National Trade Pd13Lications Seiwice, Inc.

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IN THE IATTR OF NATIONAL TRADE PD13LICATIONS SEIWICE, INC. ET AL.

ORDER: ETC. , IN IllGAHD TO THE ALLEGED nOLATIOX OF THE FEDERAL TRADE CO::IlUSSION ACT Docket 7525. Complai, , June 1959 Decision, May 1961 Order requiring a concern in Overland Park, Kans., engaged in seUing magazine subscriptions to the public through solicitation of their agents, generally handicapped individuals, to cease accepting payment for magazines they were not authorized to sell; requiring purchasers to substitute magazines for those subscribed to and paid for and which they were not authorized to sell and substituting magazines for those paid for without the consent of the subscriber; and representing falsely that certain publications they were authorized to sen were the same in content as others not on their sellng list.

111'. Garland S. Ferguson for the Commission. Achtenberg, Sandler Balkila of Kansas City, 1\0., for responc1ents.

INITIAL DECISION BY I-IAHRY R. HIXKES, Ih:"I,UXG EX.BlIXEH Respondents a.re chaTged with violation of the Federal Trade Commission Act by using false statements and misleading and un- XATIONAL TRADE PUBLICATIONS SERVICE , INC. , ET AL. 707 i06 indings rair practices in t.he solicit.ing and sale or magazine subscriptions through their s tles agents or representatives. In their answer, respondents denied that the solicitations and sales are made by their agents or representatives, stating that such sales are made through independent contractors or employees or independent contractors and in addition, denied the various representations and practices charged in the complaint. Hearings were held at Kansas City, Cleveland, Detroit and vVashington, D. C. , following which, proposed findings and conclusions were submitted by both counsel. The hearing examiner has given consideration to the proposed iindings and conclusions, and a.ll findings of fact and conclusions or law proposed by the parties not hereinafter found or concluded are herewith rejected.

FIKDIXGS OF F \.CT 1. Respondent National Trade Publications Service, Inc. is a corporation organized, existing and doing business under a,nd by virtue of the laws of the State of Missouri. Its offce, originally located at 3119 Troost Avenue, Kansas City, YIissouri: is now located at 7134 "IV est Eightieth Street, Overland Park, Kansas. Individual respondent Melvin R. Lindsey is an offcer of said corporation. rormulates, directs and controls the policies or the corporate respondent. Respondent :\Ielvin R. I,indsey has traded and done business under the names or N ahonal Publishers Service and Traae Press Bureau.

2. Respondents are now and ror some time last past have been engaged in the sale or magazine subscriptions to the public. Respondents arb authorized to sell only certain magazines. To solicit such subscriptions, respondents engage the services of so caned "crew managers" \vho in turn select solicitors \vho conduct the actual doorto-door canvassing of the public. These crew managers are supplied by the respondents with forms which the solicitors are to use in taking subscriptions. On many of these rorms the solicitor is referred to as the salesman or representative or the respondent company. The solicitors also carry a list of magazines indicating the ones which they have been authorized to sell on behalf of tbe respondent company. The solicitors also carry credentials identifying them as a,authorized representatives of the respondent company. In many communicat.ions originating from the respondent company, reference is made to the solicitor as " our salesman" or " our representative." On occasion, respondent company notifies the crew manager that he is not to allow a emtain solicitor to represent the respondent company. In consequence thereof, the crew manager Joses his job unless that solicitor is fired.

708 FEDERAL TRADE CO?dMISSIO DECISIONS Findings 58 F.

3. In the course and conduct or their business respondents through their sales agents or representatives: solicit subscriptions for various maga,zines in various States or the 'Cnited States. The subscriptions when obtained by the agents or representatives, are sent by them from various States to respondents' place or business, originally in the State or r-missouri, now in the State or Kansas, and arc then forwarded by the respondents to magazine publishers, many or whom are located in States otller than :Missouri and I\.ansas. Respondents themselves aand their sa.les agents and representatives retain for part or all or the subscription price or each magazine sold by them. 4. respondents mainta.in and at. all times mentioned herein have maintained a substantial course of trade in said subscriptions C0I111nerce, as '"commerce'\ is defined in the Federal Trade Commission Act. Respondents receive subscriptions from persons in many parts of the united States as wen as in Canada iexico Hnd n:awaii with total business approximating two hundred thousand subscriptions per year at an average price of three dollars each. 5. Respondents at aD times mentioned herein hflve been in substantial competition, in commerce with corporations, firms and individuals engaged in the sale of magazine subscriptions. G. Hcsponc1ents, through their sales agents 01' representatives in connection with the solicitation a,nd sale of magazine subscriptions have accepted and received payment fot magazines which they ,,-ere not. autllOrizec1 to sell. This charge is substantia.ted by the testimony of more than a half dozen witnesses, as wen as by the, correspondence of respondent company.

7. In at least one or t\VO instances, respondents, through their sales agents or representat.ives in connection with the solicitation and sale of magazine subscriptions, hayc collected money in excess of the regular subscription price.

8. Respondents through their sales agents or representatives in connection with the solicitation and sale of magazine subscriptions have fa,filed to provide delivery of magazines lor \\-hieh they were authorized to a,accept. subscriptions. In some insta11Ces, the failure of delivery was permanent; in others. the delay rnnged from six to fiftce.l months.

9. Hespol1c1ents. ihrough their sales agents or representatives in connection with t.he solicitation and sale of magazine subscriptions hf1ye l'cqnired persons to substitute other magazines for those they had subscribed to and paid for but which the respondents were not authorized to sell. Form letters of the respol1(lent company used to correspond ",jth subscribers in such cases as well as the testimony of a number of witnesses fully supports tllis charge. NATIO:\AL TRADE P"CBLICATIONS SERVICE IKC. , ET AL. 709 "l06 Findings 10. Hespondents, through their sales agents or representatives in connection with the solicitation and saJe of magazine subscriptions have substitut.ed magazines for those subscribed to and paid for without the consent of the subscriber. The uncontradicted testimony or several snbsCTibers corroborates this finding. 11. Responllents, through their sales agents or representatives in connection with the solicitation a.nd sale of magazine subscriptions lia.ve represented, contrary to the fact, that the subscription price of magazines, or H, portion thel'cor would be applied to a Yeterans charity or organization or for the benefit of the handicllPped or for some other charitable purpose. Respondent Lindsey himself admitt.ed that he had received complaints that the soJieitors had represented that they were c01l1ected with a charitable organization. Although the record does not contain a categorical and unequivocal representation that a portion of the subscription price would be applied to a vetenllls' charity or ior some other charitable purpose, an unsuspecting and sympathetic subscriber would be misled into thinking that a part of the subscript.ion price eventually wound up in some charitable purpose as a result of t.he implied representations reasonably inferable from t.he sales "pitch" and behavior of the solicitors, some of whom were amputees or wore army uniforms: and many of \whom were physically handicapped.

12.. Hespondents, through their sales agents or representat.ives in connection with the solicitat.ion and sale of magazine subscriptions have represented, contrary to the . fad, that certain publications which they are authorized to sell arc the same in eontcxt as publications which they are not authorized to sell. The record conta.ins the uncontradicted testimony or several subscribers to this effect. Several other subscribers were informed that the magazines on the subscription list were shnila1' to (rather t.han the same as) others not on the subscription list. These other subscribers' testimony has not been considered in connection with this finding. 13. The use by the respondents of t.he aforesa.id fa.lse statements , a.nel now has, the tend- and misleading and unfair practices has had ency and capacity to induce many members of the public to purchase lrmgazine subscriptions from respondents and, in many instances, to subscribe for magazines which they would otherwise not have subscribed ror. As a consequence, substantial trade in commerce has been unfairly directed to Tespondents from their competitors, and substantial injury has thereby been done to competition in commerce. In addition, these acts and practices were and are 011 i 0 t.he pre iudice and injury of the public. 710 FEDERAL TRADE COMMISSIO DECISIONS Discussion 58 F.

DISCUSSION In the answer of the respondents to the complaint, respondents denied that the magazine subscription sales were made through its agents or representatives but stated that such sales were made through "independent contractors or employees of independent contractors." whether or not these sales persons would be considered independent contractors at common law, the decisions are unifornl in enunciating the principle that a commercial concern which holds out order-taking canvassers to the public as its representatives and benefits from their deceptive sales activities is properly subject to v. Ferle'Commission corrective action Steeleo Stw:nles8 Steel; Inc. Tmde Com:rnission 187 F.2d 693 (5 S. & D. 265J (7th Cir. 1951) ; Goodman v. Federal Trade oommission 244 F.2d 584 (6 S. & D. 284J (9th Cir. 1957) ; International Art Co. v. Federal Trade Commission 109 F.2d 393 (3 S. & D. 188J (7th Cir. 1940)-and this is so even where the misrepresentations are made in violation of instructions and despite honest efforts by the company to prevent deception. Standard Di,tributors, Inc. v. Federal Trade Oommission 211 F.2c1 7 (5 S. & D. 619J (2d Cir. 1954); Perma-Maid 00. v, Federal Tmde Commission 121 F.2d 282 (3 S. & D. 397J (6th Cir. 1941). The brief of the respondents argues that Commission counsel has failed to prove that the respondents collec.ed money in excess of the regular subscription price, citing the testimony of one "\yitncss \\,ho may have been mistaken about the term of the subscription. Respondents, however, completely ignore the uncontradicted testimony sub-of another witness who paid twenty dollars for a three-year scription to H, magazine whose rate was only t.wo dollars per yea.r. Respondents also argue that Commission counsel has not proved that respondents represented that the subscription price would be applied to charitable purposes. They point out, quite correctly, that not a single witness testified that such representation was made. The rule is well established, however, that actual deception need not bc shown. It is snffcient if the practices have the capacity or tendency to deceive. Over-aD impressions must be considered. In making that consideration, it must be borne in mind Om t the Fede.ral Trade Commission Act is intended for the protection of all members of the public, including the "ignorant, the unthinking and the credulolls. Charles of the Ritz Diet. Corp. v. Federal Tn/de Commission 143 2d 676 (4 S. & D. 226J (2d Cir. 1944). Solicitation by one wearing an army uniform or by an a.nputee referring to the solicited subscription as a means of obtaining "points to go io trade school" or :'points for nmv limbs" can, wittingly or unwittingly, easily create in the mind of the credulous the impression that his snbscription \fas in the NATIONAL TRADE PUBLICATIONS SERVICE , INC. , ET AL. 711 706 Discus-sian nature of a charitable contribution which, of course, it was not. Such sales promotion is deceptive and unfair to competing sellers in commerce in its implications.

Respondents a,lso argue that Commission counsel has not sustained the charge that the respondents had represented its authorized magazines were the same in content as some unauthorized publications. They point to t.he testimony of certain of the witnesses to the effect that the solicitor claimed one magazine to be similar to another. Although claims of similarity.. made by a salesman may be warranted under some circumstances, I find it unnecessary to pass upon that point. The charge made is that the respondents represented one magazine to be not similar to, but the same, another. Several witnesses corroborated the charge. Further discussion of the issue seems unnecessary since ineaeh instance the magazines compared were not at all the same.

Another specific argument raised by the respondents is that Commission counsel has not shown that the respondents have failed to provide delivery of magazines subscribed for. Hespondents point out. that there has been no proof that they have failed to forward these subscriptions but only that thcrc has becu a failure of delivery to the subscriber. They argue, hOiyever, that delivery is not the responsibility of the respondents who, by contract, undertake only to forward thc subscriptions to thc publishers. The ordinary subscriber in dealing with a llfLgazine solicitor is not thinking in terms of using a solicitor as a mere transmittal agent, nor do solicitors ply their trade representing themselves as mere transmittal flgents. Instead, their usual behavior is that of a salesman selling a commodity and not merely placing orders on behalf of the buyer. It may well be that, neverthclcss, the respondents should not be held responsible for failure to provide delivery where the failure is due to circumstances beyond their control, such as the bankruptcy of the publication or the discontinuance of summer issues, as was the case in severa.l instances. No expla,nation, hmyever, is suggested for the failure of several subscribers to receive an authorized subscription magazine for the bei tel' part of one year or more and :for another suhscriber s complete failure to receive his subscription to two authori,,er1 magazines. .As it is said of justice, delivery (lclayec1 is delivery denied, in the. absence of any justification for the delay. Respondents, however, offered no justification even to the extent of showing that they had expeditiously forwarded the subscriptions, the proof of which was entirely within their own command. Finally, respondents argue that the quantity of the proof when compared to the volume of business handled by the respondents was 712 FEDERAL TRADE COMMISSION DECISIOl\ Order 58 F.'l.

so infinitesimal as to fail absolutely.'; I lla not think the respondents' position is well taken. This is not the situation where the Commission s proof consists of but an isolated instance of misrepresentation. On the contrary it is a mosaic of vo.rious i1Jegal acts each of which constitutes an unfair practice in commerce. Taken together, these episoc1e-s give us a picture of misrepresentation and deception practiced by the respondents over a period of years in a number of widely separated communities. Respondents do not suggest what quantum of proof should be necessary to sustain such a charge in a situation such as this. Obviously, it would be. impractical and unwise t.o bring in as witnesses a majority of the twohunc1rec1-thousanc1-plus subscribers. Even as many as one thousand subscriber witnesses would constitute but a minor fraction of respondents' business, yet would enmesh the tri8.l of this matter endlessly. The application of a de 1nin'tm-is rule to a situation such as this where there has been proof of multiple and varied misrepresentations in commerce would dearly be inappropriate whether or not such rule is warranted in other circumstances. See Associated Dry Goods C01'poJ'ation Federal Trade Commission Docket No. 7184 December 14 1959; OonSli1ne1' Sales Corp. v. Federal Trade Comm;ission 1D8 F.2cl404 f5 S. & D. 41DJ (2cl Cir. 1952). CQ)lcl USION The aforesaid acts and practices "er8 and arc all to the prejudice lJd injury of the public and of respondents: competitors and constituted and now constitute unfair (l,ud deceptive acts and practices and unfair methods of competition in commerce within the intent and meaning of the Fede.ral Trade Commission Act. upon the foregoing findings of fact and conclusions of law, the following order is hereby entered:

ORDER I t is ordered That respondents :x ational Trade Publicat.ions Service, Inc' a corporation: and its offcers, and l\lelvin H.. I.,inclsey, individually and as an offcer of said corporation and respondents agents, representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of magazine 3Ubscription3 in commerce, as "commerce" is defined in the Federal Trade Commission Act? do forthwith cease and desist from:

1. Accepting subscriptions for magazines or other publications for which they have no authority to solicit. XATIONAL TRADE PL BLICATlOXS SERVICE , IKC. ) ET AL. 713 i06 Opinion 2. Conecting rnoney from subscribers in excess of the regular p:rice of subscriptions for the magazines or other publications. 3. Failing to provide subscribers delivery of magazines or other publications for which they a.re authorized to accept subscriptions. 4. Requiring subscribers to substitute ma,gazines or other publications for those subscribed for.

5. Substituting magazines or other publications for those subscribed for without the consent of the subscriber. 6. R.representing, directly or by implication, that the sllbscription price of magazines or other publications sold by them, or any portion thereof, will be applied to a veterans' charity, veterans ' organization, for the benefit of the handicapped or any other charitable purpose, or will be applied or used for any other purpose that is not in accordance with the fact.

7. Representing directly, or by implication, that any rnagftzine or publication which respondents a.rc authorized to sell is the same in any respect to magazines or onler publications which they are not authorized to sell, unless such is the fact. OPIXlON OF THl' GO:LIlIISSION By KEnx 001711niBsioner:

The complaint herein charges respondents with violating the Federal Trade Commission Act in seven respects in the solicitation and sale of magazine subscriptions. The hearing exanliner found that all of the charges were sustained by the evidence and ordered respondents to cease and desist from the practices found to be unlawful. H,respondents have appealed from this decision. Respondents ate authorized to sell only cerhLin magazines, usually on the basis of an agreement. with the pub1ishe.rs thereof. They solicit subscriptions through salesmen selected by ': crew-managers engaged by respondents or, in the case of tra,de journals only, through salesmen ,which they hire directly. The ch lrges: in the orde,r in which they are set fort.h in the complaint, are that. respondents (1) accepted and received payment for unauthorized magazines; (2) collected money in excess of the regular subscription price; (3) failed to provide delivery of Ruthorizcc1 magazines; (4) required persons to substitute magazines for unauthorized magazines which they have paid for; (5) substituted magazines for those paid for without the consent of the subscriber; (6) falsely represented that an or a portion of the subscription price of a magazine will be applied to certain charitablc purposes; Rnd (7) falsely represented 714 FEDERAL TRADE CO:\I:\nSSIOJ\T DECISIONS Opinion 58 F.

that certain authorized publications are the same in content as certain unauthorized publications.

Hcspondents first argue that the second, t.third, sixth and seventh charges Rre not supported by the evidence. \With the exception of t.he seventh charge, we agree with respondents' contention. The only evidence in support of the second charge, that respondents collected money in excess of the subscription price, is the testimony of two witnesses. One of these witnesses testified that she ptlic1 eight dollars for a three-year subscription to a magazine for which the three-year rate was five dollars. 1-lowe,ver, this testimony can be given litte weight as the facts disclose that respondents actually entered her subscription for five years for 'which the subscription rate was eight dollars. The testimony of the other witness, that he paid twenty dollar.rs for a three-year subscription to a magazine whose yearly rate was $2. , is uncontradicted. It appears that this ,')itness was led to believe that he was subscribing for a more expensive magazine not on respondents' authorized list, which practice is covered by the seventh charge in the complaint. In any event, we are not persuaded that this one instance warrants a conclusion that respondents engaged in the practice of overcharging subscribers. The third charge allcgcs that respondents failed to provide the delivery of authorized magazines. The evidence in support of this charge shows that onc subscriber never received two publications ordered through respondents and that several others did not receive authorized magazines for almost a year after subscribjng. Hmvever, it is clear that respondents have no conlrol over the publishers they represent, nor are they responsible for the failure of said publishers to fulfill subscriptions or continue publication of a magazine. l\1:moreover, there is no showing that respondents represented to prospective subscribers that they could provide delivery. 'Vhile we believe that the record demonstrates a failure on the part of responde,nts to promptly forward subscriptions to the publishers we must find that the third charge. as ple,adec1, lUls not been sustained.

It is obvious from the record that the alleged false representation in the sixth charge, as interpreted by counsel supporting the complaint, was that all or a part of the subscription money price of magazines would be used as a charitable contribution to certain eterans' or other groups. It is likewise clear that, insofar as this 3ixth charge is concerned, the matter was tried on that issue. As the hCflring examiner correctly found, there is no showing in this record that respondents' salesmen expressly represented that the subscription price of 11 magazine \Tol1hl be applied to charitable Narra::TAL TRADE PUBLICATION::"',T SERVICE ) INC. ) ET AL. 715 706 Opinion purposes. IIowever, t.he hearing examiner inferred such repre sentation from the fact that certain statements ,were made to purchasers by respondents' salesmen who eit.her wore anny uniforms or were amputees. These statements were to the effect that subscriptions were. being solicited as a means of obtaining points to go to trade school or for new Jimbs. ,Vc think the most that mn be infelted -from this evidence is that these salesmen solicited subscriptions out of sympathy for t.their own personal plight. In our view the inference c1rawn by the hearing examiner is not warranted. The only other evidence on this point is the t.testimony of respondent Lindsey to the effect that the company has received one or t.wo complaints or such representations by their salesmen since 1951. 'Ve do not think this statement constitutes substantial evidence of the existence of the practice nJlegec1 in the sixth charge.. Respondents also ta,ke issue with the hearing examiner s ruling sustaining the seventh charge. The testimony of several witnesses fully supports a finding that respondents' salesmen. n represented that certain authorized publications are the sume in content. as publications which they are not authorized to sell. There can be no doubt that these represe,ntations \\-ere misleading and the record shows that several subscribers who relied thereon complained to respondents concerning such misrepresentation upon rece.1pt of t.he authorized publication. :Moreover, ,ve agree with respondents that the clistincbon made, by the hearing examiner between the claims of same" ancl "similar " as used by respondents' salesmen in comparing publications, is too subtle :for the average purchaser. 'Ve find that both claims are deceptive. Paragraph 7 of the order i11 the initial decision will be modified to conform with our findings on t his charge.

Respondents argue that the evidence in support of the first fourth and fifth charges, as well as the seventh charge, consists of isolated instances when considered in connection with their total yearly sales of two hundred thousand subscriptions, and that, accorclingly: such evjdence docs not establish ft course of action. Some fifteen witnesses testified in support of the complaint. These witnesses testified as to practices which took place in Kansas City, Detroit ftlld Cleveland, and with one exception, nJI of their testimony relates to events taking pla.ce within a period of about one year. Their uncontradicted testimony discloses that in each of these cities, respondents' salesmen soJicitcd a.nd accepted subscriptions for magazines not on respondents' authorized list. Upon receipt of a complaint from a. subscriber, respondents sent a form letter requesting the subscriber to make a substitute selection irom the au- 716 FEDERAL TRADE COM IISSION DECISIOJ\' Opinion 58 F.

thorized list. The form letter states that since cOJlrnissions were allowed when the order 'vas sold, no cancellations or refunds arc available. In those instances in which the subscriber nc1yised respondents that he did not want a publication on respondents: list respondents then sent a personal letter, usually after an extensive dclay, in which the subscriber was told that he must take a substitute publication. In some instances: a subscriber accepted the substitute. I-Imvever, the record shows several instances wherein the subscriber persisted in his demand for n. refund whereupon respondents of their own accord made the substitution. In addition to the consumer witnesses, counsel supporting the complaint introduced the testimony of :\fr. Harry Hites, Jr., Sales Director of the publisher of the Kiplinger Letter. His testimony, supported by copies of correspondence with respondents, shows that over at least a three-yea-r period, respondents' salesmen in many different parts of the country entered numerous initial or renewal subscriptions for that publication. Respondents have never been authorized to sell subscriptions to the Kiplingcr Letter. There can be no doubt that respondents were a ware of t.he practices of their salesmen, encouraged such practices and took an active part therein. Desiptc the fact that respondents were continually advised, through correspondence, telephone calls and a personal visit by 1\11'. Hites, of the activities of their salesmen in soliciting subscriptions to the IGplinger Letter, it appears that such practices continued until action was taken by the attorneys for that publisher. Also, the record shows that respondents received payment for renewal of subscriptions io the ICiplinger Letter several months prior to the time the buyer s current subscription expired. No act.ion was taken on these orders until complaint was received from the buyer at which bme respondents sent the usual form letter requiring that a substitute selection be made.

Although the order form and subscriber s receipt which respondents' furnish their salesmen caution the prospective subscriber to choose only the ma,ga.zines printell thereon there. are severrtl underlined spaces on the order form in which the name of an unaut.horized magazine may be conveniently printed. That this was clone by respondents' salesmen is clearly evident from several receipts in evidence. Also, the very fact that respondents used a, form letter to advise subscribers tllat their subscriptions were not on the authorized list mi1itates a,against any conclusion that such unnuthorized sa.les were isolated instances. Cf. Cons1t71WT Sales CorpoTatt On Fec/eml Tmde Commission 198 F.gel404, 407 (5 S. & D. 419J (gel Cir. 1952) .

KNrI01\ AL TRADE PUBLICATIONS SERVICE , INC. , ET AL. 717 706 Order The deceptive acts established in this record, occurring over the period of time and in the different locations shown, cannot be regarded as merely single, inadvertent occurrences. To the contrary, they are shown to be anintegraJ part of the sales procedure em played by respondents in their solicitation and sale of magazine subscriptions. Such a course of conduct clearly constitutes an unfair and deceptive practice within the prohibition of Section 5 of the Fccleral Tracie Commission Act.

Respondents' contention that paragraphs J and 5 of the hearing examiner s order, which are adopted as pal'agn\'phs 2 and 3 of the Commission s order, are duplicative is without substance. These pan\graphs prohibit the future use of two separate unfair practices which are charged in the complaint and which are established on the record.

To the extent indicated herein! respondents' appeal is granted but in all other respects it is denied. OUT order providing for a,ppropriate modification of the init-ial decision is issuing herewith. Commissioner Elman did not participate in the decision of this matter.

PIXAL ORDER Respondents having filed an appeal from the initial dccision of t.he hearing examiner, and the matter having been heard on briefs in support thereof and in opposition thereto; and the Commission having rendered its decision granting in part and denying in part the appeal and directing modification of the initial decision: It is ordered That paragraphs 7 and 8 on page 3 of the initial decision and paragraph 11 on page 4 thereof be stricken, and that paragraphs 9 , 10, 12 and 13 on pages 3 and 4 be renumbercd 7 , 8 , 9 and 10, respectively.

It is furth 1' ordered That renumbered paragraph 9 be modified to read as follows:

Respondents, through their sales agents or representatives, in connection with the solicitation and sale of magazine subscriptions, have represented that certain publications which they arc authorizcd to sell are the sa,me in content as publications which the,y are not authorized to sell. The record contains the uncontradicted testimony of several witnesses to this effect. In addition, several other wit- !lesses ",were informed that the magazines on the subscription list were similar.r to others not on the subscription list. The testimony of these witnesses discloses that they subscribed to authorized publications as a result of such re,presentations and later compla.ined to 718 FEDERAL TRADE COMMISSION DECISIOKS Ordet. 58 F.

respondents that the magazines they rcc.eived were not the same similar to the magazines with which they were compared. An example of this practice is the representation by respondents' salesmen that the publication "Capper Wcekly (News)," as listed on respondents' order form, is the same as Newsweek magazine. In our opinion, the copy of Capper s "\17 weekly in evidence (Commiesion Exhibit 49A-D) is obviously different from the Jlational publicatioJl Kewsv, eek." ",Ve fmd from the evidence that the words "same " ancl similar " as used by respondents' salesmen in comparing publications on the authorized list with unauthorized publicaiions, are deceptive.

It is further ordered That these paragraphs beginning with the second full paragraph on page 5 of the initial decision through ancl including the second full paragraph on page 6 thereof be stricken. It i8 further ordered That the following order be, and it hereby , substituted for the order contained.d in the initial decision: It is ordered That respondents, Xational Trade Publications Service, Inc., a corporation, and its offcers, and :Melvin R. Lindsey, indi.vidually and as an offcer of said corporation, and respondents agents, representatives and employees: directly or through any corporrlte or other device: in connection with the offering for side, sale or distribution of magazine subscriptions in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Accepting subscriptions for magazines or other publications for which t.hey have no authority to solicit. . Requiring subscribers to substitute magazines or other publications for those subscribed for.

3. Substituting magazines or other publications for those subscribed for without the consent of the subscriber. 4. Hepresenting directly, or by implication, t.hat a,ny magazine or publication which respondents are authorized to sen is (a) the same in content as any magazine or publication which respondents are not authorized to scl1 (b) similar to flny magflzine or publicn.tion 'which responuents are not authorized to sen when in fact the magazines or publications compared are different. in either content, form, coverage or any other material respect.

It 'is furthe'' o7'dered That the second, third and sixth charges of the complaint (subparagraphs 2, 3 and 6 of Paragraph Six) be, and they hereby are: dismissed.

, .

ART NATIONAL :vA-'\UFACTURERS DIST. CO. , INC. , ET AL. 719 706 Decision It is further ordered That the hearing examiner s initial decision as modified and supplemented by the Commission s opinion, be, and it hereby is, adopted as the decision of the Commission. It is .tlwther ordered That respondents, Kational Trade Publications Service, Inc. , and Melvin R. Lindsey, shah, within sixty (60) days after service upon them of this order, file with the Commission a report, in writing setting iorth in detail the manner and form in which they have complied with the order to cease and desist contained herein.

Commissioner Elman not participating.