FTC Interpretations of the FCRA

David A. Szwak

FTC Interpretations of the FCRA

Postby David A. Szwak » Mon Oct 10, 2005 4:55 pm

Hartman v. Lisle Park Dist.
158 F.Supp.2d 869
N.D.Ill.,2001

Under prevailing principles of administrative law, Federal Trade Commission (FTC) opinion letters interpreting the Fair Credit Reporting Act (FCRA) are entitled to respect by district court to the extent that FTC interpretations have power to persuade on issue, but opinion letters are not entitled to deference.

David A. Szwak

Postby David A. Szwak » Mon Oct 10, 2005 4:57 pm

The Supreme Court recently explained that "[i]nterpretations such as those in opinion letters--like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference." Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (referring to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Such letters are akin to an agency's interpretive guidelines, which are not "subject to the rigors of the Administrative Procedur[e] Act, including public notice and comment," Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995).

The FTC opinion letters interpreting the FCRA are entitled to respect under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those interpretations have the "power to persuade." Id. See also Johnson v. Federal Express Corp., 147 F.Supp.2d 1268, 1273-74 (M.D.Ala.2001) (concluding that the Vail letter is not entitled to deference); Robinson v. Time Warner, Inc., 187 F.R.D. 144, 148 n. 2 (S.D.N.Y.1999) (same).


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