Dissenting Statement of Commissioner Sheila F. Anthony
I oppose the issuance of a stay in this matter. Administrative tribunals such as the Commission "may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained." Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844-45 (D.C. Cir. 1977). In the present case, however, Trans Union has failed to make an adequate showing on any of the relevant factors. To begin with, Trans Union's arguments on the merits, which simply repeat arguments made previously, do not convince me that the issues in this case are close or difficult, much less that Trans Union has a substantial chance of success on appeal.
Nor are the equities in Trans Union's favor. Quite to the contrary, Trans Union has failed to make any plausible showing that it will suffer irreparable injury. Trans Union is first and foremost a credit reporting agency, and it makes no claim that compliance with our order will interfere with its principal activity, that of selling credit reports. Even with respect to its target marketing activities, moreover, our order does nothing more than require Trans Union to comply with the law, in the same manner that all credit reporting agencies must. Furthermore, Trans Union's attempt to equate its economic and speech interests with those that have justified stays in wholly dissimilar cases is grossly unpersuasive. Merely invoking constitutional arguments in support of its business activities does not entitle Trans Union to an automatic stay pending appeal.
Finally, even if I were to assume that Trans Union stands to suffer some level of injury, I would still conclude that the equities strongly weigh against a stay, in light of the vital interests of consumers and the general public at stake here. Trans Union has a legal obligation to comply with the FCRA by furnishing consumer credit reports only to those with a legally permissible purpose to receive them. Conforming its target marketing business to comply with the FCRA and our order will protect consumers' substantial privacy interests in their financial transactions. Moreover, once Trans Union exploits consumers' confidential financial information, it is extremely difficult to compensate for such an invasion of privacy. Therefore, the public interest weighs in favor of halting this violative behavior and effectuating the Commission's order at the earliest possible date. Accordingly, in my view, Trans Union has not met its burden in demonstrating the necessity of a stay.