solely to the Federal Trade Commission, but instead speaks of the powers of administrative agencies in general. Accordingly, the Court concludes that the reasoning of these cases provides important guidance in determining the scope of the Postal Service's jurisdiction.
Plaintiffs' position that the Postal Service's authority is no greater than that expressly conferred by statute was at one time the law of the land. The Supreme Court, however, changed that in 1963 when it held that the Civil Aeronautics Board had jurisdiction to order divestiture in addition to its explicit authorization to issue cease and desist orders. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 9 L. Ed. 2d 325, 83 S. Ct. 476 (1963). The Court reasoned that, where the problem lies within the purview of the Board, . . . Congress must have intended to give it authority that was ample to deal with the evil at hand." Id. at 312. The Court further explained that "authority to mold administrative decrees is indeed like the authority of courts to frame injunctive decrees." Id. at 312 n.17.
The Postal Service, in issuing a mandatory injunction, requiring plaintiffs to keep certain records was undeniably attempting to protect consumers from plaintiffs engaging in future schemes involving fraudulent misrepresentation wherein they use the mails to obtain money. There is no question that the Postal Service is entrusted with the responsibility of protecting consumers from such conduct; the question is whether the regulation of future conduct by plaintiffs is justified here.
In the past, Courts have often permitted the Federal Trade Commission to issue cease and desist orders regulating a broad line of products, even though a violation was discovered with respect to a single product so as "to prevent the resurrection of discontinued practices." Lee v. Federal Trade Commission, 220 U.S. App. D.C. 87, 679 F.2d 905, 906 (D.C. Cir. 1980); see also Federal Trade Commission v. Colgate-Palmolive, Co., 380 U.S. 374, 395, 13 L. Ed. 2d 904, 85 S. Ct. 1035 (1965) (holding that Commission may "frame its order broadly enough to prevent respondents from engaging in similarly illegal activities in the future"), Federal Trade Commission v. National Lead Co., 352 U.S. 419, 431, 1 L. Ed. 2d 438, 77 S. Ct. 502 (1957) (explaining that "those caught violating the [Federal Trade Commission] Act must expect some fencing in").
Whether a cease and desist order pertaining to a broad line of products is appropriate depends upon whether the order bears a reasonable relation to the discovered violation. "A judgment regarding 'reasonable relation' in multi-product cases 'depends upon the specific circumstances of the case.'" Sears, Roebuck and Co. v. Federal Trade Commission, 676 F.2d 385, 391 (9th Cir. 1982) (quoting Federal Trade Commission v. Colgate-Palmolive, 380 U.S. 374, 394, 13 L. Ed. 2d 904, 85 S. Ct. 1035 (1965)). Factors that should taken into account in deciding whether there is a "reasonable relation" are the "deliberateness and seriousness of the present violation and the violator's past record" as well as the "adaptability or transferability of the violator's false representation] to other products." Sears, Roebuck and Co., 676 F.2d at 392.
The Postal Service's order directing plaintiffs to cease and desist from "failing to establish, maintain and make available upon reasonable request of the Postal Inspection Service written records identifying all persons, whether natural or artificial, who write, prepare, compile or otherwise contribute to the content, form, production or distribution of any book" for which plaintiffs try to obtain money through the United States Mail bears a reasonable relation to the Postal Service's goal of ensuring that plaintiffs do not participate in a similar scheme to the one involved here in the future. Plaintiffs are repeat offenders as far as the Mail Order Consumer Protection Act is concerned. This is not the first time that they have violated the Act's prohibition against use of the mails to obtain money through a scheme involving the making of fraudulent representations. At least once before, plaintiffs were involved in a scheme that is strikingly similar to the one involved in this case. Plaintiffs had assisted a Beatrice Bayley with producing and selling by mail a book virtually identical to the one involved in this case.
Despite the issuance of a cease and desist order by the Postal Service against Beatrice Bayley and plaintiffs' knowledge of that Order, plaintiffs continued selling virtually the identical book under a different name.
The Judicial Officer was correct to overrule the ALJ's evidentiary ruling that plaintiffs' link with Beatrice Bayley was not relevant in determining the reasonableness of the recordkeeping requirements of the cease and desist order. The Court cannot imagine any evidence that would be more relevant. Plaintiffs' prior dealings with Beatrice Bayley show the ease with which plaintiffs can resume the scheme found here to be a violation of 39 U.S.C. § 3005 by merely changing the name under which they do business. By requiring plaintiffs to keep records "identifying all persons, whether natural or artificial, who write, prepare, compile or otherwise contribute to the content, form, production or distribution of any book" sold through the United States mail, the Postal Service will be able to monitor whether plaintiffs once again resume the same scheme, albeit under a different name.
Plaintiffs also ask the Court to vacate the recordkeeping requirements of the cease and desist order on the ground that they are vague, overbroad, and burdensome. The Court will decline plaintiffs' request to vacate the order's recordkeeping requirements on each of these grounds.
Plaintiffs' claim that the recordkeeping requirements of the order are vague is not properly before this Court as plaintiff did not raise that claim at the administrative level. See Washington Ass'n for Television & Children v. Federal Communications Commission, 229 U.S. App. D.C. 363, 712 F.2d 677, 680 (D.C.Cir. 1983) (explaining that the general rule is that "claims not presented to the agency may not be made for the first time to a reviewing court"). Because "[a] reviewing court usurps the agency's function when it sets aside the administrative determination upon a ground not theretofore presented," Unemployment Compensation Commission of Territory of Alaska v. Aragon, 329 U.S. 143, 155, 91 L. Ed. 136, 67 S. Ct. 245 (1946), "absent exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative proceeding at the appropriate time." Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir. 1979) (citing Hormel v. Helvering, 312 U.S. 552, 85 L. Ed. 1037, 61 S. Ct. 719 (1941)). The Court will not entertain plaintiffs' claim that the order is vague since plaintiffs have not even provided an explanation for their failure to raise that claim at the administrative level.
Although plaintiffs' claims that the cease and desist order's recordkeeping requirements are overbroad and burdensome are properly before the Court, the Court must reject them because the Court has already found that the recordkeeping requirements are reasonably related to the Postal Service's goal of preventing plaintiffs from engaging in illegal conduct in the future similar to the conduct at issue here. If the Court were to require the Postal Service to frame its order more narrowly so as to embrace only the scheme that was the subject of the Postal Service's, plaintiffs past conduct illustrates that plaintiffs, in all probability, would resume their use of the mails for similar postcard solicitations for books on family names and genealogy, however, under a different alias to make them less traceable by the Postal Service. The breadth of the order serves the legitimate and salutary purpose of making it difficult, if not impossible, for plaintiffs to resume their unlawful activities.
Finally, the Court must reject plaintiffs' claim that the Postal Service had an obligation to provide plaintiffs with an advisory opinion concerning what material should have been included in their books. Plaintiffs have provided the Court with no authority in support of this claim,
and the Court has no knowledge of the existence of such authority.
The Court will issue an Order of even date herewith memorializing these findings.
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 14 day of July, 1989,
ORDERED that Plaintiffs' Motion to Set Aside and Vacate Decisions and Orders of U.S. Postal Service shall be, and hereby is, denied; and it is
FURTHER ORDERED that defendant's motion for summary judgment shall be, and hereby is, granted.
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