Sierra Club, Inc. - Page 31




                                       - 31 -                                         

          only when each of the cooperating organizations is individually             
          authorized to mail at the special bulk rates.                               
               Edward Shelton, president of ABS, testified that it was a              
          business mistake for ABS to use the mail permit because of mail             
          delivery restrictions applicable to such permitted mail.  He                
          also testified that ABS paid the postage and that use of the                
          permit was not considered when the SC-ABS agreement was entered             
          into and petitioner became obligated “to cooperate”.                        
          Mr. Shelton was credible in all of that testimony.                          
               We have found that petitioner was not in the business of               
          marketing the credit card program or in the business of                     
          providing marketing services to ABS.  The mailings in question              
          were ABS’, and, thus, since ABS was not entitled to the special             
          bulk rates in question, ABS’ use of the mail permit was                     
          unlawful.  Because it involved an unlawful action, we hesitate              
          to classify it as cooperation under the SC-ABS agreement.  We               
          become firm in that conclusion based on Mr. Shelton’s credible              
          testimony that, at the time that agreement was entered into, it             
          was not considered.  Therefore, we conclude, and find, that use             
          of the mail permit was not a service provided to ABS pursuant               
          to the SC-ABS agreement.                                                    
               None of the receipts were received on account of ABS’s use             
          of the mail permit.                                                         
                    6.  Active Endorsement and Sponsorship                            
               Respondent argues that the obligation “to cooperate”                   
          imposed on petitioner by Article 2.1 is an obligation to                    

Page:  Previous  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  Next

Last modified: May 25, 2011