Home > Uncategorized > Happy Anniversary: FTC celebrates 40 years of interpreting the FCRA

Happy Anniversary: FTC celebrates 40 years of interpreting the FCRA

August 5, 2011

After the FCRA became law in 1970, the Federal Trade Commission had the responsibility of enforcing and interpreting it.  Recently, however, the Obama administration and Congress created a new agency – the Consumer Financial Protection Bureau – whose jobs include interpreting and enforcing the FCRA going forward.

To celebrate its history with the FCRA and to give the new CFPB a bit of a head start, the FTC recently released a report called “40 Years of Experience with the Fair Credit Reporting Act:  An FTC Staff Report with Summary of Interpretations.”  Forty years is a long time, and the document reflects that, weighing in at 110 pages with more than 300 footnotes.

This new treatise may give me some posting material in the weeks ahead.  For now, two thoughts:

1.  Courts are generally willing to defer to an agency’s interpretation of a statute that it administers.  Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  But the FTC no longer administers the FCRA.  Is this new document entitled to any deference?

2.  The FTC report cites a number of opinion letters that it issued in the 1990s, in which a lawyer would pose a question regarding interpretation of the FCRA to the FTC, and an FTC employee would respond with guidance.  See report at notes 55-56.  The FTC discontinued this practice in recent years, and it formally withdrew all existing letters when it published this new report.  Will the CFPB revive the practice and start issuing opinion letters?  The CFPB’s task is to clarify statutes, so the possibility appears to be there.

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