In National Auto. Dealers Ass’n v. F.T.C., — F.3d —-, 2012 WL 695526 (C.A.D.C. 2012), the NADA’s challenge to the FTC’s “risk-based pricing rules” hit a procedural snag in the D.C. Circuit Court, which found that the matter must first be initiated in the District Court. The Circuit Court described the challenge as follows:

In 2003, Congress passed the Fair and Accurate Credit Transactions Act (FACT Act), Pub.L. No. 108–159, 117 Stat.1952 (2003), as an amendment to the Fair Credit Reporting Act ( FCRA), 15 U.S.C. §§ 1681 et seq. Among other things, FACT Act § 311 inserted into the FCRA a new section 615(h), a provision that governs the “[d]uties of users in certain [consumer] credit transactions.” 15 U.S.C. § 1681m(h). That provision addresses a practice known as “risk-based pricing,” and provides statutory protections for consumers who, based on information contained in their “consumer report[s],” are offered credit at “materially less favorable [terms] than the most favorable terms available to a substantial pro-portion of consumers.” Id. § 1681m(h)(1).FN1 [FN1. “Risk-based pricing” refers to the practice of setting or adjusting the terms of credit offered to a consumer to reflect the risk of nonpayment by that consumer. “Creditors that engage in risk-based pricing generally offer more favorable terms to consumers with good credit histories and less favorable terms to consumers with poor credit histories.” Fair Credit Reporting Risk–Based Pricing Regulations, Final Rules, 76 Fed.Reg. 41,602, 41,603 (July 15, 2011).] In such circumstances, the amended FCRA entitles prospec-tive buyers to receive a “risk-based pricing notice” alerting them to the potential existence of negative information in their credit reports, so that they can check their credit histories and correct any inaccuracies. See Fair Credit Reporting Risk–Based Pricing Regulations, Final Rules, 76 Fed.Reg. 41,602, 41,603 (July 15, 2011). Under the FCRA, “any person” who “uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit” is required to provide risk-based pricing notices. 15 U.S.C. § 1681m(h)(1) (emphasis added). The Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank Act), Pub.L. No. 111–203, 124 Stat. 1376 (2010), signed into law on July 21, 2010, amended the FCRA’s risk-based pricing protections. In particular, section 1100F of the Dodd–Frank Act strengthened consumers’ rights by requiring that risk-based pricing notices include a consumer’s credit score if that credit score was used in making the credit decision. To implement this change, the Federal Trade Commission (FTC) and the Board of Governors of the Federal Reserve Sys-tem promulgated amendments to their respective risk-based pricing rules on July 15, 2011. The amendments, codified at 16 C.F.R. Part 640, “require disclosure of credit scores and information relating to credit scores in risk-based pricing notices if a credit score of the consumer is used in setting the material terms of credit.” 76 Fed.Reg. 41,602. Accompanying the promulgation of its amended rule, the FTC published “Supplementary Information” in the Federal Register that included the Commission’s responses to various comments received during the notice-and-comment period. See 76 Fed.Reg. 41,606–07 & nn. 5–9. Within this Supplementary Information was the Commission’s interpretation of the scope of the word “uses” as it is employed in the FCRA, 15 U.S.C. § 1681m(h)(1). As relevant here, the FTC construed the risk-based pricing notice requirements in section 1681m(h) to apply to an automobile dealer that uses consumer reports to offer materially less favorable credit terms to car buyers—even when the dealer “does not directly obtain the consumer report[s] and/or credit score[s] from a consumer reporting agency” but instead relies upon information provided by third-party financing sources. 76 Fed.Reg. 41,606. The National Automobile Dealers Association (NADA) disputes the FTC’s interpretation of section 1681m(h). In September 2011, NADA filed a petition for review in this court, as well as a complaint in the United States District Court for the District of Columbia. See Nat’l Auto. Dealers Ass’n v. FTC, No. 11–1313 (D.C.Cir. Sept. 9, 2011); Nat’l Auto. Dealers Ass’n v. FTC, No. 1:11–cv–1711 (D.D.C. Sept. 22, 2011). Although the petition is silent as to the petitioner’s cause of action, the complaint filed in district court makes clear that NADA’s challenge is brought pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq. The FTC filed a motion to dismiss the petition on the ground that we lack appellate jurisdiction. In response, NADA does not dispute that we lack jurisdiction, but states that it filed the petition as a “protective measure,” to ensure compliance with the relevant jurisdictional deadlines “in the event that this Court (or the district court in the related proceeding)” determines that its challenge is subject to direct appellate review.

The Circuit Court found that the Action was not a ‘trade rule’ triggering any statute that would have given the Circuit Court jurisdiction to hear the matter on direct review. Accordingly, the Circuit Court dismissed the Action without prejudice since the NADA had simultaneously filed an action in the district court:

There is, therefore, no statute that gives this court jurisdiction to hear NADA’s petition on direct review. Accordingly, we must dismiss the petition for lack of appellate jurisdiction. And because the petitioner has—quite appropriately—simultaneously filed a complaint in the district court, we need not consider transferring the petition to that court.