[Congressional Record Volume 149, Number 174 (Tuesday, November 25, 2003)]
[Senate]
[Page S15966]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FAIR AND ACCURATE CREDIT TRANSACTIONS ACT

  Mr. BENNETT. Mr. President, this past Saturday, November 22, 2003, 
the Senate passed the Fair and Accurate Credit Transactions Act of 
2003. Section 214 of the conference report, entitled ``Affiliate 
Sharing,'' adds a new requirement for a notice and an opportunity for a 
consumer to opt-out of receiving solicitations from a person based on 
information that has been shared from an affiliate of that person
  Several exceptions to the notice and opt-out requirement are included 
in the bill. The first, and most logical one, is an exception for a 
business sending solicitations to its own customers. The conference 
report defines this as a ``pre-existing business relationship.''
  The conference report further defines categories of relationships 
that qualify as a ``pre-existing business relationship'' and directs 
the regulators, including the Federal Trade Commission, to use their 
regulatory discretion to deem any ``any other pre-existing customer 
relationship'' as qualifying for the definition that may be appropriate 
but not clear from the statute.
  The first category of relationships that the conference report 
definition of ``pre-existing business relationship'' lists is a 
relationship based on ''a financial contract between a person and a 
consumer which is in force.'' ``Financial contract,'' however, is not 
defined and it is not clear on its face what the term describes. In any 
case, I believe the operative concern is that it must be a contract in 
force.
  As a conference, I believe the conference report intends that the 
term ``pre-existing business relationship'' includes a contractual 
relationship between a consumer and a person, where the consumer has 
requested the provision of a good or service, or affirmatively 
registered to receive a service, whether or not a fee is assessed.
  Certain business models, such as those in the online world, do not 
follow the traditional fee for services model that characterizes the 
brick and mortar world. Financial consideration may not exchange up 
front with a customer, or at all for that matter. Accordingly, I urge 
the regulators to factor in new and innovative business models when 
issuing the regulations implementing section 214 of the Fair and 
Accurate Credit Transactions Act of 2003, particularly with regard to 
the definition of ``pre-existing business relationship.''

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