Appeal of UNITED TELECOM. TRUST - P.S. Docket No. FOR 98-470

In the Matter of the Complaint ) January 29, 1999 Against ) ) UNITED TELECOM. TRUST ) ) at ) ) Bellerivestrasse 10 ) P.O. Box 1651 ) Zurich CH-8026 ) SWITZERLAND ) P.S. Docket No. FOR 98-470 APPEARANCE FOR COMPLAINANT: Michael Mumbach, Esq. Alan B. Ostroff, Esq. United States Postal Service Civil Practice Section

Washington, DC 20260-1127 APPEARANCE FOR RESPONDENT: W. Heinze Bellerivestrasse 10 P.O. Box 1651 Zurich CH-8026 Switzerland

POSTAL SERVICE DECISION

On October 20, 1998, Tentative Decision and Order No. 98-117 (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 November 13, 1998, Respondent, United Telecom. Trust, filed a timely reply to the Tentative Decision in which it denies it is engaged in any conduct in violation of the United States postal false representation and lottery law.

Background

Respondent distributes solicitations and seeks remittances through the United States mail for listings in its International Telex and Telefax Directories. 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 which 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 in its reply to the Tentative Decision that its mailing is merely an offer to be listed in its International Telex and Telefax Directories and not a solicitation in the guise of an invoice. 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 the back of its form and, therefore, it should not be held responsible for any misunderstanding of its mailing.

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 "Telefax Entry / Offer", an identification number, a personalized description of the directory listing, and a net amount due that includes a 3% discount if paid within 21 days, all of which suggest a continuing business relationship between Respondent and the recipient.⁽³⁾ Although the "Terms and conditions" language on the back of the solicitation might raise some question about the nature of the mailing, it is not likely to lead the ordinary recipient to conclude that the mailing is an offer rather than a bill or invoice. The ordinary recipient does not have the obligation to critically scrutinize every sentence of the solicitation to determine exactly what is being offered.⁽⁴⁾ The language of the solicitation relied on by Respondent 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 and does not comply with the notice requirement of 39 U.S.C. §3001(d) or DMM §CO31 Parts 1.1 through 1.6, 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. 98-117 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. . .."

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. 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.

4. 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.