In the Matter of the Complaint         ) December 9, 1993 
 Against                                )
                                        )
 CHARLES SMITH                          )
 10478 NW 31st Terrace                  )
 Miami, FL  33172-1216                  )
                                        )
 CS ENTERPRISES, INC.                   )
 10478 NW 31st Terrace                  )
 Miami, FL  33172-1216                  )
 and                                    )
 AMCAN ENTERPRISES, INC.                )
 10478 NW 31st Terrace                  )
 Miami, FL  33172-1216                  )
 d/b/a                                  )
 NORTH AMERICAN DIRECTORIES and         )
 THE WASHINGTON YELLOW PAGES            )
 1001 Fourth Ave., Suite 3200           )
 Seattle, WA  98154-1101                )
 and                                    )
 NORTH AMERICAN DIRECTORIES and         )
 THE ARIZONA YELLOW PAGES               )
 4350 E. Camelback Rd., #200-F          )
 Phoenix, AZ  85018-2763                ) P.S. Docket No. 36/129

 APPEARANCES FOR COMPLAINANT:           Jerry Belenker, Esq.
 Edward Lawee, Esq.
 Consumer Protection Division
 United States Postal Service
 Washington, DC  20260-1144

 APPEARANCES FOR RESPONDENT:            Frank J. Shannon, Esq.
 Mark J. Lewyn, Esq.
 422 Candler Building
 127 Peachtree Street, N.E.
 Atlanta, GA  30303-1810

Respondents have filed an appeal from the Initial Decision of an Administrative Law Judge holding that Respondents are engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005. Complainant opposes Respondents' appeal and has filed its own appeal from the Administrative Law Judge's conclusion that Respondents do not represent that the amount set forth on the face of the solicitation is due and owed to Respondents.

The General Counsel of the United States Postal Service (Complainant) initiated this proceeding by filing a Complaint, which as amended by stipulation (Complaint), alleged that Respondents Charles Smith, CS Enterprises, Inc., and AMCAN Enterprises, Inc., doing business as North American Directories, The Washington Yellow Pages, and The Arizona Yellow Pages (Respondents), are engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005. Specifically, Complainant alleged in Paragraphs 7 and 8 of the Complaint that Respondents distribute solicitations for listings in telephone yellow page directories which falsely represent:

(a) the addressee has previously authorized a business listing in Respondents' telephone directory;

(b) the amount set forth on the face of the solicitation is due and owed to Respondents;

(c) Respondents are the publishers of the phone directory or 'yellow pages' customarily supplied to business telephone subscribers in the recipient's area;

(d) the area of distribution of Respondents' directory will encompass all telephone subscribers in the region;

(e) publication and distribution of Respondents' directory will take place in accordance with time frames customary to the authorized 'yellow pages' industry publication and distribution standards;

(f) Respondents also provide a free white-page listing."

Complainant further alleged in Paragraphs 9 and 10 of the Complaint that Respondents distribute solicitations in the guise of bills, invoices or statements of account due which are nonmailable under 39 U.S.C. § 3001(d) and therefore in violation of 39 U.S.C. § 3005.

Respondents filed an Answer in which they denied making the representations alleged in Paragraphs 7(a) - (e) of the Complaint but admitted that they represent that they provide a free white page listing with the purchase of a yellow page listing in their directory (see Paragraph 7(f)). Respondents further denied that they make any false representations or that their solicitations are nonmailable under 39 U.S.C. § 3001(d). As an affirmative defense to the allegations of the Complaint, Respondents asserted that the Rules of Practice prescribed in 39 C.F.R. Part 952 deny them due process of law because they do not authorize the issuance of subpoenas in these proceedings.

At a hearing before an Administrative Law Judge, both parties presented witness testimony and introduced documentary evidence. Following the hearing and the parties' submission of proposed findings of fact and conclusions of law, the Administrative Law Judge issued an Initial Decision in which he concluded that Respondents make the representations alleged in Paragraphs 7(a), (c), (d),^1/ & (f) of the Complaint and that these representations are materially false. The Administrative Law Judge also concluded that Respondents do not make the representation alleged in Paragraph 7(b) of the Complaint; although Respondents make the representation alleged in Paragraph 7(e) of the Complaint, that representation is not false; and Respondents do not distribute solicitations in the guise of bills, invoices or statements of account due in violation of 39 U.S.C. § 3001(d). Based on the conclusion that Respondents make the materially false representations alleged in Paragraphs 7(a), (c), (d) & (f) of the Complaint, the Administrative Law Judge further concluded that Respondents are engaged in conducting a scheme for obtaining money or property through the mail in violation of 39 U.S.C. § 3005.

Both parties filed timely appeals from the findings and conclusions of the Initial Decision. In addition, Respondents filed a Motion to be Heard and to Present Evidence to dispute the officially noticed fact that standard yellow page telephone directories "are typically supplied to all telephone subscribers in the region." By Postal Service Decision issued on June 3, 1991, the Judicial Officer granted Respondents' motion and suspended further action on the parties' appeals pending remand of the proceeding to the Administrative Law Judge to allow the parties an opportunity to present evidence concerning the officially noticed fact. Thereafter, the Administrative Law Judge held a second hearing at which both parties presented additional witness testimony.^2/ Following the hearing and the parties' submission of additional proposed findings of fact and conclusions of law, the Administrative Law Judge issued a Decision on Remand Regarding Official Notice (Decision on Remand) affirming the officially noticed fact and his conclusion that Respondents make the materially false representation alleged in Paragraph 7(d) of the Complaint.

Respondents filed a timely appeal from the Decision on Remand and Complainant filed a timely reply in opposition. The parties' exceptions to the Initial Decision, together with Respondents' exceptions to the Decision on Remand, are hereafter addressed.

In their appeal, Respondents include a "Statement of Facts" which is similar to their proposed findings of fact presented to the Administrative Law Judge and subsequently adopted or rejected in the Initial Decision (I.D., p. 4). Respondents' "Statement of Facts" does not address any specific finding of fact, nor show that the Administrative Law Judge erred in making any of his findings. The findings of the Administrative Law Judge have been reviewed and except for the finding regarding Paragraph 7(f) of the Complaint, are supported by the record. To the extent Respondents are taking exception to additional findings, Respondents' exceptions are denied. See Great American Giveaway, P.S. Docket No. 36/102 at 2-3 (P.S.D. Feb. 5, 1993); Finderhood, Inc., P.S. Docket No. 34/102 at 4 (P.S.D. Mar. 20, 1992), aff'd, (P.S.D. July 24, 1992); Northeast Enterprises, P.S. Docket No. 7/4 at 3 (P.S.D. April 13, 1979).

Respondents' primary contention on appeal is that the record lacks "substantial" evidence to support the Administrative Law Judge's conclusion that Respondents make the representations alleged in the Complaint.^3/ According to Respondents, the Administrative Law Judge improperly relied on Respondents' solicitations and certain consumer testimony which was not credible nor representative of the ordinary consumer. Respondents further contend that the walking fingers logo and the words "yellow pages" are genericterms which should not be considered in determining whether a violation of 39 U.S.C. § 3005 has occurred.

Contrary to Respondents assertion, the Administrative Law Judge and the Judicial Officer, as the finders-of-fact, may determine from the solicitations themselves whether the representations alleged in the Complaint are made, their effect on the ordinary mind,^4/ and their materiality.^5/ See, e.g. A.C.L., P.S. Docket No. 36/90 at 12 (P.S.D. Dec. 28, 1990), aff'd, (P.S.D. May 15, 1991); National Scholastic Resources Admin., Inc., P.S. Docket No. 35/140 at 16 (P.S.D. Nov. 23, 1990); Heath Care Products, Inc., P.S. Docket No. 28/90 at 4-5 (P.S.D. June 27, 1990). Indeed the solicitations themselves are the most persuasive evidence of whether the representations are in fact made. See, e.g. Washington Mint Inc., P.S. Docket No. 30/42 at 7 (P.S.D. Nov. 27, 1992);

Scott David Wilcox, P.S. Docket No. 18/147 at 6-7 (P.S.D. April 20, 1988); United States Testing Authority, P.S. Docket No. 14/114 at 15-16 (P.S.D. Oct. 2, 1985). Thus, the Administrative Law Judge did not err in relying on the solicitations introduced into evidence in this proceeding.

Although lay testimony is not required to prove the existence of representations, such testimony was presented and properly considered in conjunction with Respondents' solicitations to determine whether Respondents make the representations alleged in the Complaint. While more persuasive consumer testimony would have provided greater support for Complainant's position, nothing in the evidentiary record or Respondents' brief on appeal establishes that the testimony of the consumer witnesses lacked credibility or that the Administrative Law Judge's reliance on that testimony was otherwise improper. See Hanratty v. DOT, 819 F.2d 286, 288 (Fed. Cir. 1987); Carosella v. USPS, 816 F.2d 638, 641 (Fed. Cir. 1987); Sergio & Spiegel Television for Oncor, Inc., P.S. Docket No. 37/105 at 18 (P.S.D. Mar. 12, 1993); Equisystems California, Inc., P.S. Docket No. 33/115 at 6 (P.S.D. July 10, 1991). The fact that the witnesses did not have detailed knowledge about the publication of yellow page directories does not detract from their testimony since it is not expected that ordinary recipients of Respondents' solicitations would have such knowledge.^6/ Accordingly, the Administrative Law Judge did not err in relying on consumer testimony to support his conclusion that Respondents make the alleged representations.

Respondents' argument that the use of the walking fingers logo and the words "yellow pages" should not be considered in determining that Respondents make the false representations alleged in the Complaint is also not persuasive. While the walking fingers logo may be a commonly used generic symbol and the words "yellow pages" a commonly used generic term, they may nevertheless tend to mislead ordinary consumers when included in a solicitation for a yellow page listing. Since the issue in a 39 U.S.C. § 3005 proceeding is whether Respondents' solicitations make materially false representations, not whether they have a right to use any particular words or logo, see Scott David Wilcox, P.S. Docket Nos. 18/147 & 22/111 at 4 (P.S.D. Aug. 31, 1989); Scott David Wilcox, P.S. Docket No. 18/147 at 8 (P.S.D. April 20, 1988); Telco Directories, Inc., P.S. Docket No. 22/111 at 9-10 (P.S.D. Feb. 25, 1987), both the walking fingers logo and the words "yellow pages" may be considered in determining whether a statutory violation has occurred.

The use of the walking fingers logo and the words "yellow pages" printed on a yellow solicitation with an account number, a reference to a white page listing,^7/ a request for corrections to the listing, and a reference to a forthcoming edition all contribute to the impression that Respondents make the representations alleged in Paragraphs 7(a), (c) & (d) of the Complaint.^8/ At the very least, Respondents' solicitations are ambiguous and could be understood by the ordinary reader to make these representations. Under established precedent, solicitations which are ambiguous or capable of more than one meaning are misleading if one of those meanings is false. Rhodes Pharmacal Co. Inc., v. FTC, 208 F.2d 382, 387 (7th Cir. 1953); Finderhood Inc., P.S. Docket No. 34/102 at 8-9 (P.S.D. Mar. 20, 1992), aff'd (P.S.D. July 24, 1992); The National Gold Mint, P.S. Docket No. 22/165 at 22 (P.S.D. May 1, 1987); Ralph J. Galliano, P.S. Docket No. 19/15 at 9 (P.S.D. May 2, 1985). Since Respondents could easily have selected words that would not deceive,^9/ their failure to do so subjects them to the provisions of the Postal False Representation Statute.

Respondents contend that even if the walking fingers logo is considered in determining whether a false representation has been made, the evidence presented does not support the Administrative Law Judge's finding that the logo "is typically associated with the standard local yellow page telephone directory in the minds of many ordinary readers" (I.D. FOF ¶ 13). The record however, clearly supports this finding. One consumer witness testified that she believed Respondents' solicitation was a renewal for her business listing in the local telephone yellow pages because of "the fingers walking in the yellow pages" (Tr. 55). Another consumer witness testified she thought the walking fingers logo used by Respondents was the logo for her local yellow pages telephone directory company (Tr. 67-68). Thus, the Administrative Law Judge did not err in finding that although the walking fingers logo may be a generic symbol, many ordinary readers nonetheless associate it with their standard local yellow page directory.

Since many recipients would believe Respondents' solicitation was an advertisement to renew their listing in the local telephone company's yellow page directory, they would also believe that they had previously authorized a business listing in Respondents' directory, as alleged in Paragraph 7(a) of the Complaint. In addition to the walking fingers logo, the use of the words "yellow pages", the yellow paper format, the two references to an "account" number,^10/ and the reference to what appears to be a current yellow page business listing which includes the recipient's business name, address, telephone number, and classification number, all create the impression that "the addressee has previously authorized a business listing in Respondents' directory" (I.D. FOF ¶ 6). In addition, the solicitation's reference to a "Forthcoming Edition" and the request that the recipient make any necessary changes to what appears to be a current listing, reinforces the impression that the addressee has an existing account with Respondents and is renewing a previously authorized yellow page telephone directory listing (CX-1, CX-1A, R-1, R-3, R-16).

For these same reasons, ordinary readers would be likely to believe that Respondents "are the publishers of the telephone directory or 'yellow pages' customarily supplied to business telephone subscribers in the recipients' area," as alleged in Paragraph 7(c) of the Complaint. Again at the very least, the language, format, and yellow color of the solicitation, along with the words "yellow pages" and the walking fingers logo, create an uncertainty as to Respondents' identity and contribute to the overall impression that Respondents are the publishers of the directory customarily supplied in the recipient's area (Exhs. CX-1, CX-1A, R-1, R-3, R-16; Tr. 55, 67-68). See also Mid-American Marketing Inc., P.S. Docket No. 24/12 at 6-8 (P.S.D. Jan. 5, 1987), aff'd (P.S.D. May 7, 1987); Scott David Wilcox, P.S. Docket No. 18/147 & 22/111 at 4-5 (P.S.D. Aug. 31, 1989); Telco Directories, Inc., P.S. Docket No. 22/111 at 9-10 (P.S.D. Feb. 25, 1987).

Since Respondents' solicitation creates the impression that it is for the renewal of the listing the addressee has previously authorized in the telephone directory customarily supplied in the area, it follows that the ordinary reader would also believe that the area of distribution of the directory would encompass all telephone subscribers in the region.^11/ Therefore, the Administrative Law Judge did not err in concluding that Respondents represent that the area of distribution of their directory will encompass all telephone subscribers in the region as alleged in Paragraph 7(d) of the Complaint.^12/

Respondents contend that the Administrative Law Judge erroneously relied on the solicitations themselves, without additional supporting evidence, to determine that the ordinary reader would not notice or understand the disclaimers included in the solicitations. Thus, Respondents contend that the Administrative Law Judge committed reversible error.

The Administrative Law Judge, as the trier-of-fact, can rely on the words of a solicitation to determine the effect a disclaimer would have on ordinary readers. See Donaldson, 333 U.S. at 185-89; Vibra Brush, 152 F. Supp. at 465; New Generation, P.S. Docket No. 11/152 at 27 (P.S.D. May 13, 1983). Based on his review of the solicitations introduced into evidence in this case, the Administrative Law Judge determined that although the disclaimers might tend to distinguish Respondents' directory from a local telephone directory, many readers would not notice or appreciate the significance of the disclaimers (I.D., FOF ¶ 15). Respondents have not shown that the Administrative Law Judge's conclusion is erroneous.

While the solicitations do include disclaimers, Respondents have not established that the disclaimers would most probably be noticed, or even if noticed, would detract from the overall impression created by the solicitations that: Respondents are the publishers of the telephone phone directory customarily supplied to business telephone subscribers in the recipient's area; Respondents will distribute their directory to all telephone subscribers in the recipients' area; and the recipient has previously authorized a business listing in Respondents' directory. At best, the disclaimers merely confuse the ordinary reader as to the true nature of Respondents' identity and product. See National Scholastic Resources Admin., Inc., P.S. Docket No. 35/140 at 10-11 (P.S.D. Nov. 23, 1990); Leo Daboub, P.S. Docket No. 19/185 at 16 (P.S.D. July 10, 1986); New Generation, P.S. Docket No. 11/152 at 27-28 (P.S.D. May 13, 1983). Therefore, the Administrative Law Judge did not err in concluding that the disclaimers are not sufficiently conspicuous to dispel the overall impression created by the solicitations.

Respondents appear to contend on appeal that the Administrative Law Judge improperly determined that the representations were false based on the solicitations themselves without any supporting evidence. Contrary to Respondents' contention, the falsity of the representations alleged in this proceeding was not determined solely from the solicitations themselves and, in fact, is not seriously contested by Respondents. The evidence presented by Respondents establishes that the representations alleged in Paragraph 7(a), (c) & (d) of the Complaint are false. Respondent Charles Smith testified that recipients of Respondents' solicitations have never had a prior listing in Respondents' directory (I.D., F0F ¶ 7; Tr. 113, 129), and that Respondents had not published a prior edition of their directory (Tr. 123). He further testified that Respondents distribute their directory only to those who advertise in the directory, and selected corporate and government purchasing agencies, libraries, chambers of commerce and other similar civic and social institutions (Tr. 130). Mr. Smith's testimony is confirmed by the disclaimers on the solicitations which also establish that Respondents' are not the publishers of the yellow page directories customarily distributed in the recipients area. Accordingly, there is ample evidence in the record to support the falsity of the representations alleged in Paragraphs 7(a), (c) & (d) of the Complaint.

The representations found to be made by Respondents, either alone or together, are likely to induce a recipient to order a business listing in Respondents' yellow page directory (see Tr. 53-57). See Chaachou v. American Central Insurance Co., 241 F.2d 889, 893 (5th Cir. 1957); First National City Funding, Inc., P.S. Docket No. 17/61 at 34 (I.D. Dec. 9, 1983); Keystone Industries, et al., P.S. Docket Nos. 17/44-46 at 13 (I.D. Nov. 7, 1983); The Columbia Mint, P.S. Docket Nos. 15/98-99 at 39-40 (I.D. May 27, 1983). Therefore, these representations are materially false in violation of 39 U.S.C. § 3005(a).

Respondents argue they have been denied due process because the Administrative Law Judge relied on their solicitations instead of requiring consumer testimony or additional documentary evidence. According to Respondents, since the Administrative Law Judge was not subject to cross examination the substitution of his judgment for that of the ordinary reader deprived them of their due process rights.

The Administrative Law Judge's reliance on the solicitations to determine that Respondents make the representations alleged in Paragraphs 7(a), (c), (d) & (f) of the Complaint did not deny or infringe upon Respondents' due process rights since they had a full opportunity to meet and rebut the evidence presented, including the solicitations which were offered into evidence by both parties. See Morgan v. United States, 304 U.S. 1, 18-19 (1938); Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042, 1048 (6th Cir. 1990); Ralpho v. Bell, 569 F.2d 607, 628 (D.C. Cir. 1977); Great American Giveaway, P.S. Docket No. 36/102 at 10 (P.S.D. Feb. 5, 1993). As previously pointed out, the solicitations themselves are the best evidence of their contents and the Administrative Law Judge, as the trier-of-fact, could properly rely on them to determine that the representations were made. Further, although Respondents contend that the Administrative Law Judge did not act independently and impartially in reviewing the solicitations, they have presented no support for this position. Accordingly, there is no merit to Respondents' due process arguments.

Respondents contend that in determining that they make the representation alleged in Paragraph 7(d) of the Complaint, the Administrative Law Judge erred in taking official notice of the fact that standard yellow page directories "are typically supplied to all telephone subscribers in the region." Respondents argue that a presiding officer can only take official notice of facts generally known or verifiable, and contradictory testimony presented at the hearing establishes that the officially noticed fact is in "dispute." Respondents also argue that the record does not support the officially noticed fact since Complainant and its expert witness, as well as the Administrative Law Judge in the Decision On Remand, used the word "area" or "community" rather than the word "region" to describe the geographical distribution of yellow page directories. According to Respondents these words are not synonymous and the use of any word other than "region" was improper since Paragraph 7(d) of the Complaint, and the officially noticed fact refer only to "region." Respondents further contend that the word "region" should be considered to refer to a multi-state area since it is defined as such by Postal Service rules and regulations.

Respondents' contention that the officially noticed fact continues to be in "dispute" and unsupported by any evidence in the record has no merit. Official notice may be taken of a commonly known or verifiable fact in order to relieve a party of the burden of proving that fact. See Ohio Bell Tel. Co. v. Public Utilities Comm'n of Ohio, 301 U.S. 292, 301-02 (1937); In Re Knapp-Monarch Co., 296 F.2d 230, 232 (C.C.P.A. 1961). A party may dispute any officially noticed fact by presenting contrary evidence. See Ohio Bell, 301 U.S. at 302; In Re Knapp-Monarch Co., 296 F.2d at 232; Chubbs v. City of New York, 324 F. Supp. 1183, 1188 (E.D.N.Y. 1971); Charles Boldt Co. v. Turner Bros. Co., 199 F. 139, 144 (7th Cir. 1912). In this case, Respondents had the opportunity to dispute the officially noticed fact at a hearing granted specifically for that purpose.

To contradict the finding, Respondents relied on the testimony of Respondent Smith who did not know the customary distribution of local telephone directories (Tr. 19, 22-23, 25-26, 27-30, 32 (July 10, 1991 Hearing, P.S. Docket No. 36/129), and whose testimony the Administrative Law Judge found not credible (Decision On Remand (D.R.), FOF ¶ 2). On the other hand, the Administrative Law Judge found that the testimony of Complainant's witness, the vice president of an association representing 90% of all yellow page directory publishers, supported the officially noticed fact (D.R., FOF ¶ 1). The testimony of Complainant's witness and the lack of credible contradictory evidence establishes that "standard yellow page directories are typically supplied to all telephone subscribers in the region." Thus, the Administrative Law Judge did not err in taking official notice of this verifiable fact or in reaching his conclusion based on the evidence presented.

Respondents also incorrectly argue that the use of the words "area" and "community" rather that the use of the word "region" somehow changes or diminishes the officially noticed fact. Each of these words was used to generally refer to the same geographic area in which local yellow page directories are customarily distributed, and neither the Administrative Law Judge nor Complainant committed any error by their interchangeable use. Further, Respondents have not shown they were prejudiced by the interchangeable use of these words. Thus, there is no merit to Respondents' contention.

Equally unpersuasive is Respondents' claim that the word "region" as used in the Complaint means a multi-state area. The entire context of the representations alleged in the Complaint is based on the telephone subscriber's or solicitation recipient's area or region. To contend that Respondents understood the word "region" to mean the multi-state areas into which Postal field operations were divided and that this definition should be adopted in this case is ludicrous. The Postal Service division of field operations has no relation to the charges brought in this proceeding.

Accordingly, Respondents have not shown that the Administrative Law Judge erred in concluding that standard yellow page directories are typically supplied to all telephone subscribers in the region. Moreover, the Administrative Law Judge did not err in using the words region, area, and community interchangeably.

Respondents contend that the Administrative Law Judge incorrectly found that Respondents falsely represent that they provide a free white page listing as alleged in Paragraph 7(f) of the Complaint. According to Respondents, no evidence was presented to support the Administrative Law Judge's conclusion.

In Paragraph 7(f), the Complaint alleges that Respondents falsely represent that they provide "a free white page listing." Complainant contends that the white page listing is not free because it is only given to a purchaser of a listing in Respondents' yellow page directory. Respondents' solicitations, however, explicitly state that the free white page listing "Will Be Included With Each Yellow Page Listing of $98.00." Respondents, therefore, do not make the representation alleged in the Complaint. Moreover, Respondents presented evidence establishing that they do provide a free white page listing with every paid yellow page listing. Therefore, the representation Respondents make is not false. Accordingly, Respondents' exception to the Administrative Law Judge's conclusion regarding representation Paragraph 7(f) of the Complaint is sustained.

Complainant contends that the Administrative Law Judge erred in determining that Respondents do not represent that "the amount set forth on the face of the solicitation is due and owed to Respondents," as alleged in Paragraph 7(b) of the Complaint. Complainant claims that since Respondents' solicitations mislead and induce the recipient to order the directory listing, the subsequent invoice sent by Respondents to those who ordered the listing falsely represents that an amount is due and owed to Respondents.

Nothing in the solicitations or invoices falsely represent that payment for a listing in Respondents' directory is due and owed by the addressee. The solicitations state that the cost of a listing in the directory is $98.00 and the addressee will be billed if he elects to purchase a listing (Exhs. CX-1, R-1, R-3). While Respondents' solicitations make several false representations that induce the purchase of a listing, the solicitation itself is not in the form of a bill, invoice or statement of account due. Respondents do mail an invoice seeking payment for the requested listing following the recipient's return of the solicitation, but that invoice is not part of their solicitation. Therefore, a finding that Respondents' solicitations make the representation alleged in Paragraph 7(b) of the Complaint cannot be based on the subsequent invoice. See Robert Smith, P.S. Docket No. 34/170 at 4-5 (P.S.D. April 30, 1992) (notices from collection agency not actionable under 39 U.S.C. § 3005 since subscribers did order publication although induced to do so through false representations).^14/

After consideration of the entire record and the exceptions to the Initial Decision and the Decision On Remand, it is concluded that: (1) Respondents' appeal regarding the representations alleged in Paragraphs 7(a), (c) & (d) of the Complaint is denied; (2) Respondents' appeal from the Administrative Law Judge's conclusion concerning the representation in Paragraph 7(f) of the Complaint is sustained; and (3) Complainant's appeal of the Administrative Law Judge's conclusion regarding Paragraph 7(b) of the Complaint is denied.

Accordingly, the Initial Decision is reversed to the extent indicated, and otherwise affirmed. The Orders authorized by 39 U.S.C. § 3005 are issued with this decision.

                                        James A. Cohen
                                        Judicial Officer

1/ The Administrative Law Judge determined that Respondents make the representation alleged in Paragraph 7(d) of the Complaint based on his having taken official notice of the fact that standard yellow page telephone directories "are typically supplied to all telephone subscribers in the region."

2/ Respondent Charles Smith testified on behalf of Respondents and the parties agreed that the testimony of Complainant's witness, Barbara Beck, which was presented at the hearing in P.S. Docket No. 37/180, could be considered in this proceeding (Tr. 5-10, 34 (July 10, 1991, P.S. Docket No. 36/129)).

3/ While the substantial evidence test is used for court review of an administrative decision, the preponderance of the evidence standard applies in arriving at the administrative decision in a § 3005 proceeding. See, e.g., A.C.L., P.S. Docket No. 36/90 at 12 (P.S.D. Dec. 28, 1990), aff'd, (P.S.D. May 15, 1991); Associated Telephone Directory Publishers, Inc., P.S. Docket No. 13/191 at 5 (P.S.D. Jan. 25, 1984), aff'd, (P.S.D. Mar. 23, 1984); Athena Products, Ltd., P.S. Docket No. 12/136 at 10-11 (P.S.D. May 6, 1983); Telex twx Directory, P.S. Docket No. 13/6 at 5-7 (P.S.D. April 1, 1983).

4/ Respondents contend that the ordinary reader standard does not protect careless readers. To support this contention, Respondents rely on United Commercial Insurance Services v. USPS, 650 F. Supp. 592 (D.D.C. 1986), which was subsequently vacated by the Court. United Commercial Insurance Services v. USPS, No. 87-5049 (D.C. Cir. filed Jan. 22, 1988). Moreover, United Commercial is contrary to prior Postal Service and Court precedent holding that § 3005 is intended to protect not only the sophisticated and wary reader, but also the gullible, naive and less critical reader. Fields v. Hannegan, 162 F.2d 17, 18 (D.C. Cir.), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. USPS, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Gottlieb v. Schaffer, 141 F. Supp. 7, 16 (S.D.N.Y. 1956); Leo Daboub, P.S. Docket No. 19/185 at 9 (P.S.D. July 10, 1986).

5/ Contrary to Respondents' contentions, this proposition is clearly supported by both Donaldson v. Read Magazine, Inc., 333 U.S. 178, 185-89 (1948), and Vibra Brush Corp. v. Schaffer, 152 F. Supp. 461, 468 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958). See Health Care Products, Inc., P.S. Docket No. 28/90 at 5-7 (P.S.D. June 27, 1990) & discussion therein.

6/ In determining the effect of representations on ordinary readers, it is not necessary to find that all or even a majority of readers would likely be deceived. As previously stated, it is sufficient to find that readers, whether gullible or wary, would interpret the solicitation as making the alleged representation. See Delta Enterprises, P.S. Docket Nos. 14/72-75 at 7-8 (P.S.D. July 3, 1984); Oriental Nurseries, Inc., P.S. Docket No. 9/116 at 5 (P.S.D. May 19, 1981). See also Fields v. Hannegan, 162 F.2d at 18; M.K.S. Enterprises, 459 F. Supp. at 1184; Gottlieb v. Schaffer, 141 F. Supp. at 16.

7/ Respondents contend that there is no evidence to establish that local telephone directories supply free white page listings to all telephone subscribers. However, the record contains credible expert witness testimony which supports this finding (Beck Testimony, Tr. 65-66 (P.S. Docket No. 37/180, July 9, 1991) admitted as evidence in P.S. Docket No. 36/129 per agreement of the parties (Tr. 5-6, 34, (P.S. Docket No. 36/129, July 10, 1992)).

8/ It is this net impression that the advertisement as a whole is likely to make that must be considered. See G.J. Howard Co., v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958); Aronberg v. FTC, 132 F.2d 165, 167 (7th Cir. 1942); Mid-American Marketing, Inc., P.S. Docket No. 24/12 at 7 (P.S.D. Jan. 5, 1987), aff'd (P.S.D. May 7, 1987).

9/ See United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924); Finderhood Inc., P.S. Docket No. 34/102 at 8 (P.S.D. Mar. 20, 1992), aff'd, (P.S.D. July 24, 1992); Paul, Marbin & Co., Inc., P.S. Docket No. 28/190 at 13-14 (P.S.D. Oct. 20, 1989); Card Redemption Center, P.S. Docket No. 30/37 at 10 (P.S.D. July 27, 1989).

10/ Respondents contend that the Administrative Law Judge's reliance on the use of the word "account" was improper because Complainant presented no evidence of consumers who were misled by the word and Respondent Charles Smith testified he had never received a complaint concerning the use of the word. The lack of complaints about a particular word does not prevent a finding that its use contributes to an overall misleading impression. Moreover, an action under 39 U.S.C. § 3005, does not require proof of actual deception or consumer complaints. See Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir.), cert. denied, 308 U.S. 587 (1939); Ron Cooper, P.S. Docket No. 35/112 at 5-6 (P.S.D. Feb. 7, 1992), aff'd, (P.S.D. Mar. 20, 1992); Daniel L. Soyke, P.S. Docket No. 34/158 at 4 (P.S.D. Oct. 21, 1991).

11/ Reasonable beliefs that follow logically from express statements must also be considered in interpreting advertising claims. See Spiegel, Inc. v. FTC, 411 F.2d 481, 483 (7th Cir. 1969); N. Van Dyne Advertising Agency, Inc. v. USPS, 371 F. Supp. 1373, 1376 (S.D.N.Y. 1974); Baslee Products Corp. v. USPS, 356 F. Supp. 841, 846-47 (D.N.J. 1973); Vibra Brush, 152 F. Supp. at 465; Dennis Ward, P.S. Docket No. 37/118 at 6-7 (P.S.D. Oct. 16, 1991); American Advertising Corp., P.S. Docket No. 37/69 at 12-13 (P.S.D. Nov. 19, 1992); Associated Writers Guild of America, P.S. Docket No. 12/180 at 9 (P.S.D. June 6, 1990); Mid-American Marketing., Inc., P.S. Docket No. 24/12 at 9-10 (P.S.D. Jan. 5, 1987), aff'd, (P.S.D. May 7, 1987).

12/ Respondents' objection to the propriety of the Administrative Law Judge taking "official notice" that yellow page directories are typically distributed to all telephone subscribers in the region is discussed later in this decision.

13/ Respondents contend that Complainant's brief on appeal is defective since it does not comply with the requirements of 39 C.F.R. § 952.25 and thereby denies Respondents due process of law. While it is true that Complainant's brief does not comply in all respects with the Rules of Practice, Respondents have not shown that they were prejudiced in the preparation of their reply brief, or that the errors committed by Complainant constitute a violation of their due process rights. Moreover, Complainant's exception is being denied, thus no substantive error has occurred.

14/ See also FDIC v. Aetna Cas. & Sur. Co., 947 F.2d 196, 203 (6th Cir. 1991); Pacific Architects & Eng'g Inc. v. United States, 491 F.2d 734, 742-43 (Ct. Cl. 1974); Soderberg v. Gens, 652 F. Supp. 560, 565 (N.D. Ill. 1987); Levin v. Garfinkle, 492 F. Supp. 781, 801 (E.D. Penn. 1980), aff'd, 667 F.2d 381 (3rd Cir. 1981).