the Matter of the Complaint Against	) September 27, 1995
					)
ERICA LYNN KORTJE			)
     d/b/a				)
EMPLOYMENT CLASSIFIEDS			)
3337 South Bristol, Suite 146		)
	at				)
Santa Ana, CA 92704-7245		) P.S. Docket No. 40/176

APPEARANCE FOR COMPLAINANT:      	Rodney Gould, Esq.
					United States Postal Service
					Consumer Protection Law
					475 L'Enfant Plaza, SW
					Washington, DC 20260-1147

APPEARANCE FOR RESPONDENT:		Stanley Fleishman, Esq.  
					Robert C. Moest, Esq.
					Fleishman, Fisher & Moest 
					2049 Century Park East, Ste. 3160
					Los Angeles, CA 90067-3275

Respondent, Erica Lynn Kortje, has filed an appeal from an Initial Decision of an Administrative Law Judge which holds that Respondent distributes solicitations in the form of bills, invoices, or statements of account due, which are nonmailable under 39 U.S.C. §3001(d)⁽¹⁾ and also contain materially false representations in violation of 39 U.S.C. §3005. Complainant, the General Counsel of the United States Postal Service, opposes the appeal.⁽²⁾

Complainant initiated this proceeding by filing a Complaint alleging that Respondent distributes unsolicited mailings in the form of bills, invoices or statements of account due which are nonmailable under 39 U.S.C. §3001(d) and which contain the following materially false representations:

Respondent filed a timely Answer in which she denied that her solicitations are nonmailable or that they make the false representations alleged in the Complaint. Following a hearing at which both parties were given a full opportunity to present evidence⁽³⁾ the Administrative Law Judge issued an Initial Decision in which she concluded that Respondent's solicitations make the false representations alleged in the Complaint and in addition are nonmailable because they do not comply with the requirements of 39 U.S.C. §3001(d). Respondent filed a timely appeal from the Administrative Law Judge's Initial Decision.

On appeal Respondent contends that the Administrative Law Judge erred in concluding that her solicitations make the false representations alleged in the Complaint. According to Respondent, her solicitations contain disclaimers which inform the ordinary recipient of the true nature of her promotion. Thus, Respondent contends that her solicitations neither make the false representations alleged in the Complaint nor are they nonmailable under 39 U.S.C. §3001(d).

Respondent's solicitations are the best evidence of their meaning and the probable impact they would have on an ordinary recipient.⁽⁴⁾ Although additional evidence is not required to establish the existence or meaning of representations,⁽⁵⁾ such evidence was presented in this case⁽⁶⁾ and together with the solicitations themselves, establish that Respondent has distributed solicitations in the form of bills, invoices or statements of account due in violation of 39 U.S.C. §3001(d) and that those solicitations make the representations alleged in the Complaint in violation of 39 U.S.C. §3005.

As Respondent argues, her solicitations do contain disclaimers but those disclaimers do not comply with the requirements of 39 U.S.C. §3001 (d), as implemented by Domestic Mail Manual (DMM) §CO31.⁽⁷⁾ Moreover, the disclaimers are not sufficiently prominent⁽⁸⁾ so that they would be likely to place the ordinary recipient⁽⁹⁾ on notice that the solicitations are not bills or invoices, that recipients are not obligated to pay the amount shown or that recipients have not previously authorized Respondent to publish their advertisement. As the Administrative Law Judge correctly found, the disclaimers are either printed in small print, or in barely visible colors⁽¹⁰⁾ with letters spaced tightly together, or on the reverse of the solicitation where they would be unlikely to be noticed.⁽¹¹⁾ Thus as the Administrative Law Judge concluded, the disclaimers do not dispel the overall impression⁽¹²⁾ created by the format and text of Respondent's solicitations that they are bills, invoices or statements of account due and that they make the representations alleged in the Complaint.

Respondent also contends that her disclaimers are more prominent than those contained on cruise line sales contracts, stock offerings and certain sweepstakes promotions. Although fine print and inconspicuous conditions and disclaimers may be valid and enforceable in some situations,⁽¹³⁾ the Postal false representation law is intended to protect both the gullible and wary⁽¹⁴⁾ and it is the overall impression created in the mind of the ordinary reader⁽¹⁵⁾ that determines whether a violation of the law has occurred.⁽¹⁶⁾ The overall impression created by Respondent's solicitations is that they are bills or invoices. Therefore, despite the treatment of disclaimers under other laws or regulations, the inconspicuous disclaimers included on Respondent's solicitations do not dispel the effect of the false representations found to be made in this case.⁽¹⁷⁾ Moreover, as previously stated, Respondent's solicitations do not comply with the requirements of 39 U.S.C. §3001(d) and the implementing Postal Service regulations.⁽¹⁸⁾ Finally, the Postal Service has broad discretion in deciding whether and against whom to initiate false representation proceedings and it is not required to proceed against every violator.⁽¹⁹⁾ Thus, it is no defense in a false representation case that others may also be violating the law or that similar conduct may be permitted under other statutes or regulations.⁽²⁰⁾

Respondent's exceptions have been considered and found to be without merit. Accordingly, the appeal is denied, the Initial Decision is affirmed and the orders sought in the Complaint are issued herewith.

				James A. Cohen
				Judicial Officer

1. 39 U.S.C. §3001(d) provides that "[m]atter ... which (1) is in the form of, and reasonably could be interpreted or construed as, a bill, invoice, or statement of account due; (2) but constitutes ... a solicitation ... is nonmailable. . ."

2. In its brief in opposition to the appeal Complainant requests dismissal of Respondent's brief because it does not comply with the requirements of 39 C.F.R. §952.25(e)(3-4). Although Respondent's failure to comply with the requirements of the Rules of Practice is not condoned, her appeal brief will not be dismissed since it sufficiently expresses her disagreement with the findings and conclusions of the Initial Decision and places Complainant on notice of her arguments on appeal. See Mid-Am Marketing, Inc. P.S. Docket No. 24/12 at 13 (P.S.D. Jan. 5, 1987), aff'd. (May 7, 1987).

3. Complainant presented four witnesses and documentary evidence; Respondent presented no evidence.

4. Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Peak Laboratories v. United States Postal Service, 556 F.2d 1387, 1389 (5th Cir. 1977); Allen Glazer, P.S. Docket No. 40/59 (P.S.D. Jan. 27,1994); Washington Mint, Inc., P.S. Docket No. 30/43 at 7 (P.S.D. Nov. 27, 1992); Scott Wilcox, P.S. Docket No. 18/147 at 6-7 (P.S.D. April 20, 1988).

5. Directory Publishing Services, P.S. Docket No. 38/122 at 6 (P.S.D. Feb. 28, 1994); Allen Glazer, P.S. Docket No. 40/59 at 4 (P.S.D. Jan. 27, 1994); W.G. Charles Co., et al., P.S. Docket No. 19/104 at 54 (P.S.D. Sept. 10, 1985).

6. Erica Lynn Kortje, P.S. Docket No. 40/176 at 8-10 (I.D. Aug. 4. 1994).

7. DMM §CO31.1.2 states: "The ... disclaimer ... must be displayed in conspicuous boldface capital letters of a color prominently contrasting with the background against which it appears, including all other print on the face of the solicitation and that are at least as large, bold, and conspicuous as any other print on the face of the solicitation ...."

8. Gottleib v. Schaffer, 141 F. Supp. 7, 17 (S.D.N.Y. 1956); National Scholastic Resources Admin., P.S. Docket No. 35/140 at 10-1 I (P.S.D. Nov. 23, 1 990); Scott Wilcox, P.S. Docket No 18/147 (P.S.D. April 20,1988) (Inconspicuous disclaimer on solicitation in the form of an invoice failed to meet statutory and DMM requirements.).

9. Scott P. Cullinane, et al., P.S. Docket No. 39/32 at 1 9 (P.S.D. Nov. 7, 1994) (Solicitations are to be interpreted in the manner in which they would be understood by the targeted recipients, ordinary businessmen, who include those more adept at understanding the sublte aspects of the solicitations and others who are gullible, naive and less critical.).

10. Scott Wilcox, P.S. Docket No. 18/147 (P.S.D. April 20,1988) (The use of a light green ink to print a disclaimer on a solicitation in the form of an invoice violates the DMM in that it is not a color prominently contrasting with its background.).

11. Two consumer witnesses testified they received Respondent's solicitation and believed it to be a bill for an advertisement that their employer had previously placed in a local newspaper. As a result, they paid Respondent for a service which had not been authorized or provided and for which an amount was not due and owing. Erica Lynn Kortje, P.S. Docket No. 40/176 at 7-12 (I.D. Aug. 4, 1994).

12. Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959); Vibra Brush Corp. v. Schaffer, 158 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958); Charles Smith, et al., P.S . Docket No. 36/129 at 10 (P.S.D. Dec. 9, 1993).

13. See Scott P. Cullinane, et. al., P.S. Docket No. 39/32 at 19 (P.S.D. Nov. 7, 1994) (Food and Drug Administration requirements for fine print disclaimers on medicines and pesticide labels do not control Postal Service false representation proceedings.).

14. Gottleib v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956); Fields v. Hannegan, 162 F.2d 17, 18 (D.C. Cir.), cert, denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp 1180, 1184 (E.D.N.Y. 1978); Leo Daboub, P.S. Docket No. 19/185 at 9 (P.S.D . July 10, 1986).

15. See supra n.9.

16. See supra n.10.

17. Gottleib v. Schaffer, 141 F. Supp. 7, 17 (S.D.N.Y. I 956); National Scholastic Resources Admin., P.S. Docket No. 35/140 at 10-1 1 (P.S.D. Nov. 23, 1990); Scott Wilcox, P.S. Docket No 18/147 (P.S.D. April 20, 1988) (Inconspicuous disclaimer on solicitation in the form of an invoice failed to meet statutory and DMM requirements.).

18. DMM §CO31.

19. Heckler v. Chaney, 470 U.S. 821, 831 (1985); Federal Trade Commission v. Universal-Rundle Corp., 387 U.S. 244, 250-52 (1967); Ron Cooper, P.S. Docket No. 35/112 (P.S.D. Feb. 7, 1992); Daniel L. Soyke, P.S. Docket No. 34/158 at 6 (P.S.D. Oct. 21, 1991).

20. The Washington Mint, Inc., P.S. Docket No. 30/42 at 11 (P.S.D. Nov. 27, 1992); The Washington Mint, Inc., P.S. Docket No.30/42 (P.S.D. June 1, 1989); Universal Life Church, Inc., P.S. Docket No. 7/72 (P.S.D. Feb. 14, 1980).