Appeal of IT&T AG - P. S. Docket No. FOR 98-227

In the Matter of the Complaint 	)    January 27, 1999
Against				)
				)
IT&T AG				)
				)
        at			)
				)
Bahnhofstr. 32			)
P.O. Box 1251			)
6301 Zug			)
Switzerland			)    P. S. Docket No. FOR 98-227


APPEARANCE FOR COMPLAINANT:	Janessa L. Grady, Esq.
				United States Postal Service
				Civil Practice Section
				Washington, DC  20260-1127

APPEARANCE FOR RESPONDENT:	Jürgen Binczyk
				Bahnhofstr. 32
				6300 Zug
				Switzerland

POSTAL SERVICE DECISION

On June 3, 1998, Tentative Decision and Order No. 98-39 (hereinafter "Tentative Decision") was issued which concluded that Complainant had made a prima facie showing that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. §3005 (1994). On July 1, 1998, Respondent, IT&T AG, filed a timely reply to the Tentative Decision in which it denies it is engaged in any conduct in violation of the United States false representation and lottery law.

Background

Respondent purports to publish an International Telex and Telefax Directory for which it distributes solicitations and seeks remittances through the United States mail. In the Tentative Decision, the Judicial Officer concluded that Complainant had made a prima facie showing that Respondent's solicitations were in the form of and reasonably could be construed as bills, invoices, or statements of account due that do not comply with the statutory and regulatory notice requirements of 39 U.S.C. §3001(d)^1/ and Domestic Mail Manual (DMM) §CO31, Parts 1.1 through 1.6^2/. Respondent asserts that its mailings are offers to be listed in its directory and not solicitations in the form of a bill, invoice or statement of account due. According to Respondent, the nature of its offer is clearly reflected in the language on the face of the solicitation and the terms and conditions which appear on its reverse side and therefore complaining companies would have understood that an offer was being made had they carefully read the solicitation they received.

Decision

Respondent has not shown good cause for dismissing the Complaint. 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 contains a box describing the purpose of the mailing as "Your entry in the International Business Pages / Publication Offer", an identification number, a personalized description of the information to be inserted in the directory and a total amount due that includes a "3% Discount upon Payment within 21 Days", all of which suggest a prior business relationship between Respondent and the recipient. The use of the term offer on the face of the mailing is at best confusing^3/ , does not satisfy the mailability notice requirements of the Postal Service Statute or implementing regulations, and is insufficient to dispel the overall impression that the mailing is a

bill or invoice.^4/ Moreover, the "Terms and conditions of business" 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.

Further, contrary to Respondent's assertion, the recipient does not have the obligation to critically scrutinize every sentence of the solicitation to determine exactly what is being offered.^5/ The language of the solicitation relied on by Respondent and the fact that some recipients may not have been misled^6/, does not overcome the impression created by the overall wording and form of the solicitation that it is a bill, invoice or statement of account due.

Since the solicitation is in the form of, and reasonably could be interpreted or construed as a bill, invoice or statement of account due which does not comply with the notice requirements of 39 U.S.C. §3001(d) or §CO31 Parts 1.1 through 1.6 of the DMM, it is nonmailable under 39 U.S.C. §3001(d) and its distribution in the United States mail constitutes prima facie evidence that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. §3005(a). Accordingly, Tentative Decision and Order No. 98-39 is now the Final Decision and Order of the Postal Service.

				James A. Cohen
				Judicial Officer

1. The relevant portion of 39 U.S.C. §3001 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...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."
(B)

2. DMM §CO31, Part 1.2 states that "[t]he solicitation must bear on its face either the disclaimer required by 39 U.S.C. 3001(d)(2)(A) or the notice: 'THIS IS NOT A BILL. THIS IS A SOLICITATION. YOU ARE UNDER NO OBLIGATION TO PAY THE AMOUNT STATED ABOVE UNLESS YOU ACCEPT THIS OFFER.' The statutory disclaimer or the alternative notice 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 but not smaller than 30-point type."

3. See Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994), at 15; Directory Publishing Services, et al., P.S. Docket No. 38/122 (P.S.D. Feb. 28, 1994), at 13-14; Charles Smith, et al., P.S. Docket No. 36/129 (P.S.D. Dec. 9, 1993), at 14-15.

4. The solicitation itself is the best evidence concerning whether it has the appearance of a bill or invoice. Erica Lynn Kortje d/b/a Employment Classifieds, P.S. Docket No. 40/176 (P.S.D. Sept. 27, 1995), at 3.

5. Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994), at 20; Charles Smith, et al., P.S. Docket No. 37/180 (P.S.D. Jan. 31, 1994), at 15; Directory Publishing Services, P.S. Docket No. 38/122 (P.S.D. Feb. 28, 1994), at 14-15.

6. While Respondent enclosed recipient responses showing that they understood Respondent's solicitation to be offers, other recipients found the solicitation to be misleading. The fact that Respondent's solicitation failed to deceive some recipients is insufficient to establish that the solicitation does not make false representations. Farley v. Heininger, et al., 105 F.2d 79, 84 (D.C.Cir. 1939), cert. denied, 308 U.S. 587 (1939); Allen Glazer, P.S. Docket No. 40/59 (I.D. June 4, 1993), at 7-8, aff'd, (P.S.D. Jan. 27, 1994); Dennis Ward, et al., P.S. Docket No. 37/118 (P.S.D. on Breach of Consent Agreement Oct. 16, 1991), at 9; Delta Enterprises, et al., P.S. Docket Nos. 14/72-75 (P.S.D. July 3, 1984), at 21.