I have been asked why should we be concerned about these FTC letters. Our regulator has even said not to "worry" about them. If our regulator is not testing for compliance, why should we be concerned? Are these opinion letters used by the courts in deciding lawsuits? If our regulatory agency doesn't test for compliance, does anybody? Does the FTC have any juridsdiction over National Banks? I am strongly in favor of following the opinions issued in these letters, but I need to convince the "non-believers". What can I say to make the point that we need to comply?

The opinions do apply to national banks -- and to all other banks and thrifts. The FTC is not the regulatory agency for banks, but they are the lead agency for purposes of interpreting the Fair Credit Reporting Act. Thus, their opinions are binding on the other agencies just as an interpretation of ECOA by the Federal Reserve would be binding on national banks, finance companies and credit unions.

As for whether the courts would defer to the FTC opinion, the answer is definitely yes. As the lead interpretive agency, the FTC's opinions are strong legal authority for the courts. And in this context, it is also worth taking notice of the fact that the FTC's opinions took existing court decisions into account, so there is already case law that is consistent with these opinions.

Now for your examiner. The examiner may not have gotten the word yet. Never count on an early opinion before policy is set. In the context of setting policy, there are discussions going on now among the bank regulatory agencies about how to enforce these interpretations. There may be guidance in the future -- and it is not outside the realm of possibility that there could be some modifications. But don't count on it until you see them. For the time being, what the FTC says is law.

Lucy,
Thank you for your reply.In case I need to cite "chapter and verse", would you happen to have the citation(s) for any of the court cases you mentioned in your reply? I have access to Lexis and can print those cases if I need them for "ammunition".

They are cited in the letters themselves. If you don't have copies of the interpretations, they are posted on the FTC's website.

You'll find a link to the FTC's staff opinion letters and to the text of the FCRA on the Compliance Launch Pad under the heading "Fair Credit Reporting."

Compliance Launch Pad