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1.3.3.2.2 FTC informal opinion letters

Prior to the FTC Staff Commentary, FTC staff issued hundreds of informal opinion letters. After the FTC Staff Commentary, the FTC issued only a trickle of letters. The volume of letters grew after passage of the Consumer Credit Reporting Reform Act of 1996 (1996 Reform Act), which amended the FCRA in many respects, and then stopped after June 28, 2001. The FTC did not issue any FCRA-related informal staff opinions between June 2001 and May 2011, and its website had stated as follows: “Except in unusual circumstances, the staff will no longer issue written interpretations of the FCRA.”109 Then, in 2011 and 2012, the FTC issued several informal staff opinions concerned with the applicability of the FCRA to social media and mobile application websites,110 and has issued more information staff opinions since then.111

The informal staff opinion letters do not bind even the FTC, but do bear the imprimatur of an FTC employee.112 The weight accorded these letters should depend on their persuasiveness. The letters were written in response to written inquiries from CRAs, users, and consumers.

Unfortunately the Supreme Court, in one of its few FCRA cases, significantly undermined the authority of FTC informal staff opinions. In Safeco Ins. Co. v. Burr,113 the Court held that the defendant had not acted in reckless disregard of the law, despite the fact that an informal staff opinion letter directly contradicted the defendant’s interpretation of the law. The Court trivialized the informal staff opinion and noted that the FTC has “only enforcement responsibility, not substantive rulemaking authority”114 with respect to the specific provision at issue.

While the Supreme Court in Safeco concluded that informal staff opinion letters are not authoritative, courts might look to them for guidance.115 One court noted that “numerous courts interpreting the FCRA after Safeco have found such opinion letters to be persuasive.”116 In general, courts have looked to the FTC, not other agencies, for guidance in interpreting the FCRA.117

Footnotes

  • 109 {109} See www.ftc.gov (viewed prior to May 2011).

  • 110 {110} Fed. Trade Comm’n, Warning Letter to Everify, Inc. d/b/a Police Records (Jan. 25, 2012); Fed. Trade Comm’n, Warning Letter to InfoPay, Inc. d/b/a Criminal Pages (Jan. 25, 2012); Fed. Trade Comm’n, Warning Letter to Intelligator, Inc. (Jan. 25, 2012); Fed. Trade Comm’n, Letter to Renee Jackson, Counsel for Social Intelligence Corp. (May 9, 2011).

  • 111 {111} See Appx. E, infra.

  • 112 {112} See Fischl v. GMAC, 708 F.2d 143, 149 n.4 (5th Cir. 1983) (letters provide “helpful guidance”); Montgomery v. Wells Fargo Bank, 2012 WL 5497950, *3, n.2 (N.D. Cal. Nov. 13, 2012) (staff opinion letters not entitled to Chevron deference, but courts frequently look to them for guidance and might follow them to the extent they are helpful).

    Informal FTC Staff Opinion Letters are also common under the Fair Debt Collection Practices Act. For the judicial weight accorded these analogous interpretations, see National Consumer Law Center, Fair Debt Collection (9th ed. 2018), updated at www.nclc.org/library. Cf. Watts v. Key Dodge Sales, Inc., 707 F.2d 847, 850–52 (5th Cir. 1983) (discussion of precedential value of official and unofficial staff interpretations of Federal Reserve Board).

  • 113 {113} 551 U.S. 47, 70 n.19 (2007).

  • 114 {114} Id. at 70.

  • 115 {115} Heaton v. Soc. Financial, Inc., 2015 WL 6744525, at *4 (N.D. Cal. Nov. 4, 2015) (finding FTC informal staff opinion persuasive, even though not binding); Harris v. Home Depot U.S.A., Inc., 114 F. Supp. 3d 868, 870 (N.D. Cal. 2015) (relying on FTC opinion letter explaining that conduct at issue was unlawful); Ramos v. Genesis Healthcare, L.L.C., 141 F. Supp. 3d 341, 347, n.4 (E.D. Pa. 2015) (“We may rely on FTC authoritative guidance in interpreting the FCRA”; citing FTC staff opinion letter in support of decision); Milbourne v. JRK Residential Am., L.L.C., 92 F. Supp. 3d 425 (E.D. Va. 2015) (FTC advisory opinions are not authoritative, but can be persuasive); Montgomery v. Wells Fargo Bank, 2012 WL 5497950, *3, n.2 (N.D. Cal. Nov. 13, 2012) (staff opinion letters not entitled to Chevron deference, but courts frequently look to them for guidance and might follow them to the extent they are helpful); Singleton v. Domino’s Pizza, L.L.C., 2012 WL 245965 (D. Md. Jan. 25, 2012).

  • 116 {116} Singleton v. Domino’s Pizza, L.L.C., 2012 WL 245965 (D. Md. Jan. 25, 2012) (emphasis in original, citations omitted). See also Milbourne v. JRK Residential Am., L.L.C., 92 F. Supp. 3d 425 (E.D. Va. 2015) (agreeing with Singleton v. Domino’s Pizza).

  • 117 {117} See Dreher v. Experian Info. Solutions, Inc., 71 F. Supp. 3d 572 (E.D. Va. 2014) (relevant agency to look to for authority in assessing willfulness is the FTC, not FDIC; “Experian’s reliance on the FDIC would be no more reasonable than an airline relying on the advice of NASA to ensure compliance with the Clean Air Act.”).