Document View

More than five years ago, Congress enacted the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) to add to the Fair Credit Reporting Act (FCRA) substantial obligations for businesses, but left many of the most important of the new duties to be implemented by federal agency rulemaking. This article examines selected FCRA litigation developments and discusses a recent amendment to the FCRA that will significantly limit private rights of action for the failure of a business to redact expiration dates from point-of-sale credit and debit card receipts. The term "eligibility information" is defined to include any information that would meet the definition of a "consumer report," but for the exclusions from that definition in the FCRA. A financial institution or credit grantor who offers or maintains one or more covered accounts must develop and implement a written identity theft prevention program designed to detect, prevent, and mitigate identity theft.

Copyright American Bar Association Feb 2009

INTRODUCTION

More than five years ago, Congress enacted the Fair and Accurate Credit Transactions Act of 2003 ("FACT Act")1 to add to the Fair Credit Reporting Act ("FCRA")2 substantial obligations for businesses, but left many of the most important of the new duties to be implemented by federal agency rulemaking. In the past year, the federal regulatory agencies have made significant progress toward completing several of these rules.

In addition to summarizing these rulemaking proceedings, this Survey examines selected FCRA litigation developments and discusses a recent amendment to the FCRA that will significantly limit private rights of action for the failure of a business to redact expiration dates from point-of-sale credit and debit card receipts.

FACT ACT RULEMAKING PROCEEDINGS FINAL AFFILIATE MARKETING RULE

Through the FACT Act, Congress added to the FCRA a new provision prohibiting companies that receive information about consumers from an affiliated company from using that information to make marketing solicitations to the consumers, unless it is clearly and conspicuously disclosed to the consumer that eligibility information received from affiliates may be used for marketing purposes, the consumer is given an opportunity to opt out, and the consumer does not opt out.3 This new notice and opt-out requirement - referred to as the Affiliate Marketing Rule-is in addition to the existing opt-out provisions under Title V of the Gramm-LeachBliley Act ("GLB Act"),4 which limits the sharing of consumer financial information with unaffiliated third parties unless the consumer has been given notice and the opportunity to opt out of such sharing.5 It is also in addition to the FCRA16 which permits the communication of consumer report information among affiliated companies after the consumer receives notice and an opportunity to opt out.7

This requirement has been implemented by rules issued by the Federal Deposit Insurance Corporation ("FDIC"),8 the Board of Governors of the Federal Reserve System ("FRB"),9 the Office of the Comptroller of the Currency ("OCC"),10 the Office of Thrift Supervision ("OTS"),11 the National Credit Union Administration ("NCUA"),12 the Federal Trade Commission ("FTC"),13 and the U.S. Securities and Exchange Commission ("SEC").14 Compliance with each of these rules, except for that of the SEC, was required beginning on October 1, 2008. 15

The Affiliate Marketing Rule restricts only the use for marketing purposes of socalled "eligibility information" that a company receives from its affiliate.16 In other words, the Affiliate Marketing Rule does not limit the sharing of data among affiliates, does not limit the use of data for non-marketing related purposes, and does not limit the use of information that does not qualify as "eligibility information."

The term "eligibility information" is defined to include any information that would meet the definition of a "consumer report," but for the exclusions from that definition in the FCRA.17 Thus, the term includes any information that bears on a consumer's "credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for" credit, insurance, employment, or other specified products, services, or benefits.18 It includes information that is otherwise specifically excluded from the definition of "consumer report," such as information about a company's own transactions with a consumer19 or information communicated among affiliates after the consumer has been provided notice and an opportunity to opt out of the communication of information among affiliates.20 The term "eligibility information" does not, however, include "aggregate or blind" data that does not identify a specific consumer.21

While the Affiliate Marketing Rule prohibits a company from marketing to a consumer based on eligibility information that the company receives from an affiliate (unless the consumer is provided with notice and an opportunity to opt out of such marketing), the rule specifically permits a company to use its own eligibility information to market the products and services of its affiliates.22 In addition, a company may direct its service provider to use the company's own eligibility information to market the products and services of its affiliates, but this requires that certain terms and conditions be imposed on the service provider's use of such information and that the company monitor the service provider for adherence to those terms and conditions.23

The Affiliate Marketing Rule contains several exceptions to the general prohibition on the use of shared eligibility information for marketing. For example, a company may use information received from its affiliate to market to a consumer where the company, or the company's licensed agent, has a "pre-existing business relationship" with the consumer,24 which is defined as (i) a financial contract in force, (ii) the purchase or lease of a product or service during the eighteen months prior to the solicitation being sent, or (iii) an inquiry or application regarding the company's products or services during the three months prior to the solicitation being sent.25 A company also may use information received from its affiliate to market to a consumer where the consumer has authorized solicitations, or the company is (i) responding to the consumer inquiring about a product or service;26 (ii) performing services for an affiliate that could conduct the marketing itself;27 or (iii) communicating with a beneficiary or participant in an employee benefit plan administered by the company.28

FINAL RED FLAGS, ADDRESS DISCREPANCY, AND CHANGE OF ADDRESS RULES

The FACT Act required the FDIC, FRB, OCC, OTS, NCUA, and FTC (collectively, the "Agencies") to prescribe jointly regulations requiring financial institutions and credit grantors to adopt policies and procedures to identify identity theft risks (the "Red Flags Rule"), and also required the Agencies to adopt regulations requiring card issuers to adopt procedures to verify change of address requests followed in a short time (during at least the first 30 days after receipt) by a request for a new or replacement card (the "Change of Address Rule").29 A separate provision of the FACT Act required the Agencies to issue jointly regulations requiring users of consumer reports to adopt policies and procedures for dealing with notices of address discrepancies received from consumer reporting agencies (the "Address Discrepancy Rule").30 On November 9, 2007, the Agencies published the final regulations under these provisions with a mandatory compliance date of November 1, 2008.31

The Red Flags Rule applies to any "financial institution"32 or "creditor" who offers or maintains "covered accounts."33 A "financial institution" is a person who holds a "transaction account," as that term is defined in section 19(b) of the Federal Reserve Act,34 for a consumer.35 The term "creditor" has the same meaning as under the Equal Credit Opportunity Act,36 which defines it to mean "a person who, in the ordinary course of business, regularly participates in a credit decision."37 A "covered account" is (i) any consumer-purpose account designed to permit multiple payments, and (ii) any other account for which there is a reasonably foreseeable risk to customers or to the financial institution or credit grantor from "identity theft."38 The term "identity theft" means "a fraud committed or attempted using the identifying information of another person without authority."39

A financial institution or credit grantor who offers or maintains one or more covered accounts must develop and implement a written identity theft prevention program (the "Program") designed to detect, prevent, and mitigate identity theft.40 The Program also must be appropriate to the size and complexity of the entity and the nature and scope of its activities.41 The initial written Program must be approved by the board of directors or an appropriate committee of the board;42 involve the board of directors, an appropriate committee of the board, or a designated senior management employee in the oversight, development, implementation, and administration of the Program;43 provide for staff training to implement effectively the Program;44 and require effective oversight of service provider arrangements.45

In addition to the Red Flags Rule itself, the Agencies have issued guidelines to assist covered entities in complying with the regulation46 and have provided a list of "illustrative examples" of twenty-six "red flags" or indicators of possible identity theft.47 The Agencies have stated that the list of red flags is not intended to be a "checklist" for bank examiners or covered entities;48 they note that some of the listed red flags may not be relevant to a given situation while red flags in addition to those listed may be significant in other cases.49

The Change of Address Rule requires a financial institution or credit grantor, as defined in the Red Flags Rule, who issues credit or debit cards to implement reasonable policies and procedures to assess the validity of a change of address if, within thirty days after receiving notification of a change of address on an account, the card issuer receives a request for an additional or replacement card for the same account.50 The card issuer may satisfy this requirement by notifying the cardholder of the request at the former address (or by any other means of communication previously agreed to by the cardholder and the credit grantor) and providing a reasonable means for the cardholder to report that the address change is not correct,51 or by otherwise assessing the validity of the change of address.52 The rule permits card issuers to comply by validating a change of address request before receipt of a request for an additional or replacement card.53

Through the FACT Act, Congress amended the FCRA to require "nationwide consumer reporting agencies"54 to notify a user of a consumer report if there is a substantial discrepancy between the address that the user submitted as part of its request for a consumer report and the address which the consumer reporting agency has in its file for the consumer.55 The Address Discrepancy Rule provides that, if any user of a consumer report receives such an address discrepancy indicator ("ADI") from a nationwide consumer reporting agency, the user must have reasonable policies and procedures to allow it to form a reasonable belief that the consumer report relates to the same consumer about whom it requested the report.56 If the user establishes a continuing relationship with the consumer and regularly furnishes information to the nationwide consumer reporting agency from which it received the ADI, the user also must furnish to the consumer reporting agency an address for the consumer which the user has reasonably confirmed to be accurate.57 The verified address must be furnished to the consumer reporting agency during the same reporting period in which the relationship was established.58

The Agencies have stated that they view the Address Discrepancy Rule primarily as an accuracy provision, not as a fraud or identity theft prevention measure.59 Accordingly, they expect that a consumer report containing an ADI would not be used where a user does not have reasonable belief that the report actually pertains to the individual for whom it requested the report.60

PROPOSED RISK-BASED PRICING RULE

Background

Until the development of sophisticated credit scoring models in the 1990s, most credit decisions were framed as simple "Yes/No" questions.61 The applicant either met the credit grantor's standards for a particular product or not. In other words, an applicant was either "creditworthy" or not. For any given product, each credit grantor had one rate (although some may have had affiliates who specialized in loans to subprime borrowers at higher rates).62 If a negative decision was driven by information in the applicant's consumer report, an adverse action notice would be issued, giving the applicant an opportunity to review the consumer report and challenge any information believed to be erroneous.63

As credit scoring became more prevalent and credit grantors became accustomed to thinking in terms of different degrees of risk, the practice of "risk-based pricing" for credit became widespread, and creditors began to rely on consumer report information and "credit scores" based on consumer reports.64 Since most of these decisions did not constitute "adverse action" as defined in Regulation B and the FCRA, adverse action notices were generally not generated.65 This led to concern that erroneous information in a consumer's consumer report might result in the consumer paying higher interest rates without the consumer ever getting an opportunity to review and challenge that information.66

THE FACT ACT PROVISION

The FACT Act addressed this concern by amending the FCRA to require credit grantors to provide a "risk-based pricing notice" to any consumer who is granted "credit on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that [credit grantor] , based in whole or in part on a consumer report."67 Notice, however, is not required if the consumer applied for credit on specific material terms and was granted credit on those terms, or if the credit grantor provided or will provide an adverse action notice to the consumer.68 The statute addresses the timing, content, and manner of delivery of risk-based pricing notices and requires that the riskbased pricing notice "include a statement informing the consumer that the consumer may obtain a copy of a consumer report from [the consumer reporting agency that furnished the report on which the decision was based] without charge."69 The FTC and the FRB, acting jointly, also have broad rulemaking authority to prescribe "the form, content, time and manner of delivery" of such notices, to clarify terms such as "what credit terms are material, and when credit terms are materially less favorable," and to grant exceptions to the risk-based pricing notice requirement.70

These statutory provisions contain a host of ambiguities. For example, which terms are "material"? How are "materially less favorable" and a "substantial proportion of consumers" to be defined? In addition, the statute specifically permits the notice to be given at the time of application71 - when no consumer report may yet have been obtained by the credit grantor - but also requires the notice to identify the specific consumer reporting agency that furnished a credit report on which the decision was based.72

Proposed Rule

In May 2008, nearly five years after the law's enactment, the FTC and the FRB proposed a rule intended to resolve many of these ambiguities and provide credit grantors with a number of compliance options.73

The proposed rule would simplify the definition of "material terms" for most traditional credit grantors. If there is an "annual percentage rate" ("APR") as defined by Regulation Z,74 that is the only "material term,"75 and introductory and penalty rates are ignored.76 If there is no APR, however - for example, where credit is granted in connection with a telephone or utility account - then any monetary terms that are varied based on consumer report information are "material."77 The proposed rule provides limited guidance on the meaning of "materially less favorable"78 and no guidance at all to help credit grantors define "a substantial proportion of consumers." Although credit grantors can compare the credit terms received by individual consumers to determine which consumers should receive a notice,79 the proposed rule recognizes that such direct comparisons are likely to be difficult to undertake.80 Therefore, the FTC and FRB have proposed the following compliance alternatives upon which credit grantors may rely.

Credit Score Proxy Method

If a credit score is used in setting credit card terms, the credit grantor may determine the score at which approximately 40 percent of its consumers have higher scores and 60 percent have lower scores. The risk-based pricing notice would be given to those consumers whose scores are lower than this "cutoff score."81 Note that this "cutoff" score could be different than that used by the credit grantor in deciding whether to extend credit and may be different than any score used in making specific pricing decisions. It appears that the relevant population to receive this notice consists of consumers who are accepted for a given type of credit product at some APR, since those who are simply declined would receive an adverse action notice instead of a risk-based pricing notice. The rule would permit using a sample - rather than the entire population of accepted applicants - in determining the cutoff score,82 as well as using data from other sources if the credit grantor does not have sufficient data of its own.83 The cutoff score would be recalculated not less than every two years.84

Tiered Pricing Method

A credit grantor that sets terms by placing the consumer within one of a discrete number of pricing tiers could comply by giving the notice to consumers who are not placed within the top - that is, lowest-priced - tier if there are four or fewer tiers, or, if there are more than four tiers, to those who are not placed within the top two tiers and any other tiers that, together with the top two tiers, comprise no less than 30 percent and no more than 40 percent of the total number of tiers.85 For example, if there are nine tiers, the notice would go to consumers in the six highest-priced tiers.

Credit Score Disclosure Exception

A credit grantor would not be required to provide a risk-based pricing notice where the credit grantor provides an alternative notice to the consumer that includes the consumer's current credit score and information about credit scoring generally, plus a verbal or graphic disclosure of where a particular consumer's score falls within a national distribution.86 In the case of credit secured by residential real estate, the credit grantor would be required to provide the credit score disclosures already required by the FCRA,87 including a disclosure of the key factors that adversely affected the consumer's credit score.88 This compliance alternative is technically an exception to the risk-based pricing notice requirement. While this distinction may be academic to credit grantors, it is significant to consumer reporting agencies in that, unlike a true risk-based pricing notice, a credit score disclosure will not trigger the right to an additional free consumer report.89

The timing of the risk-based pricing notices could cause the greatest difficulty for credit grantors. As proposed, the rule would require that a risk-based pricing notice be given not earlier than the communication of the credit decision to the consumer but not later than the point at which the consumer incurs an obligation, i.e., at the consummation of a closed-end transaction or the first transaction under an open-end plan.90 If the score disclosure alternative is used, the notice would be given "as soon as reasonably practicable" after the score has been obtained, but before the consumer incurs an obligation.91 Commenters on the proposed rule noted that in some cases - such as in-store "instant" credit, where credit is granted as part of a merchandise purchase at the point of sale and in a matter of seconds the requirement to deliver the risk-based pricing or credit score disclosure notice before any obligation is incurred may delay or even derail the transaction.92

The proposed rule also contains details such as its application to prescreening93 and account review94 situations, the form and content of the risk-based pricing notices,95 credit score disclosures,96 and model forms,97 as well as how to apply the rule to multi-party transactions.98

PROPOSED RULES REGARDING FURNISHERS OF INFORMATION

Through the FACT Act, Congress added provisions to the FCRA requiring the FDIC, FRB, OCC, OTS, NCUA, and FTC (the "Agencies") to enhance the "accuracy and integrity" of information relating to consumers that companies - referred to as "furnishers" - provide to consumer reporting agencies.99 The Agencies have proposed certain Guidelines (the "Guidelines") to implement these provisions.100 As proposed by the Agencies, the Guidelines would require furnishers to review historical records relating to disputed information, use "standard data reporting formats . . . where feasible," and implement risk-based policies and procedures that are reasonably designed to ensure, among other things, that the information furnishers provide about accounts or other relationships with a consumer is (i) accurate, (ii) not likely to mislead a user of a consumer report, (iii) not likely to be erroneously reflected in a consumer report, and (iv) reflective of the current status of the consumer's account or other relationship.101

In addition, the Agencies were required to adopt rules requiring furnishers who directly receive a dispute from a consumer regarding the accuracy of information provided by the furnisher to a consumer reporting agency to investigate the accuracy of the disputed information.102 (Prior to the FACT Act, furnishers were required to investigate disputes forwarded to them by consumer reporting agencies, but were under no obligation to investigate disputes received directly from consumers.103) The Agencies have proposed a rule identifying four circumstances under which a furnisher would be required to investigate a dispute received directly from a consumer.104 The proposal would require a furnisher to investigate a direct dispute if it relates to (i) the consumer's liability for a debt with the furnisher, (ii) the terms of a credit account or other debt with the furnisher, (iii) the consumer's performance or other conduct concerning an account or other relationship with the furnisher, or (iv) any other information contained in a consumer report regarding an account or other relationship with the furnisher.105 Furnishers would not, however, be required to investigate disputes regarding (i) the consumer's identifying information, (ii) the identity of past or present employers, (iii) inquiries or requests for a consumer report, (iv) information derived from public records (unless provided by a furnisher with an account or other relationship with the consumer), or (v) information related to fraud alerts.106 Furnishers also would not be required to investigate disputes submitted on behalf of the consumer by a "credit repair organization," as defined in the Credit Repair Organizations Act.107 Furnishers would be permitted to designate an address to which consumers must submit disputes, but where no such address is designated, consumers would be able to submit disputes to any business address of the furnisher.108 Furnishers would not be required to investigate disputes that they reasonably determine are frivolous or irrelevant, including a dispute that is substantially the same as a dispute previously submitted by or on behalf of the consumer, either directly to the furnisher or through a consumer reporting agency.109

LEGISLATION: THE CREDIT AND DEBIT CARD RECEIPT CLARIFICATION ACT OF 2007

Through the FACT Act, Congress amended the FCRA to require that electronically printed receipts given to the holder of a credit card or a debit card at the point of sale not include (i) more than the last five digits of the card number or (ii) the expiration date of the card.110 As discussed in last year's Annual Survey, numerous lawsuits were filed against merchants alleging that failure to remove the expiration date from receipts constituted a willful violation of this provision even where the card number was properly truncated.111

On June 3, 2008, the Credit and Debit Card Receipt Clarification Act of 2007 ("Receipt Clarification Act") was signed into law.112 In the Receipt Clarification Act, Congress made a number of findings, most notably that many merchants believed that the FCRA requirement would be fully satisfied if the account number was truncated to no more than five digits; hundreds of lawsuits had been filed against merchants alleging that the failure to remove the expiration date from receipts constitutes a willful violation of the FCRA, even where the card number was properly truncated; none of these suits alleged any actual harm to consumers; and experts unanimously agree that truncation of the card number alone prevents fraudulent transactions based on the cardholder receipt, whether or not the expiration date is displayed.113 Through the Receipt Clarification Act, Congress amended the FCRA to provide that any person who printed an expiration date on a cardholder receipt between December 4, 2004, and June 3, 2008" - the date of enactment of the Receipt Clarification Act - but otherwise complied with the receipt truncation requirements of the FCRA did not thereby willfully violate the FCRA.114 The Receipt Clarification Act expressly provided for retroactive application to any lawsuit that had not become final as of the date of its enactment.115

LITIGATION DEVELOPMENTS

CONSTITUTIONALITY OF FCRA STATUTORY DAMAGES SCHEME

Among the numerous lawsuits brought for willful noncompliance with the receipt truncation requirements of the FCRA were Grimes v. Rave Motion Pictures Birmingham, LLC.,116 and three companion cases in the U.S. District Court for the Northern District of Alabama. In Grimes, the court evidently was bothered by the prospect of numerous suits in which plaintiffs allege no actual damages but seek potentially ruinous damages from defendants.' The court held that the civil liability provisions of the FCRA,117 which allow for statutory damages of "not less than $100 and not more than $1,000" but also "punitive damages as the court may allow," are unconstitutionally vague because they fail to provide a jury with "understandable and rational criteria for any award of damages."118 The court also held that the possible imposition of both statutory damages with a high degree of discretion as to amount and punitive damages constituted impermissible double punishment for the same conduct.119 Because Grimes concerned alleged violations of the FCRA receipt truncation provisions, the passage of the Receipt Clarification Act may make the case itself moot. Nonetheless, the Grimes court acknowledged that its ruling almost certainly will not be the last word on the question of damages under the FCRA.120 In future putative class actions in which the plaintiffs allege willful violations of the FCRA but no actual damages, defendants may be quick to cite Grimes for the proposition that the FCRA statutory damages scheme is unconstitutional.121

FIRM OFFER LITIGATION UPDATE

The FCRA permits a lender or insurer to obtain consumer report information in connection with a credit or insurance transaction that is not initiated by a consumer if the transaction consists of a "firm offer" of credit or insurance.122 Last year's Annual Survey discussed litigation that had arisen under the "firm offer" provisions of the FCRA. 123 As of that writing, several courts had held that, in order for a creditor to extend a prescreened solicitation for credit, the offer of credit must be "valuable" and the creditor must present the material terms and conditions of the credit being offered.124 Other courts, however, had explicitly disagreed with these holdings and stated that a prescreened solicitation is not required to disclose any terms or conditions of the credit being offered.125 In the past year, decisions from the U.S. Courts of Appeals for the First, Seventh, and Eighth Circuits have helped to resolve some of this uncertainty.

In a pair of decisions, the U.S. Court of Appeals for the First Circuit held that the term "firm offer of credit" is explicitly defined by the FCRA, and the statutory definition imposes no requirement ìhat a firm offer of credit solicitation provide the terms of the credit, such as the interest rate and duration.126 In Dixon, the court rejected the appellants' arguments that the offer was not "firm" because the mailer did not contain all the relevant terms of the offer. Instead, the court found that "Congress's choice to omit from the FCRA any requirement for the inclusion of loan terms is properly interpreted to mean that Congress did not intend to require any such terms."127 The court also held that the common law definition of "offer" does not apply in the context of a firm offer of credit under the FCRA.128

In Murray v. New Cingular Wireless Services, Inc.,129 the U.S. Court of Appeals for the Seventh Circuit clarified that its earlier decision in Cole - which concerned an auto dealer who made a $300 credit offer that could only be used toward the purchase of a new car - applies only where "an offer of merchandise [and] an offer of credit... art made jointly."130 The Murray court held that "Cole is beside the point for pure offers of credit. When credit histories are used to offer credit (or insurance) and nothing but, the right question is whether the offer is 'firm' rather than whether it is 'valuable.'"131 The U.S. Court of Appeals for the Eighth Circuit echoed this reasoning in Poeh! v. Countrywide Home Loans, Inc.,132 holding that the Cole analysis does not apply to "pure" offers of credit, but rather only applies where merchandise also is being offered.133 The court stated, "The relevant question in determining whether a mailer offering only credit is a firm offer of credit is not whether the offer of credit is valuable but whether it is firm as defined by the statute."134

Thus, although district courts in earlier decisions reviewed firm offer of credit mailers for whether they had "value,"135 these appellate courts indicate that, at least in the context of a "pure offer of credit," whether the firm offer of credit is "valuable" is not relevant - the only relevant consideration is whether the offer will be honored as required by the statute.

[Footnote]

43. Id. § 681.2(e)(2).

44. Id. § 681.2(e)(3).

45. Id. § 681.2(e)(4).

46. Id. pt. 681 app. A.

47. See id. (supplement); see also id. § 681.2(b)(9) (defining "red flag").

48. Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003, 72 Fed. Reg. 63718, 63745 (Nov. 9, 2007) (stating that listed red flags "are examples rather than a mandatory checklist").

49. See id. at 63719 (stating that "the Program must be tailored to the entity's size, complexity and nature of its operations").

50. 16 CER. § 681.3(c) (2008).

51. Id. §681. 3(c)(1).

52. Id. § 681.3(c)(2).

53. Id. § 681.3(d).

54. The term "nationwide consumer reporting agency" refers to a consumer reporting agency that compiles and maintains files of credit and public record information on consumers residing nationwide. 15 U.S.C. § 1681a(p) (2006). In an unrelated rulemaking proceeding, the FTC stated that it "is aware of three entities that meet the ... definition of nationwide consumer reporting agency. These entities are Equifax Information Services LLC, Experian Information Solutions, Inc. , and Trans Union LLC." Free Annual File Disclosures, 69 Fed. Reg. 35468, 35469 n.6 (June 24, 2004).