## Facts

- Trans Union operated as a consumer reporting agency that compiled credit-file information and sold traditional credit reports used in credit, insurance, and employment decisions.
- Trans Union also sold target-marketing products derived from its credit database, generating lists that contained only consumers’ names and addresses.
- The lists were created by selecting individuals meeting credit-related criteria (e.g., certain types of accounts or levels of recent credit activity) from a database built from “tradelines” and related credit-file data.
- Marketers purchased the lists to send unsolicited offers of goods and services.
- The Federal Trade Commission determined the marketing lists were “consumer reports” under the Fair Credit Reporting Act (FCRA) and that selling them for general marketing was not an authorized purpose under the statute.
- After an earlier appellate remand for insufficient evidentiary support regarding whether the information was collected or expected to be used for eligibility determinations, the FTC developed a broader record and reissued an order requiring Trans Union to stop furnishing the lists except as allowed by FCRA permissible-purpose provisions.

## Issues

1. Whether substantial evidence supported the FTC’s determination that Trans Union’s target-marketing lists were “consumer reports” under FCRA § 603(d).
2. Whether selling such lists for general target marketing lacked a permissible purpose under FCRA § 604.
3. Whether applying the FCRA to restrict Trans Union’s sale of the lists violated the First Amendment protections applicable to commercial speech.

## Decision

- The court denied Trans Union’s petition for review and upheld the FTC’s cease-and-desist order.
- The court held substantial evidence supported the FTC’s findings that the lists “bear on” consumers’ personal characteristics or mode of living because selection criteria derived from credit files convey meaningful information about consumers.
- The court upheld the FTC’s conclusion that the underlying database and resulting lists were collected and expected to be used, at least in part, for FCRA-covered eligibility purposes based on evidence of Trans Union’s collection practices and lenders’ use of the same data in credit decisions.
- The court agreed that general target marketing is not a permissible purpose for furnishing consumer reports under FCRA § 604.
- The court rejected the First Amendment challenge, treating the lists as commercial speech of limited public concern and holding the FCRA’s restrictions reasonably advanced the government’s substantial interest in consumer privacy and were not more extensive than necessary.

## Legal Principles

- A communication can qualify as a “consumer report” even if it contains only names and addresses when the method of selecting those names and addresses from credit files causes the communication to “bear on” characteristics such as consumers’ personal characteristics or mode of living.
- “Mere inclusion” of information in a credit report does not automatically establish that it was used, expected to be used, or collected for FCRA eligibility purposes; the agency must support that element with evidence of collection practices and expected uses.
- Under FCRA § 604, consumer reports may be furnished only for enumerated permissible purposes; general target marketing to send unsolicited offers is not among them.
- Restrictions on a consumer reporting agency’s dissemination of credit-derived marketing lists may be upheld against a First Amendment challenge where the speech is commercial, implicates no matter of public concern, and the restrictions directly advance a substantial privacy interest without being more extensive than necessary.

## Conclusion

The court upheld the FTC’s determination that Trans Union’s credit-derived target-marketing lists were FCRA-regulated consumer reports and that selling them for general marketing lacked a permissible purpose, and it sustained the resulting restrictions as a constitutionally permissible privacy measure governing commercial speech.


Trans Union Corp. v. FTC, 245 F.3d 809 (D.C. Cir. 2001)