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Trans Union Corp. v. Federal Trade Commission

Petition for rehearing denied; FCRA's limitations on sale of consumer reporting agency's information for target marketing purposes does not require strict scrutiny, but only intermediate scrutiny; petitioner's target marketing lists warrant only qualified constitutional protection because they interest only petitioner and its target marketing customers.

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On Petition for Rehearing

Tatel, Circuit Judge: In its petition for rehearing, Trans Union argues that we incorrectly applied Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985), when we decided that target marketing lists merit only intermediate scrutiny. In Dun & Bradstreet, the Supreme Court held that a consumer reporting agency’s wholly false credit report warranted only qualified constitutional protection because the report “concern[ed] no public issue.” Id. at 762. In reaching that conclusion, the Court noted that the report constituted “speech solely in the individual interest of the speaker and its specific business audience,” and that the report reached only “five subscribers, who, under the terms of the subscription agreement, could not distribute it further.” Id. The same is true here: Trans Union’s target marketing lists interest only Trans Union and its target marketing customers, and Trans Union sells its lists for one-time use, prohibiting purchasers from disseminating the data.

To be sure, Trans Union’s lists are not “wholly false,” as was the Dun & Bradstreet credit report, nor is the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. ss 1681, 1681a1681u, an “incidental state regulation,” as Dun & Bradstreet termed the state defamation law challenged in that case. 472 U.S. at 762. Nothing in Dun & Bradstreet, however, suggests that these two factors were critical to the Court’s decision. The important point is that here, as in Dun & Bradstreet, the targeted speech solely interests the speaker (Trans Union) and its “specific business audience” (its customers). Id.

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