concurring and dissenting:

I concur in all but part II of the majority opinion. As to that part, I dissent.

Swanson does not contend that the debt validation clause was omitted from the initial communication. On the contrary, he agrees it was included. Rather, he argues that there was a violation of 15 U.S.C. § 1692g(a) because the debt validation clause, which was in ordinary print at the bottom of the initial communication, was eclipsed by a different provision using very large print in the middle of the initial communication which stated: “If this account is paid within the next 10 days it will not be recorded in our master file as an unpaid collection item. A good credit rating is your most valuable asset.”

The district court rejected Swanson’s “visual effect” argument. The court concluded that Southern Oregon’s notice sufficiently notified Swanson of his section 1692g rights.

After considering the limited case law discussing section 1692g, I believe that we should review the document as a whole in order to evaluate whether a given notice would sufficiently inform a least sophisticated debtor of his debt validation rights. See Baker v. G.C. Services Corp., 677 F.2d 775, 778 (9th Cir.1982); see also Blackwell v. Professional Business Services of Georgia, Inc., 526 F.Supp. 535 (N.D.Ga.1981); Ost v. Collection Bureau, Inc., 493 F.Supp. 701 (D.N.D.1980).

Swanson contends that the visual effect produced by the disparity in typesize between the required validation rights clause and the master file information violates section 1692g. In support of this visual effect argument, Swanson relies on Thomas v. National Business Assistants, Inc., No. N82-469 (D.Conn. Oct. 5, 1984), and an informal Federal Trade Commission (FTC) staff opinion letter. See Letter from Alan D. Rifkin to LuAnn Fardell (Aug. 1, 1980), FTC Informal Staff Letter (Fardell letter).

In Thomas, a district court accepted a visual effects argument. The debt notification letter there contained a technically valid debt validation provision under 1692g, *1230 but in extra-large type at the bottom of the debt notification, the debt collector printed: “We shall expect payment in full within 3 days.” The district court concluded that the letter violated section 1692g because “it does not properly notify recipients of their validation of debt rights. The required notice is inconspicuous and grossly overshadowed by the bold faced statement that payment is expected within three days. In the present form, [the notices] are clearly not intended to apprise the reader of the rights secured to them by § 1692g.”

The Fardell letter was written in response to a request directed to the FTC to give an opinion on a particular creditor’s dunning notice. The dunning notice stated that the collector “will assume that the consumer [debtor] does not wish to settle the matter amicably if she fails to respond within 72 hours and threatens that it will act accordingly.” The Fardell letter concluded that “the demand that the consumer act within 72 hours so interferes with the consumer’s absolute statutory right to dispute the debt[, 15 U.S.C. § 1692g,] as to totally negate the effect and purpose of the notice provision, particularly, where as here, there is every reason to believe that the consumer will perceive that some grave consequence will follow within 72 hours.” The Fardell letter does not state whether the section 1692g rights were clearly set forth in the communication reviewed.

Such informal advisory opinions express the FTC’s then-existing enforcement position. These advisory opinions do not carry the weight of congressionally authorized agency regulations. Congress expressly prohibited the FTC from issuing additional rules and regulations. 15 U.S.C. § 1692l (c), (d); Pressley v. Capital Credit & Collection Service, Inc., 760 F.2d 922 , 925 n. 2 (9th Cir.1985) (per curiam). Thus, although courts should give some weight to such opinions, they do not bind courts. See Pressley, 760 F.2d at 925 ; Staub v. Harris, 626 F.2d 275, 279 (3d Cir.1980).

After reviewing the initial communication, I conclude that the fact that the debt validation notice is clearly printed on the same page and is in ordinary typesize, although somewhat smaller than the master file statement, indicates that even the least sophisticated debtor would understand his debt validation rights. Cf. FTC Proposed Commentary on the Federal Act, 51 Fed. Reg. 8019 , 8028 (1986) (an illegible notice would not comply with section 1692g). Moreover, unlike the threat evaluated in the Fardell letter, I do not believe that the least sophisticated debtor would understand that some grave consequence would follow from the master file threat in this case. Although there may be validity in the “visual effect” analysis, I conclude that the debt validation clause in the initial communication is not so overshadowed by the master file statement that the least sophisticated debtor would fail to recognize his section 1692g rights. Thus, I would affirm the district court’s entry of summary judgment on this issue.