Norman L. Rothstein trading as Eureka Woolen Mills, Etc. et al.

Text (OCR of the scan at left; may contain errors)

IN THE fatter OF NORMAN L. ROTHSTEIN TRAD1XG AS EVREKA WOOLEN MILLS, ETC. ET AL.

COMl'Lc, J'DlDIXGS , .Ai.m ORDERS IN REGARD TO THF; ALLEGED VlOLATIOX OF SEC. 5 OF AN ACT OF COXGHRS8 APPROVF.. SEPT. 2G , 1914, AND OF AX ACT OF CDNGHESS APPIWVED OCT. 14 , 1\)40 Docket 580G. Compl(ltnt, Sept. G, 1950-Decision, Nov. , 1951 Where fm individual engaged in the sale and distribution of blankets, blanket robes, painting cloth and skirting cloth, along ,with two partners who acted as bis sales agents and distributed blankets at wholesale- (a) Represented through circulars, newspaper ad,ertising and other advertising media that his said blankets and other products were 100 percent wool, ,,,ben in fact they contained in part fibers other than wool; (b) ::lishranded certain blankets in violation of the Wool Products Labeling Act through the use thereon of labels which stated in one place that they were 100% "\Vool'" and in another "30% 1\ew, 70% Re-Processell" ; "dtb etrect or confusing and deceiving the plirchnsing public as to their fiber content, and with capacity and tendency so to do;

(0) ::Iisbranded certain piece goods and blankets in that they failed to affx thereio the stamp, tag, label or other means of identification giving the in. formation required by said Act;

(d) Sent out samples of s\yatches and specimens of their wool products to prospective customers without labels to show their fiber content and other information reqllircd by said Act; and (e) Made use of the term "Virgin" as descriptive of wool products which were Dot composed \wholly of "Virgin wool which had never been used, or reclaimed re\worked, reprocessed or reused from any spun, woven, knitted, felted or manufactured or used product:

Held, 1"hnt such acts, practices and methoels, under the circumstances set forth were in violation of said Wool Act and rules and regulations, and constituted unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. Before Mr. John W. Addison trial examiner. Mr. Jesse D. Kash for the Commission. Mrs Clarissa Shortall and Mr. Richard C. Shortall of San Francisco, Calif" for respondents.

COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act and the Wool Products Labeling Act of 1939, and by virtue of the authority vested in it by said Acts, the Federal Trade Commission having reason to believe that Norman L. Rothstein, an individual trading as Eureka Woolen Mils, Humboldt Bay Woolen Mils and ________ __ _ 436 FEDERAL TRADE COMMISSION DECISIO"S Complaint 48F. T. C.

Humboldt Bay Woolen Co. and Edwin B. Schwinger and Richard N. Goldman, copartners trading and doing business as Goldman- Schwinger & Co. hereinafter referred to as respondents, have violated the provisions of said Acts and Rules and Regulations promul gated under the VV 001 Products Labeling Act of 1939, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint: stating its charges in that respect as follows:

PARAGRAPH 1. Norman L. Rothstein is an individual trading as Eureka vVoo1en Mills, Hnmboldt Bay Woolen Iills, and Humboldt Bay VV Dolen Co., with his offce and principal place of business located at Eureka, California.

Said respondent is now and for more than a year last past has been engaged in the distribution of blankets, blanket robes, painting cloth and skirting cloth.

Respondents Edwin B. Schwinger and Richard N. Goldman are individuals and copartners trading and doing business as Goldman- Schwinger & Co. with their offce and principal place of business 10cat.ed at 24 California St., San Francisco, California. Said individuals are sales agents for respondent Norman L. Rothstein, trading as Eureka 'V oolen1\1i11s, and are no\v and for more than a year last past have been engaged in the wholesale distribution of blankets. PAR. :Z. In the course and conduct of tl1eir aforesaid business, respondent Norman L. Rothstein, trading as above set forth and for the purpose of inducing the purchase of his blankets, painting cloth and skirting cloth has circulated and is now circulating among prospective purchasers throughout the United States by United States mails circulars, newspaper advertising, and other advertising media many statements and representations concerning his said products. Among and typical of such statements and representations disseminated as aforesaid are the following:

(Swatch) ISwatchl FOR YOUR BLANKET NEEDS For the first time we offer you our Standard Hotel Blanket direct from aur Mil.

Specifications are as follows:

COl\ --. 100% wool :\fEASUREl\fE TS___--_--_ - double bed size 72" x 84" 'VEIGHT__ ------- over 4 pounds EDGES-__ ___--_n____ - whip stitched _ EUREKA WOOLEX MILLS) ETC. ET AL. 437 435 Complaint We are pleased to quote the following attractive prices f. o. b. your establishment: Heather GREY ----- 6. 90 FOREST GREEN , DEEP BLUE and IAROON_------- --- 7. (please examine the above swatches for quality and color) On orders of six or more blankets we wil letter on each blanket individually the name of your establishment in three inch script. There wil be no charge for this adl1itional service.

At the time of this offering we are able to quote almost immediate delivery. Trm:ling that we may have the pleasure of fillng your blanket needs, we are Very truly 'ours, EURKA 'V OOT, EN iron, Blanket Division.

HUMBOLDT BAY WOOLENS E"L'REKA WOOLEN :MILLS, Eureka, California.

OF INTEREST TO YOU For the convenience of your students, the Eureka Woolen Mils have instituted a new service to simplify choosing fine quality woolens. Enclosell, you wil fid samples of present lines of our skirt and dress weight materials, and suit and coat ,veight woolens. Our materials are all-wool and are from 58 to 80 inches wide. From the enclosed samples your students may make their selections and order from our mil by direct mail.

As a woolen mil, \ve retain only a few bolts of each running pattern, so when making your selection, a second choice would be appreciated. The IjJul'cka Woolen Mils are located where long staple coastal wool is pro duced and have been manufacturing fine woolens for over 60 years. e shall be pleased to be of service to you. Sincerely, EURKA WOOLEK fils.

PAR. 3. Through the statements and representations set forth above respondent X ormal L. Rothstein trading as Eureka Woolen Mils Humboldt Bay Woolen Mills and Humboldt Bay Woolen Co, represents and has represented that his blankets and other products are made of 100 percent wool.

The foregoing representations are grossly exaggerated, false and misleading and in truth and in fact, respondents' blankets and other woolen material are not composed entirely of wool but contain in part fibers other than wool.

PAR. 4. Respondents' said wool products are composed in whole or in part of wool, reprocessed wool or reused wool, as these terms are defined in the Wool Products Labeling Act of 1939, and such products are subject to the provisions of said Act and the Rules and Regula- 438 FEDERAL 'TRADE COMMISSION DECISIONS Complaint 48F. T. C.

tions pronmlgated thereunder. Since July 15 , 1941 , respondents have violated the provisions of said Act and said Rules and Regulations in the manufacture for introduction, and in the introduction into commerce and in the sale, transportation and distribution of said wool products in said commerce, by causing said wool products to be mishranded within the intent and meaning of said Act and said Rules and Regulations.

Among the said wool products sold and distributed by respondents in commerce as aforesaid are blankets which carry labels showing conflicting fiher content information. Among and typical of the conflicting lahe1s used respondents as aforesaid is the following: Humboldt Bay All Purpose Blanket l\Ianufactured by EL'REKA WOOLEN MILLS 100% ',,001* Approx. 3% pounds 62 x 82 inches "30% I\ew, 70% Re-Processed The use on a blanket of a label which states in one place that said blankets are composed of " 100% wool" anel at another place states the content as "30% new, 70% re-processed" is conflicting and has the capacity and tendency to confuse and deceive and does confuse and deceive the purchasing public as to the fiber content of said blankets and is a violation of the Wool Products Laheling Act of 1939 and the Rules and Regulations promulgated thereunder. PAR. 5. Among the wool products manufactured for introduction into commerce by respondents and introduced into commerce, sold transported and distributed in commerce by respondents are piece goods and blankets. Exemplifying respondents' practice of violating said Act and the Rules and Regulations promnlgated thereunder is their misbranding of the aforesaid wool products in violation of the provisions of said Act and the said Rules and Regulations by failing to affx to said wool products a stamp, tag, label or other means of identification, or a substitute in lieu thereof, as provided by said Act showing (a) the percentage of the total fiber weight of the wool product, exclusive of ornamentation not exceeding five percentum of said total fiber weight, of (1) wool, (2) reprocessed wool, (3) reused wool EUREKA WOOLEN MILLS , ETC. ET AL. 439 435 Decision ( 4) each fiber other than wool where said percentum by weight of such fiber was five percentum or more, and (5) thc aggregate of all other fibers; (b) the maximum percentage of the total weight of the wool product nonfibrous loading, fillng, or adulterating matter; (c) the percentages in words and figures plainly legible by weight of the wool content of such wool product where sa,id wool product contains a fibcr other than wool; (d) the name of thc manufacturer of the wool product or the name of onc or more persons subject to section 3 of said Act with respect to such wool product, or the registered identification number of such person or persons as provided for in Rule 4 of the Regulations as amended.

The misbranded wool products referred to above were introduced sold, transported, distributed, delivered for shipment, shipped, and offered for sale, in commerce by each of the respondents. PAR. 6. In addition to the acts and practices hereinabove set forth the respondents, to promote the sale of their wool products in commerce, have sent out samples of swatches and specimens of their wool products to prospective customers without labeling said sample swatches and specimens to show their respective fiber contents and other information required by the VV 001 Products Labeling Act of )939, and using the term "Virgin" as descriptive of their wool products when the products so described are not composed wholly of Virgin wool which has never been used, or reclaimcd, reworked, repossessed or reused from any spun, woven, knitted, felted or manufactured or used product.

PAIL 7. The aforesaid acts, practices and methods of the respondents, as alleged herein, were and are in violation of the Wool Products Labeling Act of 1939 and the Rules and Regulations promulgated thereunder, and section 5 of the Federal Trade Commission Act as amended, and constitute unfair and deceptive acts and practices in C'ommercc within the intent and meaning of the Federal Trade Commission Act.

DECISION OF THE COMMISSION Pursuant to Rule XXII of the Commission s Rules of Practice, and as set forth in the Commission s "Decision of the Commission and Order to File Report of Compliance " dated November 15, 1951, the initial decision in the instant matter of Trial Examiner John VV. Addison, as set out as follows, became, on that date, the decision of the Commission.

Findings 48 F. T. C.

INITIAL DECISION BY JOHN W. ADDISON, TRIAL EXAMINER Pursuant to the provisions of the Federal Trade Commission Act and the VV 001 Products Labeling Act of 1939, and by virtue of the authority vested in it by said Acts, the Federal Trade Commission on September 6, 1950, issued and subsequently served its complaint in this proceeding upon orman L. Hothstein, individually and trading as Eureka IV oolen Mills, Humboldt Bay IV oolen Mills, and Humboldt Bay vVooleu Co., and Edwin B. Schwinger and Hichard N. Goldman individually and as copartners trading and doing business as Goldman-Schwinger & Co., charging them with the use of acts, practices and methods in violation of the vI' 001 Products Labeling Act of 1939 and the Rules and Regulations promulgated thereunder, and section 5 of the Federal Trade Commission Act and constituting unfair and deceptive acts and practices in commerce .within the intent and meading of the Federal Trade Commission Act. After filing their original answers to the complaint, respondents requested and obtained leave to withdraw sajd answers and to substitute therefor answers admitting all of the material allegations of fact in the complaint and waiving an intervening procedure and further hearings as io the facts. These substitute answers were in due course filed in the offce of the Commission. Thereafter, the proceeding regularly came on for final consideration by the above-named trial examiner theretofore duly designated by the Commission upon said complaint and answers thereto, all intervening procedure having been waived, no proposed findings and conclusions having been presented by counsel, and oral argument not having been requested; and said trial examiner having considered the record herein, finds that this proceeding is in the interest of the public and makes the following findings as to the facts conclusion drawn therefrom, and order:

FINDINGS AS TO THE FACTS P AHAGRAPH 1. Norman L. Rothstein is an individual trading as Eureka Woolen Mills, Humboldt Bay Woolen Mills, and Humboldt Bay VV oolen Co., with his offce and principal place of business located at Eureka, California.

Said respondent is now and for more than a year last past has been engaged in the distribution of blankets, blanket robes, painting cloth and skirting cloth.

Respondents Edwin B. Schwinger and Richard N. Goldman are individuals and copartners trading and doing business as Goldman- Schwinger & Co. with their offce and principal place of business _ ____ _ EVREKA WOOLEN MILLS, ETC. ET AL. 441 435 Findings located at 24 California St., San Francisco, California. Said individuals are sales agents for respondent Norman L. Rothstein, trading as Eureka ,y oolen Thrills, and are now and for lllore than a year last past have been engaged in the wholesale distribution of blankets. PAR. 2. In the course and conduct of their aforesaid business, respondent Norman L. Rothstein, trading as above set forth and for the purpose of inducing the purchase of his blankets, painting cloth and skirting cloth has circulated and is now circulating among prospective purchasers throughout the United States by United States mails circulars, newspaper advertising, and other advertising media many statements and representations concerning his said products. Among and typical of such statements and representations disseminated as aforesaid are the following:

rSwatchJ (Swatch) FOR YOU;R BLANKgT NEEDS For the first time we offer you our Standard Hotel Blanket direct from our Mil. Specifications are as follo,vs:

CO:\TENT__ -- 100% wool MEASUllEl\IEXTS__ - double bed size 72" x 84" WEIGHT_ -- over 4 pounds EDGES_ -- whip stitched We are pleased to quote the following attractiye prices f. 0, b, your establishment: HEATHER GltEY____- ------- $6. FOREST GHEEN, DEEP BLUE Ai\TD IAROON__-- ----- 7. (please examine the above swatches for quality and color) On orders of six or more blankets we wil letter on each blanket individually the name of your establishment in three inch script. There wil be no charge for this additional service.

At the time of this offering we are able to quote almost immediate delivery. Trusting that we may have the pleasure of fillng your blanket needs, we are Very truly yours E'L'REKA WOOLEN MIU"

Bl-anket Division.

H(;MBOLDCl' BAY 'YOOLENS EVREKA 'V OOLE=" MILLS Enreka, Calito-rnia.

OF INTEREST TO YO For tbe convenience of your students, the Eureka Woolen I\lils ba, instituted a new service to simplify rhoosing fine quality woolens. Enclosed, you 'vil find samples of present lines of our skirt and dress weight materials, and suit and coat weight woolens. , Findings 48 F. T. C.

Our materials are all-wool and are from 58 to GO inches wide. From the enclosed samples your students may make their selections and order from our mil by direct mail.

As a woolen ruil e retain only a few l101t8 of each running pattern, so when making your selection, a second choice "would be appreciated. '1'he Eureka Woolen :Mils are located \yhere long staple coastal '.Yool is produced and have been manufacturing fine woolens for over 60 years. \Ve shall be pleased to be of service to you. Sincerely, EUREKA 'YOOLEN I\lrLLs.

PAR. 3. Through the statements and repre,sentations set forth above respondent Korman L. R.othstein, trading as Eureka \V ooJen :Mills Humboldt Bay "Woolen Mills and Humboldt Bay "Woolen Co., represents and has represented that his blankets and other products are made of 100 percent wool.

The foregoing representations are grossly exaggerated, false and misleading and in truth and in fact, respondents' blankets and other woolen material are not composed entirely of \Yool but contain in pa.rt fibers other than wool.

PAR. 4. Respondents' said wool products are composed in whole or in part of wool, reprocessed wool or reused wool, as these terms are defined in the Wool Products Labeling Act of 1939, and such products are subject to the provisions of said Act and the Rules and Regulations promulgated thereunder. Since July 15 , 1941, respondents have violated the provisions of said Act and said Rules and Regulations in the manufacture for introduction, and in the introduction into commcree and in the sale, transportation and distribution of said wool products in said commerce, by causing sa,id wool products to be misbranded within the intent and meaning of said Act and said Rules and Regulations.

Among the said wool products sold and distributed by respondents in commerce as aforesaid are blankets which carry labels showing c.onflicting fiber content information. Among and typical of the conflicting labels used by respondents as aforesaid is the following: Humboldt Bay All Purpose Blanket Manufactured by EUREKA WOOLEN MILLS 1000/ Wool* Approx. 3% pounds 62 x 82 inches .30% Kew, 70% Re-Processed EUREKA WOOLEK MILLS, ETC. ET AL. 443 435 Findings The use on a blanket of a label which states in one place that said blankcts are composed of "100% wool" and at another place states the content as " 30% new 70% reprocessed" is conflicting and has the capacity and tendency to confuse and deceive and does confuse and deceive the purchasing public as to the fiber content of said blankets and is a violation of the 1Vool Products Labeling Act of 1939 and the Hules and Regulations promulgated thereunder. PAIL 5. Among the wool products manufactured for introduction into commerce by respondents and introduced into commerce, sold transporteel ancl distributed in commerce by respondents arc piece goods and blankets. Exemplifying respondents' practice of violating said Act and the R.ules and Regulations promulgated thereunder is their misbranding of the aforesaid wool products in violation of the provisions of said Act and the said Rules and Regulations by failing to affx to said wool products a stamp, tag, label or other means of identification, or a substitute in lieu thereof, as provided by said Act showing (a) the percentage of the total fiber weight of the wool product, exclusive of ornamentation not exceeding five per centum of said total fiber weight, of (1) wool, (2) reprocessed wool, (3) reused wool, (4) each fiber other than wool where said per centum by weight of such fiber was five per centum or more, and (5) the ag6'1egate of a11 other fibers; (b) the maximum percentage of the total weight of the wool product of nonfibrous loading, filling, or adulterating matter; (c) the percentages in words and figures plainly legible by weight of the wool content of such wool product where said wool product contains a fiber other than wool; (d) the name of the manufacturer of the wool product or the name of one or more persons subject to section 3 of said Act \'with respect to such wool product, or the registered identification number of such person or persons as provided for in Rule ,f of the &guJations as amended.

The misbranded wool products referred to above were introduced sold, transported, distributed, deEvered for shipment, shipped, and offered for sale, in commerce, by each of the respondents. PAR. 6. In addition to the acts and practices hereinabove set forth the respondents, to promote the sale of their wool products in commerce, have sent out samples of swatches and specimens of their wool products to prospective customers without labeling said sample swatches and specimens to show their respective fiber contents and other information required by t1,e Wool Products LabeEng Act of 193D and using the term "Virgin" as descriptive of their wool products when the products so described are not composed wholly of Virgin wool which has never been used, or reclaimed, reworked, re- 444 FEDERAL TRADE COMMISSION DECISIO Order 48 F. T. C.

possessed or reused from any spun, woven, knitted, felted or manufactured or used product.

CONCLUSION The aforesaid acts, practices and methods of the respondents, as found herein, were and are in violation of the vVool Products Labeling Act of 1939 and the Rules and Regulations promulgated thereunder, and section 5 of the Federal Trade Commission Act as amended and constitute unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. ORDER It i8 ordered That respondents Norman L. Rothstein, individually and trading as Eureka VV oolen Mils, Humboldt Bay W oolen :Uil1s and Humboldt Bay 'Veelen Co., or under any other name, and Edwin D. Schwinger and Richard . Goldman, individually and as copartners trading and doing business as Goldman-Schwinger & Co. , or under any other name, jointly or severally their representatives agents, and employees, directly or tlll'ough any corporate or other device, in connection with the offering for sale, sale and distribution of blankets or other wool products in commerce, as "'commerce" is defined in the aforesaid Acts, do fortlnvith cease and desist from: 1. j\fisreprese,nting in any ,,"ay the constituent fiber or material used in its merchandise or the respective percentages thereof; 2. Describing, designating or in any way referring to any product or portion of a product which is "reprocessed wool" or "reused wool" as "wool"

3. "Csing the word "wool" to describe, clesignate or in any way refer to any product or portion of a product which is not the fiher from the fleece of the sheep or lamb, or hair of the Angora goat or Cashmere goat, or hair of the camel, alpaca, llama or vicuna ,,,which has never been reclaimed from any woven or felted product. It is further ordered That respondents, individually or trading as above described, jointly or severally, their representatives, agents and employees, directly or through any corporate or other device, in connection with the introduction into commerce, or the sale, transportation, or distribution of such products in commerce, as "commerce " is defined in the aforesaid Acts, do forthwith cease and desist from misbranding blankets or other wool products as defined in and subject to the vVool Products Labcling Act of 1939, which contain, purport to contain or in any way are representeel as containing, "wool reprocessed wool " or "reused wool" as these terms are defined in said Act, by EUREKA WOOLEN MILLS, ETC. ET AL. 445 435 Order 1. Falsely or deceptively stamping, tagging, labeling or otherwise identifying such product;

2. Failing to securely affx to or place on such products a stamp, tag, label or other means of identification showing in a clear and conspicuous manner:

(a) The percentage of the total fiber weight of such wool products exclusive of ornamentation not exceeding five per centum of said total fiber weight of (1) wool (2) reprocessed wool (3) reused wool (4) each fiber other than wool where said percentage by weight of such fiber is five percentum or more, and (5) the aggregate of all other fibers;

(b) The maximum percentage of the total weight of such wool product of any nonfibrous loadiug, filling or adulterating matter; (c) The name or the registered identification number of the manufacturer of such wool product or of one or more persons engaged in introducing such wool product into commerce, or in the o:fering for sale, sale, transportation or distribution thereof in commerce, as "commerce is defined in the Federal Trade Commission Act and in the Wool Products Labeling Act of 1939;

PJ'ovided That the foregoing provisions concerning misbranding shall not be construed to prohibit acts permitted by paragraphs (a) and (b) of section 3 of the iV 001 Products Labeling Act of 1939; and Provided, further That nothing contained in this order shall be construed as limiting any applicable provisions of said Act or the Rules and R.egulations promulgated thereunder. ORDER TO FILE REPOR'l' OF COMPLIANCE It i8 ordered That the respondents herein shall, within sixty (60) days after service upon t,hem of this order, fie with the Commission a report in writing setting forth in detail the manner and form in which they have complied with the order to cease and desist (as required by said declaratory decision and order of November 15, 1951J. , 446 FEDERAL TRADE COMMISSIO DECISIONS Syllabus 48 F. T. C.

IN THE lATrER OF MURRAY MENTZER AND SOLO ON w. WEI GAST DOING BUSINESS AS PRECISION APPARATUS COMPANY COMPLAIN1' , F1KDINGS, AKD ORDER IN REGARD TO THE ALLEGED Vlcd"\TIOZi 01" SEC. 5 OF AN ACT OF CO TGRESS APPHOVED SEPT. 26 , 1914 Doeket 4732. C01'nplaint, Mar. 1942-Dccision, Nov. 20 , 1951 Mutual conductance is an engineering technical term used to desi 'late one of the characteristics of a radio tube, and is the ratio of a cJlange in output current to the change in grid voltage which produces the change in current; so that an analysis of the mutual conuuctance of a tube and an expression thereof in terms of micrombos is a means of precisely and scientifically expressing the abilty of a tube to respond to a change in grid voltage. The overall worth of a tube is obviously dependent upon tbe merit of its yariuns characteristics, among which are mutual conductance, amplification factor, plate resistance, find emission; and a change in one direction all the part or certain of them causes some corresponding variation in values for another Tube checking instruments offered and sold to the radio service and repair trade indnuc mutual conductance testers which are held in high esteem by radio servicemen, and which, during the perious involved in the instant proceeding, included mutual conductance testers which determined and re ported mutual conductancc under static conditions, and those which determined such conductance under other conditions ami reported the results quantitatiyely in micromhos or both quantitatively and qualitatively through a "replace-good" meter reatHng. Such tube checkillg instruments also include emission testers which in no sense afford a test of mutual conductance.

Where two partners engaged in the manufacture and interstate sale and (listributiOll of certain tube checking radio instruments which, during part of the time concerned, they designated as "Dynamic ::lutual Conductance Tube Testers" and which (1) were calibrated to compare tbe plate current of a suspected tube with that yielded by another tube selected for its adcQuacy in all characteristics, including emission and mutual conductance, so that a comparative reading indicating the presencc of plate current value in a suspected tube similar to that of a nev tube constituted a rough appraisal of the overall value of the tube under check rather than a scientific test of the merit of any separate tube characteristic; (2) enabled the user uf the instrument to select the proper setting so that the meter rea(lin,c would indicate "replace good", or "weak" depending on the average amount of current flowing- through the tube and meter in comparison to that of a known-to-be-good sample tube or tllbes; and (3) could not be used f()l' checking tubes for which no data appeared in the roller chart furnisued with the equipment- (a) Made use, in certain catalogs, of thc designation "Precision Dynamic Mutual Conductance Tube Testers " in referring thereto and represented through PRECISION APPAHATl:S CO. 447 446 Syllabus such designations and other language, along with the failure to state that an actual determination in ruicromhos was not made available, that their said instruments \were mutual conductance testers capable of performing all the functions of such devices, and that through their use the mutual conductance of radio tubes could be determined; and (b) Represented that their tester was a mutual conductance testing instrument or type thereof which, by segregating and appraising such change in plate current as resulted from a change or variation in voltage placed by their device upon the grid of the tube under check, would afford a qualitative evaluation, determination and test of tlle mutual conductance of an electronic tube through comparing the value thus disclosed with that displayed by tube of known merit; through use of the term "mutual conductance" in such tralie or product names as "Combination Dynamic ::Vlutual Conducttance Type Tube Testers and 33 Range Rotary Selective A. C. D. C. Multi Range Set Irester" and explanatory matter which had reference to the properties and attributes of their devices, coupled \with their failure to reveal that such change in plate current as resulted from a change in voltage placed by the device upon the grid was not evaluated incident to the de. termination of tube merit;

The facts being that apart from such value as the device possessed in checking emission, it was limited to a comparison of the averages of total plate currents occurring in a known-to-be good tube and a tube under check; it did not, and by reason of its construction could Dot, compare a tube of known merit and a suspected one by comparing those variations in their respective plate currents which stemmed from a similar change or variation in voltage applied to their grids; and it was not a mutual conductance tube tester or type thereof within the understanding of members of the radio repair and service trade;

'With tendency and capacity to mislead and decei'H:! a substantial portion of the purchasing public with respect to their instruments and thereby induce the purchase of a substantial quantity thereof: Held That such acts and practices, under the circumstances set forth, were to the prejudice and injury of the public and constituted unfair and deceptive acts and practices in commerce.

'1' he statement, among others, that calihration of the meter in micromhos was not afforded and that the merit indication was set forth on a "rcplaceweak-good scale" so as to "thereby avoid the confusion of a useless micromho scale" in determining tube merit, was not suffcient to counteract or avoid the representation otherwise made as to the nature of respondents' device as above noted.

In reaching its conclusion, the Commission was of the opinion that such correlation as existed between a marked decrease in the a-crage value of plate current and a decrease in mutual conductance, stated as roughly pro. portional, should be rejected as the controllng factor in determining whethel" the device herein concerned was a mutual conductance type tube tester. To conclude otherwise would be to ignore the testimony adduced in the proceeding by numerous engineers and other expert witnesses called by counsel supporting the complaint who expressed opinions to the effect that respondents' product did not indicate values which could be directly inter- 213S40-:)4- &, Complaint 48 F. T. C.

preted in terms of mutual conductance, and that inasmuch as its reading was limited to the average value of plate current flowing through the complete cycle of power impressed upon the plate, such device did not in any way indicate the effect of any modification that might be made by a signal impressed upon the control grid itself. And in sncb connection there was also to be weighed and appraised the testimony of other witnesses relating to the understanding of members of the radio repair and service trade of the term "mutual conductance" when used to designate a tube testing instrument.

Before Mr. Webster Ballinger trial examiner. Mr. R. A. McOuat and Mr. Clark Nichols for the Commission. James Franklin of Kew York City, for respondents. COMPLAINT 1 Pursuant to the provisions of the Federal Trade Commission Aet and by virtue of the authority vested in it by said Act, the Federal Trade Commission, having reason to believe that :T'lurray :Mentzer and Solomon 'V. IN eingast, copartners doing business as Precision Apparatus Company, hereinafter referred to as respondents, have violated the provisions of the said Act, and it appearing to the Commission that a proceeding by it in respect thereof \vould be in the public interest, hereby issues its complaint, stating its charges in that respect as follows:

PARAGRAPH 1. Respondents, J\Iurray )fentzer and Solomon 'V. 'Yeingast are copartners doing business as Precision Apparatus Company. Their place of business is at 647 Kent Avenue, Brooklyn, Ne\v York. They are now, and for several years last past have been, en gaged in manufacturing and selling radio testing equipment among which are radio tube testing instruments designated by respondents as "Dynamic l\iutual Conduetance Tube Testers. In the course and conduct of their business as aforesaid, the respondents cause and for several years last past have caused their said instruments, whe.n sold, to be transported from their said place of business in Brooklyn, K ew York, to the purchasers thereof located in various other States of the L"united States and in the District of Columbia. Respondents maintain, and all times mentioned herein have maintained, a course of trade in said instruments in commerce between and among the various States of the United States and in the District of Columbia.

PAR. 2. In the course and conduct of their aforesaid business and for the purpose of inducing the sale of their said instruments, 1'e- The complaint Is published as amended by an order of the Commission dated October 1947.

PRECISION APPARATUS CO. 449 446 Complaint spondents have made certain false, deceptive and misleading statements, and representations with respect to the character of their said instruments, such representations being made in advertisements inserted in trade journals and catalogs circulated gencralJy among the purchasing public. Among LTld typical of such statements and representations so used and circulated are the following: The most perplexing issue confronting the rarJio sen-ice engineer is the choice of tube testing equipment that wil definitely and unfailingly solve all tube test problems will1 constant accuracy and reliabilty. With this thought foremost in mind "PRECISION" engineers have deyoted a great deal of research and development in collaboration with the engineering divisions of leading tube manufacturers, conducting all varieties of tests on thousands of tubes. The outcome of these tests, as performed on a large number of tube test circuits, firmly can. vinced the engineering staff that the resultant tube tester designed MUST definitely be based OIl two All-Important characteristics of a radio tube: 1. Dynamic Intual Conductance.

2. Cathode Structure or Emission.

Neither one of these func1amental factors CRn be neglected- The "PRECISION" Dynamic Mutual Conductance 'rest Tube Circuit, incaI'. poraten in all "PHECISION" Dynamic Electronorneters (series 810, 912 , 915, 620 and 922) has been d€signed with the foregoing as its fouudatioll TUBE ANALYZIl,G FEATURES *A DYNAidIC TUBE TESTER employing an exclusive "PRECISIOK" engineered circuit, which in one operation, effectively tests al1 radio receiving tubes for both IUTVAL CONDUCTA:'CE and C:ATHODE STRCCTURK R.esponclents also refer to and describe, their said instruments as Dynamic :Mutual Conductance Type Tube Tester. PAn. 3. Through the use of the aforesaid statements and representations, respondents represent that their said instruments are mutual conductance tube testers, capable of performing all of the functions of such a tester and that by their use the mutual conductance of radio tubes ean be determined.

PAR. 4. The said statements and representations set forth in paragraph 2, above, and other similar import, not specifically therein set forth but disseminated in the same manner as those set out in paragraph 2, are false, misleading and deceptive. In truth and in fact, respondents' said intruments cannot properly be designated and described as mutual conductance tube testers and they are not capable of testing the mutual conductance of radio tubes. PAR. 5. The use by the respondents of the aforesaid false, misleading, and deceptive statments and representations has had and now has the tendency and capacity to and does mislead and deceive a substantial portion of the purchasing public with respect to the character quality and performance ability of their said instruments and to in. Findings 48 F. T. C.

duee the purchase of a substantial quantity of said instruments as a result of the erroneous and mistaken belief so engendered. FAR. 6. The aforesaid acts and practices of the respondents as herein alleged are all to the prejudice and injury of the public and constitute unfair and deceptive acts and practices in COllllnerce within the intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO THE FACTS, A:-m ORDER Pursuant to the provisions of the Federal Trade Commission Act the Federal Trade Commission on March 17, 1942, issued and subsequently served its complaint in this proceeding upon the respondents named in the caption hereof, charging said respondents with the useof unfair and deceptive acts and practices in commerce in violation of the provisions of that Act. After the issuance of said complaint and the filing of respondents' answer thereto, testimony and other evidence in support of and in opposition to the allegations of the complaint were introduced before a trial examiner of the Commission theretofore duly designated by it, and said testimony and other evidence were recorded and filed in the offce of the Commission. This proceeding subsequently came on for hearing before the Commission upon the motion of counsel supporting the complaint to amend the complaint in certain respects to conform to the proof, and on October 24, 1947, the Commission, having duly considered such motion issued its order granting the motion and amending the complaint in the respects stated in such order. Additional testimony and other evidence in support of and in opposition to the allegations of the compia,int, as amended, subsequently were introduced before the trial examiner and duly rccorded and filed in the offce of the Commission. Thereafter, this proceeding regularly came on for final hearing before the Commission upon the complaint, as amended, the answer of respondents, as amended, the testimony and other evidence received prior and subsequent to the date upon which the order amending the complaint was issued, recommended decision of the trial examiner and the exceptions thereto, and briefs in support of and in opposition to t.he complaint, as amended (counsel for respondents having failed to appear on the day designated for oral argument in this matter) ; and the Commissjon, having duly considered the matter a.nd being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom.

... .., ...

PRECISION APPARATI:S CO. 451 446 Findings FIXDIXGS AS TO THE FACTS PARAGRAPH 1. Respondents, Murray Mentzer and Solomon W. vVeingast., individuals trading as copartners under the name of Pre cision Apparatus Company, for several years prior to the institution of this proceeding -were engaged in the manufacture and sale of radio testing equipment, among which were radio tube check.king instruments designated during a part of such period of time as "Dynamic J\intual Conductance Tube Testers " with their place of business at 647 Kent A venue, Brooldyn, New Yark. Subsequent to the closing of this case for the taking of testimony, notice for the record was filed by counsel for respondents that Mr. Mentzer departed this life on July 23 1949. PAR. 2. Respondents, in the course and conduct of their business as aforesaid, can sed their said instruments, when sold, to be transported from their place of business in Brooklyn, J\ ew York, to purchasers thereof located in various other States of the United States and in the District of Columbia, and during the period mentioned hereinabove respondents maintained a. course or trade in said instruments in commerce between and among the various States or the United States and in the District of Columbia.

PAR, 3. In the course and conduct or their business and for the purpose or inducing the sale or their tube checking instruments, respondents have made various statements and representations with respect to the character or their equipment, which representations have been made in advertising circulars and catalogs circulated generally among the purchasing public.

(a) Among and typical of the statements and representations so used and circulated are the following, which appeared in the catalog of respondents bearing the date of 1940:

C01IBINATION DYNAJlIIC JlII:TUAL CONDUCTANCE TUBE TESTER AND 33 HA GE ROTAHY SELECTIVE A. C. D. C. :lICLTI-lla:\GE SET TESTER. A complete service laboratory incorporating the "PRECISIO::" engineered DYNA nC :\lUTL"AL CO:\DUCT ANCE" tube tester TDBE AKALYZIKG FEATURES A DYNA nC TCBE TI'JSTER '" "' '" which in one operation, effectively tests all radio receiving tubes for both MUTUAL CONDUCTANCE and CATH- ODE STRVCTLRE.

Tbe most perplexing issue confronting the radio service engineer is the choice of tube testing equipment that 'sil definitely and unfailingly solve all tube test problems with constant accuracy and reliabilty. , ,.

Findings 48 F. T. C.

'With this thought foremost in mind PHECISION" engineers have devoted a great deal of 1'e8ea1'('h and deyelopment in collaboration with the engineering divisions of leading tube manufacturers, eonducting all varieties of tests on thousands of tubes. The outcome of these tests, as performed on a large number (,f tube test circuits, firmly convinced tbe engineering staff that the resultant tube tester design i\"CS'l l1eflnitely be based Oil two ALL-Important characteristics of a radio tube: - 1. Dynamic lIutual Conductance 2. Cathode Stl'uctnre or Emission Neither ODe of these fundamental factors can be neglected. The "PRECISION" Dynamic ::lutual Conductance Tube Test Circuit, incol poratcd in all "PRECISION" D;vnamic Electronometers (Series mo, 912., 915, 920 and 922) has been designed with the foregoing as its foumlation 01' Ierit of a tube . * * it can be readily seen that the oyer-all Quality is absolutely dependent on both :.\UTUAL CONDUCTANCE and EMISSIOl' neither one of 'which can possibly be neglected. As previously outlned, the over-all Quality or :llerit of a tube is absolutely rlependent all both llJ'JUAL CONDUCTAXCE ancl El\lISSIO:ro( For this reason the "PRECISION" Dynamic EJectronOlleter circuit places the rI'UB j'dEHl'l' Hl' EH only in the plate or output section of the tubes under test, and in this manner' , the resnltant meter reading is clirectly and simultaneously proportional to both CATHODE Ji:llISSIVI'J qua1it . and IUTeAL CO DCCTA:\CIiJ and accordingly wi1 reject all tubes which, as previously explained, llay be the cause for little or no volume, noisy or clistortecl operation, 01' fading reception. PRECISIOJ' DYNA IIC 1IUTCAL CO DCCI' CE 'lTDE TESTBRS (b) Among and typical of the statements and representations used and circulated by respondents are the following, which appeared in a catalog of Precision Apparatus Company under date of 1941: ibi:\ATIOS DYNAMIC lLTUAL CONDUCTA CE Typg TUBE rrESTER AND 33 RANGE ROTARY SELECTIVE A. C. D. C. MULTI-HAJ\GE SET TESTER A complete service laborat.ory incorporating the "PRECISION" engineereu DYNAilIIC l\lUTUAL COKDUCl' A:XCE" type tube tester TUBE ANALYZING FEA'JliRI,S A DYNAMIC TUBIt: TESTER employing an * .. '" engineered circuit, which in OIle operation, effectively tests all radio receiyjng tubes for both DYXAMIC MUTUAL ('oj\DUCTANCE and CATHODE STHVCTURE. * .

PRECISION APPARATUS CO. 453 446 Findings PRINCIPLES OJ' DYNA1IIC MUTUAL CONDUCTANCE TUBE TESTING The most perplexing issue confronting the radio service engineer is the choice of tube-testing equipment that wil permanently remove the "QUESTION ::lAHK" from bis tube test problems, and thereby definitely and unfailngly solve them with constant accuracy and reliabilty. With this thought foremost in mind PRECISION" engineers have devoted unHmited time in extensive research and development, in collaboration \with the engineering divisions of leading tube manufacturers.

AU varieties of tests were conducted on thousands of tubes, from which two vital points stood out above all others, which ftnalIy dictated that "the resultant tube tester design :MUST definitely be based Oll the two all- important characteristics of a radio tube.

1. Dynamic Mutual Conductance.

2. Cathorle Structure or Emission Nell' IIER ONE OF THESE FUKDA IEKTAL FACTORS CA:\ EVER DE NEGLECTED! In other words, direct micromho readings arc ABSOLUTELY MEANI LESS unless the tube tester call duplicate the exact voltages and loads under which the particular tube in question is Actually operating in the specific receiver from which it has been removeu, and \vould furthermore require reference to the tube s characteristic curves in order to determine what the mutual conductance SHOULD BE under the particular conditions in \which the receiver is using this tube.

*' it is found that it is impossible to design a SIMPLE instrument which could definitely duplicate all various applications of a given tube. 'herefore, it would be meaningless, let alone misleading, to say that we are going to calibrate our tester numerically in micromhos when the merit indication llay just as well be on a simple three-colored REPLACE-WEAK-GOOD scale and thereby avoid the confusion of a useless micromho scale, and at the same time be able to immediately determine the worth of a tube. In the final analysis, our reason for putting a tube into a tester is Dot to deter. mine how many micromhos the meter can be MADE to read under purely ARBI- TRARY conditions, but rather the Very simple question of "IS THIS TUDE GOOD WEAK, OR DECIDEDLY BAD?" and our English reading scale imme. diately tells the story.

The foregoing thoughts have strirtl . guided the development of the "PRE- CISION" Dynamic :d\1tual Conouctance type tube test circuit, as incorporated in all "PRECISIOK" Dynamic Electronometers, Series 910, 912 , 914, 915, 920 922, :md 954 '"

To familiarize oUl'selv(' with the principles of this exclusive "PRECISION" innovation, let us briefly observe the operation of a simple pentrode such as the 2A5, in a stftldard po\\"er output stage, shown in diagram A, with the addition of a current-indicating meter in the plate circuit. * ), Findings 48 F. T. C. Diagram B shows the "PRECISrOX" Dynamic Electronol1eter circuit set up to test the same type 2A5. It is interesting to note and compare the remarkable similarity between this schematic and that shown in Diagram A. :Note that separate plate, screen ami grid yo1tages and loads are applied. to the rcspectiye elements of the tube under test and it is thereby being tested in the manner for which the tube has been desigIleu '" . Ii * * As previously outlned, the over-all quality or merit of a tube is absolutely dependent on both DY:\A:'lic 1IUTVAL CONDUCTANCg and EJ\IISSIOX For this reason, the "pnECISIO " Dynamic Elcctronometcl' circuit places the rUBE 1\lERIT l\ET:Em only in the plate or output section of the tubes under test, and accordingly tile resultant meter reading is directly find simultaneously proportional to both CATHODE E:\lISSIVE quality and DYNA:\IIC MUTUAL CO::DUCTANCE and wil reject all tubes which do not come up to the standards as determined from the originallabol'atol'Y tests from which the tube-chart data is gathered. .. .. * PRECISION DYNA .IIC MUTUAL CONDUCTAXCE TYPE TUBE TESTEHS COMBIKATION DYNAl'!IC MU2' UAL COXDUCTANCE TYPE TESTER AND 37 RAKGE SLTPERSENSITIVE AC-DC MULTIHANGE rESTER SEIUE S 954 The Series 954, combination tube tester and Supersensitin: multir3nge set tester is truly a COl\PLETJJ SERVICE LABORATORY answering- the evel'increasing demand for one compact unit providing every facility for the accurate and reliable solutions of tube test and all meflSllement prolJlems arising from modern Radio (A. :\1. and F. M, Television, Industrial and Laboratory practice.

PAR. 4. Before proceeding to a consideration of the circuit contained in respondents' instrument, brief reference to the structure and purpose of radio vacuum tubes js approprjate. Vacuum tubes ate sometimes referred to as diode, triode, tetrode, or pentode, depending on whether the tube has 2 , 3 , 4 , or ;) electrodes, respectively. An evacuated glass envelope or bulb houses these tube elements. The three electrodes which comprise a triode are the eathode, grid, and plate, the triode being the simplest form of tube having mutual conductance. Upon application of a voltage to the heater, which also is housed within the glass envelope, the heat causes the cathode to emit electrons which flow to the plate during periods when the plate is polarized positively and attracting these electrons, each of which has a negative potential. The grid or third electrode is placed between the cathode and the plate and is ordinarily a screen of open wire mesh which permit.s the electrons to flo\v through to the plate. the absence of some other force, as long as the plate is positive in relalion 10 the cathode, there win be a flow of electricity through the tube. The application of a voltagc on the grid affects the flow of PRECISIOK APPARATUS CO. 455 446 Findings electrons to the plate, which flow relatively increases as the voltage becomes more positive and is stayed when more negative. A vacuum tube essentially acts a,s a valve in controlling the flow of the electricity. There are, hO\veve1', no connections ,within the tube itself between the three electrodes.

In the home radio set, "arious operating voltages arb utilized to cause the basic elements of a typical tube to function. The signal placed on the air by a transmitting station is coIIected by the an tenna and that signal is applied to the grid upon its appearance in the input circuit of the tube. After being greatly modified in the output C'ircuit of the tube, it passes along and through the receiver and emerges as intelligence. The prime purpose of the tube is to modify these signals.

The eircuit contained in respolldents' instrument is so designed that a voltage is made available to the grid electrode of the tube which may be adjusted to desired value. The plate is connected to a meter in the instrument through a shunt or variable resistor ,"",which makes it possible to adjust the sensitivity or the response of the meter. The circuit from the meter is cont.inued to a source of variable volt.age which polarizes the plate of the tube positively. The voltages applied to the grid and to the plate are not D. C. voltages. They are 60cycle A. C. voltages taken from a CO!lJl1on pmycr source and are in phase with each other. They therefore simultaneously sweep from zero to a maximum and back to zero. The current through the meter (plate) conforms, but inasmuch as the meter itself has too much inertia to follow such rapid fluctuations, the meter remains steady at the average value of the sweeps of current. The operations of respondents' tube checker entails the use of a roller chart, furnished with their equipment by respondents, contah1ing data for hundreds of tube types in common use. In preparing this chart, respondents secure known to-be-good samples of a particular type of t.ube from the manufacturer. These tubes are inserted in the checker and appropriate voltage sweeps are selected which will bring the reading on the meter to the "good" scale. This is worked out in such manner that, when a, cert.ain lessened value of average plate current ensues, the meter will instead read only at the weak or bad part of the scale. The various settings are printed on the chart and by reference thereto the user of respondents' instrument can se- Ject the proper settings and his meter reading for the suspected tube will swing to a position which may be either at replace, good or weak depending on the average amount of current flowing through the tube and meter in comparison to that of a known-to- good sample tube 456 FEDERAL TRADE COMMISSION DECISIOKS Findings 48 F. T. C.

or tubes. Respondents' instrument callnot be used for checking tubes for which no data appears in the chart.

PAR. 5. l\iutual conductance is an engineering technical term used to designate one of the characteristics of a radio tube. It is the ratio of a change in output current to the change in grid voltage which produces the cha.nge in current. Thus, an analysis of the mutual conductance of a. tube a,ud an expression thereof in terms of micromhos is a means of precisely and scientifically expressing the ability of a tube to respond to a change in grid voltage. The mutual conductance of a tube is considered to be high if a large change in output current results from a. sroa1l change in grid yoltage. Available to the radio industry and used for the testing of mutual conductance during the periods mentioned in this proceeding have been proportional mutual conductance testers which determine and report mutual conductance under static conditions and mutual conductance testers which determine mutual conductance under other conditions and report the resuH either quantitatively in micromhos or bot.h quantity.atively and qualitatively through a "replace-good" meter reading. The foregoing instnunents determine and report the mutual conductance value of the tube separate and apart from the other tube characteristics. The instruments conventionally used in laboratories for measuring dynamic mutual conductance have complex circuits and included in the voltages utilized in such analyzers are constant D. C. potentials for the electrodes which can be applied in a manner simulating the actual conditions under which the tube has been designed to operate. One instrument being sold into radio repair shop channels for testing mutual conductance, prior to the 6me when this proceeding was instituted, differs from the two analyzers widely used in laboratories but it likewise affords a constant operating voltage for the grid of the tube under test and contains a patented circuit for determining mutual conductance through measuring, by means of a "bridge output circuit " the changes in plate current resulting from a signal voltage additionally applied to the grid. :Mutual conductance testers are held in high esteem by radio servicemen. Among the other tube checking instruments offered for sale and sold to the radio service and repair trade are emission testers which in no sense afford a test of mutual conductance. PAR. 6. In the advertising statements appearing in Paragraph Three, subparagraph (a), which \Were contained in the 1940 catalog of Precision Apparatus Company, the instrumcnt is designated among other things, as a complete service laboratory incorporating respondents' Precision engineered " Dynamic :Mutual Conductance PRECISION APPARATUS CO. 457 446 Findings tube tester, which in one operation effectively " tests" all radio receiving tubes for both mutual conductance and cathode structure, and reference is made to certain technical data appearing at another page of the catalog. In addition to statements cmphasizing that mutual conductance and cathode emission arc bases for the engineering design of the instrument's circuit, these data further state that certa, schematic diagrams there portrayed demonstrate great similarity between respondents' circuit and the operation of a tube in a standard audio power output stage. In this connection, it appears to the Commission that, for a pentode tube in its normal state of operation, a separate voltage conventionally is afforded for the grid entirely ill dependent of the signal intended to be modified. Other language contained in the advertising represents that the meter reading is placed in the output section of the tubes under test and that the resultant meter reading is directly and simultaneously proportional to both eathode emissive quality and mutual conductance. Nowhere is it stated in this advertising that an actual determination in micromhos is not made available. The Commission has concluded, therefore that the advertising statements set forth in Paragraph Three, subparagraph (a), as formerly used by respondents, have constituted representations that respondents' instruments designated variously as Precision DY)lamic :\iutual Conductance Tube Testers" and as "Combination Dynamic Mutual Conductance Tube Tester and 33 Range Rotary Selective A. C. D. C. Multi-Range Set Tester" are mutual conductance testers capable of performing all of the functions of such a device, and that by the use of this instrument the mutual conducttance of radio tubes can be determined.

In the advertising subsequently used by respondents, many of the statements referred to in the foregoing paragraph are retained, as is the schematic diagram purporting to depict the circuit used in respondents' equipment and the reference in such connection to the remarkable similarity of the Precision circuit to the circuit of vacuum tube. Added, however, to the descriptive material are the statements, among others, that calibration of the meter in micromhos is not afforded and that the merit indication appearing on the meter is set forth instead on a replace-weak-good scale so as to "thereby avoid the, confusion of a useless micromho scale" in determining tube merit. Nowhere in the advertising is it revealed that such change in plate current as results from a change in voltage placed by respondents' device upon t.he grid is not evaluated incident to t.he determination of tube merit. The Commission is of the view that the explanatory matter appearing in the advertising having reference to the 458 FEDERAL 'TRADE COMMISSIQX DECISIONS Findings 48 F. T. C.

properties and attributes of respondents' devices, including the suggestions made in connection with the schematic circuit dingrams serves in substantial measures to confirm and to heighten the impressions engendered by respondents, use of the words ":Mutual Conductance" in the product names and elsewhere in the advertising. Respondents' use of the term " j\futual Conductance" in the trade or product names " Combination Dynamic o111tual Conductance Type Tube Tester and RR Range Rotary Selective A. C. D. C. Multi-Range Set Tester Precision Dynamic JVIlltual Conductance Type Tube Testers " and "Combination Dynamic J\futnal Conductance Type Tube Tester and 37 Range Super-Sensitive AC-DC Multi-Range Set Tester and otherwise as set forth in Paragraph Three, subparagraph (b), hereor, in the circumstances here, at the very least constitutes a representation that respondents' tester is a mutual conductance testing instrument or a type thereat which, by segregating and appraising such change in plate current as results from a change or variation in the yoltage placed by respondents' device upon the grid of a radio tube under check and through comparing such value with that displayed by a tube of k11O\vn merit; will afford a qualitative evaluation, determination and test of the mutual conductance of an electronic tube. PAR. 7. Hespondents conceded at the outset or this proceeding that their instrument does not afford a quantitative expression or mutual conductance in micromhos, but contend that their use of the words J\futual Conductance" in the product names and in the advertising statements is justified for the reason, among others, that within reasonable limits and \with such degree of accuracy as is required in the repair and servicing of radios, the values afforded determine whether a tube is good or bad for mutual conductance. Introduced into the record by respondents is the testimony of engineers and other expert witne-sses who expressed the view that when less current is flowing at the plate of the tube being cheeked than that afforded by a known-tobe-good tube, such decrease will be proportional to the decrease in mutual conductance which has occurred. Respondents rely also on other testimony to the effect that this instrmnent responds to the average or composite mutual conductance or a radio tube over the range or sweep of the yoltagcs applied when a tube is being tested. Appropriate for consideration in this connection also is a report received into the record as rendered by Squier Signal Laboratory which states that the meter indications obtained on the Precision equipment were found to vary "almost proportionally" with the actual mutual conductance of the tubes examj ned and that the percentage deviation from proportionality behveen actual mutual conductance and the PRECISION APPARATlIS CO. 459 446 indings meter readings was not more than fifteen percent. The conclusion set forth in this report is that respondents' equipment is "of the 'mutual conductance' type. " According to 11 report of the Evans Signal Laboratory, Army Service Forces, responc1cnts circuit measures characteristics of a tube which vary in proportion with its mutual conductance.

The overall worth of a tube obviously is dependent upon the merit of its various characteristics, among which are mutual conductance amplification factor, plate re istance, and emissio11. A change in one direction on the part of certain of them causes some corresponding variation in values for another. This interrelation between and among the tube elements and characteristics moreover is illustrated by the algebraic equations ,which are used in identifying various tube values. For example, mntual conductance is expressed as amplification factor divided by plate resistance and by rearrangement of the equation, plate resistance can be expressed as amplification factor divided by the mutual conductance.

Respondents' instrument has been calibrated to compare the plate current of a suspected tube with that yielded by another tube selected in the first instance for its adequacy in respect to all characteristics including emission and mutual conductance. A comparative reading indicat.ing the presence of plate current values in a suspected tube similar to those of a new tube essentially constitutes a rough appraisal of thc overall value of the tube under check rather than a scientific test of the merit of any separate tube characteristic. By the same token, a reading revealing a marked decrease in current indicates merely a decrease in overall merit even though such decrease may be attributable to a realignment of values among the separate tube characteristics, including mutual conductance.

Another way of expressing such correlation as exists between a marked decrease in the average value of plate current and 11 decrcase in mutual conducta-nce is to state that the marked decrease in current is proportional, or roughly or almost proportional, to the decrease in mutual conductance. The Commission is of the opinion that this relationship should be rejected as the controlling factor in a determination of whether respondents' instrument is a. mutual conductance type tube tester. To conclude otherwise "ould be to jgnore the testimony adduced in this proceeding by numerOllS engineers and other expert witnesses called by counsel supporting the complaint ,,-ho have expressed opinions to the effect that respondents' product does not indicate values which can be directly interpreted in terms of mutual conductance, and that inasmuch as its reading is limited to the averagp, 460 FEDERAL TRADE COJ\ISSION DECISIONS Findings 48 F. T. C.

value of plate current flowing through the. complete cycle of power impressed upon the plate, such device does not in any way indicate the effect of any modification that might be made by a signal impressed upon the control grid itself. Weighed and appraised also in this connection is the testimony of other wit.nesses whose examinations related to the understanding of members of the radio repair and service trade of the term "J\1utual Conductance" when used to designate a tube testing instrument.

Apart from such value as it possesses in checking emission, respondents' instrument is limited to a comparison on the averages of total plate currents occurring in a known good tube and a tube under check each of ,which plate currents results from two voltages in phase with each other, one voltage being applied to the grid and the other on the plate. R.respondents' instrument does not compare R tube of known merit Rnd a suspected tube under check by comparing those variations or changes occuring in their respective plate currents which stem from a similar change or variation in voltage applied to the grids of such tubes. No instrument can be accurately designated and described as a mutual conductance type checking instrument unless it either qualitatively or quantitatively appraises or evaluates such change in plate current as solely results from a change or variation in grid voltage. Because the instrument here under consideration lacks an input circuit by means of which a. signal ean be impressed upon the control grid and does not contain an output circuit by means of which such signal could be interpreted if present, no test or applai al of mutual conductance, comparative or otherwise, is provided by respondents' checker. Upon the basis of the greater weight of the testimony and other evidence which. has been adduced in this proeee,ding, including that testimony adduced by those witnesses whose examinations related to the understanding of members of the radio repair and service trade of the term "mutual conductance" ,,,hen used to designate an instrument offered for the testing of tubes, the Commission finds that respondents' instrument is neither a mutual conductance tube tester nor a type thereof, and concludes that the advertising representations stemming from respondents' use of the term mutual conductance" in the various product or trade names by which their scientific equipment has been designated, and otherwise in the advertising therefor, as found in Paragraph Six hereof, are false, deceptive and misleading.

PAR. 8. The use by respondents of the aforesaid false and misleading statements and representations has had the tendency and capacity to mislead and deceive a substantial portion of the purchasing public PRECISION APPARATl:S CO. 461 446 Order with respect to the character, quality and performance ability of said instruments and to induce the purchase or a substantial quantity or respondents instruments as a result or the erroneous and mistaken belier so engendered.

COKCL "GSIOX The aforesaid acts and practices or respondent Solomon 'V. Welngast, as herein round, have been to the prejudice and injury or the puhlic and constitute unfair and deceptive acts and practices in commerce within the intent and meaning or the Federal Trade Commission Act.

OlWER TO CEASE AXD DESIST This proceeding having been heard upon the complaint or the Commission, as amended, the ans"Wcl' of respondents, as amended, testimony and other evidence introduced before a trial exa.miner of the Commission prior to and subsequent to the date upon which the order amending the complaint \yas issued, recommended decision of the trial examiner and the exceptions thereto, and briefs in support of and in opposition to the complaint, as amended (counsel for respondents not having appeared for oral argument), and the Commission having made its findings as to the facts and its conclusion that the respondent Solomon W. vVeingast has violated the provisions of the Federal Trade Commission Act:

It is ordeted That respondent Solomon W. vVeingast, individmtlly and doing business as a copartner under the name of Precision Apparatus Company, or trading under any other name, and said respondent's agents, representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution in commerce, as "commerce" is defined in the Federal Trade Commission Act, of instruments heretofore designated variously as "Precision Dynamic :Mutual Conductance Tube Testers ' and "Precision Dynamic :Mutual Conductance Type Tube Testers " or any substantially similar device whether sold under the same name or any other name, do forthwith cease and desist from: (1) Using the term "J\flltual Conductance" or any other word or term of similar import or meaning in any trade or product name for respondent' s instrument;

(2) Hepresenting that respondent's instrument is a mutual conductance testing instrument or a mutual conductance type testing instrument, or representing in any manner, through use of the term Iutual Conductance" or any other word or term of similar import or Order 48 F.

meaning, that respondent's instrument determines mutual conductance or indicates the quality or merit of the mutual conductance of a vacuum tube by appraising, comparatively or otherwise, such change in plate current as results from a change or variation in voltage placed by respondent's device upon the grid of a radio tube. It is jurther ordered That the complaint herein be, and it hereby is dismissed as to respondent Murray fentzer, deceased. It is jurther ordered That respondent Solomon 'V. 'Veingast shall within sixty (60) days after service upon him of this order, file with the Commission a report in writing setting forth in detail the manner and form in which he has complied with this order. &:

QUALITY PATCH CO., ETC. 463 Complaint