[Federal Register Volume 69, Number 215 (Monday, November 8, 2004)]
[Proposed Rules]
[Pages 64698-64702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24841]
[[Page 64698]]
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FEDERAL TRADE COMMISSION
16 CFR Chapter I
[RIN 3084-AA94]
Fair and Reasonable Fee for Credit Score Disclosure
AGENCY: Federal Trade Commission (FTC).
ACTION: Advance notice of proposed rulemaking, request for comment.
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SUMMARY: Section 212(b) of the Fair and Accurate Credit Transactions
Act of 2003 (``FACT Act'') amends the Fair Credit Reporting Act
(``FCRA'') by adding a new section 609(f), which mandates that consumer
reporting agencies make available upon request a consumer's credit
score, together with other information. Section 609(f)(8) provides that
a consumer reporting agency may charge a ``fair and reasonable fee, as
determined by the [Federal Trade] Commission'' for such disclosure.
In this document, the Federal Trade Commission (``FTC'' or
``Commission'') is publishing for comment an advance notice of proposed
rulemaking that would implement the requirement in section 609(f)(8) of
the FCRA that it determine a fair and reasonable fee to be charged by a
consumer reporting agency for providing the information required under
FCRA section 609(f).
DATES: Comments must be received by January 5, 2005.
ADDRESSES: Interested parties are invited to submit written comments.
Comments should refer to ``FACTA Credit Score Fee, Project No.
R411004'' to facilitate the organization of comments. A comment filed
in paper form should include this reference both in the text and on the
envelope, and should be mailed to the following address: Federal Trade
Commission/Office of the Secretary, Room H-159 (Annex O), 600
Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is requesting
that any comment filed in paper form be sent by courier or overnight
service, if possible, because U.S. postal mail in the Washington area
and at the Commission is subject to delay due to heightened security
precautions.
Comments containing confidential material must be filed in paper
form, must be clearly labeled ``Confidential,'' and must comply with
Commission Rule 4.9(c). 16 CFR 4.9(c) (2004).\1\
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\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See Commission rule 4.9(c),
16 CFR 4.9(c).
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Comments filed in electronic form should be submitted by clicking
on the following Web link: https://secure.commentworks.com/ftc-CreditScoreFee and following the instructions on the Web-based form. To
ensure that the Commission considers an electronic comment, you must
file it on the Web-based form at the https://secure.commentworks.com/ftc-CreditScoreFee weblink. You may also visit http://www.regulations.gov to read this advance notice of proposed rulemaking,
and may file an electronic comment through that Web site. The
Commission will consider all comments that regulations.gov forwards to
it.
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments received by the
Commission, whether filed in paper or in electronic form, will be
considered by the Commission, and will be available to the public on
the FTC Web site, to the extent practicable, at http://www.ftc.gov. As
a matter of discretion, the FTC makes every effort to remove home
contact information for individuals from public comments it receives
before placing those comments on the FTC Web site. More information,
including routine uses permitted by the Privacy Act, may be found in
the FTC's privacy policy, at http://www.ftc.gov/privacy.htm.
FOR FURTHER INFORMATION CONTACT: Christopher Keller, Attorney, (202)
326-3224, Division of Financial Practices, Federal Trade Commission,
601 New Jersey Avenue, NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
I. Background
The FCRA, 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 that is
collected and communicated by consumer reporting agencies. 15 U.S.C.
1681-1681x. Since its inception in 1970, the FCRA has provided
generally that a consumer may learn of the information that consumer
reporting agencies maintain concerning the consumer. As originally
enacted, the FCRA provided that a consumer could obtain disclosure of
the ``nature and substance'' of the information in his or her file at
the consumer reporting agency.
In 1996, the Consumer Credit Reporting Reform Act, Pub. L. 104-208,
110 Stat. 3009, amended the FCRA to provide that a consumer may obtain
disclosure of ``[a]ll information in the consumer's file at the time of
the request * * *,'' as well as a summary of consumer rights under the
FCRA. However, the 1996 amendment specifically excluded from the
information required to be disclosed to consumers ``any information
concerning credit scores or any other risk scores or predictors
relating to the consumer.''
The Fair and Accurate Credit Transactions Act of 2003, Pub. L. 108-
159, 117 Stat. 1952, amends the FCRA to add a new subsection 609(f) to
the FCRA, giving consumers the right to obtain disclosure of credit
scores and related information.\2\ The requirement to disclose a credit
score applies to consumer reporting agencies that ``distribute scores
that are used in connection with residential real property loans,'' or
``develop scores that assist credit providers in understanding the
general credit behavior of a consumer and predicting the future credit
behavior of the consumer.''\3\ The provision requires only the
disclosure of a ``mortgage score'' or ``educational score,'' and does
not require disclosure of other risk scores based on credit
information, such as those used to underwrite auto loans, personal
loans, credit cards, or insurance products.\4\
[[Page 64699]]
New subsection 609(f)(8) provides that the consumer reporting agency
may charge a ``fair and reasonable fee, as determined by the
Commission'' for such disclosure.
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\2\ In relevant part, Section 212(b) of the FACT Act provides:
(b) DISCLOSURE OF CREDIT SCORES--Section 609 of the Fair Credit
Reporting Act (15 U.S.C. 1681g), as amended by this Act, is amended
by adding at the end the following:
``(f) DISCLOSURE OF CREDIT SCORES--
``(1) IN GENERAL--Upon the request of a consumer for a credit
score, a consumer reporting agency shall supply to the consumer a
statement indicating that the information and credit scoring model
may be different than the credit score that may be used by the
lender, and a notice which shall include--
``(A) the current credit score of the consumer or the most
recent credit score of the consumer that was previously calculated
by the credit reporting agency for a purpose related to the
extension of credit;
``(B) the range of possible credit scores under the model used;
``(C) all of the key factors that adversely affected the credit
score of the consumer in the model used, the total number of which
shall not exceed 4 * * *;
``(D) the date on which the credit score was created; and
``(E) the name of the person or entity that provided the credit
score or credit file upon which the credit score was created.''
\3\ FCRA section 609(f)(4).
\4\ Section 609(f)(7)(A) provides that ``In complying with this
subsection, a consumer reporting agency shall supply the consumer
with [1] a credit score that is derived from a credit scoring model
that is widely distributed to users by that consumer reporting
agency in connection with residential real property loans or [2]
with a credit score that assists the consumer in understanding the
credit scoring assessment of the credit behavior of the consumer and
predictions about the future credit behavior of the consumer.''
Section 609(f)(7), 15 U.S.C. 1681g(f)(7). Thus, consumer reporting
agencies may provide consumers with a score derived from an actual
model used to calculate scores for mortgage underwriting, or may opt
to provide consumers with a so-called ``educational score,'' which
shows a consumer how scoring works and the perceived credit risk
that the consumer presents relative to other consumers.
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New section 609(f)(2)(A) of the FCRA defines a credit score as ``a
numerical value or a categorization derived from a statistical tool or
modeling system used by a person who makes or arranges a loan to
predict the likelihood of certain credit behaviors, including
default.'' Generally, the higher the score, the lower the predicted
risk.\5\
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\5\ See http://www.ftc.gov/bcp/creditscoring/present/index.htm
(describing the development and application of scoring models).
Section 212(c) of the FACT Act (``Disclosure of Credit Scores by
Certain Mortgage Lenders''), which adds subsection (g) to section
609 of the FCRA, specifies the text of an educational disclosure
notice that mortgage lenders are required to supply to consumers.
The notice describes how scores are derived and explains their
significance to the consumer. Section 609(g)(1)(A) and (D); 15
U.S.C. 1681g(g)(1)(A), (D).
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Currently, there appears to be an extensive and dynamic market for
credit score products. In addition, several sellers are developing and
introducing diverse new scoring products. Many of these sellers are not
consumer reporting agencies, and thus would not be subject to the
Commission's fee determination under FCRA section 609(f)(8). Consumers
can buy scores from several companies, including subsidiaries of
nationwide consumer reporting agencies and Fair Isaac and Company
(FICO), the company that initially developed credit scoring. Other
companies have also entered the market.\6\
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\6\ For example, in April 2004, Intersections, Inc., a company
specializing in providing various credit information products direct
to consumers, made an initial public offering of common stock. See
American Banker, ``Young Credit Monitoring Firm Gets Cap One Feather
in Cap,'' Sept. 15, 2004.
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Scores are available to consumers in a wide variety of forms and
delivery methods, both directly from the companies that provide the
scores and score products themselves, and indirectly through entities
that have existing relationships with consumers (e.g., credit card
issuers) who ``partner'' with the score suppliers. Some companies that
offer consumer credit scores also provide a variety of educational
material, including tutorials and interactive exercises that allow
consumers to see how modifications in credit behavior (such as closing
an account or making a larger payment) might affect their credit
score.\7\
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\7\ See, e.g., http://www.myfico.com/.
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Most credit score products available to consumers include not only
a score, but also a copy of the consumer's complete credit report and
educational materials.\8\ Some products include additional features,
such as a monitoring function--e.g., a service that alerts the consumer
when new or negative information is added to the consumer's file or new
accounts are opened in the consumer's name.\9\ The ``bundled'' services
are available at prices that range from $14 to $90, depending on the
duration of the service and the range of options offered with the
package. For those packages that include only the consumer's full
report plus a score, the incremental cost of the score component of the
product appears to be in the range of $4 to $7.\10\
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\8\ See, e.g., http://www.transunion.com/; http://www.experian.com/; https://www.econsumer.equifax.com/; http://www.freecreditadvice.com/; http://www.consumerinfo.com/; http://www.truecredit.com/.
\9\ See, e.g., http://www.freecreditreport.com/.
\10\ We look only at report-plus-score products because where
the ``bundle'' includes added services or products, the cost of the
additional items would be difficult to ascertain. The score
component calculation is based on an assumption that, of the total
fee for the package, the basic cost of the full credit report
accounts for approximately $9, which is the price generally charged
by consumer reporting agencies for a stand-alone copy of a consumer
report.
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Stand-alone scores, such as those required by section 609(f),
appear to be available in those states that mandate free credit
reports, and particularly in California and Colorado, where state laws
require the disclosure of credit scores.\11\ In California and
Colorado, the laws requiring disclosure of scores also permit a
consumer reporting agency to charge a ``reasonable'' fee.\12\ In those
states where a score-only product is available, the cost range is
approximately $5 to $8.\13\
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\11\ Sections 1785.10 and 1785.15.1 of the California Civil
Code, effective July 1, 2001; Section 12-14.3-104.3 of the Colorado
Revised Statues. Section 212(b) of the FACT Act is based on the
California statute.
\12\ Section 1785.15.2(b) of the California Civil Code, and
section 12-14.3-104.3(5) of the Colorado Revised Statutes,
respectively. Although the statutes permit consumer reporting
agencies to charge a ``reasonable fee,'' they do not specify a fee
or a mechanism for determining one.
\13\ TransUnion offers a stand-alone score for $4.95 through its
Web site. See http://www.transunion.com/ Personal/
CreditReportandScoreFees.jsp. Based on telephone inquiries in
California made in mid-2004, Experian sells a score alone for $6,
and Equifax charges $8.
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II. Possible Approaches for Commission Determination
Section 609(f)(8) of the FCRA states that consumer reporting
agencies may charge a fair and reasonable fee ``as determined by the
Commission.'' The law does not specify the manner in which that fee is
to be determined. The Commission invites comments from all interested
parties on any aspect of a proposed determination of a fair and
reasonable fee for score disclosure. In setting out its background
discussion above, and in reviewing various potential approaches to its
determination below, the Commission does not wish to preclude comment
on any alternatives, or the submission of appropriate background
information. The Commission invites comment on approaches and factors
that should be considered in determining a fee for the disclosures
required under FCRA section 609(f), as well as comment on underlying
premises that it should employ in considering various approaches and
factors.
There are several possible approaches that the Commission could
take to make the required determination. One approach would be to
establish a single mandatory price that regulated entities must charge
for a score disclosure. Such an approach could provide clarity and
certainty for both the industry and consumers. On the other hand, a
fixed price might result in a higher fee than a consumer would be asked
to pay in a competitive market; where the price is set above the level
the regulated seller would otherwise charge, consumers could pay more
than they would without intervention. If the fee is set too low,
however, it may discourage competition on other terms of the
transaction. For example, the seller may choose to cut corners
elsewhere, such as quality, service, or willingness to innovate. In a
market such as this--with both regulated sellers (consumer reporting
agencies who distribute mortgage scores or develop their own scoring
models) and unregulated sellers (non-consumer reporting agencies and
consumer reporting agencies that do not sell mortgage scores or develop
proprietary scores)--a fixed price may place regulated sellers at a
competitive disadvantage to unregulated sellers.
A maximum fee is another potential approach (setting a ``cap'' or
upper limit on the fee that could be charged). A maximum fee may be
preferable to a mandatory fee because it would allow
[[Page 64700]]
regulated entities to compete on price.\14\ If the price cap is set
below the level the regulated seller would otherwise charge, however,
it shares many of the drawbacks of a mandatory price. Furthermore, as
academic commenters have recognized, a maximum price can become a de
facto mandatory price.\15\ For example, the nine-dollar maximum fee
specified in the Fair Credit Reporting Act's section 609(f) for the
disclosure of consumer report information to consumers has become, in
practice, the industry norm: the three major nationwide consumer
reporting agencies all charge $9 for consumer file disclosures, despite
the opportunity to compete on price below the statutory limit.
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\14\ ``[C]utting prices in order to increase business is often
the very essence of competition.'' Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 594 (1986).
\15\ See, e.g., Scherer, Industrial Market Structure and
Economic Performance at 190-93, 204 (1980); Scherer, ``Focal Point
Pricing and Conscious Parallelism,'' in Scherer, Competition Policy,
Domestic and International, at 89-97 (2000). Although uniform prices
might be the result of collusion, the outcome also can be due more
innocently to a phenomenon sometimes referred to as ``focal point
pricing.'' In this situation, competitors in a market coalesce
around an externally imposed ``focal point,'' such as a government
price control. See also Arizona v. Maricopa County Med. Soc., 457
U.S. 332, 348 (1982) (stating that a maximum price fixing agreement
``may be a masquerade for an agreement to fix uniform prices, or it
may in the future take on that character'').
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Moreover, any set fee, whether mandatory or maximum, runs the risk
of becoming obsolete.\16\ A set fee may become too low--e.g., if the
costs of producing or delivering a score rise; or it may become too
high--e.g., if new technology lowers the costs of selling a score or if
market participants would compete on price absent the regulation.
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\16\ 'The reasonable price fixed today may through economic and
business changes become the unreasonable price of tomorrow.'' United
States v. Trenton Potteries Co., 273 U.S. 392, 397 (1927).
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Some of these problems may be addressed by adjusting the set price
periodically by a preannounced external factor--e.g., the consumer
price index. There is a variety of ways in which such adjustments might
be undertaken--they could be automatic and required within any rule
that the Commission adopts as its determination, or they could be
initiated by the Commission in the context of periodic review of its
determination. If the adjustments were automatic, the Commission could
itself make the adjustment based on preannounced criteria,\17\ or it
could provide a formula for periodic adjustment that those subject to
the rule would be required to apply and implement.
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\17\ Such an adjustment procedure would be analogous to the
statutory adjustment, undertaken annually by the Commission, to the
fee that consumer reporting agencies can charge consumers for
disclosure of their credit files. (In 1996, Congress specified an $8
``cap'' on the fee that consumer reporting agencies can charge for
full-file disclosure to consumers. Section 612(a)(1)(A)(i) of the
FCRA, 15 U.S.C. 1681j(f)(1)(A)(i). FCRA section 612(f)(2) provides
that the Federal Trade Commission shall increase the amount based
proportionally on changes in the Consumer Price Index. The current
limit is $9. See http://www.ftc.gov/os/2002/12/fedcreditstatutesfrn.htm.).
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One limitation to the usefulness of an externally-derived price
adjustment is the fact that it would not take into account possible
changes, e.g., in technology or costs, that are internal to a specific
firm or the industry. In order to account for such changes, the
Commission could readjust fees based on an examination of the internal
operations of each individual firm. In the public utility context, this
is typically done by a detailed examination of a firm's operating costs
and profits, capital employed, cost of capital, and rate of return on
capital. Of course, this would be a potentially difficult and complex
inquiry for the Commission to undertake in this proceeding, especially
because it may be difficult to specify which cost elements should be
included in the calculations or how to allocate fixed costs, such as
the cost of developing the scoring model.
Another approach that the Commission might consider would be to
make a determination that looks to those charges produced by a
competitive market as the basis for a fair and reasonable fee. Such a
determination might be done with varying degrees of Commission
involvement. For example, the Commission might conduct a periodic
market survey to determine the range of prices charged and whether
those prices are the product of competition, and set a price or a range
of prices.
A market-based approach is attractive because a competitive market
generally provides the most rational, responsive, and efficient form of
pricing. Typically, the market is able to produce and account for
relevant factors: prices, quality, service, costs, encouragement of
investment, and promotion of competition. The government often sets
cost-based fees in the public utility context, because regulators often
have no competitive market to which they can refer. In the case of
direct-to-consumer credit scores, however, there currently exists a
market with many buyers and sellers on which the Commission might base
a determination. In its consideration of whether a market-based
determination is appropriate and feasible, the Commission seeks comment
on whether there is reason to believe that the fees being charged
consumers for credit scores today are not fair and reasonable, that
there is not active price competition, or that the market is not
producing appropriate pricing incentives.\18\
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\18\ While there seems to be little variation in the price of
the underlying consumer credit file that is being scored, which as
noted is capped currently at $9, the several participants in the
market appear to compete vigorously in other aspects of the direct-
to-consumer score package (e.g., the score itself, accompanying
educational materials, and follow-up services). Furthermore, there
is price dispersion in the market for bundled scores, as well as the
market for stand-alone scores. See supra notes 7-13 and accompanying
text (the current range for bundled scores is $4 to $7 and the
current range for stand-alone scores is $5 to $8).
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More specifically, the Commission seeks comment on an appropriate
methodology for determining a fair and reasonable fee if it elected a
market-based approach. One method that the Commission might consider
would take advantage of the market in credit scores by determining a
fee that fluctuates based on that market. For example, the Commission's
survey of the market to be regulated shows that prices between $5 and
$8 currently are charged.\19\ A determination that reflects a dynamic,
competitive market might include a set or maximum fee based on a
calculated weighted mean figure. This approach could require the fee to
be readjusted as the weighted mean price for credit scores rises and
falls. If the Commission adopted such an approach, it would need to
specify whether the Commission itself would make such market-based
readjustments, or whether affected parties would be required to
determine and apply readjustments based on a Commission-supplied
formula.
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\19\ Prices for credit scores appear to range between $4 and $7
in the unregulated market.
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The Commission also seeks comment on whether a fee determination
based on ongoing assessment of the market might be an appropriate
method on which to base its determination, and also whether such an
approach might have drawbacks. Any market-based approach assumes that
the market in direct-to-consumer credit scores will persist. The
Commission seeks comment on both the current state of the market for
credit scores and anticipated changes in the market. For example, a
factor that could lead to changes in market forces is consumers' new
right under the FACT Act to obtain a free annual copy of their consumer
reports from each of the nationwide consumer
[[Page 64701]]
reporting agencies through a ``centralized source.''\20\ Nationwide
consumer reporting agencies may choose to market scores to consumers
(and may choose to fulfill their statutory obligation under section
609(f)) through the centralized source.\21\ The centralized source may
increase demand for scores by promoting consumer awareness of score
availability, and might further competition among the nationwide
consumer reporting agencies that sell scores through the centralized
source. On the other hand, the centralized source might provide a
competitive advantage to these consumer reporting agencies vis-a-vis
other sellers of scores due to the ``captive'' audience of consumers
that it supplies.\22\
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\20\ Section 211(d) of the FACT Act. Under the Commission's rule
implementing this requirement, this centralized source will first be
available to some consumers beginning December 1, 2004, with full
implementation by September 1, 2005. See 16 CFR 610, 69 FR 35468
(June 24, 2004). See also http://www.ftc.gov/os/2004/05/040520factafrn.pdf and http://www.ftc.gov/os/2004/06/040624factafreeannualfrn.pdf.
\21\ Id.
\22\ The FACT Act also contains a new requirement that mortgage
lenders disclose a credit score to home loan applicants, along with
an explanatory notice. Section 212(c) of the FACT Act adds new FCRA
section 609(g), effective December 1, 2004, mandating score
disclosure and providing the text of the educational ``Notice to the
home loan applicant.'' This mandated disclosure and notice may
increase consumer awareness of credit scores, which might increase
consumer demand for scores, but also could diminish demand for score
purchases, because those consumers who apply for home loans will
receive scores for free.
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The Commission is seeking to make a determination that would
preserve for consumers the benefits of competition in both the
regulated and unregulated market, while protecting consumers from the
non-competitive prices that might occur in these markets in the event
that competition deteriorates. Optimally, the Commission seeks to
identify and implement an approach that will result in a fee that is
fair to consumers; will provide regulated entities with a sufficient
level of certainty; will encourage regulated entities to compete on
price, quality, and service; will encourage innovation and cost-
cutting; will avoid unduly interfering with the unregulated market for
credit scores; and does not involve a lengthy rate-making proceeding or
reliance upon proprietary cost or revenue data.
The Commission seeks comment on the relative merits of each
approach, as well as comments and suggestions on other appropriate
factors to take into account in determining a fair and reasonable fee
or periodically adjusting that fee.
Effective Date
The Commission proposes an effective date of thirty days after
promulgation of its final determination.
The Commission recognizes that the provisions of FCRA section
609(f) will become effective on December 1, 2004 without regard to
whether the Commission has made a determination or given guidance on
how it will determine whether a particular fee is fair and
reasonable.\23\ Although Congress has directed credit scores be
available for a fair and reasonable fee as determined by the
Commission, it did not impose a deadline for a determination nor has it
required that the determination be made in any particular manner.
Furthermore, there is no indication that Congress meant to require
regulated entities to make the required disclosures free of charge. For
these reasons, the Commission interprets section 609(f) to allow
regulated entities to charge a fee for required disclosures in advance
of any specific Commission determination or other guidance, so long as
that fee is fair and reasonable. Thus, absent additional Commission
action on or before December 1, 2004, consumer reporting agencies must
disclose mortgage or educational scores to consumers and may charge a
fair and reasonable fee for those disclosures. Indeed, this process is
currently used in the states that require similar disclosure.
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\23\ See 16 CFR 602.1(c)(3)(x) (establishing December 1, 2004 as
the effective date for FACTA Section 212(b)).
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The Commission's enforcement of the ``fair and reasonable''
requirement will be by reference to the extant market in credit scores.
Thus, at present the Commission may question any fee that significantly
exceeds the current market rates for credit scores, which are currently
in the range of $4 to $8.
III. Request for Comments
The Commission welcomes comment on all aspects of the determination
it will make, including policy and pragmatic considerations associated
with any potential approach to determining a fair and reasonable fee
for credit score disclosure, costs and benefits to all affected
parties, implementation considerations, and any other issues bearing on
the Commission's determination. Specifically, the Commission seeks
comment on the range of approaches outlined above, as well as
suggestions for alternative approaches to fee determination, and
comments prompted by the following considerations and questions. All
comments should be filed as prescribed in the ADDRESSES section above,
and must be received by January 5, 2005.
(1) The Commission believes that the current market in direct-to-
consumer scores is competitive and healthy--there appears to be price
dispersion, innovation, and a variety of products and sellers. Is this
an accurate characterization of the market? If so, why? If not, why?
The Commission believes that one nationwide consumer reporting agency--
TransUnion--sells stand-alone credit scores to consumers for $4.95 in
states that mandate free file disclosures. Three nationwide consumer
reporting agencies sell stand-alone scores in California and Colorado
for prices ranging from $4.95 to $8. Is this accurate? Are these the
only circumstances under which consumers can obtain stand-alone credit
scores? The Commission believes that most scores are sold as part of a
package or are bundled with a consumer report and other information or
services. Is this accurate? What is the range of prices for these
products? By what method should the score component of a package or
bundle or goods and services be valued?
(2) The Commission recognizes that its determination under FCRA
Section 609(f) will apply only to a portion of the market--consumer
reporting agencies that distribute ``mortgage'' scores or develop their
own credit scores--and only to two scoring products currently offered
to consumers--``mortgage'' scores and ``educational'' scores. How many
consumer reporting agencies would be subject to this requirement? What
percentage of the credit score market would be regulated, and what
percentage unregulated?
(3) The Commission is aware that many non-consumer reporting
agencies offer scores and related products to consumers. What is the
relevant market for purposes of the Commission determination? What
would be the competitive effects of the imposition of a maximum price
requirement that applies only to a part of the market for scores? Would
a maximum price requirement in the limited market for ``statutory''
scores (i.e., mortgage or educational scores provided by consumer
reporting agencies) have effects on the broader, unregulated market for
scores?
(4) It is the Commission's understanding that many consumer
reporting agencies do not currently provide scores directly to
consumers, but do so through non-consumer reporting agency
subsidiaries. Will consumer reporting agencies choose to fulfill the
statutory requirement in
[[Page 64702]]
FCRA Section 609 through non-consumer reporting agency subsidiaries?
(5) Consumer reporting agencies can fulfill FCRA Section 609's
requirement by providing consumers with mortgage or educational scores.
How will consumer reporting agencies choose to fulfill this requirement
and what type of score are they most likely to provide to consumers?
Why?
(6) Among the potential approaches available to the Commission is
determining a fee based on the market for scores. In that context, what
is the appropriate market to consider: the market for stand-alone
mortgage and educational scores sold by consumer reporting agencies, or
the market for all credit scores sold by consumer reporting agencies
and non-consumer reporting agencies? If a market-based approach is
appropriate, are these two markets appropriate reference points? Are
there other markets that should be considered? Overall, what is the
appropriate market, and what are the factors that the Commission should
consider in determining the appropriate market?
(7) The Commission welcomes comment on whether other factors, in
addition to prices charged in a competitive market, should be taken
into account in determining a fair and reasonable fee for required
disclosures (e.g., cost data, revenue data, other market conditions).
Comments should discuss the pragmatic aspects of each factor advanced
for consideration; for example, whether data underlying a given factor
are readily available or difficult to obtain.
(8) For any determination involving a specified dollar amount for a
fair and reasonable fee, should the Commission include within a final
determination a mechanism for periodic adjustment of the specified
amount? If so, what approach is desirable for such adjustment and what
entity or entities should determine the specific adjustment? Should the
Commission initiate new assessments of all of the factors underlying
its determination at a fixed time interval, or only when a factor
changes significantly? Should the Commission's determination include an
``automatic'' adjustment keyed to the consumer price index or similar
economic index? Should periodic adjustments be required to be both
determined and implemented by the regulated entities based on a formula
set forth within the Commission's determination? Are there other bases
for periodic adjustment that might be appropriate?
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-24841 Filed 11-5-04; 8:45 am]
BILLING CODE 6750-01-P