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AMERICAN TESTING INST. v. USPS

January 26, 1984

AMERICAN TESTING INSTITUTE, Plaintiff
v.
U.S. POSTAL SERVICE, Defendant



The opinion of the court was delivered by: GREEN

 GREEN, District Judge

 This action is before the Court on the parties' cross-motions for summary judgment. For the reasons stated below, the Court grants defendant's motion for summary judgment and dismisses this action.

 Plaintiff, American Testing Institute, seeks review of the administrative decision of the Judicial Officer of the United States Postal Service ("Postal Service") who concluded that plaintiff was in violation of the postal lottery statute which prohibits the operation of a lottery. 39 U.S.C. § 3005. Plaintiff also requests that the stop mail order issued on July 6, 1983, pursuant to that section, be dissolved. The Court has subject matter jurisdiction over this case pursuant to 39 U.S.C. § 409.

 I. The Scheme

 American Testing holds itself out as an organization that sends through the mails survey forms, requesting information about the recipients' television viewing habits. Recipients are asked to answer eight simple multiple-choice questions by checking boxes on a "Test Response Form." In the mailing, American Testing announces that any recipient who completes the "Test Response Form" will be awarded one of twenty "special" gifts listed in the mailing. Administrative Record at 33, 35. ("A.R."). All but one in every ten thousand recipients of the solicitation who respond to the mailing receive gift No. 12. Gift No. 12 is a lifetime membership to a national film club. The prize is described in the material as:

 
UNLIMITED KODAK FILM FOR THE REST OF YOUR LIFE . . . Guaranteed Free Life Membership in a National Film Club provides free color film, any size, any exposure, for each roll developed . . . THIS GIFT INCLUDES UP TO 40% DISCOUNT ON DEVELOPING $720.00

 Id. (Emphasis in original). The solicitation letter also requests remittance of $14.80 to help cover the cost of handling, postage, and administration of the testing.

 American Testing has used two types of solicitation letters. The first of these letters includes the following instructions:

 
FOLLOW THESE INSTRUCTIONS CAREFULLY:
 
A. Answer all questions on the TEST RESPONSE FORM.
 
B. Place the completed TEST RESPONSE FORM in the enclosed postage-paid envelope. Include your check or money order for $14.80. This amount covers the cost of shipping, handling, postage, printing and administration of this testing procedure.
 
C. You are required to mail the completed TEST RESPONSE FORM within ten days from the time you receive it. THERE IS ABSOLUTELY NO PURCHASE OF PRODUCT OR PAYMENT OF SERVICE REQUIRED OR ASKED OF YOU IN ORDER TO RECEIVE YOUR GIFT. Each gift itself is FREE OF CHARGE.
 
D. Within two-three weeks after we receive your completed TEST RESPONSE FORM, we will send your gift completely prepaid.
 
NOTE: Every participant who completes the TEST RESPONSE FORM automatically receives ONE gift from the twenty listed above. Highest valued gifts are distributed less frequently than lower valued gifts.

 A.R. at 33. (Emphasis in original).

 American Testing's more recent letter contains the above instructions with the exception of paragraph B, which was changed to read as follows:

 
B. Place the completed TEST RESPONSE FORM in the enclosed postage-paid envelope. To help defray the cost of shipping, handling, postage, printing, and administration of this testing procedure, include your check or money order for $14.80.

 A.R. at 35.

 In addition to the above, the following instructions appear on the back of the "Test Response Form" in the first of the two letters:

 
Make check or money order payable to:
 
AMERICAN TESTING
 
CHECK MONEY ORDER
 
ENCLOSED IS MY CHECK OR MONEY ORDER TO COVER SHIPPING, HANDLING, REGISTRATION, ...

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