representations were being made, and not that the representations were false. The terms of the agreements involved in those decisions, unlike the language of the Agreement being considered in this proceeding, did not place the falsity of the representations in issue. See, e.g., Mark Eden v. Lee, 433 F.2d 1077, 1079-1080 (9th Cir. 1970); Nancy Pryor, Inc. v. USPS, Civil Action No. 80-1933 at 1-2 (D.D.C. 1981); American Consumer Inc. v. USPS, 427 F.Supp. 589, 590 (E.D. Pa. 1977); American Image Corp. v. USPS, 370 F.Supp. 964, 965-967 (S.D.N.Y.), aff'd, 503 F.2d 1397 (2d Cir. 1974); U.S. Bio-Genics Corp. v. Christenberry, 173 F. Supp. 645, 647-48 & n. 6 (S.D.N.Y. 1959), aff'd, 278 F.2d 561 (2d Cir. 1960). Thus, the court decisions cited by Complainant do not serve as a basis for granting the motion for reconsideration.

Complainant's arguments on reconsideration have been fully considered and found to be without merit. Accordingly, Complainant's Motion for Reconsideration is denied and the decision to deny the Petition for Breach and revoke the interim detention order is affirmed.

					James A. Cohen
					Judicial Officer