Income share agreements are a relatively new type of financing arrangement that is gaining ground in the world of higher education. Under a typical education-focused ISA, a school extends education financing to students in exchange for a share of their future earned income.[1]  Certain structural elements of ISAs differ from key characteristics of credit arrangements. Unlike a loan, where the borrower must repay a principal loan amount with interest, a student’s payment obligations under an ISA are tied directly to her future income over a predetermined period of time.  An ISA provider must therefore assume the risk that a student may not have sufficient income to trigger a payment obligation under the ISA—a risk lenders do not face.

As with any emerging technology or new financial instrument, stakeholders in the education system are surveying the legal landscape to assess how various federal regulations might apply. This article provides a broad overview of ISAs and examines the relevance of select existing consumer finance laws in light of the unique structure of ISAs.

OVERVIEW

An ISA is a reciprocal promise between a student and Provider.[2]  The Provider, after admitting a student to attend the educational institution, credits the student an amount of money to use for educational expenses.  In turn, the student pledges to pay a predetermined percentage of her future income to the Provider over a period of time.  Typical ISAs contain many important terms to balance incentives and provide protection to both the student and Provider. 

The following is a brief outline of an ISA’s structure, a summary of key terms and consumer protection features commonly found in ISAs, as well as an example ISA to demonstrate how Providers can implement such arrangements.

• ISA Amount:  The amount of initial funding provided to the student by the Provider.  The ISA agreement may limit how the ISA amount is used, and is typically credited to cover specific educational expenses, like tuition.

• Income Share:  The percentage of income the student will pay the Provider.  This amount is typically calculated as a fixed percentage of the student’s gross monthly or annual income.  Alternatively—although uncommon—income share may be calculated using a particularized source of income, such as income derived from working in a specified job field. 

• Grace Period: The amount of time between the end of student’s educational program and the start of student’s payment obligations.  A typical grace period may last a few months, depending on the field of study, profession, and structure of the particular ISA.

• Payment Cap:  The maximum amount a student will pay under the ISA.  This amount is usually a multiple of the ISA amount.  For example, a student with a payment cap of 1 1/2 times the ISA amount has a payment cap of $15,000 if the ISA Amount is $10,000.  The payment cap benefits relatively high-income earners and can be prepaid under many ISAs without any penalty.  This is an important consumer protection aspect of many ISAs.

• Maximum Number of Payments:  This refers to the maximum number of monthly payments a student must make under the ISA.  A student who makes the maximum number of qualifying payments (i.e., payments based on income share when a student’s income is over the minimum income) is discharged from all payment obligations under the ISA, even if the student has not reached the payment cap.  Payments are not due during periods when the student is in school or within a grace period, as well as in any month during which the students’ incomes are below the monthly minimum income (see below).

• Maximum Payment Term:  The maximum payment term is the maximum number of months during which a monthly payment may be required.  After the end of the maximum payment term, no further payments will be required under the ISA regardless of how many payments have been made or how much has been paid.  Months in which payments are not required due to low earnings do not extend the maximum payment term, but also do not qualify as a monthly payment for purposes of the maximum number of payments.

• Monthly Minimum Income:  The amount of income necessary to trigger a student’s payment obligations.  If a student earns less than a certain amount of money during each month of the payment term, the student is not obligated to make ISA payments for that month. 

• Annual Reconciliation: Providers require students to verify their income both at the end of the grace period (so that monthly payment amounts can be determined) and at various points thereafter, often yearly.  Students are typically required to submit copies of documents (pay-stubs, IRS Forms W-2, 1099 or 4506T, and other forms of income documentation, etc.) evidencing their date of employment and actual income.

• Default: Unlike a loan, non-payment may not be an event of default if, among other things, the student’s income is less than the monthly minimum income.  Examples of events of default in a typical ISA agreement may include consistent and prolonged non-payment when the student’s income exceeds the monthly minimum income, failure to provide sufficient documents to verify the student’s income, or providing false, misleading or deceptive information to the Provider.

The following chart illustrates a sample ISA and how variations in income affect payment rates:

*      No payments for 100 months because the student’s income never exceeded the minimum income.

**    Payment cap reached.

***  The student’s income did not exceed the monthly minimum income for 64 out of 100 months of the maximum payment term; the student was unemployed, underemployed or otherwise did not work during this period.

Income earners at the ends of the spectrum are protected in different ways. If a student manages to earn only $20,000 in gross annual income over a 100-month period, she will owe $0 and her ISA obligations terminate. In contrast, a high earner making $120,000 per year will discharge her ISA in only 3 3/4 years, after reaching the payment cap of $22,500.[3]

Further, the amounts paid by income earners in the middle are analogous to, if not lower than, those paid under both federal and private student loans. For example, a student who takes out a private student loan of $15,000 at 10% interest (a typical rate for a private loan with no cosigner) would pay $23,786.84 in principal and interest over 10 years or $19,122.24 over five years. Similarly, a graduate student or parent with a Direct PLUS Loan at 7.08% interest would pay $20,973.82 in principal and interest over 10 years or $17,855.07 over five years.[4]

Loans Versus ISAs

ISAs differ from student loans in three primary ways. First, a student’s payment obligations under an ISA are dependent entirely on the existence and amount of her gross earned income, with no interest accruing during times when payments are suspended due to insufficient income. Second, a student’s payment obligations are subject to a maximum payment cap, typically a multiple of the ISA amount, which protects relatively high-earning students against having to make payments to the provider that far exceed the ISA amount. Finally, the obligation is time bound in two ways: a student is only required to make a specific number of monthly payments, and the payment obligation concludes after a predetermined period of time regardless of payment status. This structure offers built-in consumer protections that allow ISAs to avoid the various hazards associated with federal student loans, such as capitalization of unpaid interest following forbearance periods or negative amortization when making income-driven payments.

These unique benefits are available to students across the income spectrum. For low earners, ISAs protect against unemployment or underemployment; unlike a standard payment on a federal student loan, a student’s payment obligations under an ISA fluctuate based on the student’s ability to pay, do not accrue interest when payments are not required, and terminate on a specific date. High-income earners also benefit from the ISA’s structure, in that they have certainty in their maximum payment obligations, have protection against loss of employment or a reduction in income, and are not handcuffed to jobs they dislike simply because the high income allows them to make their loan payments. Middle-income earners receive both downside and upside protection with payments that are roughly equal to those due under a federal student loan.

FEDERAL LAW ANALYSIS

The distinctions between loans and ISAs are important, as the definitions of “credit” and related terms contained in some federal consumer financial laws are often key to determining their applicability to ISAs;[5] other laws may apply regardless of whether ISAs are deemed credit transactions.

Federal Consumer Financial Laws Involving “Credit”

Unlike traditional forms of credit, an ISA obligation does not guarantee payment to the ISA provider. Rather, the provider’s right to receive payments is entirely contingent upon the student’s level of employment during the ISA payment period. If the student’s earned income is below the minimum income threshold, the ISA provider is not entitled to a payment. A student lender, by contrast, maintains the right to collect the outstanding principal loan amount and interest without regard to the student’s earnings status or ability to repay. The balance of risk and absence of an absolute right to collect advanced funds are what distinguish ISAs from traditional forms of credit such as loans. For certain federal consumer financial laws, applicability depends, at least in part, on whether the relevant financial product constitutes credit or a loan.

An analysis of relevant statutory and regulatory language, case law, and interpretive guidance—though summarized only briefly below—suggests that ISAs fall outside the meaning and scope of traditional forms of credit. As a result, some of the federal consumer financial laws may not apply in the ISA context.

Truth in Lending Act

The Truth in Lending Act,[6] implemented by Regulation Z,[7] requires entities that extend credit to consumers to make certain written disclosures concerning finance charges and related aspects of credit transactions to ensure informed use of credit.

The applicability of TILA turns on statutory and regulatory language that presupposes the existence of a loan[8] and a lender provides little guidance on whether nontraditional financing vehicles like an ISA are encompassed.   For example, “credit” is defined as “the right granted by a creditor to a debtor to defer payment of a debt or to incur debt and defer its payment.”[9] The statute does not define the terms “debt” or “debtor,” and, while the term “creditor” is defined, the definition ties back to “credit.”[10] The defined term “creditor” also includes a “private education lender” which incorporates the concepts of a loan and lender.[11]

The official commentary to Reg. Z provides some clarity, setting forth several exclusions to the definition of “credit.”— Read together, these exclusions suggest that an extension of credit under TILA exempts financing arrangements, like ISAs, where the obligor is not required to repay or where the obligee bears the risk of loss.[12]

Perhaps the greatest clarity on what constitutes “credit” or a “loan” under TILA may be found in cases.  Although case law on this issue is by no means extensive, at least a few courts that have considered this issue have expanded the exclusions found in the commentary and appear to construe the extension of credit to be an arrangement in which the obligor has an unconditional legal obligation to pay.[13]  Applied here, those principles place ISAs outside the scope of TILA’s provisions.

The overall goal of TILA is to make the risks and costs of borrowing transparent for consumers before they obtain a loan.  However, it proscribes very specific standards of disclosure that do not always make sense for ISAs.  For example, a TILA disclosure for closed-end credit must include a payment schedule, which is unknowable at the time a student obtains an ISA.[14]  TILA also requires disclosure of finance charges, yet another term that does not align with the structure of ISAs where no specific interest rate, or finance charge of any kind, applies or could even be determined when an ISA is consummated because payments are based solely on future income. 

Notwithstanding the foregoing, ISA Providers generally appear to have adopted a similar or enhanced disclosure regime.[15]  As such, ISA Providers generally appear to be complying with the intent and spirit of TILA—ensuring that consumers receive a clear and understandable layout of certain costs and terms to allow for easy comparison of financing costs among different products—despite falling outside of TILA’s scope. 

Equal Credit Opportunity Act

The Equal Credit Opportunity Act,[16] as implemented by Regulation B, prohibits discriminatory practices in connection with the extension of credit. “Credit” is defined under ECOA as “the right granted by a creditor to applicant debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.”[17]

While the TILA and ECOA statutory schemes incorporate similar definitions of “credit,” the official commentary to Reg. B expressly states that the term is defined more broadly under ECOA than TILA, and includes “a right to defer payment of a debt—regardless of whether the credit is for personal or commercial purposes, the number of installments required for repayment, or whether the transaction is subject to a finance charge.”[18] This deferment of payment, without qualification, provides a greater scope of what constitutes credit under ECOA.[19]

A review of case law, however, reveals that, much like with TILA, application of the statute turns on whether the transaction involves credit. Courts have been more active in interpreting the definition of “credit” under ECOA than under other statutory schemes, although the body of case law is by no means extensive. The vast majority of courts have found that ECOA applies to traditional credit transactions, such as most loans and automobile leases.[20]  At least one court found that a cellular services contract constitutes credit under ECOA because it involves the deferral of payment for the services.[21]  Another court held that a credit arrangement does not exist where the plaintiff was not permitted to defer payment for work for a substantial amount of time.[22]   

It can be surmised that court interpretations of what constitutes credit under ECOA, while not uniform, involve some form of credit that is intended to be repaid. However, courts appear more inclined toward an expansive view of ECOA’s scope, a tendency that seems driven, in part, by the strong anti-discrimination policy that underpins ECOA.[23]

Fair Credit Reporting Act

The Fair Credit Reporting Act governs the collection, dissemination, use and accuracy of information in consumer credit files.[24] The FCRA defines “credit” and “creditor” by cross-referencing those definitions in ECOA.[25]

As with ECOA, courts have taken a more expansive view of what constitutes credit under the FCRA. However, their approach has not been uniform; we did not identify case law or other guidance that examines the FCRA’s application to nontraditional financial arrangements like ISAs. Given the overlap in key definitions with TILA and ECOA, the same underlying analysis should apply.  The fact that an ISA, by its structure, does not create an absolute payment obligation likely places the ISA outside the definition of credit under the FCRA.

However, ISA providers should still examine the potential scope and application of the FCRA to their respective ISA programs, as they may be subject to certain other provisions of the FCRA—even if they are not deemed “creditors.”[26]

Unfair, Deceptive and Abusive Acts and Practices

Perhaps the most widely used and broadly construed federal consumer finance law is the prohibition against unfair, deceptive and abusive acts and practices.[27] The Dodd–Frank Wall Street Reform and Consumer Protection Act gives the Consumer Financial Protection Bureau authority to bring UDAAP and other claims against “covered persons” and their service providers who offer or provide a consumer financial product or service.[28]

The Dodd-Frank Act expressly sets forth several specific categories of financial product and services, only one of which appears applicable to ISA transactions: “extending credit and servicing loans, including acquiring, purchasing, selling, brokering, or other extensions of credit.”[29] “Credit,” in turn, is defined to mean “the right granted by a person to a consumer to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment for such purchase.”[30] This definition mirrors those that appear in TILA, ECOA and the FCRA and thus ties the CFPB’s UDAAP authority to extensions of credit.

For the reasons discussed above, ISAs should not be deemed credit. As a result, the CFPB would seem to lack the authority to pursue a UDAAP claim against an ISA provider. However, CFPB enforcement activity has shown that the boundaries of UDAAP authority, and what constitutes an unfair, deceptive or abusive act or practice, are often broadly construed. Furthermore, the CFPB has demonstrated a keen interest in pursuing entities in the education space, including several for-profit schools, an accrediting body, a private student loan provider and student loan servicers.[31]  It also has supervisory authority over larger participants in the student loan servicing market.[32]

Against this backdrop, ISA providers should be mindful of existing UDAAP precedent and endeavor to meet the spirit of that guidance when engaging in ISA-related activities.

Other Federal Consumer Financial Laws

Some consumer finance laws likely apply to ISAs regardless of whether they constitute credit, including the Fair Debt Collection Practices Act,[33] Electronic Fund Transfer Act[34] and Gramm-Leach-Bliley Act.[35] In the case of the FDCPA and EFTA, coverage is activity-based. GLBA likely applies generally, both as a matter of statutory and regulatory language and best practices due to heightened sensitivity concerning privacy.

Fair Debt Collection Practices Act

The FDCPA sets forth the rules third-party debt collectors must follow when attempting to collect consumer-related debt.[36]  It applies only to third-party collection efforts; entities that engage in collection activity related to their own accounts are not covered.[37]  Thus, Providers that originate and service their own ISAs are not encompassed by the provisions of the FDCPA.[38]

Debt is defined broadly under the FDCPA as any consumer obligation to pay money arising from a transaction primarily for personal, family or household purposes.[39]  Courts have consistently found that the scope of the FDCPA is expansive and thus applies to any obligation to pay, regardless of whether the debt is connected to a loan or similar extension of credit.[40]  As such, while Providers are not covered, service providers who engage in collection efforts on their behalf will likely be subject to the FDCPA’s provisions. 

Electronic Fund Transfers Act

ISA providers and their service providers should also be mindful of EFTA and Regulation E, which encompass certain electronic fund transfers.[41]  Application of Reg. E generally is not predicated on the definition of credit.[42]  Instead, it applies more broadly to consumer deposit accounts and establishes the rights, liabilities and responsibilities of parties involved in EFTs to or from those accounts.  EFTA and Reg. E will only apply if an ISA contemplates recurring payments from a student’s bank account. 

Gramm-Leach-Bliley Act

Privacy has emerged as a paramount concern for consumers and businesses over the past decade.  GLBA generally governs how financial institutions protect and share nonpublic personal information such as social security numbers and bank account numbers.[43]  It requires a financial institution to provide notice to consumers about its privacy policies and practices, describe the conditions under which it shares consumer information with nonaffiliated third parties and provides a method for consumers to “opt out” of information sharing in certain instances.[44] Financial institutions are also required to establish a program to ensure the security, accuracy and confidentiality of customer information.[45]

The term “financial institution” has a broad meaning under GLBA.  It includes many companies not traditionally considered to be financial institutions, regardless of size, that are “significantly engaged” in providing financial products or services to consumers.[46]  Given that broad definition, ISA Providers may be covered by GLBA’s privacy notice and opt-out provisions[47] as well as the requirement to implement security safeguards for customer information.  ISA Providers should also ensure that their vendors likewise maintain robust information security programs.

CONCLUSION

Income share agreements are an innovative tool for financing an education, but the existing federal consumer financial laws are generally not well-suited to their unique nature.  Many of those laws focus on traditional forms of repaying an obligation—such as a loan or extension of credit—and simply did not contemplate when drafted the myriad of emerging consumer finance products that are ubiquitous today. 

That leaves an opportunity for stakeholders, legislators and regulators to craft a bespoke regulatory regime to govern ISAs specifically.  Congress has made a few efforts to do so, with a recent bill taking fresh aim at crafting an appropriate set of consumer protections.  Passing this legislation, or something substantially similar, would put important safeguards in place to provide clarity for industry players and implement key protections to benefit consumers who obtain ISAs. 

Important consumer protections, such as the content and enforceability of ISAs, program disclosures, payment terms, servicing and collection should be considered in any regulatory scheme. Many ISA Providers and Service Providers already consider those issues (and numerous others) when structuring their respective programs, at times surpassing what is currently required.  A regulatory framework tailored specifically for ISAs can build on those efforts to develop a set of rules and guidance that adequately protects consumers and sets forth clear guardrails for incorporating ISAs into the education ecosystem. 

[1] Though other types of ISAs exist—such as third-party educational ISAs and direct-to-consumer non-educational ISAs— school-based education-related ISAs are the most common in the market today and are the focus of this article.

[2] Providers can be third party entities or the schools themselves.  Where the school is acting as the Provider, there is no payment to the student and the ISA amount is applied to tuition, books, room and board, etc. All discussion and examples in this paper are to school-based educational ISAs unless otherwise specified.

[3] For comparison purposes, the maximum payment amount under the example ISA is roughly equivalent to a 10-year Standard Plan repayment at 8.69% interest on a $15,000 student loan.

[4] These amounts do not include loan origination or other fees, and late or non-payments could result in substantial interest and late payment fees that would increase the total amount due.

[5] While this article focuses solely on federal consumer financial laws, as defined in the Dodd–Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. § 5481(14), states also have specific statutory schemes that may apply to ISAs, and providers should examine the applicable laws in the states in which they operate.

[6] 15 U.S.C. §§ 1601 et seq. 

[7] 12 C.F.R. Part 1026. 

[8] The term “loan” is not defined.

[9] 15 U.S.C. § 1602(f); see also 12 C.F.R. § 1026.2(a)(14).

[10] 15 U.S.C. § 1602(g). 

[11] Id.; A “private education lender” includes an entity “engaged in the business of soliciting, making, or extending private education loans.” 15 U.S.C. § 1650(a)(7).

[12]  For example, layaway plans or borrowing against the accrued cash value of an insurance policy or a pension account “if there is no independent obligation to repay.” 12 C.F.R. Part 1026, Supp. I, cmt. 2(a)(14)-1.i and 1.v.  The concept of “credit” requiring an obligation to repay is more pronounced in yet another exclusion of investment plans in which the entity providing capital to the consumer bears the risk of loss of that capital. 12 C.F.R. Part 1026, Supp. I, cmt. 2(a)(14)-1.viii.

[13] See e.g., Capela v. J.G. Wentworth, LLC, No. CV09–882, 2009 WL 3128003, at *10 (E.D.N .Y. Sept. 24, 2009); Reed v. Val-Chris Investments, Inc., No. 11cv371 BEN WMC, 2011 WL 6028001, at *2 (S.D. Cal. Dec. 5, 2011).

^[14]  TILA requires that the following ‘material disclosures’ be provided: the annual percentage rate, the finance charge, the amount financed, the total of payments, the payment schedule, and the disclosures and limitations referred to in §§ 226.32(c) and (d) and 226.35(b)(2).  12 C.F.R. § 226.23 fn. 48.

[15] For example, we understand that some Providers use a modified version of the TILA disclosure in connection with their respective ISA programs modeled after the TILA disclosures for Private Education Loans, including a 30-day acceptance period and a 3-day right to cancel.  Other Providers provide a side-by-side comparison of an ISA to an average private education loan.  At least one Provider requires students to learn about ISAs and take a comprehension quiz prior to obtaining an ISA. 

[16] 15 U.S.C. §§ 1691 et seq. 

[17] 15 U.S.C. § 1691a(d); see also 12 C.F.R. § 1002.2(j).

[18] 12 C.F.R. Part 1002, Supp. I, cmt. 2(j). 

[19] Williams v. AT&T Wireless Servs., Inc., 5 F. Supp. 2d 1142, 1144-45 (W.D. Wash. 1998). 

[20] See Brothers v. First Leasing, 724 F.2d 789, 793 (9th Cir. 1984).

[21]  See Williams v. AT&T Wireless Services, Inc., 5 F. Supp. 2d 1142, 1145 (W.D. Wash. 1998). 

[22] See Shaumyan v. Sidetex Co., Inc., 900 F.2d 16, 18 (2d Cir. 1990)

[23] Brothers v. First Leasing, 724 F.2d 789, 793 (9th Cir. 1984), cert. denied, 469 U.S. 832 (1984) (noting that “credit transactions” must be given a broad construction “in view of the overriding national policy against discrimination that underlies the Act”).

[24] 15 U.S.C. §§ 1681 et seq. 

[25] 15 U.S.C. § 1681a(r)(5); Riddle v. Portfolio Recovery Associated, Inc., Civ. A. No. 12–82–DLB–JGW, 2014 WL 1252610, at *13–14 (E.D. Ky. Mar. 26, 2014).

[26] The FCRA contemplates use cases for consumer credit files beyond credit transactions. See, e.g., U.S.C. §§ 1681b(b) (employment) and 1681b(c) (insurance), as well as 1681a(f) (obtaining permission to request a credit report outside a lending context).

[27] 12 U.S.C. § 5531.  The Federal Trade Commission (FTC) also has authority to bring enforcement actions pursuant to the Federal Trade Commission Act related to “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. §45(a).  The CFPB’s UDAAP authority builds upon FTC precedent and applies it specifically to the consumer finance space. 

[28] 12 U.S.C. § 5481(6).

[29] 12 U.S.C. § 5481(15)(A)(i). 

[30] 12 U.S.C. § 5481(7). 

[31] In re Bridgepoint Education, Inc., 2016-CFPB-0016 (Sept. 12, 2016); CFPB v. Corinthian Colleges, Inc., 1:14-cv-07194 (N.D. Ill. Sept. 16, 2014); CFPB v. ITT Educational Servs., Inc., 1:14-cv-00292 (S.D. Ind. Feb. 26, 2014); In re Accrediting Council for Independent Colleges and Schools, 2015-MISC-ACICS-0001 (Oct. 8, 2015); CFPB v. Aequitas Capital Mgmt., Inc., 3:17-cv-01278 (D. Ore. Aug. 17, 2017); In re Citibank, N.A., 2017-CFPB-0021 (Nov. 21, 2017); CFPB v. Navient Corp., 3:17-cv-00101 (M.D. Pa. Jan. 18. 2017).

[32] 12 C.F.R. § 1090.106.

[33] 15 U.S.C. § 1692 et seq. 

[34] 15 U.S.C. § 1693 et seq. 

[35] 15 U.S.C. § 6801 et seq. 

[36] 15 U.S.C. § 1692 et seq.

[37] 15 U.S.C. § 1692a(6).

[38] The FDCPA defines a “debt collector” as “any person who…regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”  15 U.S.C. §1692(a)(6). 

[39] 15 U.S.C. § 1692a(5) (debt means “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”).

[40] Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 401 (3d Cir. 2000). See also Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 837–838 (11th Cir. 2010); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir. 1997).

[41] 12 U.S.C. § 1005.

[42] Reg. E defines credit as “the right granted by a financial institution to a consumer to defer payment of debt, incur debt and defer its payment, or purchase property or services and defer payment therefor.”  12 C.F.R. § 1005.2(f). 

[43] 15 U.S.C. § 6809(4)(A).

[44] 12 C.F.R. § 1016.1(a) (Regulation P, GLBA’s implementing regulation).  GLBA sets forth a number of exceptions to a consumer’s right to opt out.  Financial institutions need not comply with opt-out requirements if they limit disclosure of nonpublic personal information in accordance with those exceptions.  See 12 C.F.R. §§ 1016.13-15.

[45] 15 U.S.C. § 6801(b). 

[46] 15 U.S.C. § 6809(3)(A); see also 12 C.F.R. § 1016.1(l) (“financial institution” encompasses institutions that are engaged in lending, investment advisory services and check cashing (among other things)).

[47] Providers who comply with Federal Educational Rights and Privacy Act (“FERPA”) are exempt from these provisions of GLBA.  See FTC Financial Privacy Rule, 16 C.F.R. § 313.1(b) (“Any institution of higher education that complies with [FERPA]…and that is also a financial institution subject to the requirements of this part, shall be deemed to be in compliance with this part if it is in compliance with FERPA.”).