In the Matter of the Complaint Against ) January 15, 1999 ) MARATHON AWARD CENTER (MAC) ) ) at ) ) 2425 Eglinton Avenue E Suite 209 ) Scarborough, Ontario M1K 5G8 ) CANADA ) P. S. Docket No. FOR 98-313 APPEARANCES FOR COMPLAINANT: Janessa L. Grady, Esq. Ben A. Kilgrow, Esq. Consumer Protection Law United States Postal Service Washington, DC 20260-1127 APPEARANCE FOR RESPONDENT: Samantha Kennedy, Esq. Bennett Best Burn 150 York Street, Suite 1700 Toronto, Ontario Canada M5H 3S5
POSTAL SERVICE DECISION
On July 8, 1998, Tentative Decision and Order No. 98-58 (hereinafter "Tentative Decision") was issued which concluded that Complainant had made a prima facie showing that Respondent, Marathon Award Center (MAC), is engaged in conducting a lottery in violation of 39 U.S.C. §3005(a). On August 20, 1998, Respondent filed a timely reply to the Tentative Decision denying it is engaged in conducting a lottery enterprise or any other activity in violation of 39 U.S.C. §3005. Specifically, Respondent argues that it engages in the business of soliciting, maintaining, managing and administering membership in lottery clubs, but it is not itself a lottery club, and its actions therefore do not fall within the prohibitions of 39 U.S.C. §3005. Respondent also argues that even if §3005 does pertain to its activities, its mailing neither solicits remittances through the United States mail nor contains the necessary elements of a lottery as alleged in the Complaint.
Respondent has not shown good cause for dismissing the Complaint. Respondent's contention that its actions do not violate §3005 because it is not a lottery club, but an independent entity that solicits new members and performs administrative functions for such clubs, does not exempt it from the restrictions of §3005. Regardless of the exact nature of Respondent's activities, it is clear that Respondent solicits remittances through the mail in connection with a scheme for the distribution of money by lottery, and thus under the plain meaning of 39 U.S.C. §3005, it is "engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money...by lottery, chance, or drawing of any kind..."
Respondent's contention that its mailing is not a solicitation, but rather an invoice reflecting the results of telephone solicitations is also without merit. Respondent's mailing must be considered as a whole and its meaning determined in light of its probable impact on the mind of the ordinary reader.1/ When viewed as a whole, the language of Respondent's mailing encouraging the recipient to send payment "as quickly as possible" because "all your friends here at Marathon want
you registered for your lucky multi-million dollar draw" is clearly solicitation language
and does not support Respondent's assertion that the recipient is already a club member once the telephone solicitation is completed. The overall impression created by the use of the language used in Respondent's mailing is that until the requested fee is received by Respondent, the recipient is not entitled to participate in the club's lottery activities. Additionally, even if the solicitation was sent at the request of the recipient, Respondent's distribution of materials seeking remittances through the United States mail for participation in foreign lotteries constitutes a violation of §3005.2/
Respondent's final argument that its actions do not violate 39 U.S.C. §3005 because its mailing does not contain the necessary lottery elements of prize, chance and consideration is also not persuasive. The distribution of solicitations inviting the purchase of shares in lottery pools has previously been found to include the elements of prize, chance and consideration and, therefore, to constitute a lottery in violation of 39 U.S.C. §3005.3/ These elements are present in Respondent's promotion. In order to be eligible to participate in the lottery club, the recipient must remit a sum of money to win a prize, which is dependent on the correct numbers being drawn. The fact that Respondent does not exert direct control over the lottery does not remove its activities from the scope of the §3005 prohibition or remove the element of chance from its promotion.4/
Accordingly, pursuant to 39 C.F.R. §952.7(b), Tentative Decision and Order No. 98-58 is now the Final Decision and Order of the Postal Service.
James A. Cohen Judicial Officer
2. L.E. Freundel, P.S. Docket No. 24/69 (P.S.D. Aug. 25, 1986), at 2.
3. The Canadian Express Club, P.S. Docket No. 28/52 (P.S.D. Dec. 23, 1991), at 5-6; Canadian Express Services, P.S. Docket No. 28/149 (P.S.D. Dec. 30, 1988), at 4-5; see Universal Life Church, P.S. Docket No. 7/62 (I.D. Aug. 31, 1979), aff'd, (P.S.D. Feb. 14, 1980).
4. Canadian Express Services, at 5.