In the Matter of the Complaint		)  April 29, 1994
Against					)
					)
JAMES R. PHIPPS and			)
FAST CASH FINANCIAL SERVICES, INC.	)
d/b/a CREATIVE ADVERTISING CONCEPTS,	)
C.A.C., FAST CASH FINANCIAL SERVICES,	)
and FAST CASH				)
603 Field Street			)
					)
	at				)
					)
Colleyville, TX  76034-3048		)  P. S. Docket No. 29/35

APPEARANCE FOR COMPLAINANT:		Jeannine H. Walter, Esq.
					Consumer Protection Law
					Law Department
					United States Postal Service
					Washington, DC  20260-1147

APPEARANCE FOR RESPONDENT:		Frank D. McCown, Esq.
					7337 Airport Freeway
					Fort Worth, TX  76118-6902

Respondent has filed a Motion for Reconsideration of a Postal Service Decision which concluded that Respondent had breached the terms of an Agreement Containing Consent Order to Cease and Desist (Agreement) by conducting a lottery promotion which, under the terms of the Agreement he agreed to discontinue. In his motion, Respondent requests that the Judicial Officer reconsider his decision and deny Complainant's Petition for Orders Based on Breach of the Agreement (Petition). Complainant opposes Respondent's motion.

Complainant initiated this proceeding by filing a Complaint alleging that Respondent was engaged in conducting a multi-level marketing scheme constituting a lottery in violation of 39 U.S.C. §3005. Subsequently, Respondent entered into the Agreement, a Cease and Desist Order pursuant to the Agreement was issued, and further proceedings were suspended indefinitely.

On February 7, 1994, Complainant filed the Petition alleging that Respondent was again conducting a multi-level marketing program which was an illegal lottery in violation of the terms of the Agreement. Respondent filed two responses to the Petition in which he contended he was a sovereign not subject to the jurisdiction of the United States Postal Service; the Postal Service had violated his constitutional rights; the Postal Service discriminates against multi-level marketers; and the Agreement was signed under false pretenses. After considering Respondent's arguments and without holding an oral hearing, the Judicial Officer issued the Postal Service Decision in which he concluded that Respondent had resumed conducting a lottery promotion in the form of a multi-level marketing program which he had agreed would not be resumed by any means, directly or indirectly, under any name or names, or through any corporate or other device.

In his Motion for Reconsideration, Respondent argues that the failure to hold an oral hearing violates his due process rights, his current program is not a lottery and the Postal Service action violates his First Amendment right to disseminate information. As a result, Respondent contends his Motion for Reconsideration should be granted and Complainant's Petition should be denied. Complainant disagrees with all of Respondent's contentions and requests that the Motion for Reconsideration be denied.

Respondent's arguments do not establish that the Postal Service Decision should be reconsidered or that Complainant's Petition should be denied. The Agreement specifically provides that upon an allegation of breach no oral hearing will be held except for good cause shown as determined by the Judicial Officer. Respondent has not shown⁽¹⁾ in either of his responses to the Petition or on Motion for Reconsideration that there are any genuine issues of material fact constituting good cause for a hearing to be held.⁽²⁾ Thus, it was not improper to decide this matter on the record and Respondent was not deprived of his due process rights.⁽³⁾

Respondent's argument that his current multi-level marketing program is not a lottery was previously considered and rejected in the Postal Service Decision. Respondent's arguments on reconsideration do not establish that the Postal Service Decision is erroneous. Further, contrary to Respondent's contentions, the Postal Service has in no way interfered with Respondent's First Amendment right to disseminate information. Under the terms of the Agreement, as enforced by the Postal Service Decision, Respondent is not prohibited from distributing his information, but is merely prohibited from conducting a lottery promotion in the form of a multi-level marketing program.

Accordingly, Respondent's Motion for Reconsideration is denied.

						James A. Cohen
						Judicial Officer

2. See Kevin Michael Rhoads, P.S. Docket No. 37/10 at 2 (P.S.D. Jan. 14, 1992); Mummers and Law Enforcement Academy, P.S. Docket Nos. 22/67 & 99 at 4 (P.S.D. Aug. 31, 1987); Hampartzoon Bazarian, P.S. Docket No. 20/113 at 2 (P.S.D. March 24, 1986).

3. Additionally, as Complainant points out, neither of Respondent's responses to the Petition included a request for a hearing.