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456, 467 (1989), revd. on other grounds 914 F.2d 1417 (10th Cir.
1990).
As we stated above, the list brokers act solely on behalf of
the mailers. The same list broker does not participate in every
transaction. Rather, each mailer chooses its own list broker to
act on its behalf. Additionally, petitioner does not exercise
any control over the list brokers or over Names when it acts in
its capacity as list broker. Petitioner directs all rental
inquiries to Names. Consequently, even if a mailer or broker
contacts petitioner directly, petitioner has no dealing with that
mailer or broker. Moreover, although the list broker's
commission is factored into the base price that is listed on the
data cards describing petitioner's rental list, the bill sent by
Names includes a list broker's commission only where Names acts
as the list broker. If the mailer uses an independent list
broker, Names sends that list broker a bill that does not include
a list broker's commission. Accordingly, it remains the list
broker's choice whether to charge the mailer any list brokerage
commission. On the basis of the foregoing, we conclude that the
list brokers and Names, when it is acting in its capacity as list
broker, are not agents of petitioner, and, therefore, neither
their activities nor the compensation that they receive for those
activities can be attributed to petitioner. Consequently, the
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