# Affiliate Marketing Rule > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE7-21348 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 30, 2007 - **Citation:** 72 FR 61424 ## Text FEDERAL TRADE COMMISSION 16 CFR Parts 680 and 698 [Regulation No. 411006] RIN 3084-AA94 Affiliate Marketing Rule AGENCY: Federal Trade Commission ACTION: Final rule. SUMMARY: The Federal Trade Commission (FTC or Commission) is publishing a final rule to implement the affiliate marketing provisions in section 214 of the Fair and Accurate Credit Transactions Act of 2003, which amends the Fair Credit Reporting Act. The final rule generally prohibits a person from using information received from an affiliate to make a solicitation for marketing purposes to a consumer, unless the consumer is given notice and a reasonable opportunity and a reasonable and simple method to opt out of the making of such solicitations. The FACT Act requires certain other federal agencies to publish similar rules, and mandates that the FTC and other agencies consult and cooperate so that their regulations implementing this provision are consistent and comparable with one another. DATES: This rule is effective on January 1, 2008. The mandatory compliance date for this rule is October 1, 2008. FOR FURTHER INFORMATION CONTACT: Loretta Garrison and Anthony Rodriguez, Attorneys, Federal Trade Commission, (202) 326-2252, Division of Privacy and Identity Protection, Federal Trade Commission, 601 New Jersey Avenue, NW, Washington, DC 20580. SUPPLEMENTARY INFORMATION: I. Background The Fair Credit Reporting Act The Fair Credit Reporting Act (FCRA or Act), which was enacted in 1970, sets standards for the collection, communication, and use of information bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. 15 U.S.C. 1681-1681x. In 1996, the Consumer Credit Reporting Reform Act extensively amended the FCRA. Pub. L. 104-208, 110 Stat. 3009. The FCRA, as amended, provides that a person may communicate to an affiliate or a non-affiliated third party information solely as to transactions or experiences between the consumer and the person without becoming a consumer reporting agency. 1 In addition, the communication of such transaction or experience information among affiliates will not result in any affiliate becoming a consumer reporting agency. See FCRA §§ 603(d)(2)(A)(i) and (ii). 1 The FCRA creates substantial obligations for a person that meets the definition of a “consumer reporting agency” in section 603(f) of the statute. Section 603(d)(2)(A)(iii) of the FCRA provides that a person may communicate “other” information—that is, information that is not transaction or experience information—among its affiliates without becoming a consumer reporting agency if it is clearly and conspicuously disclosed to the consumer that such information may be communicated among affiliates and the consumer is given an opportunity, before the information is communicated, to “opt out” or direct that the information not be communicated among such affiliates, and the consumer has not opted out. The Fair and Accurate Credit Transactions Act of 2003 The President signed into law the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) on December 4, 2003. Pub. L. 108-159, 117 Stat. 1952. In general, the FACT Act amends the FCRA to enhance the ability of consumers to combat identity theft, increase the accuracy of consumer reports, restrict the use of medical information in credit eligibility determinations, and allow consumers to exercise greater control regarding the type and number of solicitations they receive. Section 214 of the FACT Act added a new section 624 to the FCRA. This provision gives consumers the right to restrict a person from using certain information obtained from an affiliate to make solicitations to that consumer. Section 624 generally provides that if a person receives certain consumer eligibility information from an affiliate, the person may not use that information to make solicitations to the consumer about its products or services, unless the consumer is given notice and an opportunity and a simple method to opt out of such use of the information, and the consumer does not opt out. The statute also provides that section 624 does not apply, for example, to a person using eligibility information: (1) to make solicitations to a consumer with whom the person has a pre-existing business relationship; (2) to perform services for another affiliate subject to certain conditions; (3) in response to a communication initiated by the consumer; or (4) to make a solicitation that has been authorized or requested by the consumer. Unlike the FCRA affiliate sharing opt-out and the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq. , (GLBA) non-affiliate sharing opt-out, which apply indefinitely, section 624 provides that a consumer’s affiliate marketing opt-out election must be effective for a period of at least five years. Upon expiration of the opt-out period, the consumer must be given a renewal notice and an opportunity to renew the opt-out before information received from an affiliate may be used to make solicitations to the consumer. Section 624 governs the use of information by an affiliate, not the sharing of information among affiliates, and thus is distinct from the affiliate sharing opt-out under section 603(d)(2)(A)(iii) of the FCRA. Nevertheless, the affiliate marketing and affiliate sharing opt-outs and the information subject to the two opt-outs overlap to some extent. As noted above, the FCRA allows transaction or experience information to be shared among affiliates without giving the consumer notice and an opportunity to opt out, but provides that “other” information, such as information from credit reports and credit applications, may not be shared among affiliates without giving the consumer notice and an opportunity to opt out. The new affiliate marketing opt-out applies to both transaction or experience information and “other” information. Thus, certain information will be subject to two opt-outs, a sharing opt-out and a marketing use opt-out. Section 214(b) of the FACT Act requires the FTC, the Federal banking agencies, 2 the Securities and Exchange Commission (SEC), and the National Credit Union Administration (NCUA) to prescribe regulations, in consultation and coordination with each other, to implement the FCRA’s affiliate marketing opt-out provisions. In adopting its regulation, the Commission must ensure that the affiliate marketing notification methods provide a simple means for consumers to make choices under section 624, consider the affiliate sharing notification practices employed on the date of enactment by persons subject to section 624, and ensure that notices may be coordinated and consolidated with other notices required by law. 2 The Federal banking agencies are the Board of Governors of the Federal Reserve System (Board), the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the Office of Thrift Supervision (OTS). II. The Proposed Regulation The Commission published its notice of proposed rulemaking in the Federal Register on June 15, 2004 (69 FR 33324) to implement section 214 of the FACT Act. 3 3 On July 15, 2004, the Federal banking agencies and the NCUA published their proposed affiliate marketing rule in the Federal Register (69 FR 42502). The SEC published its proposed affiliate marketing rule in the Federal Register on July 14, 2004 (69 FR 42301). The proposal defined the key terms “pre-existing business relationship” and “solicitation” essentially as defined in the statute. The Commission did not propose to include additional circumstances within the meaning of “pre-existing business relationship” or other types of communications within the meaning of “solicitation.” To address the scope of the affiliate marketing opt-out, the proposal defined “eligibility information” to mean any information the communication of which would be a “consumer report” if the statutory exclusions from the definition of “consumer report” in section 603(d)(2)(A) of the FCRA for transaction or experience information and for “other” information that is subject to the affiliate-sharing opt-out did not apply. The Commission substituted the term “eligibility information” for the more complicated statutory language regarding the communication of information that would be a consumer report, but for clauses (i), (ii), and (iii) of section 603(d)(2)(A) of the FCRA. 4 In addition, the proposal incorporated each of the scope limitations contained in the statute, such as the pre-existing business relationship exception. 4 Under section 603(d)(1) of the FCRA, a “consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, employment purposes, or any other purpose authorized in section 604 of the FCRA. 15 U.S.C. 1681a(d). Section 624 does not state which affiliate must give the consumer the affiliate marketing opt-out notice. The proposal provided that the person communicating information about a consumer to its affiliate would be responsible for satisfying the notice requirement, if applicable. A rule of construction provided flexibility to allow the notice to be given by the person that communicates information to its affiliate, by the person’s agent, or through a joint notice with one or more other affiliates. The Commission designed this approach to provide flexibility and to facilitate the use of a single coordinated notice, while taking into account existing affiliate sharing notification practices. At the same time, the approach sought to ensure that the notice would be effective because it generally would be provided by or on behalf of an entity from which the consumer would expect to receive important notices, and would not be provided along with solicitations. The proposal also provided guidance on the contents of the opt-out notice, what constitutes a reasonable opportunity to opt out, reasonable and simple methods of opting out, and the delivery of opt-out notices. Finally, the proposal provided guidance on the effect of the limited duration of the opt-out and the requirement to provide an extension notice upon expiration of the opt-out period. III. Overview of Comments Received The Commission received 49 comments. In addition, the Commission considered the comments submitted to the Federal banking agencies, the NCUA, and the SEC. Many commenters sent copies of the same letter to more than one agency. The Commission received comments from a variety of banks, thrifts, credit unions, credit card companies, mortgage lenders, other non-bank creditors, and industry trade associations. The Commission also received comments from consumer groups, the National Association of Attorneys General (“NAAG”), and individual consumers. Most industry commenters objected to several key aspects of the proposal. The most significant areas of concern raised by industry commenters related to which affiliate would be responsible for providing the notice, the scope of certain exceptions to the notice and opt-out requirement, and the content or the inclusion of definitions for terms such as “clear and conspicuous” and “pre-existing business relationship.” Consumer groups and NAAG generally supported the proposal, although these commenters believed that the proposal could be strengthened in certain respects. A more detailed discussion of the comments is contained in the Section-by-Section Analysis below. IV. Section-by-Section Analysis Section 680.1 Purpose and Scope Section 680.1 of the proposal set forth the purpose and scope of the regulation. The Commission received few comments on this section. Section 680.1(b) of the final rule identifies the persons covered by this part of the Commission’s rule. Section 680.2 Examples Proposed § 680.2 described the scope and effect of the examples included in the proposed rule. Most commenters supported the proposed use of non-exclusive examples to illustrate the operation of the rule. One commenter, concerned that the use of examples would increase the risk of litigation, urged the Commission to delete all examples. The Commission does not believe the use of illustrative examples will materially increase the risk of litigation, but rather will provide useful guidance for compliance purposes, which may alleviate litigation risks for institutions. As § 680.2 states, examples in a paragraph illustrate only the issue described in the paragraph and do not illustrate any other issue that may arise in the part. Similarly, the examples do not illustrate any issues that may arise under other laws or regulations. Section 680.3 Definitions Section 680.3 of the proposal contained definitions for the following terms: “Act,” “affiliate” (as well as the related terms “company” and “control”); “clear and conspicuous”; “consumer”; “eligibility information”; “person”; “pre-existing business relationship”; “solicitation”; and, “you.” Those definitions that elicited comment are discussed below. Affiliate, Common Ownership or Common Corporate Control, and Company The proposed rule included definitions for “affiliate” as well as for the related terms “control” and “company.” For the reasons discussed below, the final rule substituted “common ownership or common corporate control” as a substitute for the definition of “control,” and renumbered it as § 680.3(d). The term “company” is renumbered as § 680.3(e). Several FCRA provisions apply to information sharing with persons “related by common ownership or affiliated by corporate control,” “related by common ownership or affiliated by common corporate control,” or “affiliated by common ownership or common corporate control.” E.g. , FCRA, sections 603(d)(2), 615(b)(2), and 625(b)(2). Each of these provisions was enacted as part of the 1996 amendments to the FCRA. Similarly, section 2 of the FACT Act defines the term “affiliate” to mean “persons that are related by common ownership or affiliated by corporate control.” In contrast, the GLBA defines “affiliate” to mean “any company that controls, is controlled by, or is under common control with another company.” See 15 U.S.C. 6809(6). In the proposal, the Commission sought to harmonize the various FCRA and FACT Act formulations by defining “affiliate” to mean “any person that is related by common ownership or common corporate control with another person.” Industry commenters generally supported the Commission’s goal of harmonizing the various FCRA definitions of “affiliate” for consistency. Many of these commenters, however, believed that the most effective way to do this was for the Commission to incorporate into the FCRA the definition of “affiliate” used in the GLBA privacy regulations. In addition, a few industry commenters urged the Commission to incorporate into the definition of “affiliate” certain concepts from California’s Financial Information Privacy Act so as to exempt certain classes of corporate affiliates from the restrictions on affiliate sharing or marketing. 5 5 These commenters noted that the California law places no restriction on information sharing among affiliates if they: (1) are regulated by the same or similar functional regulators; (2) are involved in the same broad line of business, such as banking, insurance, or securities; and (3) share a common brand identity. The Commission does not believe there is a substantive difference between the FACT Act definition of “affiliate” and the definition of “affiliate” in section 509 of the GLBA. The Commission is not aware of any circumstances in which two entities would be affiliates for purposes of the FCRA but not for purposes of the GLBA privacy rule, or vice versa. Also, even though affiliated entities have had to comply with different FCRA and GLBA formulations of the “affiliate” definition since 1999, commenters did not identify any specific compliance difficulties or uncertainty resulting from the fact that the two statutes use somewhat different wording to describe what constitutes an affiliate. Consistent with the definition of “affiliate” adopted by the Federal banking agencies in the final medical information rules, the Commission declines to incorporate into the definition of “affiliate” exceptions for entities regulated by the same or similar functional regulators, entities in the same line of business, or entities that share a common brand or identity. See 70 FR 70664-70665 (Nov. 22, 2005). These exceptions were incorporated into the California Financial Information Privacy Act in August 2003. 6 Congress, however, did not incorporate these exceptions from California law into the definition of “affiliate” when it enacted the FACT Act at the end of 2003. Accordingly, the Commission believes that the approach adopted here best effectuates the intent of Congress. 6 See Cal. Financial Code § 4053(c). Under the GLBA privacy rule, the definition of “control” determines whether two or more entities meet the definition of “affiliate.” 7 The Commission included the same definition of “control” in the proposal and received no comments on the proposed definition. The Commission interprets the phrase “related by common ownership or common corporate control” used in the FACT Act to have the same meaning as “control” in the GLBA privacy rule. For example, if an individual owns 25 percent of two companies, the companies would be affiliates under both the GLBA and FCRA definitions. However, the individual would not be considered an affiliate of the companies because the definition of “affiliate” is limited to companies. 7 See 16 C.F.R. 313.3(g). The proposal also defined the term “company” to mean any corporation, limited liability company, business trust, general or limited partnership, association, or similar organization. The proposed definition of “company” excluded some entities that are “persons” under the FCRA, including estates, cooperatives, and governments or governmental subdivisions or agencies, as well as individuals. Clear and Conspicuous Proposed § 680.3(c) defined the term “clear and conspicuous” to mean reasonably understandable and designed to call attention to the nature and significance of the information presented. Under this definition, institutions would retain flexibility in determining how best to meet the clear and conspicuous standard. The supplementary information to the proposal provided guidance regarding a number of practices that institutions might wish to consider in making their notices clear and conspicuous. These practices were derived largely from guidance included in the GLBA privacy rule. Industry commenters urged the Commission not to define “clear and conspicuous” in the final rule. The principal objection these commenters raised was that this definition would significantly increase the risk of litigation and civil liability. Although these commenters recognized that the proposed definition was derived from the GLBA privacy regulations, they noted that compliance with the GLBA privacy regulations is enforced exclusively through administrative action, not through private litigation. These commenters also stated that the Federal Reserve Board had withdrawn a similar proposal to define “clear and conspicuous” for purposes of Regulations B, E, M, Z, and DD, in part because of concerns about civil liability. Some industry commenters believed that it was not necessary to define the term in order for consumers to receive clear and conspicuous disclosures based on industry’s experience in providing clear and conspicuous affiliate sharing opt-out notices. Consumer groups believed that incorporation of the standard and examples from the GLBA privacy regulations was not adequate because they did not believe that the existing standard has proven sufficient to ensure effective privacy notices. Except for certain non-substantive changes made for purposes of clarity, the definition of “clear and conspicuous” is the same as in the proposal and is substantively the same as the definition used in the GLBA privacy rule. The Commission believes that the clear and conspicuous standard for the affiliate marketing opt-out notices should be substantially similar to the standard that applies to GLBA privacy notices because the affiliate marketing opt-out notice may be provided on or with the GLBA privacy notice. In defining “clear and conspicuous,” the Commission believes it is more appropriate to focus on the affiliate marketing opt-out notices that are the subject of this rulemaking, rather than adopting a generally applicable definition governing all consumer disclosures under the FCRA. This approach gives the Commission the flexibility to refine or clarify the clear and conspicuous requirement for different disclosures, if necessary. The statute directs the Commission to provide specific guidance regarding how to comply with the clear and conspicuous standard. See 15 U.S.C. 1681s-3(a)(2)(B). For that reason, the Commission does not agree with commenters that requested the elimination of the definition of “clear and conspicuous” and related guidance. Rather, the Commission believes it is necessary to define “clear and conspicuous” in the final rule and provide specific guidance for how to satisfy that standard in connection with this notice. Accordingly, the final rule contains two types of specific guidance on satisfying the requirement to provide a clear and conspicuous opt-out notice. First, as in the proposal, the supplementary information to the final rule describes certain techniques that may be used to make notices clear and conspicuous. These techniques are described below. Second, the Commission has adopted model forms that may, but are not required to, be used to facilitate compliance with the affiliate marketing notice requirements. The requirement for clear and conspicuous notices would be satisfied by the appropriate use of one of the model forms. As noted in the supplementary information to the proposal, institutions may wish to consider a number of methods to make their notices clear and conspicuous. The various methods described below for making a notice clear and conspicuous are suggestions that institutions may wish to consider in designing their notices. Use of any of these methods alone or in combination is voluntary. Institutions are not required to use any particular method or combination of methods to make their disclosures clear and conspicuous. Rather, the particular facts and circumstances will determine whether a disclosure is clear and conspicuous. A notice or disclosure may be made reasonably understandable through various methods that include: using clear and concise sentences, paragraphs, and sections; using short explanatory sentences; using bullet lists; using definite, concrete, everyday words; using active voice; avoiding multiple negatives; avoiding legal and highly technical business terminology; and avoiding explanations that are imprecise and are readily subject to different interpretations. In addition, a notice or disclosure may be designed to call attention to the nature and significance of the information in it through various methods that include: using a plain-language heading; using a typeface and type size that are easy to read; using wide margins and ample line spacing; and using boldface or italics for key words. Further, institutions that provide the notice on a Web page may use text or visual cues to encourage scrolling down the page, if necessary, to view the entire notice and may take steps to ensure that other elements on the Web site (such as text, graphics, hyperlinks, or sound) do not distract attention from the notice. When a notice or disclosure is combined with other information, methods for designing the notice or disclosure to call attention to the nature and significance of the information in it may include using distinctive type sizes, styles, fonts, paragraphs, headings, graphic devices, and appropriate groupings of information. However, there is no need to use distinctive features, such as distinctive type sizes, styles, or fonts, to differentiate an affiliate marketing opt-out notice from other components of a required disclosure, for example, where a GLBA privacy notice combines several opt-out disclosures in a single notice. Moreover, nothing in the clear and conspicuous standard requires segregation of the affiliate marketing opt-out notice when it is combined with a GLBA privacy notice or other required disclosures. The Commission recognizes that it will not be feasible or appropriate to incorporate all of the methods described above all the time. The Commission recommends, but does not require, that institutions consider the methods described above in designing their opt-out notices. The Commission also encourages the use of consumer or other readability testing to devise notices that are understandable to consumers. Finally, although the Commission understands the concerns of some industry commenters about the potential for civil liability, the Commission believes that these concerns are mitigated by the safe harbors afforded by the model forms in Appendix C to Part 698. The Commission notes that the affiliate sharing opt-out notice under section 603(d)(2)(A)(iii) of the FCRA, which may be enforced through private rights of action, must be included in the GLBA privacy notice. Therefore, the affiliate sharing opt-out notice generally is disclosed in a manner consistent with the clear and conspicuous standard set forth in the GLBA privacy regulations. Commenters did not identify any litigation that has resulted from the requirement to provide a clear and conspicuous affiliate sharing opt-out notice. The Commission believes that compliance with the examples and use of the model forms, although optional, should minimize the risk of litigation. Concise Proposed § 680.21(b) defined the term “concise” to mean a reasonably brief expression or statement. The proposal also provided that a notice required by this part may be concise even if it is combined with other disclosures required or authorized by federal or state law. Such disclosures include, but are not limited to, a GLBA privacy notice, an affiliate sharing notice under section 603(d)(2)(A)(iii) of the FCRA, and other consumer disclosures. Finally, the proposal clarified that the requirement for a concise notice would be satisfied by the appropriate use of one of the model forms contained in proposed Appendix A to the Commission’s rule, although use of the model forms is not required. The Commission received no comments on the proposed definition of “concise.” The final rule renumbers the definition of “concise” as § 680.3(f). The reference to the model forms has been moved to Appendix C to Part 698, but otherwise the definition is adopted as proposed. Consumer Proposed paragraph (e) defined the term “consumer” to mean an individual. This definition is identical to the definition of “consumer” in section 603(c) of the FCRA. Several commenters asked the Commission to narrow the proposed definition to apply only to individuals who obtain financial products or services primarily for personal, family, or household purposes, in part to achieve consistency with the definition of “consumer” in the GLBA. The FCRA’s definition of “consumer,” however, differs from, and is broader than, the definition of that term in the GLBA. The Commission believes that the use of distinct definitions of “consumer” in the two statutes reflects differences in the scope and objectives of each statute. For purposes of this definition, an individual acting through a legal representative would qualify as a consumer. The final rule renumbers “consumer” as § 680.3(g) but otherwise adopts it without change. Eligibility Information Proposed § 680.3(g) defined the term “eligibility information” to mean any information the communication of which would be a consumer report if the exclusions from the definition of “consumer report” in section 603(d)(2)(A) of the FCRA did not apply. As proposed, eligibility information would include a person’s own transaction or experience information, such as information about a consumer’s account history with that person, and “other” information under section 603(d)(2)(A)(iii), such as information from consumer reports or applications. Most commenters generally supported the proposed definition of “eligibility information” as an appropriate means of simplifying the statutory terminology without changing the scope of the information covered by the rule. A number of commenters requested that the Commission clarify that certain types of information do not constitute eligibility information, such as name, address, telephone number, Social Security number, and other identifying information. One commenter requested the exclusion of publicly available information from the definition. Another commenter requested additional clarification regarding the term “transaction or experience information.” A few commenters suggested that the Commission include examples of what is and is not included within “eligibility information.” Finally, one commenter urged the Commission to revise the definition to restate much of the statutory definition of “consumer report” to eliminate the need for cross-references. The final rule renumbers the definition of “eligibility information” as 680.3(h). The Commission has revised the definition to clarify that the term “eligibility information” does not include aggregate or blind data that does not contain personal identifiers. Examples of personal identifiers include account numbers, names, or addresses, as indicated in the definition, as well as Social Security numbers, driver’s license numbers, telephone numbers, or other types of information that, depending on the circumstances or when used in combination, could identify the individual. The Commission also believes that further clarification of, or exclusions from, the term “eligibility information,” such as the categorical exclusion of names, addresses, telephone numbers, other identifying information, or publicly available information, would directly implicate the definitions of “consumer report” and “consumer reporting agency” in sections 603(d) and (f), respectively, of the FCRA. The Commission decided not to define the terms “consumer report” and “consumer reporting agency” in this rulemaking and not to interpret the meaning of terms used in those definitions, such as “transaction or experience” information. The Commission also notes that financial institutions have relied on these statutory definitions for many years. Person Proposed paragraph (h) defined the term “person” to mean any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity. This definition is identical to the definition of “person” in section 603(b) of the FCRA. One commenter requested clarification of how the proposed definition of “person” would affect other provisions of the affiliate marketing rule. Specifically, this commenter asked how the supplementary information’s discussion of agents might affect the scope provisions of the rule. The supplementary information to the proposal stated that a person may act through an agent, including but not limited to a licensed agent (in the case of an insurance company) or a trustee. The supplementary information also provided that actions taken by an agent on behalf of a person that are within the scope of the agency relationship would be treated as actions of that person. The Commission included these statements to address comprehensively the status of agents and to eliminate the need to refer specifically to licensed agents in the proposed definition of “pre-existing business relationship.” As discussed below, many commenters believed that licensed agents should be expressly included in the definition of “pre-existing business relationship.” The Commission has revised the final rule in response to those comments. By specifically addressing licensed agents, the final rule does not alter the general principles of principal-agent relationships that apply to all agents, not just licensed agents. The Commission will treat actions taken by an agent on behalf of a person that are within the scope of the agency relationship as actions of that person, regardless of whether the agent is a licensed agent or not. The final rule renumbers the definition of “person” as § 680.3(i). Pre-Existing Business Relationship Proposed § 680.3(i) defined the term “pre-existing business relationship” to mean a relationship between a person and a consumer based on the following: (1) a financial contract between the person and the consumer that is in force; (2) the purchase, rental, or lease by the consumer of that person’s goods or services, or a financial transaction (including holding an active account or a policy in force or having another continuing relationship) between the consumer and that person, during the 18-month period immediately preceding the date on which a solicitation covered by this part is sent to the consumer; or (3) an inquiry or application by the consumer regarding a product or service offered by that person during the three-month period immediately preceding the date on which a solicitation covered by this part is sent to the consumer. The proposed definition generally tracked the statutory definition contained in section 624 of the FCRA, with certain revisions for clarity. Although the statute gave the Commission the authority to identify by regulation other circumstances that qualify as a pre-existing business relationship, the Commission did not propose to exercise this authority. In the final rule, the definition of “pre-existing business relationship” has been renumbered as §680.3(j). Industry commenters suggested certain revisions to the proposed definition of “pre-existing business relationship.” Many industry commenters asked the Commission to include in the definition statutory language relating to “a person’s licensed agent.” A number of these commenters noted that this concept was particularly important to the insurance industry where independent, licensed agents frequently act as the main point of contact between the consumer and the insurance company. In the final rule, the phrase “or a person’s licensed agent” has been added to the definition of “pre-existing business relationship” to track the statutory language. For example, assume that a person is a licensed agent for the affiliated ABC life, auto, and homeowners’ insurance companies. A consumer purchases an ABC auto insurance policy through the licensed agent. The licensed agent may use eligibility information about the consumer obtained in connection with the ABC auto policy it sold to the consumer to market ABC life and homeowner’s insurance policies to the consumer for the duration of the pre-existing business relationship without offering the consumer the opportunity to opt out of that use. Regarding the first basis for a pre-existing business relationship (a financial contract in force), several industry commenters asked the Commission to clarify that a financial contract includes any in-force contract that relates to a financial product or service covered by title V of the GLBA. One commenter objected to the requirement that the contract be in force on the date of the solicitation. This commenter believed that the Commission should interpret the statute to permit the exception to apply if a contract is in force at the time the affiliate uses the information, rather than when the solicitation is sent, noting that there may be a delay between the use and the solicitation. The Commission has adopted the first prong of the definition of “pre-existing business relationship” as proposed. Although a comprehensive definition of the term “financial contract” has not been included in the final rule, the Commission construes the statutory term “financial contract” at least to include a contract that relates to a consumer’s purchase or lease of a financial product or service that a financial holding company could offer under section 4(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)). In addition, a financial contract which is in force will, in virtually all instances, qualify as a “financial transaction,” as that term is used in the second prong of the definition of “pre-existing business relationship.” The Commission does not agree with the suggestion that the financial contract should be in force on the date of use rather than on the date the solicitation is sent. The approach taken in the proposed and final rule is consistent with the approach used in the other two prongs of the statutory definition. Industry commenters also suggested certain clarifications to the second basis for a pre-existing business relationship—a purchase, rental, or lease by the consumer of the person’s goods or services, or a financial transaction between the consumer and the person during the preceding 18 months. Several industry commenters noted that, notwithstanding the example in the proposal regarding a lapsed insurance policy, it was not clear from what point in time the 18-month period begins to run in the case of many purchase, rental, lease, or financial transactions. These commenters asked the Commission to clarify that the 18-month period begins to run at the time all contractual responsibilities of either party under the purchase, rental, lease, or financial transaction expire. In addition, some commenters indicated that the term “active account” should be clarified to mean any account with outstanding contractual responsibilities on either side of an account relationship, regardless of whether specific transactions do or do not occur on that account. The Commission has adopted the second prong of the definition of “pre-existing business relationship” as proposed. The Commission declines to interpret the term “active account” as requested by some commenters. The Commission notes that section 603(r)(4) of the FCRA defines the term “account” to have the same meaning as in section 903 of the Electronic Fund Transfer Act (EFTA). Under the EFTA, the term “account” means a demand deposit, savings deposit, or other asset account established primarily for personal, family, or household purposes. Some commenters, however, apparently believed that the term “active account” included extensions of credit. Credit extensions presumably would qualify as “another continuing relationship,” as used in the definition of “pre-existing business relationship.” More generally, however, even though a “financial transaction” would include in virtually all cases a financial contract which is in force, as noted above, the Commission does not believe it is appropriate to state that the 18-month period begins to run when all outstanding contractual responsibilities of both parties expire, regardless of whether specific transactions occur. Such a clarification would not appropriately address circumstances such as charge-offs, bankruptcies, early terminations, or extended periods of credit inactivity that could trigger commencement of the 18-month period. In addition, some contract provisions, such as arbitration clauses and choice of law provisions, may continue to have legal effect after all contractual performance has ended. The Commission does not believe that the continued effectiveness of such provisions should delay commencement of the 18-month period. Nevertheless, the Commission believes that a few examples may provide useful guidance to facilitate compliance. For example, in the case of a closed-end mortgage or auto loan, the 18-month period generally would begin to run when the consumer pays off the outstanding balance on the loan. In a lease or rental transaction, the 18-month period generally would begin to run when the lease or rental agreement expires or is terminated by mutual agreement. In the case of general purpose credit cards that are issued with an expiration date, the 18-month period generally would begin to run when the consumer pays off the outstanding balance on the card and the card is either cancelled or expires without being renewed. Commenters also made certain suggestions regarding the third basis for a pre-existing business relationship—an inquiry or application by the consumer regarding a product or service offered by the person during the preceding three months. Consumer groups urged the Commission to clarify that an inquiry must be made of the specific affiliate, rather than a general inquiry about a product or service. Industry commenters expressed concern about certain statements in the supplementary information that explained the meaning of an inquiry. The Commission does not agree that an inquiry must be made of a specific affiliate. Many affiliated institutions use a central call center to handle consumer inquiries. The clarification urged by consumer groups could preclude the establishment of a pre-existing business relationship based on a consumer’s call to a central call center about a specific product or service offered by an affiliate. In the supplementary information to the proposal, the Commission noted that certain elements of the definition of “pre-existing business relationship” were substantially similar to the definition of “established business relationship” under the amended Telemarketing Sales Rule (TSR) (16 CFR 310.2(n)). The TSR definition was informed by Congress’ intent that the “established business relationship” exemption to the “do not call” provisions of the Telephone Consumer Protection Act (47 U.S.C. 227 et seq. ) should be grounded on the reasonable expectations of the consumer. 8 The Commission observed that Congress’ incorporation of similar language in the definition of “pre-existing business relationship” 9 suggested that it would be appropriate to consider the reasonable expectations of the consumer in determining the scope of this exception. Thus, the Commission explained that, for purposes of this regulation, an inquiry would include any affirmative request by a consumer for information after which the consumer would reasonably expect to receive information from the affiliate about its products or services. 10 Moreover, a consumer would not reasonably expect to receive information from the affiliate if the consumer did not request information or did not provide contact information to the affiliate. 8 H.R. Rep. No. 102-317, at 14-15 (1991). See also 68 FR 4580, 4591-94 (Jan. 29, 2003). 9 149 Cong. Rec. S13,980 (daily ed. Nov. 5, 2003) (statement of Senator Feinstein) (noting that the “pre-existing business relationship” definition “is the same definition developed by the Federal Trade Commission in creating a national ‘Do Not Call’ registry for telemarketers.”) 10 See 68 FR at 4594. Industry commenters objected to the discussion in the supplementary information. Some of these commenters believed that looking to the reasonable expectations of the consumer would narrow the scope of the exception and impose on institutions a subjective standard that depended upon the consumer’s state of mind. These commenters also maintained that the availability of the exception should not depend upon the consumer both requesting information and providing contact information to the affiliate. Some commenters noted that either requesting information or providing contact information should suffice to establish an expectation of receiving solicitations. Other commenters noted that consumers would not provide contact information if they believed that the affiliate would already have the consumer’s contact information or would obtain it from the consumer’s financial institution. Some commenters believed that the consumer should not have to make an affirmative request for information in order to have an inquiry. Commenters also expressed concern that the discussion in the supplementary information would require consumers to use specific words to trigger the exception. The Commission has adopted the third prong of the definition of “pre-existing business relationship” as proposed. The Commission continues to believe that it is appropriate to consider what the consumer says in determining whether the consumer has made an inquiry about a product or service. It may not be necessary, however, for the consumer to provide contact information in all cases. As discussed below, the Commission has revised the examples of inquiries to illustrate different circumstances. Consumer groups and NAAG urged the Commission not to expand the definition of “pre-existing business relationship” to include any additional types of relationships. Industry commenters suggested a number of additional bases for establishing a pre-existing business relationship. Several industry commenters believed that the term “pre-existing business relationship” should be defined to include relationships arising out of the ownership of servicing rights, a participation interest in lending transactions, and similar relationships. These commenters provided no further explanation for why such an expansion was necessary. One commenter urged the Commission to expand the definition of “pre-existing business relationship” to apply to affiliates that share a common trade name, share the same employees or representatives, operate out of the same physical location or locations, and offer similar products. In addition, a number of industry commenters requested clarification of the term “pre-existing business relationship” as applied to manufacturers that make sales through dealers. These commenters explained that automobile manufacturers do not sell vehicles directly to consumers, but through franchised dealers. Vehicle financing may be arranged through a manufacturer’s captive finance company or independent sources of financing. These commenters noted that manufacturers often provide consumers with information about warranty coverage, recall notices, and other product information. According to these commenters, manufacturers also send solicitations to consumers about their products and services, drawing in part on transaction or experience information from the captive finance company. These commenters asked the Commission to clarify that the relationship between a manufacturer and a consumer qualifies as a pre-existing business relationship based on the purchase, rental, or lease of the manufacturer’s goods, or, alternatively, to exercise its authority to add this relationship as an additional basis for a pre-existing business relationship. One commenter asked the Commission to clarify that a pre-existing business relationship could be established even if the person provides a product or service to the consumer without charging a fee. The Commission does not believe it is necessary to add any additional bases for a pre-existing business relationship. The Commission acknowledges that a pre-existing business relationship exists where a person owns the servicing rights to a consumer’s loan and such person collects payments from, or otherwise deals directly with, the consumer. In the Commission’s view, however, that situation qualifies as a financial transaction and thus falls within the second prong of the definition of “pre-existing business relationship.” The Commission has included an example, discussed below, to illustrate how the ownership of servicing rights can create a pre-existing business relationship. A pre-existing business relationship does not arise solely from a participation interest in a lending transaction because such an interest does not result in a financial contract or a financial transaction between the consumer and the participating party. The Commission declines to add a specific provision for franchised dealers. The statute contains no special provision addressing franchised dealers, as it does for licensed agents. Moreover, a franchised dealer and a manufacturer generally are not affiliates and thus are subject to the GLBA privacy rule relating to information sharing with non-affiliated third parties. The Commission also finds no basis for including within the meaning of “pre-existing business relationship” any affiliate that shares a common trade name or representatives, or that operates from the same location or offers similar products. Finally, the Commission declines to add a provision that would create a pre-existing business relationship when a consumer obtains a product or service without charge from a person. Such a provision would be overly broad, is not necessary given the breadth of the statutory definition of “pre-existing business relationship,” and could result in circumvention of the notice requirement. Proposed § 680.20(d)(1) provided four examples of the pre-existing business relationship exception. In the final rule, these examples have been renumbered as § 680.3(j)(2)(i)-(iv), and revised to illustrate the definition of “pre-existing business relationship,” rather than the corresponding exception. The two examples relating to the first and second prongs of the definition of “pre-existing business relationship” have been revised in § 680.3(j)(2)(i) and (ii) to focus on a loan account creditor as the person with the pre-existing business relationship, but are otherwise substantively similar to the proposal. One commenter recommended expanding the example now contained in § 680.3(j)(2)(i) to refer to the licensed agent that wrote the policy or services the relationship. The Commission believes that adding the term “licensed agent” to the definition is sufficient and sees no reason to further complicate this example to illustrate how the definition applies to licensed agents. Section 680.3(j)(2)(iii) is new and illustrates when a pre-existing business relationship is created in the context of a mortgage loan. This example specifically addresses circumstances where either the loan or ownership of the servicing rights to the loan is sold to a third party. As this example illustrates, sale of the entire loan by the original lender terminates the financial transaction between the consumer and that lender and creates a new financial transaction between the consumer and the purchaser of the loan. However, the original lender’s sale of a fractional interest in the loan to an investor does not create a new financial transaction between the consumer and the investor. When the original lender sells a fractional interest in the consumer’s loan to an investor but also retains an ownership interest in the loan, however, the original lender continues to have a pre-existing business relationship with the consumer because the consumer obtained a loan from the lender and the lender continues to own an interest in the loan. In addition, the ownership of servicing rights coupled with direct dealings with the consumer results in a financial transaction between the consumer and the owner of the servicing rights, thereby creating a pre-existing business relationship between the consumer and the owner of the servicing rights. The Commission notes that a financial institution that owns servicing rights generally has a customer relationship with the consumer and an obligation to provide a GLBA privacy notice to the consumer. The example in proposed § 680.20(d)(1)(iii) regarding applications and inquiries elicited comment. Some industry commenters urged the Commission to revise this example so that it does not depend upon the consumer’s expectations or the consumer providing contact information. These commenters noted, for example, that the contact information would be self-evident if the consumer makes an e-mail request or provides a return address on an envelope. These commenters also believed that in the case of a telephone call initiated by a consumer, a captured telephone number should be sufficient to create an inquiry if the consumer requests information about products or services. In the final rule, the Commission has crafted three separate examples from proposed § 680.20(d)(1)(iii). Section 680.3(j)(2)(iv) provides an example where a consumer applies for a product or service, but does not obtain the product or service for which she applied. Contact information is not mentioned in this example because the consumer presumably would have supplied it on the application. Section 680.3(j)(2)(v) provides an example where a consumer makes a telephone inquiry about a product or service offered by a depository institution and provides contact information to the institution, but does not obtain a product or service from or enter into a financial transaction with the institution. The Commission does not believe that an institution’s capture of a consumer’s telephone number during a telephone conversation with the consumer about the institution’s products or services is sufficient to create an inquiry. In that circumstance, to ensure that an inquiry has been made, the institution should ask the consumer to provide his or her contact information, or confirm with the consumer that the consumer has a pre-existing business relationship with an affiliate. Section 680.3(j)(2)(vi) provides an example where the consumer makes an e-mail inquiry about a product or service offered by a creditor, but does not separately provide contact information. In that case, the consumer provides the creditor with contact information in the form of the consumer’s e-mail address. In addition, e-mail communications, unlike telephone communications, do not provide institutions with the same opportunity to ask for the consumer’s contact information. Industry commenters recommended deleting the example in proposed § 680.20(d)(1)(iv) illustrating a call center scenario where a consumer would not reasonably expect to receive information from an affiliate. In the final rule, the Commission has included a positive example of an inquiry made by a consumer through a call center in § 680.3(j)(2)(vii), while retaining the negative example from the proposal in § 680.3(j)(3)(i). In addition, the Commission has included in § 680.3(j)(3)(ii) an example of a consumer call to ask about retail locations and hours, which does not create a pre-existing business relationship. This example is substantively similar to the example from proposed § 680.20(d)(2)(iii). A new example in § 680.3(j)(3)(iii) illustrates a case where a consumer responds to an advertisement that offers a free promotional item, but the advertisement does not indicate that an affiliate’s products or services will be marketed to consumers who respond to the advertisement. The example illustrates that the consumer’s response does not create a pre-existing business relationship because the consumer has not made an inquiry about a product or service, but has merely responded to an offer for a free promotional item. Similarly, if a consumer is directed by a company with which the consumer has a pre-existing business relationship to contact the company’s affiliate to receive a promotional item but the company does not mention the affiliate’s products or services, the consumer’s contact with the affiliate about the promotional item does not create a pre-existing business relationship between the consumer and the affiliate. Solicitation Proposed § 680.3(j) defined the term “solicitation” to mean marketing initiated by a person to a particular consumer that is based on eligibility information communicated to that person by its affiliate and is intended to encourage the consumer to purchase a product or service. The proposed definition further clarified that a communication, such as a telemarketing solicitation, direct mail, or e-mail, would be a solicitation if it is directed to a specific consumer based on eligibility information. The proposed definition did not, however, include communications that were directed at the general public without regard to eligibility information, even if those communications were intended to encourage consumers to purchase products and services from the person initiating the communications. Congress gave the Commission the authority to determine by regulation that other communications do not constitute a solicitation. The Commission does not propose to exercise this authority. The Commission solicited comment on whether, and to what extent, various tools used in Internet marketing, such as pop-up ads, may constitute solicitations as opposed to communications directed at the general public, and whether further guidance was needed to address Internet marketing. Most commenters believed that the proposed definition tracked the statutory definition contained in section 624 of the FCRA. A number of industry commenters, however, believed that the proposed definition misstated the types of marketing that would not qualify as a solicitation. Specifically, the first sentence of proposed § 680.3(j)(2) provided that “[a] solicitation does not include communications that are directed at the general public and distributed without the use of eligibility information communicated by an affiliate.” These commenters believed that a solicitation should not include either marketing directed at the general public or marketing distributed without the use of eligibility information communicated by an affiliate. Several industry commenters also requested that the Commission include the phrase “of a product or service” in the introductory language for consistency with the statutory definition. Some industry commenters sought clarification that certain types of communications would not constitute solicitations, for example, marketing announcements delivered via pre-recorded call center messages, automated teller machine screens, or Internet sites, or product information provided at or through educational seminars, customer appreciation events, or newsletters. NAAG urged the Commission to clarify the portion of the definition that refers to “a particular consumer.” NAAG believed that mass mailings of the same or similar marketing materials to a large group of consumers could fall within the definition of “solicitation,” so long as the marketing is based on eligibility information received from an affiliate. NAAG expressed concern that some might construe the term “particular” to narrow the meaning of a “solicitation.” With regard to Internet marketing, industry commenters urged the Commission not to address such practices in this rulemaking. These commenters believed that the definition of “solicitation” should provide specific guidance that “pop-up” ads and other forms of Internet marketing generally were directed to the general public and not based on eligibility information received from an affiliate, or that such marketing would fall within an exception. NAAG believed that such advertisements should be treated as solicitations if they were based on any eligibility information received from an affiliate. Consumer groups believed that if an affiliate’s pop-up ads and other Internet marketing were the result of specific actions by the consumer or information collected based upon a consumer’s experience on the Internet, then such marketing should be considered solicitations. These commenters also believed that pop-up ads and other Internet marketing targeted to all customers of a company should be treated as solicitations if based on the consumer’s experience on the Internet. Section 680.3(k) of the final rule contains the definition of “solicitation.” The definition has been revised to track the statutory language more closely. The phrase “of a product or service” has been added to the definition, as requested by some commenters. To ensure consistency with the definition of “pre-existing business relationship,” the phrase “or obtain” has been retained so that the definition of “solicitation” will include marketing for the rental or lease of goods or services, financial transactions, and financial contracts. The Commission has also deleted as unnecessary the reference to communications “distributed without the use of eligibility information communicated by an affiliate.” Marketing that is undertaken without the use of eligibility information received from an affiliate is not covered by the affiliate marketing rule. Moreover, there is no restriction on using eligibility information received from an affiliate in marketing directed at the general public, such as radio, television, or billboard advertisements. The phrase “to a particular consumer” has been retained because it is part of the statutory definition. The Commission does not believe that the phrase “to a particular consumer” excludes large-scale marketing campaigns from the definition of “solicitation” because, within such campaigns, eligibility information received from an affiliate may be used to target individual consumers. The definition of “solicitation” does not distinguish between different mediums. A determination of whether a marketing communication constitutes a solicitation depends upon the facts and circumstances. The Commission has decided not to make those determinations in this rulemaking. Thus, the Commission is not adopting special rules or guidance regarding Internet-based marketing; whether Internet-based marketing is a solicitation in a particular case will be determined according to the same criteria that apply to other means of marketing. The Commission also declines to exclude categorically from the definition of “solicitation” marketing messages on voice response units, ATM screens, or other forms of media. Marketing delivered via such media may be solicitations if such marketing is targeted to a particular consumer based on eligibility information received from an affiliate. For example, a marketing message on an ATM screen would be a solicitation if it is targeted to a particular consumer based on eligibility information received from an affiliate, but would not be a solicitation if it is delivered to all consumers that use the ATM. Similarly, the Commission declines to exclude educational seminars, customer appreciation events, focus group invitations, and similar forms of communication from the definition of “solicitation.” The Commission believes that such activities must be evaluated according to the facts and circumstances and some of those activities may be coupled with, or a prelude to, a solicitation. For example, an invitation to a financial educational seminar where the invitees are selected based on eligibility information received from an affiliate may be a solicitation if the seminar is used to solicit the consumer to purchase investment products or services. You The term “you” is defined as persons described in § 680.1(a) and the definition has been renumbered as § 680.3(l). Section 680.21 Affiliate Marketing Opt-out and Exceptions The Commission proposed to establish certain rules relating to the requirement to provide the consumer with notice and a reasonable opportunity and a simple method to opt out of a person’s use of eligibility information that it obtained from an affiliate for the purpose of making or sending solicitations to the consumer. The Commission noted that the statute is ambiguous because it does not specify which affiliate must provide the opt-out notice to the consumer. The Commission addressed this ambiguity by proposing to place certain responsibilities on the “communicating affiliate” and other responsibilities on the “receiving affiliate.” Proposed § 680.20(a) set forth the duties of a communicating affiliate. That section required the communicating affiliate to provide a notice to the consumer before a receiving affiliate could use eligibility information to make or send solicitations to the consumer. Under the proposal, the opt-out notice would state that eligibility information may be communicated to and used by the receiving affiliate to make or send solicitations to the consumer regarding the affiliate’s products and services, and would give the consumer a reasonable opportunity and a simple method to opt out. Proposed § 680.20(a) also contained two rules of construction relating to the communicating affiliate’s duty to provide the notice. The first rule of construction would have allowed the notice to be provided either in the name of a person with which the consumer currently does or previously has done business or in one or more common corporate names shared by members of an affiliated group of companies that includes the common corporate name used by that person. The rule of construction also would have provided alternatives regarding the manner in which the notice could be given, such as by allowing the communicating affiliate to provide the notice either directly to the consumer, through an agent, or through a joint notice with one or more of its affiliates. The second rule of construction would have clarified that, to avoid duplicate notices, it would not be necessary for each affiliate that communicates the same eligibility information to provide an opt-out notice to the consumer, so long as the notice provided by the affiliate that initially communicated the information was broad enough to cover use of that information by each affiliate that received and used it to make solicitations. The proposal included examples to illustrate how each of these rules of construction would work. Proposed § 680.20(b) set forth the general duties of a receiving affiliate. That section would have prohibited the receiving affiliate from using eligibility information it received from an affiliate to make solicitations to the consumer unless, prior to such use, the consumer was provided an opt-out notice that applied to that affiliate’s use of eligibility information to make solicitations and a reasonable opportunity and simple method to opt out, and the consumer did not opt out of that use. Most industry commenters maintained that the final rule should not require any specific entity to provide the opt-out notice, but should only require that the consumer be provided an opt-out notice covering an affiliate’s use of eligibility information before a solicitation is made to the consumer. These commenters believed the final rule should provide flexibility and allow either the receiving affiliate, the communicating affiliate, or any other affiliate to provide the opt-out notice. These commenters maintained that the statute is not ambiguous and does not impose any obligations on a specific entity, such as the communicating affiliate, to provide the opt-out notice. Some of these commenters acknowledged, however, that the communicating affiliate would, as a practical matter, most likely give the opt-out notice. A number of industry commenters expressed concern that the proposed rule would create a basis for civil liability against the communicating affiliate under section 624 because that section is covered by the FCRA’s private right of action provisions in sections 616 and 617. Some commenters noted that, to avoid exposure to civil liability, a communicating affiliate would have to require receiving affiliates to commit to not using the information to make solicitations, give an opt-out notice whenever they share eligibility information with affiliates, or never share eligibility information with affiliates. These commenters maintained that, in many cases, none of these solutions would be practical, for example, where a receiving affiliate negligently failed to comply with a commitment not to make solicitations unless notice has been given to the consumer. Several industry commenters noted that the language in section 624(a)(1)(A) that “information may be communicated” could be included in an opt-out notice provided by the receiving affiliate. These commenters also believed that the statutory requirement that the Commission consider existing affiliate sharing notification practices and permit coordinated and consolidated notices did not imply that the communicating affiliate should be responsible for providing the opt-out notice. Industry commenters made several suggestions for revising the language of the proposal. Some suggested revising proposed § 680.20(a) to omit any reference to the communicating affiliate and to incorporate the passive voice used in the statute. Others suggested various ways of merging proposed § 680.20(b) into proposed § 680.20(a) to focus exclusively on the responsibilities of the receiving affiliate. One commenter identified certain drafting problems it believed arose from the fact that the proposal focused alternately on the communicating affiliate and the receiving affiliate and that those two entities may be regulated by different regulatory agencies. A few industry commenters acknowledged that the Commission had raised legitimate concerns in the supplementary information to the proposal about how meaningful a notice could be when provided by a receiving affiliate that the consumer may not recognize. These commenters believed that this concern could be addressed through other means. One commenter, for example, suggested the following introductory language in paragraph (a)(2): “The notice required by this paragraph (a) may be provided either in the name of the bank receiving the information (provided that such bank also identifies the affiliate which provided such information), in the name of the affiliate which provided such information, or in one or more common corporate names shared by such bank and the affiliate which provided the information, and may be provided in the following manner . . .” Another industry commenter expressed support for the rules of construction with revisions to allow the use of brand names and trade names, as well as the actual “corporate” name, and to allow an agent or affiliate to send a common notice that uses more than one common name in a non-deceptive manner. Consumer group commenters supported making the communicating affiliate responsible for providing the notice and opportunity to opt out. These commenters believed that allowing the receiving affiliate to send the opt-out notice would invite consumer confusion as to whether or not the opt-out notice itself is a solicitation. These commenters also believed that the Commission should require the names of the receiving affiliates to be clearly disclosed to the consumer. Consumer groups also believed that the proposed rules of construction struck a reasonable balance by allowing commonly named affiliates to share a notice while making clear that a notice from an affiliate with whom the consumer is not familiar will not be effective. They also suggested that the company with the pre-existing business relationship should be clearly marked on the opt-out notice. NAAG believed that a receiving affiliate should not be permitted to give the opt-out notice solely on its own behalf because a receiving affiliate is unlikely to be an entity from which the consumer would expect to receive important communications. NAAG also requested that the Commission revise certain portions of the proposed rules of construction, for example, by deleting from proposed § 680.20(a)(2)(i) the phrase “or previously has done business” based on concerns that it would render the notice partially ineffective because, even without this phrase, the notice would not be required for 18 months after a customer relationship ends. NAAG also requested that the Commission revise proposed §§ 680.20(a)(2)(B)(2) and (a)(2)(C) to clarify that the common name used must be one that includes the name used by the person providing the opt-out notice. In the proposal, the Commission did not require the opt-out notice to be provided in writing. The Commission noted, however, that it contemplated that the opt-out notice would be provided to the consumer in writing or, if the consumer agrees, electronically. The proposal solicited comment on whether there were circumstances in which it would be necessary and appropriate to allow oral notice and opt out and how an oral notice could satisfy the clear and conspicuous standard in the statute. Industry commenters believed that the final rule should permit oral notices. These commenters identified circumstances in which a relationship is established by telephone as an example of when oral notice would be appropriate. Some industry commenters also noted that an oral notice should be permitted because the affiliate sharing opt-out notice under section 603(d)(2)(A)(iii) may be given orally, as well as in writing or electronically. Several industry commenters noted that the Commission in the Telemarketing Sales Rule and the OCC in regulations relating to debt cancellation contracts and debt suspension agreements have permitted clear and conspicuous oral notices. These commenters did not believe that allowing oral notice in these circumstances had created any enforcement difficulties for the Commission or OCC. Other industry commenters noted that institutions could demonstrate compliance through the use of scripts or by monitoring or recording calls. Consumer groups believed that a written opt-out notice should be required in all cases. These commenters believed that, with an oral notice, it is impossible to ensure that a consumer receives the appropriate notice or information on the right to opt out. They believed that allowing oral notices would create enforcement barriers for regulators. Consumer groups also believed that institutions have strong economic incentives to prevent consumers from opting out and would engage in misrepresentations or otherwise use language in their scripts that is designed to discourage consumers from opting out. NAAG believed that oral notices would not meet the statutory requirement for a clear, conspicuous, and concise notice, that consumers would be less likely to comprehend oral notices, and enforcement would be more difficult if oral opt-out notices were allowed. Section 680.21(a) of the final rule contains the revised provisions regarding the initial notice and opt-out requirement. Although the language of this section has been revised and simplified, the substance of this provision is substantially similar to the proposal. Section 680.21(a)(1) sets forth the general rule. This section contains the three conditions that must be met before a person may use eligibility information about a consumer that it receives from an affiliate to make a solicitation for marketing purposes to the consumer. First, it must be clearly and conspicuously disclosed to the consumer in writing or, if the consumer agrees, electronically, in a concise notice that the person may use shared eligibility information to make solicitations to the consumer. Second, the consumer must be provided a reasonable opportunity and a reasonable and simple method to opt out of the use of that eligibility information to make solicitations to the consumer. Third, the consumer must not have opted out. Section 680.21(a)(2) of the final rule provides an example of the general rule. The Commission has concluded that the opt-out notice may not be provided orally, but must be provided in writing or, if the consumer agrees, electronically. The statute requires the Commission to consider the affiliate sharing notification practices employed on the date of enactment and to ensure that notices and disclosures may be coordinated and consolidated in promulgating regulations. The affiliate sharing notice under section 603(d)(2)(A)(iii) of the FCRA generally must be included in the GLBA privacy notice, which must be provided in writing, or if the consumer agrees, electronically. Requiring the affiliate marketing opt-out notice to be provided in writing, or if the consumer agrees, electronically, is thus consistent with existing affiliate sharing notification practices and promotes coordination and consolidation of the three privacy-related opt-out notices. The Commission is not persuaded that there are any circumstances where it would be necessary to provide an oral opt-out notice. A number of key exceptions to the initial notice and opt-out requirement, such as the pre-existing business relationship exception, consumer-initiated communication exception, and consumer authorization or request exception, may be triggered by an oral communication with the consumer. It also could be more difficult for the Commission to monitor and enforce compliance with the final rule if oral opt-out notices were allowed. Accordingly, the final rule requires the opt-out notice to be provided in writing or, if the consumer agrees, electronically. Section 680.21(a)(3) identifies those affiliates who may provide the initial opt-out notice. This section provides that the initial opt-out notice must be provided either by an affiliate that has or has previously had a pre-existing business relationship with the consumer, or as part of a joint notice from two or more members of an affiliated group of companies, provided that at least one of the affiliates on the joint notice has or has previously had a pre-existing business relationship with the consumer. The final rule follows the general approach taken in the proposal to ensure that the notice is provided by an entity known to the consumer, while eliminating potentially ambiguous and confusing terms like “communicating affiliate” and “receiving affiliate.” The Commission also has eliminated as unnecessary the rules of construction. Joint notices are now addressed directly in § 680.21(a)(3). The Commission also has concluded that the provisions from the proposal relating to notice provided by an agent are unnecessary. General agency principles, however, continue to apply. An affiliate that has or has previously had a pre-existing business relationship with the consumer may direct its agent to provide the opt-out notice on its behalf. The Commission has concluded that the statute’s silence with regard to which affiliates may provide the opt-out notice makes the statute ambiguous on this point, despite industry comments to the contrary. The Commission also continues to believe that consumers are more likely to pay attention to a notice provided by a person known to the consumer. The Commission remains concerned that a notice provided by an entity unknown to the consumer may not provide meaningful or effective notice, and that consumers may ignore or discard notices provided by unknown entities. Industry comments on the proposal did little to address those concerns. For practical reasons, the Commission believes that affiliate marketing opt-out notices typically would be provided by an affiliate that has or has previously had a pre-existing business relationship with the consumer, or as part of a joint notice, whether or not required by the rule. The Commission appreciates industry concerns about civil liability and has revised the final rule to address those concerns. Specifically, in contrast to the proposal, the final rule does not impose duties on any affiliate other than the affiliate that intends to use shared eligibility information to make solicitations to the consumer. Although an opt-out notice must be provided by an affiliate that has or has previously had a pre-existing business relationship with the consumer (or as part of a joint notice), that affiliate has no duty to provide such a notice. Instead, the final rule provides that absent such a notice, an affiliate must not use shared eligibility information to make solicitations to the consumer. Industry concerns about civil liability also may be mitigated to some extent by the Supreme Court’s recent decision in Safeco Ins. Co. of America v. Burr , 127 S. Ct. 2201 (June 4, 2007). Finally, many institutions currently require consumers to provide their Social Security numbers when exercising their existing GLBA and FCRA opt-out rights. The Commission believes that institutions likely would follow their existing practice with regard to affiliate marketing opt-outs. To combat identity theft and prevent “phishing,” however, the Commission, along with many institutions, has been educating consumers not to provide their Social Security numbers to unknown entities. Furthermore, as co-Chair of the President’s Identity Theft Task Force, the Commission has made a commitment to examine and recommend ways to limit the private sector’s use of Social Security numbers. The approach recommended by industry commenters would allow an unknown entity not only to provide an affiliate marketing opt-out notice to the consumer, but also to require the consumer to reveal his or her Social Security number to that unknown entity in order to exercise the opt-out right. Such an approach would send conflicting messages to consumers about providing Social Security numbers to unknown entities. This approach also would be inconsistent with the Commission’s current efforts to develop a comprehensive record on the uses of the Social Security number in the private sector and evaluate their necessity, as recommended by the President’s Identity Theft Task Force. 11 11 See Combatting Identity Theft: A Strategic Plan , at 26-27 (April 2007) (available at www.idtheft.gov ). Making Solicitations The proposal repeatedly referred to “making or sending” solicitations. Several commenters suggested revising the regulation to eliminate all references to “sending” solicitations. These commenters believed that the statute only concerns the use of eligibility information to “make” solicitations and does not address “sending” solicitations. Commenters expressed concern that by referring to “sending” solicitations, the proposal would apply the notice and opt-out requirements to servicers that send solicitations on behalf of another entity. The Commission has revised the final rule to eliminate all combined references to “making or sending” solicitations. The general rule in section 624(a)(1), along with the duration provisions in section 624(a)(3) and the pre-existing business relationship exception in section 624(a)(4)(A), refer to “making” or “to make” a solicitation. Other provisions of the statute, such as the consumer choice provision in section 624(a)(2)(A), the service provider exception in section 624(a)(4)(C), the non-retroactivity provision in section 624(a)(5), and the definition of “pre-existing business relationship” in section 624(d)(1), refer to “sending” or “to send” a solicitation. The verb “to send,” as used in the statute, refers to a ministerial act that a service provider, such as a mail house, performs for the person making the solicitation, ( see 15 U.S.C. 1681s-3(a)(4)(C)), or indicates the point in time after which solicitations are no longer permitted. See 15 U.S.C. 1681s-3(d)(1)(B) and (C). The Commission concludes that “making” and “sending” solicitations are different activities and that the focus of the statute is primarily on the “making” of solicitations. For example, a service provider may send a solicitation on behalf of another entity, but it is the entity on whose behalf the solicitation is sent that is making the solicitation and thus is subject to the general prohibition on making a solicitation, unless the consumer is given notice and an opportunity to opt out. Accordingly, the Commission has revised the final rule to refer to “making” a solicitation, except where the statute specifically refers to “sending” solicitations. The statute, however, does not describe what a person must do in order “to make” a solicitation. Similarly, the legislative history does not contain guidance as to the meaning of “making” a solicitation. Nevertheless, the Commission believes it is important to provide clear guidance regarding what activities result in making a solicitation. One commenter suggested that the test for making a solicitation should turn on whether an affiliate having a pre-existing business relationship with the consumer retains the discretion to determine whether or not to send the solicitation. This commenter provided an example where a financial institution obtains a list of an affiliate’s customers from a common shared database, applies its own criteria to this list, and then requests the affiliate with an existing business relationship to solicit the affiliate’s own customers to purchase the financial institution’s products or services. (Thus, the financial institution would be using eligibility information to select a list of its affiliate’s customers to receive the financial institution’s marketing materials.) This commenter believed that section 624 should not apply so long as the affiliate with the existing business relationship has discretion to determine whether or not to send the solicitations. This commenter also maintained that the applicability of section 624’s notice and opt-out requirement should depend on who markets the product and not on what the product is or whose product it is. Nothing in the statute indicates that the discretion of the affiliate providing the eligibility information to determine whether or not to send a solicitation on behalf of a person who has received eligibility information from that affiliate is the test for what constitutes making a solicitation. Rather, the statute focuses on whether the person receiving eligibility information from an affiliate uses that information to market its products or services to consumers. A “discretion to send” test would also inappropriately link the terms “making” and “sending” in a manner that would promote confusion and undercut arguments made by commenters urging the Commission to disassociate the two terms. Finally, a “discretion to send” test could foster circumvention of the notice and opt-out requirement, restrict the ability of consumers to prohibit solicitations in a manner not contemplated by the statute, and make it difficult for the Commission to administer and enforce the statute. Section 680.21(b) of the final rule clarifies what constitutes “making” a solicitation for purposes of this part. Section 680.21(b)(1) provides that a person makes a solicitation for marketing purposes to a consumer if: (a) the person receives eligibility information from an affiliate; (b) the person uses that eligibility information to do one of the following—identify the consumer or type of consumer to receive a solicitation, establish the criteria used to select the consumer to receive a solicitation, or decide which of its products or services to market to the consumer or tailor its solicitation to that consumer; and (c) as a result of the person’s use of the eligibility information, the consumer is provided a solicitation about the person’s products or services. The Commission recognizes that several common industry practices may complicate application of the rule outlined in § 680.21(b)(1). First, affiliated groups often use a common database as the repository for eligibility information obtained by various affiliates, and information in that database may be accessible to multiple affiliates. Second, affiliated companies often use service providers to perform marketing activities, and some of those service providers may provide services for a number of different affiliates. Third, an affiliate may use its own eligibility information to market the products or services of another affiliate. Sections 680.21(b)(2)-(5) address these issues. Section 680.21(b)(2) clarifies that a person may receive eligibility information from an affiliate in various ways, including when the affiliate places that information into a common database that the person may access. Of course, receipt of eligibility information from an affiliate is only one element of the rule outlined in § 680.21(b)(1). In the case of a common database, use of the eligibility information will be the key element in determining whether a person has made a solicitation. Section 680.21(b)(3) provides that a person receives or uses an affiliate’s eligibility information if a service provider acting on behalf of the person receives or uses that information in the manner described in §§ 680.21(b)(1)(i) or (b)(1)(ii), except as provided in § 680.21(b)(5), which is discussed below. Section 680.21(b)(3) also provides that all relevant facts and circumstances will determine whether a service provider is acting on behalf of a person when it receives or uses an affiliate’s eligibility information in connection with marketing that person’s products or services. Section 680.21(b)(4) addresses constructive sharing. In the supplementary information to the proposal, the Commission solicited comment on whether the notice and opt-out requirements of this rule should apply to circumstances that involve a “constructive sharing” of eligibility information to conduct marketing, given the policy objectives of section 214 of the FACT Act. By way of example, in a “constructive sharing” scenario, a consumer has a relationship with a financial institution, and the financial institution is affiliated with an insurance company. The insurance company develops specific eligibility criteria, such as consumers having combined deposit balances in excess of $50,000 or average monthly demand account deposits in excess of $10,000, without the use of eligibility information received from the financial institution. The insurance company provides its criteria to the financial institution and asks the institution to identify financial institution consumers that meet the eligibility criteria and send insurance company marketing materials to those consumers. The financial institution sends the marketing materials to those consumers who meet the insurance company’s eligibility criteria. A consumer who meets the eligibility criteria contacts the insurance company after receiving the insurance company marketing materials in the manner specified in those materials. The consumer’s response provides the insurance company with discernible eligibility information, such as through a response form that is coded to identify the consumer as an individual who meets the specific eligibility criteria. 12 12 The supplementary information to the proposal noted that the notice and opt-out requirement would not apply if, for example, an insurance company asked its affiliated financial institution to include insurance company marketing material in periodic statements sent to consumers by the financial institution without regard to eligibility information. Industry commenters urged the Commission not to apply the notice and opt-out requirement to “constructive sharing” situations. The principal arguments made by these commenters in support of their position were as follows. First, in a constructive sharing scenario, there is no sharing of eligibility information among affiliates. Rather, the consumer provides information to an affiliate when responding. Second, section 624 applies when a person uses eligibility information furnished by its affiliate to make a solicitation for its own products or services to the consumer. In constructive sharing, however, the person does not use eligibility information and does not make a solicitation as defined in the statute. Third, the affiliate that sends the marketing material has a pre-existing business relationship with the consumer and is thus exempt from the notice and opt-out requirements. Fourth, if the consumer responds to the marketing materials, for example, by returning a response card to an affiliate, one or more of the exceptions to the notice and opt-out requirement would apply, such as the consumer-initiated communication exception, the pre-existing business relationship exception, or both. Consumer groups believed that constructive sharing contravenes the intent of Congress and amounts to a loophole that should be fixed. Similarly, NAAG believed that the letter and spirit of section 624 required subjecting constructive sharing to the notice and opt-out requirements and that to find otherwise would create a significant and unwarranted exception. After considering the constructive sharing issue, the Commission concludes that the statute only covers situations where a person uses eligibility information that it received from an affiliate to make a solicitation to the consumer about its products or services. In a “constructive sharing” scenario like that described above, a pre-existing business relationship is established between the consumer and the insurance company when the consumer contacts the insurance company to inquire about or apply for insurance products as a result of the consumer’s receipt of the insurance marketing materials. This pre-existing business relationship is established before the insurance company uses any shared eligibility information to make solicitations to the consumer. Because the insurance company does not use shared eligibility information to make solicitations to the consumer before it establishes a pre-existing business relationship with the consumer, the statute does not apply. The Commission acknowledges the concerns expressed by consumer groups and NAAG regarding the decision not to apply the notice and opt-out requirements to constructive sharing situations. The statute’s affiliate marketing provisions, however, only limit the use of eligibility information received from an affiliate to make solicitations to a consumer. A separate provision of the FCRA, section 603(d)(2)(A)(iii), regulates the sharing of eligibility information among affiliates and prohibits the sharing of non-transaction or experience information, such as credit scores from a consumer report or income from an application, among affiliates, unless the consumer is given notice and an opportunity to opt out of such sharing. The FCRA does not restrict the sharing of transaction or experience information among affiliates unless that information is medical information. Section 603(d)(2)(A)(iii) operates independent of the affiliate marketing rule. Thus, the existence of a pre-existing business relationship between a consumer and an affiliate that seeks to use shared eligibility information, such as credit scores or income, to market to that consumer (or the applicability of another exception to this affiliate marketing rule) does not relieve the entity sharing the credit score or income information of the requirement to comply with the affiliate sharing notice and opt-out provisions of section 603(d)(2)(A)(iii) of the FCRA before it shares that non-transaction or experience information with its affiliate. 13 13 A sharing of information occurs if a reference code included in marketing materials reveals one affiliate’s information about a consumer to another affiliate upon receipt of a consumer’s response. Section 680.21(b)(4) describes two situations where a person is deemed not to have made a solicitation subject to this part. Both situations assume that the person has not used eligibility information received from an affiliate in the manner described in § 680.21(b)(1)(ii). First, a person does not make a solicitation subject to this part if that person’s affiliate uses its own eligibility information that it obtained in connection with a pre-existing business relationship it has or had with the consumer to market the person’s products or services to the consumer. Second, if, in the situation just described, the person’s affiliate directs its service provider to use the affiliate’s own eligibility information to market the person’s products or services to the consumer, and the person does not communicate directly with the service provider regarding that use of the eligibility information, then the person has not made a solicitation subject to this part. The core concept underlying the second prong of this provision is that the affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer controls the actions of the service provider using that information. Therefore, the service provider’s use of the eligibility information should not be attributed to the person whose products or services will be marketed to consumers. In such circumstances, the service provider is acting on behalf of the affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer, and not on behalf of the person whose products or services will be marketed to that affiliate’s consumers. The Commission also recognizes that there may be situations where the person whose products or services are being marketed does communicate with the affiliate’s service provider. This may be the case, for example, where the service provider performs services for various affiliates relying on information maintained in and accessed from a common database. In certain circumstances, the person whose products or services are being marketed may communicate with the affiliate’s service provider, yet the service provider is still acting on behalf of the affiliate when it uses the affiliate’s eligibility information in connection with marketing the person’s products or services. Section 680.21(b)(5) describes the conditions under which a service provider would be deemed to be acting on behalf of the affiliate with the pre-existing business relationship, rather than the person whose products or services are being marketed, notwithstanding direct communications between the person and the service provider. Section 680.21(b)(5) builds upon the concept of control of a service provider and thus is a natural outgrowth of § 680.21(b)(4). Under the conditions set out in § 680.21(b)(5), the service provider is acting on behalf of an affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer because, among other things, the affiliate controls the actions of the service provider in connection with the service provider’s receipt and use of the eligibility information. This provision is designed to minimize uncertainty that may arise from application of the facts and circumstances test in § 680.21(b)(3) to cases that involve direct communications between a service provider and a person whose products and services will be marketed to consumers. Section 680.21(b)(5) provides that a person does not make a solicitation subject to this part if a service provider (including an affiliated or third-party service provider that maintains or accesses a common database that the person may access) receives eligibility information from the person’s affiliate that the person’s affiliate obtained in connection with a pre-existing business relationship it has or had with the consumer and uses that eligibility information to market the person’s products or services to the consumer, so long as the following five conditions are met. First, the person’s affiliate controls access to and use of its eligibility information by the service provider (including the right to establish specific terms and conditions under which the service provider may use such information to market the person’s products or services). This requirement must be set forth in a written agreement between the person’s affiliate and the service provider. The person’s affiliate may demonstrate control by, for example, establishing and implementing reasonable policies and procedures applicable to the service provider’s access to and use of its eligibility information. Second, the person’s affiliate establishes specific terms and conditions under which the service provider may access and use that eligibility information to market the person’s products or services (or those of affiliates generally) to the consumer, and periodically evaluates the service provider’s compliance with those terms and conditions. These terms and conditions may include the identity of the affiliated companies whose products or services may be marketed to the consumer by the service provider, the types of products or services of affiliated companies that may be marketed, and the number of times the consumer may receive marketing materials. The specific terms and conditions established by the person’s affiliate must be set forth in writing, but need not be set forth in a written agreement between the person’s affiliate and the service provider. If a periodic evaluation by the person’s affiliate reveals that the service provider is not complying with those terms and conditions, the Commission expects the person’s affiliate to take appropriate corrective action. Third, the person’s affiliate requires the service provider to implement reasonable policies and procedures designed to ensure that the service provider uses the affiliate’s eligibility information in accordance with the terms and conditions established by the affiliate relating to the marketing of the person’s products or services. This requirement must be set forth in a written agreement between the person’s affiliate and the service provider. Fourth, the person’s affiliate is identified on or with the marketing materials provided to the consumer. This requirement will be construed flexibly. For example, the person’s affiliate may be identified directly on the marketing materials, on an introductory cover letter, on other documents included with the marketing materials, such as a periodic statement, or on the envelope which contains the marketing materials. Fifth, the person does not directly use the affiliate’s eligibility information in the manner described in § 680.21(b)(1)(ii). These five conditions together ensure that the service provider is acting on behalf of the affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer because that affiliate controls the service provider’s receipt and use of that affiliate’s eligibility information. Section 680.21(b)(6) provides six illustrative examples of the rule relating to making solicitations as set forth in §§ 680.21(b)(1)-(5). Exceptions Proposed § 680.20(c) contained exceptions to the requirements of this part and incorporated each of the statutory exceptions to the affiliate marketing notice and opt-out requirements that are set forth in section 624(a)(4) of the FCRA. The Commission has revised the preface to the exceptions for clarity to provide that the provisions of this part do not apply to “you” if a person uses eligibility information that it receives from an affiliate in certain circumstances. In addition, each of the exceptions has been moved to § 680.21(c) in the final rule and is discussed below. Pre-existing Business Relationship Exception Proposed § 680.20(c)(1) provided that the provisions of this part would not apply to an affiliate using eligibility information to make a solicitation to a consumer with whom the affiliate has a pre-existing business relationship. As noted above, a pre-existing business relationship exists when: (1) there is a financial contract in force between the affiliate and the consumer; (2) the consumer and the affiliate have engaged in a financial transaction (including holding an active account or a policy in force or having another continuing relationship) during the 18 months immediately preceding the date of the solicitation; (3) the consumer has purchased, rented, or leased the affiliate’s goods or services during the 18 months immediately preceding the date of the solicitation; or (4) the consumer has inquired about or applied for a product or service offered by the affiliate during the 3-month period immediately preceding the date of the solicitation. Proposed § 680.20(d)(1) provided examples of the pre-existing business relationship exception. As explained above, the Commission has revised the examples from proposed § 680.20(d)(1) in the final rule and included them as examples of the definition of “pre-existing business relationship” rather than as examples of the pre-existing business relationship exception. Section 680.21(c)(1) of the final rule revises the pre-existing business relationship exception to delete the word “send” and to eliminate as unnecessary the cross-reference to the location of the definition of “pre-existing business relationship.” As discussed above, commenters made a number of suggestions regarding the definition of “pre-existing business relationship.” The Commission has addressed those comments elsewhere. Most commenters supported the proposed text of the pre-existing business relationship exception, which generally tracks the statutory language. Some commenters, however, apparently believed that the pre-existing business relationship exception is broader than it actually is. For example, assume that an insurance company has a pre-existing business relationship with a consumer and shares eligibility information about the consumer with its affiliates by putting that information into a common database that is accessible by all affiliates. The insurance company’s lending affiliate accesses the database, reviews the data on the insurance company’s consumers and, based on its review, decides to market to some of the insurance company’s consumers. Rather than sending the solicitations itself, the lender asks the insurance company with the pre-existing business relationship to send solicitations on its behalf to the insurance company’s consumers. As noted above, one commenter believed that in this circumstance the pre-existing business relationship exception would apply so long as the insurance company retained the discretion to decide whether or not to send the solicitations on behalf of the lender. However, the Commission concludes that this situation does not fall within the pre-existing business relationship exception. Instead, the lender makes the solicitation because it used eligibility information received from an affiliate to select the consumer to receive a solicitation about its products or services and, as a result, the consumer is provided a solicitation. To eliminate any confusion and clarify the scope of the exception, the Commission has added an example in § 680.21(d)(1) of the final rule to illustrate a situation where the pre-existing business relationship exception would apply. Employee Benefit Plan Exception Proposed §680.20(c)(2) provided that the provisions of this part would not apply to an affiliate using the information to facilitate communications to an individual for whose benefit the affiliate provides employee benefit or other services under a contract with an employer related to and arising out of a current employment relationship or an individual’s status as a participant or beneficiary of an employee benefit plan. One commenter believed that the exception should be revised to permit communications “to an affiliate about an individual for whose benefit an entity provides employee benefit or other services pursuant to a contract with an employer related to and arising out of the current employment relationship or status of the individual as a participant or beneficiary of an employee benefit plan.” This commenter also suggested deleting the phrase “you receive from an affiliate” in the introduction to proposed § 680.20(c). This commenter believed that this exception should permit an employer or plan sponsor to share information with its affiliates in order to offer other financial services, such as brokerage accounts or IRAs, to its employees. This commenter further requested clarification on whether the exception applies only if related to products offered as an employee benefit. Section 680.21(c)(2) of the final rule adopts the employee benefit exception as proposed. The Commission declined to adopt the changes suggested by the one commenter. First, the suggestion to make the exception applicable to communications “to an affiliate about an individual for whose benefit an entity provides employee benefit or other services” differs from the language of the statute. The language of the proposed and final rule focuses on facilitating communications “to an individual for whose benefit the person provides employee benefit or other services,” which tracks the statutory language better than the alternative language proposed by the commenter. Second, the only person to whom section 624 might apply is a person that receives eligibility information from an affiliate. Specifically, the statutory preface to the exceptions provides that “[t]his section shall not apply to a person” using information to do certain things. The language of the statute thus makes clear that the exceptions in section 624(a)(4) of the FCRA were meant to apply to persons that otherwise would be subject to section 624. In the case of the employee benefit exception, the person using the information is also “the person provid[ing] employee benefit or other services pursuant to a contract with an employer.” Therefore, the Commission concludes that this exception, like the other provisions of this part, should apply only to a person that uses eligibility information it receives from an affiliate to make solicitations to consumers about its products or services. Service Provider Exception Proposed § 680.20(c)(3) provided that the provisions of this part would not apply to an affiliate using the information to perform services for another affiliate, unless the services involve making or sending solicitations on its own behalf or on behalf of an affiliate and the service provider or such affiliate is not permitted to make or send such solicitations as a result of the consumer’s election to opt out. Thus, under the proposal, when the notice has been provided to a consumer and the consumer has opted out, an affiliate subject to the consumer’s opt-out election may not circumvent the opt-out by instructing the person with the consumer relationship or another affiliate to send solicitations to the consumer on its behalf. Several industry commenters urged the Commission to revise the proposed exception to conform to the statutory language. Specifically, with respect to the exclusion from the service provider exception, these commenters recommended that the Commission delete the references to solicitations on behalf of the service provider. Some of these commenters maintained that the references to solicitations on behalf of the service provider itself would impose additional burdens and costs on companies that use a single affiliate to provide various administrative services to other affiliates and would make it more difficult to provide general educational materials to consumers. Some of these commenters also asked the Commission to clarify that the limitation in the service provider exception has no applicability to any other exception. Section 680.21(c)(3) of the final rule revises the service provider exception to delete as surplusage the references to solicitations by a service provider on its own behalf. The Commission notes that the general rule in § 680.21(a)(1) prohibits a service provider from using eligibility information it received from an affiliate to make solicitations to the consumer about its own products or services unless the consumer is given notice and an opportunity to opt out or unless one of the other exceptions applies. The service provider exception simply allows a service provider to do what the affiliate on whose behalf it is acting may do, such as using shared eligibility information to make solicitations to consumers to whom the affiliate is permitted to make such solicitations. The final rule also deletes the word “make” from the exception to the service provider exception because, as discussed above, “making” and “sending” solicitations are distinct activities and this provision of the statute uses the verb “to send.” The Commission notes that, although the statute contains separate service provider and pre-existing business relationship exceptions, nothing in those exceptions prevents an affiliate that has a pre-existing business relationship with the consumer from relying upon the service provider exception, where appropriate. Section 680.21(d)(2) of the final rule provides examples of the service provider exception. Consumer-Initiated Communication Exception Proposed § 680.20(c)(4) provided that the provisions of this part would not apply to an affiliate using the information to make solicitations in response to a communication initiated by the consumer. The proposed rule further clarified that this exception may be triggered by an oral, electronic, or written communication initiated by the consumer. The supplementary information noted that to be covered by the proposed exception, the use of eligibility information must be responsive to the communication initiated by the consumer. The supplementary information also explained that the time period during which solicitations remain responsive to the consumer’s communication would depend on the facts and circumstances. As illustrated in the example in proposed § 680.20(d)(2)(iii), if a consumer were to call an affiliate to ask about retail locations and hours, the affiliate could not use eligibility information to make solicitations to the consumer about specific products because those solicitations would not be responsive to the consumer’s communication. Conversely, the example in proposed § 680.20(d)(2)(i) illustrated that if the consumer calls an affiliate to ask about its products or services and provides contact information, solicitations related to those products or services would be responsive to the communication and thus permitted under the exception. Finally, as illustrated by the example in proposed § 680.20(d)(2)(ii), the Commission also contemplated that a consumer would not initiate a communication if an affiliate made the initial call and left a message for the consumer to call back, and the consumer responded. Commenters generally supported the text of the proposed consumer-initiated communication exception. Several commenters, however, urged the Commission to either delete the phrase “orally, electronically, or in writing” from the regulation or modify the language to read “whether orally, electronically, or in writing.” These commenters maintained that other means of communication may be used by consumers in the future and should not be precluded by the regulations. Another commenter welcomed the reference to oral communications and requested that the Commission clarify that electronic communications refers to both e-mail and facsimile transmissions. Many industry commenters objected to the statement in the supplementary information that to qualify for this exception, the use of eligibility information “must be responsive” to the communication initiated by the consumer. These commenters believed that the concept of “responsiveness” creates a vague, subjective, and narrow standard that could subject institutions to compliance risk. These commenters noted that the Commission did not and could not provide a clear definition of what would be “responsive.” Some of these commenters noted that consumers may not be familiar with the various types of products or services available to them and the different affiliates that offer those products or services and may rely on the institution to inform them about available options. For this reason, most of these commenters maintained that the exception should not limit an affiliate from responding with solicitations about any product or service. Some of these commenters believed that it would be difficult to monitor compliance with or to develop scripts for a “responsiveness” standard by customer service representatives. One commenter noted that the Senate bill used more restrictive language in this exception than the final bill passed by Congress. Some commenters also objected to the statement that the time period during which solicitations remain responsive would depend on the facts and circumstances. NAAG supported the statement in the supplementary information that, to qualify for this exception, the use of eligibility information “must be responsive” to the communication initiated by the consumer. NAAG believed this clarification was so important that it should be incorporated into the rule itself. NAAG also suggested imposing a specific time limit to allow solicitations to be made for no more than 30 days after the consumer-initiated communication under this exception. Industry commenters also objected to some of the examples. In particular, industry commenters objected to the example in proposed § 680.20(d)(2)(i) on two grounds. First, these commenters believed that the consumer should not have to supply contact information in order to trigger the exception. These commenters noted that such a requirement would seem to preclude solicitations over the phone during the same call by presuming that a solicitation would be made by mail or e-mail. Some of these commenters also believed that consumers would expect an affiliated company, especially a company with a common brand, to have their contact information already and would not want to provide it again. Second, as noted above, some commenters maintained that the affiliate should be able to respond by making solicitations about any product or service, not just those mentioned by the consumer. Many industry commenters objected to the example in proposed § 680.20(d)(2)(ii) about the consumer responding to a call back message. These commenters believed that such a call back should qualify as a consumer-initiated communication, noting that the consumer has the option of not returning the call. Moreover, these commenters noted that the customer service representative receiving the call would not know what prompted the consumer’s call. Several commenters acknowledged that there may be concerns about calls made under false pretenses to prompt consumers to return the call, but suggested that those concerns should be addressed by other means, such as enforcement of the laws dealing with unfair or deceptive acts or practices. Finally, some industry commenters expressed concerns about the example in proposed § 680.20(d)(2)(iii) regarding the consumer who calls to ask for retail locations and hours. These commenters noted that it is impossible to know what will transpire on a particular telephone call. One commenter noted, for example, that if a consumer called to ask for directions to an office, the customer service representative might ask why the consumer needed to go to that office. This, in turn, could prompt the consumer to mention a product or service that the consumer hoped to obtain and lead to a discussion of specific products or services that might be appropriate for the consumer. Section 680.21(c)(4) of the final rule revises the consumer-initiated communications exception to delete the reference to oral, electronic, or written communications. The Commission believes that any form of communication may come within the exception as long as the consumer initiates the communication, whether in-person or by mail, e-mail, telephone, facsimile, or through other means. New forms of communication that may develop in the future could also come within the exception. Section 680.21(c)(4) of the final rule also provides that the communications covered by the exception are consu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE7-21348. Public record. Not legal advice.