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UNITED COMMER. INS. SERVS. v. USPSS.

December 18, 1986

UNITED COMMERCIAL INSURANCE SERVICES, et al., Plaintiffs,
v.
UNITED STATES POSTAL SERVICES, Defendant



The opinion of the court was delivered by: GREEN

 Plaintiffs United Commercial Insurance Services (UCIS), Burton Rayden and Jeffrey Rayden are licensed insurance brokers and agents who sell through the mails forgery and check alteration insurance and service contracts for mechanical checkwriter machines. Since 1977, plaintiffs have mailed approximately 40 million applications for these services. After receiving complaints about plaintiffs' solicitations, defendant filed an administrative complaint in 1984 alleging that the mailings were in the guise of an invoice and falsely represented that the recipient had a prior relationship with plaintiffs, had already agreed to purchase plaintiffs' services, and that the stated price of these services was an amount due and owing UCIS. After a three-day hearing, an administrative law judge (ALJ) issued a 19-page opinion dismissing the complaint. Defendant appealed to the Postal Service Judicial Officer, who, in an opinion dated November 7, 1986, reversed the ALJ. The Judicial Officer ruled that the solicitations could reasonably be construed as bills or invoices, in violation of 39 U.S.C. § 3001(d), and that they in fact made the false representations alleged, in violation of 39 U.S.C. § 3005. Accordingly, he entered orders prohibiting the delivery to UCIS of all mail concerning the applications, and directing plaintiffs to cease and desist from further violations of §§ 3001(d) and 3005.

 Upon receipt of the Judicial Officer's decision, plaintiffs filed this action on November 14, 1986, and applied for temporary injunctive relief. At the suggestion of the Court, the parties agreed to an expedited briefing schedule and a single hearing on the merits of their respective claims. That hearing was held on December 4, 1986. For the reasons set forth below, the Court grants plaintiffs' motion for summary judgment.

 I

 The central issue in this case is whether the Judicial Officer's determination that plaintiffs' solicitations could reasonably be construed as invoices or bills is supported by substantial evidence. The standard of review in a case such as this is well established. This Court "must determine whether on the basis of all the testimony and exhibits before the agency it could fairly and reasonably find the facts as it did." Braniff Airways, Inc. v. CAB, 126 U.S. App. D.C. 399, 379 F.2d 453, 462 (D.C. Cir. 1967). The Court is to look at the entire record and must consider contrary evidence as well as that supporting the agency's decision. Of course, an agency decision can pass muster under the substantial evidence test notwithstanding the existence of conflicting evidence or the possibility that different conclusions might be drawn from that evidence. Id. at 463. On the other hand, the Court need not "accept meekly 'administrative pronouncements clearly at variance with established facts.'" Id. (quoting NLRB v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913, 916 (4th Cir. 1957)).

 The question before both the ALJ and the Judicial Officer was whether plaintiffs' solicitation "is in the form of, and reasonably could be interpreted or construed as, a bill, invoice, or statement of account due," within the meaning of 39 U.S.C. § 3001(d). Advertisements and other forms of solicitations judged under this statutory test must be viewed in their totality; courts, and in the first instance the Postal Service, must consider the effect the solicitation would most probably produce on ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178, 189, 92 L. Ed. 628, 68 S. Ct. 591 (1948). Advertisements should not be assessed with a lawyer's eye to fine spun distinctions, but rather with a view to the overall impression they will make on the average reader. American Image Corp. v. United States Postal Service, 370 F. Supp. 964, 966 (S.D.N.Y. 1974). In this case, of course, the parties are agreed that the "average reader" of plaintiff's solicitations are not household consumers but rather businesses, particularly the bookkeepers and accountants within those businesses.

 The ALJ heard testimony over the course of a three-day hearing from plaintiff Jeffrey Rayden and plaintiffs' expert witness Dr. John Parkington, an expert in direct-mail marketing and survey research. Defendant proffered the testimony of Larry Johnson, the Postal Inspector who investigated the complaints; Dr. Paul Scipione, an expert in consumer psychology; and nine "victim" witnesses. The ALJ also had before him the solicitation itself, the customer complaints, and a study prepared by Dr. Scipione, which the judge ultimately ruled inadmissible. In dismissing defendant's complaint, the ALJ found that even to the most casual observer the mailing does not look like an invoice or bill and that defendant's contrary assertion rested on relatively insignificant features of the solicitation. Initial Decision of Administrative Law Judge Quentin Grant (April 25, 1985) ("ID") at 17. He further found that the victim testimony was so vague and inconclusive as to be "almost devoid of probative value;" id. at 18; that even defendant's expert, Dr. Scipione, had failed to state affirmatively that the solicitation would be likely to induce mistaken payment by recipients, id.; and finally, that defendant's characterization of the complaints rested on a series of assumptions that proved, upon closer examination, to be at best questionable and in some instances wrong. Id. at 18-19.

 In reversing, the Judicial Officer conducted an independent review of the record and concluded that the mailing creates the overall impression that it is a bill or invoice. United Commercial Insurance Services, P.S. Docket No. 19/18 (PSD Nov. 7, 1986) ("PSD") at 9. This conclusion, he found, was buttressed by the testimony of Dr. Scipione and the victim witnesses; the survey prepared by Scipione; and the complaints received by the Postal Service.

 II

 The parties, the ALJ, and the Judicial Officer are all in agreement on one point: the most telling evidence of whether a mailing can reasonably be construed as an invoice is the mailing itself. Telex & tws Directory, P.S. Docket No. 13/6 (PSD April 1, 1983). The solicitation at issue here comes in a small computer-printed envelope that is opened by tearing off a perforated stub and peeling off the cover. Inside are two sheets, printed front and back, that are approximately the size of a standard credit card charge slip or receipt. The first page bears the registered trademark name "Checkwriter Insurance" in bold, italicized print across the top of the sheet. In approximately the center of the page, in bold capital letters, is the word "APPLICATION." Beneath this, plaintiffs' services are described as follows:

 
COVERAGE-Checkwriting System of Check Protection
 
A - $ 15,000 FORGERY AND CHECK ALTERATION INSURANCE
 
B - MECHANICAL SERVICE CONTRACT

 A box with the recipient's name and address lies beneath this description, and next to it on the right is a smaller box captioned "AMOUNT" which shows the price in computer type. At the bottom of the page is a box which provides for the recipient's signature underneath the following: "I accept your offer and hereby apply for the checkwriter insurance and mechanical service contract program. I represent the underwriting information on the reverse side to be true and correct." The right-hand portion of the page is a tear-off stub that the recipient is advised to "Retain . . . with your insurance records." A six-digit contract code or number is given, followed by three boxes captioned "Months," "Amount" and "Offer Effective." On the back of the first page is the application itself. ...


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