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1.3.3.2.1 FTC Staff Summary/Official Staff Commentary

In July 2011, the FTC issued a report entitled 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations (the “FTC Staff Summary”). The report provides an overview of the FCRA along with the agency’s Staff Summary of its interpretations of the Act, on a section by section basis.97 The Staff Summary replaces, in part, the FTC’s Official Staff Commentary, formally known as the Statement of General Policy or Interpretation: Appendix—Commentary of the Fair Credit Reporting Act (the “FTC Staff Commentary”), which the FTC rescinded simultaneously with its issuance of the Staff Summary.98

The FTC Staff Summary is reproduced at Appendix D, infra. In addition, the rescinded FTC Staff Commentary, as well as the FTC staff informal opinion letters, are available digitally as companion material to this treatise.99 An index of the informal opinion letters is included at Appendix E, infra. Annotations referring to these FTC resources may be found throughout the text of this treatise. Where appropriate, citations to the rescinded FTC Staff Commentary have been replaced by citations to equivalent sections of the FTC Staff Summary. The preamble to the FTC Staff Summary is cited as “FTC, 40 Years Staff Report Accompanying FTC Staff Summary.”

The FTC gave two reasons for rescinding the Staff Commentary. First, it noted that the agency had issued the FTC Staff Commentary in 1990, and since then the FCRA has been amended multiple times, including twice by major revisions: the Consumer Credit Reporting Reform Act of 1996100 and the Fair and Accurate Credit Transactions Act of 2003.101 Those revisions, along with “the passage of time,” rendered the Staff Commentary somewhat obsolete.102 As a second reason, the agency cited the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act),103 which created the Consumer Financial Protection Bureau (CFPB). While the Dodd-Frank Act did provide for the transfer of existing regulations and guidelines to the CFPB, the FTC concluded that the Staff Commentary was sufficiently obsolete that such a transfer would be inappropriate.104 Instead, the FTC issued the Staff Summary in part to share its extensive experience regarding the FCRA with the CFPB and the public, and to aid the CFPB as it took over the role of interpreting most of the FCRA.105

The FTC Staff Summary is not a regulation or a rule; neither was the now rescinded FTC Staff Commentary.106 They are not analogous to the Federal Reserve Board’s Staff Commentary interpreting Regulation Z, which implements the Truth in Lending Act (TILA), because TILA specifically authorized the Board (now the CFPB) to issue those comments, and a Supreme Court ruling compels judicial deference to them.107 Nonetheless, a court might accord some weight to the Staff Summary, as it contains the interpretations of the federal agency that had been given the primary, though hardly exclusive, enforcement jurisdiction of the FCRA for over forty years.108 Indeed, several courts have held that the FTC Staff Summary should be entitled to persuasive weight or deference.109

The former Staff Commentary, now rescinded, had one indicia of authority that the 2011 Staff Summary does not have: it was included in the Code of Federal Regulations.110 The CFPB may issue guidance similar to the Official Staff Commentary, given that the Dodd-Frank Act granted the agency broad rulemaking authority over the FCRA.111

Footnotes

  • 97 {95} FTC Staff Summary; Appx. D, infra.

  • 98 {96} 76 Fed. Reg. 44,462 (July 26, 2011), rescinding 16 C.F.R. § 600.1 (stating the authority and purpose of the interpretation) and § 600.2, and the Appendix to Part 600—Commentary on the Fair Credit Reporting Act.

  • 99 {97} The Commentary superseded earlier statements of general policy and interpretations, compliance with the Fair Credit Reporting Act, and unofficial staff opinion letters issued prior to May 4, 1990. These superseded items are available online as companion materials to this treatise, because some of their analyses may still be compelling, and for historical purposes.

  • 100 {98} See § 1.4.6, infra.

  • 101 {99} See § 1.4.9, infra.

  • 102 {100} 76 Fed. Reg. 44,462 (July 26, 2011).

  • 103 {101} See § 1.4.11, infra.

  • 104 {102} 76 Fed. Reg. 44,462 (July 26, 2011).

  • 105 {103} FTC, 40 Years Staff Report Accompanying FTC Staff Summary § I; Appx. D, infra. One court has held that the only role that the Staff Summary serves is to assist the CFPB, and thus refused to give it any weight. Perrill v. Equifax Info. Servs., L.L.C., 205 F. Supp. 3d 869, 877 (W.D. Tex. 2016).

  • 106 {104} Even before its rescission, the weight and influence of the FTC Staff Commentary was uncertain. By its own terms, it was a “guideline intended to clarify how the Commission will construe the FCRA in light of Congressional intent” and would inform interested parties. FTC Official Staff Commentary at 1. It was promulgated pursuant to administrative enforcement rules, making it “advisory in nature.” 16 C.F.R. §§ 1.71 to 1.73. See Massey v. On-Site Manager, Inc., 285 F.R.D. 239 (E.D.N.Y. 2012) (court not required to accept prior FTC Staff Commentary as a binding interpretation of law, but required to give it due deference); Yonter v. Aetna Fin. Co., 777 F. Supp. 490 (E.D. La. 1991). Cf. Heintz v. Jenkins, 514 U.S. 291, 298, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) (noting that FTC’s Official Staff Commentary on the Fair Debt Collection Practices Act did not bind courts).

    One court has even cited the rescission of the FTC Staff Commentary as a basis, in part, for its decision. Baron v. Kirkorsky, P.C., 2017 WL 4573614 (D. Ariz. Oct. 13, 2017) (relying on removal of provision regarding permissible purpose of judgment creditor from Staff Summary).

  • 107 {105} See, e.g., Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S. Ct. 790, 63 L. Ed. 2d 22 (1980).

  • 108 {106} See, e.g., Midland Funding, L.L.C. v. Johnson, ___ U.S. ___, 137 S. Ct. 1407, 197 L. Ed. 2d 790 (2017) (citing both the Code of Federal Regulations version of the Staff Commentary and the Staff Summary regarding proper reporting of debt discharged in bankruptcy); Gagnon v. JPMorgan Chase Bank, N.A., 563 B.R. 835 (N.D. Ill. 2017) (citing to FTC Staff Summary regarding bankruptcy reporting); Hupfauer v. Citibank, 2016 WL 4506798, at *5 (N.D. Ill. Aug. 19, 2016) (same); Henderson v. Corelogic Nat’l Background Data, L.L.C., 178 F. Supp. 3d 320, 325 (E.D. Va. 2016) (citing to FTC Staff Summary to support conclusion that criminal records bore on characteristics that are included in the definition of “consumer report”); Davis v. Equifax Info. Serv. L.L.C., 346 F. Supp. 2d 1164, 1172 (N.D. Ala. 2004) (relying on Commentary). But cf. Hawkins v. S2Verify L.L.C., 2016 WL 107197, at *3 (N.D. Cal. Jan. 11, 2016) (denying request for judicial notice of FTC Staff Summary).

  • 109 Kidd v. Thomson Reuters Corp., 299 F. Supp. 3d 400, 406 (S.D.N.Y. 2017) (suggesting that FTC Staff Summary should be accorded to the level of deference set forth by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944)), aff’d, 925 F.3d 99 (2d Cir. 2019). See also Farmer v. Phillips Agency, Inc., 285 F.R.D. 688, 696, n.12 (N.D. Ga. Sept. 20, 2012) (prior FTC Staff Commentary was not binding, but court found it instructive); Massey v. On-Site Manager, Inc., 285 F.R.D. 239 (E.D.N.Y. 2012) (court not required to accept prior FTC Staff Commentary as a binding interpretation of law, but required to give it due deference); In re Miller, 335 B.R. 335, 347 n.7 (Bankr. E.D. Pa. 2005) (court may “defer to the FTC’s interpretations of the act on issues not expressly addresses [sic] by Congress”). Cf. Henderson v. Trans Union, 2017 WL 1734036, at *3 (E.D. Va. May 2, 2017) (to determine whether defendant acted unreasonably, and thus in reckless violation of FCRA, courts should consider guidance from courts of appeal, FTC, and CFPB; citing FTC Staff Summary at *3 n.6); Jackson v. Experian Info. Sols., Inc., 2016 WL 2910027, at *4 (N.D. Ill. May 19, 2016) (declining to decide whether court should or must accord weight to FTC Staff Summary). But see Abeyta v. Bank of Am., 2016 WL 1298109, at *3 (D. Nev. Mar. 31, 2016) (refusing to give any weight to FTC Commentary because it was only interpretative, not regulation with force of law).

  • 110 {107} 16 C.F.R. pt. 600 app., rescinded by 76 Fed. Reg. 44,462 (July 26, 2001). Despite its rescission, some courts—including the U.S. Supreme Court—continue to mistakenly cite to the Code of Federal Regulations (C.F.R.) version of the Staff Commentary. See, e.g., Midland Funding, L.L.C. v. Johnson, ___ U.S. ___, 137 S. Ct. 1407, 197 L. Ed. 2d 790 (2017) (citing both the C.F.R. version of the Staff Commentary and the Staff Summary); Qureshi v. Penkhus Motor Co., 2016 WL 6779320 (D. Colo. Nov. 16, 2016) (quoting C.F.R. version of Staff Commentary as “instructive”).

  • 111 {108} See § 1.3.3.1.1, supra.