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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.95 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or Interpretation: Appendix—Commentary of the Fair Credit Reporting Act (the “FTC Staff Commentary”), which the FTC rescinded simultaneously with its issuance of the Staff Summary.96

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 In addition, the rescinded FTC Staff Commentary, as well as the FTC staff informal opinion letters, are available digitally as companion material to this treatise.97 An index of the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 Where appropriate, citations to the rescinded FTC Staff Commentary have been replaced by citations to equivalent sections of the FTC Staff Summary.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 199698 and the Fair and Accurate Credit Transactions Act of 2003.99 Those revisions, along with “the passage of time,” rendered the Staff Commentary somewhat obsolete.100 As a second reason, the agency cited the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act),101 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.102 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.103

The FTC Staff Summary is not a regulation or a rule; neither was the now rescinded FTC Staff Commentary.104 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.105 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.106

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.107 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.108

Footnotes

  • 95 FTC Staff Summary; Appx. D, infra.

  • 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.

  • 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.

  • 98 See § 1.4.6, infra.

  • 99 See § 1.4.9, infra.

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

  • 101 See § 1.4.11, infra.

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

  • 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. Services, L.L.C., 2016 WL 4572212, at *6 (W.D. Tex. Aug. 31, 2016).

  • 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).

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

  • 106 See, e.g., Hupfauer v. Citibank, 2016 WL 4506798, at *5 (N.D. Ill. Aug. 19, 2016) (citing to FTC Staff Summary regarding bankruptcy reporting); 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”); 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); Davis v. Equifax Info. Serv. L.L.C., 346 F. Supp. 2d 1164, 1172 (N.D. Ala. 2004) (relying on Commentary); 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. 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); 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).

  • 107 16 C.F.R. pt. 600 app., rescinded by 76 Fed. Reg. 44,462 (July 26, 2001).

  • 108 See § 1.3.3.1.1, supra.