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ALC as petitioner's list manager. The list manager3 is
responsible for the day-to-day activities regarding petitioner's
rental list. The list manager promotes list rental transactions
involving petitioner's rental list via distribution of data cards
(printed cards providing basic information as to price per
thousand and all other list rental information for a given list),
solicitations, and personal sales calls directed at list brokers
and potential customers. The list manager advertises
petitioner's rental list in the same places as exempt and
nonexempt entities advertise their lists. The list manager pays
all costs of promoting and marketing petitioner's rental list and
does not charge petitioner additional fees for such services.
CMS reviews the data cards, advertisements, and promotional
materials used by the list manager. Petitioner also reviews all
data cards, advertisements, and promotional materials used by the
list manager in connection with petitioner's rental list.
No written contract exists between petitioner and the list
manager. However, the form language on Names' list orders during
1991 and 1992 states: "We will bill mailer on behalf of list
owner; payment (less commission) will be made upon receipt of
payment from the mailer. We act only as agent for the list owner
3 For the most part, Names and ALC conducted transactions
involving petitioner's rental list in the same manner. To that
extent, we will refer to them as the list manager for the
remainder of this opinion. To the extent that there are
differences in any particular rental transaction during the
period that either Names or ALC was petitioner's list manager, we
will refer to the respective list manager individually.
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Last modified: May 25, 2011