HR 5546
110th CONGRESS
2d Session
H. R. 5546
To amend the antitrust laws to ensure competitive market-based rates
and terms for merchants' access to electronic payment systems.
IN THE HOUSE OF REPRESENTATIVES
March 6, 2008
Mr. CONYERS (for himself, Mr. CANNON, Ms. ZOE LOFGREN of California, Mr.
SHUSTER, Mr. WEINER, Mr. DELAHUNT, Mr. PLATTS, Mr. WELCH of Vermont, Mr. SULLIVAN,
Mr. WILSON of South Carolina, Mr. GOHMERT, Mr. HALL of Texas, Mr. BOOZMAN,
and Mr. PETERSON of Pennsylvania) introduced the following bill; which was
referred to the Committee on the Judiciary
A BILL
To amend the antitrust laws to ensure competitive market-based rates
and terms for merchants' access to electronic payment systems.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Credit Card Fair Fee Act of 2008'.
SEC. 2. LIMITED ANTITRUST IMMUNITY FOR THE NEGOTIATION AND DETERMINATION
OF RATES AND TERMS FOR ACCESS TO COVERED ELECTRONIC PAYMENT SYSTEMS.
(a) Definitions- For purposes of this Act:
(1) `Access agreement' means an agreement giving a merchant permission to
access a covered electronic payment system to accept credit cards and/or
debit cards from consumers for payment for goods and services as well as
to receive payment for such goods and services, conditioned solely upon
the merchant complying with the rates and terms specified in the agreement.
(2) `Acquirer' means a financial institution that provides services allowing
merchants to access an electronic payment system to accept credit cards
and/or debit cards for payment, but does not include independent third party
processors that may act as the acquirer's agent in processing general-purpose
credit or debit card transactions.
(3) `Antitrust Division' means the Antitrust Division of the U.S. Department
of Justice.
(4) `Antitrust Laws' has the meaning given it in subsection (a) of the first
section of the Clayton Act (15 U.S.C. 12(a)), except that such term includes
section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent
section 5 applies to unfair methods of competition as well as any similar
State law.
(5) `Base year' means the most recent full calendar year prior to the initiation
of a proceeding under this Act.
(6) `Commission' means the Federal Trade Commission Bureau of Competition.
(7) `Credit card' means any general-purpose card or other device issued
or approved for use by a financial institution allowing the cardholder to
obtain goods or services on credit on terms specified by that financial
institution.
(8) `Covered electronic payment system' means an electronic payment system
that has been used for at least 20% of the combined dollar value of U.S.
credit, signature-based debit, and PIN-based debit card payments processed
in the applicable base year.
(9) `Debit card' means any general-purpose card or other device issued or
approved for use by a financial institution for use in debiting a cardholder's
account for the purpose of that cardholder obtaining goods or services,
whether authorization is signature-based or PIN-based.
(10) `Electronic payment system' means the proprietary services and infrastructure
that route information and data to facilitate transaction authorization,
clearance, and settlement that merchants must access in order to accept
a specific brand of general-purpose credit and/or debit cards as payment
for goods and services.
(11) `Financial institution' has the same meaning as in section 603(t) of
the Fair Credit Reporting Act.
(12) `Issuer' means a financial institution that issues credit cards and/or
debit cards or approves the use of other devices for use in an electronic
payment system, but does not include independent third party processors
that may act as the issuer's agent in processing general-purpose credit
or debit card transactions;
(13) `Market power' means the ability profitably to raise prices above those
that would be charged in a perfectly competitive market.
(14) `Merchant' means any person who accepts credit cards and/or debit cards
in payment for goods or services that they provide.
(15) `Normal rate of return' means the average rate of return that a firm
would receive in an industry when conditions of perfect competition prevail.
(16) `Party' means either all providers of a single covered electronic payment
system collectively or all merchants collectively.
(17) `Person' has the meaning given it in subsection (a) of the first section
of the Clayton Act (15 U.S.C. 12(a)).
(18) `Provider' means any person who owns, operates, controls, serves as
an issuer, or serves as an acquirer for a covered electronic payment system.
(19) `State' has the meaning given it in section 4G(2) of the Clayton Act
(15 U.S.C. 15g(2)).
(20) `Terms' means all rules applicable either to providers of a single
covered electronic payment system or to merchants, and that are required
in order to provide or access that covered electronic payment system for
processing credit and/or debit card transactions.
(21) `Voluntarily negotiated access agreement' means an executed agreement
voluntarily negotiated between 1 or more providers of a single covered electronic
payment system and 1 or more merchants that sets the rates and terms pursuant
to which the 1 or more merchants can access that covered electronic payment
system to accept credit cards and/or debit cards from consumers for payment
of goods and services, and receive payment for such goods and services.
(b) Access to Covered Electronic Payment Systems- Access to any covered electronic
payment system by merchants shall be subject to this Act.
(c) Authority and Limited Antitrust Immunity for Negotiations and Participation
in Proceedings- Notwithstanding any provision of the antitrust laws, in negotiating
access rates and terms and participating in any proceedings in accordance
with subsection (d), any providers of a single covered electronic payment
system and any merchants may jointly negotiate and agree upon the rates and
terms for access to the covered electronic payment system, including through
the use of common agents that represent either providers of a single covered
electronic payment system or merchants on a non-exclusive basis. Any providers
of a single covered electronic payment system also may jointly determine the
proportionate division among themselves of paid access fees.
(d) Determination of Access Rates and Terms-
(1) PROCEEDINGS- Proceedings under this Act shall determine rates and terms
for access to a covered electronic payment system during the 3-year period
beginning on January 1 of the second year following the year in which the
proceedings are to be commenced, except where a different transitional period
is provided under section 6. Except as specified in a voluntarily negotiated
access agreement, no other fees, terms, or conditions of any kind may be
imposed directly or indirectly on any merchant for accessing a covered electronic
payment system. The parties to each proceeding shall bear their own costs.
(2) DETERMINATIONS OF THE ELECTRONIC PAYMENT SYSTEM JUDGES-
(A) APPLICABILITY- The schedule of rates and terms determined by the Electronic
Payment System Judges with respect to a single covered electronic payment
system shall, subject to paragraph (4), be binding on all providers of
that single covered electronic payment system and merchants affected by
this paragraph during the 3-year period specified in subparagraph (1).
For any given covered electronic payment system, such rates and terms
shall be the same for all merchants, regardless of merchant category or
volume of transactions (either in number or dollar value) generated.
(B) STANDARD FOR DETERMINATIONS- In establishing rates and terms for access
to a covered electronic payment system by merchants, the Electronic Payment
System Judges shall establish rates and terms that most closely represent
the rates and terms that would be negotiated in a hypothetical perfectly
competitive marketplace for access to an electronic payment system between
a willing buyer with no market power and a willing seller with no market
power. In determining such rates and terms, the Electronic Payment System
Judges shall consider the costs necessary to provide and access an electronic
payment system for processing credit and/or debit card transactions as
well as a normal rate of return in such a hypothetical perfectly competitive
marketplace. The Electronic Payment System Judges shall not include any
anticompetitive rates or terms.
(C) USE OF EXISTING RATES AND TERMS AS EVIDENCE- In determining such rates
and terms, the Electronic Payment System Judges generally shall decide
the appropriate weight to be given to any evidence submitted by a party
regarding the rates and terms for access to comparable electronic payment
systems, including rates and terms set forth in voluntarily negotiated
access agreements filed pursuant to subparagraph (4). The Electronic Payment
System Judges shall give significant weight, however, to rates voluntarily
negotiated between one or more providers of a single covered electronic
payments system and one or more merchants that are substantially below
those rates reflective of the market power of covered electronic payment
systems that existed prior to the enactment of this Act.
(3) INITIATION- The procedures under subparagraphs (1) and (2) shall be
initiated pursuant to section 5.
(4) VOLUNTARILY NEGOTIATED ACCESS AGREEMENTS-
(A) AGREEMENTS BETWEEN THE PARTIES- Voluntarily negotiated access agreements
may be executed at any time between 1 or more providers of a single covered
electronic payment system and 1 or more merchants, and such voluntarily
negotiated access agreements shall be given effect with respect to those
parties in lieu of any determination by the Electronic Payment System
Judges.
(B) FILING AGREEMENTS WITH THE ELECTRONIC PAYMENT SYSTEM JUDGES- Any providers
of a single covered electronic payment system and merchants affected by
this section must jointly file with the Electronic Payment System Judges
any voluntarily negotiated access agreements that affect any domestic
or international market, including related documentation evidencing any
consideration being given, any marketing or promotional agreements between
the parties, and any subsequent amendments to such agreements and documentation.
(C) TIMING OF AND ACCESS TO FILINGS- The parties to any voluntarily negotiated
access agreement executed subsequent to the enactment of the Credit Card
Fair Fee Act of 2008 must jointly file such agreement, amendment, or documentation
with the Electronic Payment System Judges within 30 days of executing
the agreement, amendment, or documentation. The Electronic Payment System
Judges shall make publicly available all such agreements, amendments,
and related documentation executed subsequent to the date of enactment
of this Act.
SEC. 3. ELECTRONIC PAYMENT SYSTEM JUDGES.
(a) Appointment- The Antitrust Division and Commission shall appoint 3 full-time
Electronic Payment System Judges, and shall appoint 1 of the 3 as the Chief
Electronic Payment System Judge.
(b) Functions- Subject to the provisions of this Act, the function of the
Electronic Payment System Judges shall be to make determinations of access
rates and terms calculated to most closely represent the rates and terms that
would be negotiated in a hypothetical perfectly competitive marketplace for
access to an electronic payment system between a willing buyer with no market
power and a willing seller with no market power. In determining such rates
and terms, the Electronic Payment System Judges shall consider the costs necessary
to provide and access an electronic payment system for processing credit and/or
debit card transactions as well as a normal rate of return in such a hypothetical
perfectly competitive marketplace.
(c) Rulings- The Electronic Payment System Judges may make any necessary procedural
or evidentiary rulings in any proceeding under this Act and may, before commencing
a proceeding under this Act, make any procedural rulings that would apply
to the proceedings conducted by the Electronic Payment System Judges.
(d) Administrative Support- The Antitrust Division and Commission shall provide
the Electronic Payment System Judges with the necessary administrative services
related to proceedings under this Act.
(e) Location- The offices of the Electronic Payment System Judges and staff
shall be in the Antitrust Division or Commission.
(f) Qualifications of Electronic Payment System Judges-
(1) IN GENERAL- Each Electronic Payment System Judge shall be an attorney
who has at least 7 years of legal experience. The Chief Electronic Payment
System Judge shall have at least 5 years of experience in adjudications,
arbitrations, or court trials. Of the other 2 Electronic Payment System
Judges, 1 shall have significant knowledge of electronic payment systems,
and the other shall have significant knowledge of economics. An individual
may serve as an Electronic Payment System Judge only if the individual is
free of any financial conflict of interest under subsection (m).
(2) DEFINITION- In this subsection, the term `adjudication' has the meaning
given that term in section 551 of title 5, but does not include mediation.
(g) Staff- The Chief Electronic Payment System Judge shall hire 3 full-time
staff members to assist the Electronic Payment System Judges in performing
their functions.
(h) Terms- The individual first appointed as the Chief Electronic Payment
System Judge shall be appointed to a term of 6 years, and of the remaining
individuals first appointed as Electronic Payment System Judges, 1 shall be
appointed to a term of 4 years, and the other shall be appointed to a term
of 2 years. Thereafter, the terms of succeeding Electronic Payment System
Judges shall each be 6 years. An individual serving as an Electronic Payment
System Judge may be reappointed to subsequent terms. The term of an Electronic
Payment System Judge shall begin when the term of the predecessor of that
Electronic Payment System Judge ends. When the term of office of an Electronic
Payment System Judge ends, the individual serving that term may continue to
serve until a successor is installed.
(i) Vacancies or Incapacity-
(1) VACANCIES- If a vacancy should occur in the position of Electronic Payment
System Judge, the Antitrust Division and Commission shall act expeditiously
to fill the vacancy, and may appoint an interim Electronic Payment System
Judge to serve until another Electronic Payment System Judge is appointed
under this section. An individual appointed to fill the vacancy occurring
before the expiration of the term for which the predecessor of that individual
was appointed shall be appointed for the remainder of that term.
(2) INCAPACITY- In the case in which an Electronic Payment System Judge
is temporarily unable to perform his or her duties, the Antitrust Division
and Commission may appoint an interim Electronic Payment System Judge to
perform such duties during the period of such incapacity.
(1) JUDGES- The Chief Electronic Payment System Judge shall receive compensation
at the rate of basic pay payable for level AL-1 for administrative law judges
pursuant to section 5372(b) of title 5, and each of the other two Electronic
Payment System Judges shall receive compensation at the rate of basic pay
payable for level AL-2 for administrative law judges pursuant to such section.
The compensation of the Electronic Payment System Judges shall not be subject
to any regulations adopted by the Office of Personnel Management pursuant
to its authority under section 5376(b)(1) of title 5.
(2) STAFF MEMBERS- Of the staff members appointed under subsection (g)--
(A) the rate of pay of 1 staff member shall be not more than the basic
rate of pay payable for level 10 of GS-15 of the General Schedule;
(B) the rate of pay of 1 staff member shall be not less than the basic
rate of pay payable for GS-13 of the General Schedule and not more than
the basic rate of pay payable for level 10 of GS-14 of such Schedule;
and
(C) the rate of pay for the third staff member shall be not less than
the basic rate of pay payable for GS-8 of the General Schedule and not
more than the basic rate of pay payable for level 10 of GS-11 of such
Schedule.
(3) LOCALITY PAY- All rates of pay referred to under this subsection shall
include locality pay.
(k) Independence of Electronic Payment System Judge-
(1) IN MAKING DETERMINATIONS-
(A) IN GENERAL- The Electronic Payment System Judges shall have full independence
in making determinations concerning adjustments and determinations of
rates and terms for access to covered electronic payment systems and in
issuing other rulings under this title, except that the Electronic Payment
System Judges may consult with the Antitrust Division and Commission on
any matter other than a question of fact.
(B) CONSULTATION- Notwithstanding the provisions of subparagraph (A),
the Electronic Payment System Judges shall consult with the Antitrust
Division and Commission with respect to any determination or ruling that
would require that any act be performed by the Antitrust Division and
Commission, and any such determination or ruling shall not be binding
upon the Antitrust Division or Commission.
(2) PERFORMANCE APPRAISALS-
(A) IN GENERAL- Notwithstanding any other provision of law or any regulation
of the Antitrust Division and Commission, and subject to subparagraph
(B), the Electronic Payment System Judges shall not receive performance
appraisals.
(B) RELATING TO SANCTION OR REMOVAL- To the extent that the Antitrust
Division and Commission adopt regulations under subsection (m) relating
to the sanction or removal of an Electronic Payment System Judge and such
regulations require documentation to establish the cause of such sanction
or removal, the Electronic Payment System Judge may receive an appraisal
related specifically to the cause of the sanction or removal.
(l) Inconsistent Duties Barred- No Electronic Payment System Judge may undertake
duties that conflict with his or her duties and responsibilities as an Electronic
Payment System Judge.
(m) Standards of Conduct- The Antitrust Division and Commission shall adopt
regulations regarding the standards of conduct, including financial conflict
of interest and restrictions against ex parte communications, which shall
govern the Electronic Payment System Judges and the proceedings under this
Act.
(n) Removal or Sanction- The Antitrust Division and Commission may sanction
or remove an Electronic Payment System Judge for violation of the standards
of conduct adopted under subsection (m), misconduct, neglect of duty, or any
disqualifying physical or mental disability. Any such sanction or removal
may be made only after notice and opportunity for a hearing, but the Antitrust
Division and Commission may suspend the Electronic Payment System Judge during
the pendency of such hearing. The Antitrust Division and Commission shall
appoint an interim Electronic Payment System Judge during the period of any
such suspension.
SEC. 4. PROCEEDINGS OF ELECTRONIC PAYMENT SYSTEM JUDGES.
(1) IN GENERAL- The Electronic Payment System Judges shall act in accordance
with regulations issued by the Electronic Payment System Judges and the
Antitrust Division and Commission, and on the basis of a written record,
prior determinations and interpretations of the Electronic Payment System
Judges under this Act, and decisions of the court of appeals under this
section.
(2) JUDGES ACTING AS PANEL AND INDIVIDUALLY- The Electronic Payment System
Judges shall preside over hearings in proceedings under this Act en banc.
The Chief Electronic Payment System Judge may designate an Electronic Payment
System Judge to preside individually over such collateral and administrative
proceedings, and over such proceedings under paragraphs (1) and (2) of subsection
(b), as the Chief Judge considers appropriate.
(3) DETERMINATION LIMITED TO CHOOSING ONE OF THE TWO FINAL OFFERS- Prior
to the commencement of a direct hearing in a proceeding under section 5(b)(3)(B)(xi),
the party entitled to receive access fee payments shall file with the Electronic
Payment System Judges its final offer of rates and terms. Simultaneously,
the party obligated to pay access fee payments shall file with the Electronic
Payment System Judges its final offer of rates and terms. The parties also
shall exchange these final offers, which cannot be amended. In making a
determination under section 5(c), the Electronic Payment System Judges shall
be limited to choosing, without modification, one of these two final offers.
(4) VOTING AND DISSENTING OPINIONS- Final determinations of the Electronic
Payment System Judges in proceedings under this Act shall be made by majority
vote. An Electronic Payment System Judge dissenting from the majority on
any determination under this Act may issue his or her dissenting opinion,
which shall be included with the determination.
(1) INITIATION- The Electronic Payment System Judges shall cause to be published
in the Federal Register notice of commencement of proceedings referred to
in section 3 as provided under section 6.
(2) VOLUNTARY NEGOTIATION PERIOD-
(A) IN GENERAL- Promptly after the commencement of a proceeding, the Electronic
Payment System Judges shall initiate a voluntary negotiation period among
the parties.
(B) LENGTH- The voluntary negotiation period initiated under subparagraph
(A) shall be 3 months. Nothing in this subsection, however, prohibits
parties from negotiating and entering into voluntarily negotiated access
agreements at any other time.
(C) DETERMINATION OF NEED FOR SUBSEQUENT PROCEEDINGS- At the close of
the voluntary negotiation proceedings, the Electronic Payment System Judges
shall determine if further proceedings under this Act are necessary. In
any such proceeding, all providers of the covered electronic payment system
shall participate as a single party and all merchants shall participate
as a single party, except to the extent certain providers or merchants
pursue voluntarily negotiated access agreements.
(A) IN GENERAL- The Electronic Payment System Judges may issue regulations
to carry out their functions under this title. All regulations issued
by the Electronic Payment System Judges are subject to the approval of
the Antitrust Division and Commission. Not later than 120 days after Electronic
Payment System Judges are first appointed after the enactment of the Credit
Card Fair Fee Act of 2008, such judges shall issue regulations to govern
proceedings under this Act. In setting these regulations, the Electronic
Payment System Judges shall consider the regulations issued by the Copyright
Royalty Judges pursuant to 17 U.S.C. 803(b)(6).
(B) REQUIREMENTS- Regulations issued under subparagraph (A) shall include
the following:
(i) WRITTEN DIRECT STATEMENTS- The written direct statements of the
parties to a proceeding shall be filed by a date specified by the Electronic
Payment System Judges, which may be not earlier than 4 months, and not
later than 5 months, after the end of the voluntary negotiation period
under paragraph (3). Notwithstanding the preceding sentence, the Electronic
Payment System Judges may allow a party in a proceeding to file an amended
written direct statement based on new information received during the
discovery process, within 15 days after the end of the discovery period
specified in clause (ii). In this Act, the term `written direct statements'
means witness statements, testimony, and exhibits to be presented in
the proceedings, and such other information that is necessary to establish
access terms and rates as set forth in regulations issued by the Electronic
Payment System Judges.
(ii) DISCOVERY SCHEDULE- Following the submission to the Electronic
Payment System Judges of written direct statements by the parties to
a proceeding, the judges shall meet with the parties for the purpose
of setting a schedule for conducting and completing discovery. Such
schedule shall be determined by the Electronic Payment System Judges.
Discovery in such proceedings shall be permitted for a period of 60
days, except for discovery ordered by the Electronic Payment System
Judges in connection with the resolution of motions, orders, and disputes
pending at the end of such period.
(iii) INITIAL DISCLOSURES- In a proceeding under this Act to determine
rates and terms for access to a single covered electronic payment system,
certain persons must make initial disclosures within 30 days of commencement
of the proceeding. The 10 largest issuers for the covered electronic
payment system, the 10 largest acquirers for the covered electronic
payment system, and any person operating or controlling the covered
electronic payment system must produce to merchants both the costs necessary
to provide that electronic payment system for processing credit and/or
debit card transactions that were incurred during the most recent full
calendar year prior to the initiation of the proceeding and any agreements
regarding rates and terms for access to the covered electronic payment
system. The 10 largest merchants in terms of utilization of the covered
electronic payment system must produce to the providers of the covered
electronic payment system both the costs necessary to access an electronic
payment system for processing credit and/or debit card transactions
during the most recent full calendar year prior to the initiation of
the proceeding and any agreements regarding rates and terms for access
to the covered electronic payment system. Any disagreement between the
providers of a single covered electronic payment system and the merchants
regarding which persons are required to make such initial disclosures
shall be resolved by the Electronic Payment System Judges.
(I) In a proceeding under this Act to determine access rates and terms,
each party shall be permitted to take depositions of every witness
identified by the other party. Each party also shall be permitted
to take five additional depositions in the entire proceeding.
(II) A deposition notice or subpoena may name as the deponent a public
or private corporation or a partnership or association and describe
with reasonable particularity the matters on which examination is
requested. In that event, the organization so named shall designate
one or more officers, directors, or managing agents, or other persons
who consent to testify on its behalf, and may set forth, for each
person designated, the matters on which the person will testify. A
subpoena shall advise a non-party organization of its duty to make
such a designation. The persons so designated shall testify as to
matters known or reasonably available to the organization.
(III) The Electronic Payment System Judges may increase the permitted
number of depositions for good cause in exceptional circumstances,
and shall resolve any disputes among persons within either party regarding
the allocation of the depositions permitted under this clause.
(v) WRITTEN DISCOVERY- In a proceeding under this Act to determine access
rates and terms, each party shall be permitted to serve written discovery
requests on 10 persons. These written discovery requests may include
requests for production or inspection, a total of no more than 10 requests
for admission in the entire proceeding, and a total of no more than
25 interrogatories in the entire proceeding. The Electronic Payment
System Judges may increase the permitted number of requests for admission
or interrogatories for good cause in exceptional circumstances, and
shall resolve any disputes among persons within either party regarding
the allocation of the requests for admission or interrogatories permitted
under this clause.
(vi) SUBPOENAS- Upon the request of a party to a proceeding to determine
access rates and terms, the Electronic Payment System Judges may issue
a subpoena commanding a person to appear and give testimony, or to produce
and permit inspection of documents or tangible things, if the Electronic
Payment System Judges' resolution of the proceeding may be substantially
impaired by the absence of such testimony or production of documents
or tangible things. Such subpoena shall specify with reasonable particularity
the materials to be produced or the scope and nature of the required
testimony. Nothing in this clause shall preclude the Electronic Payment
System Judges from requesting the production by a person of information
or materials relevant to the resolution by the Electronic Payment System
Judges of a material issue of fact.
(vii) OBJECTIONS TO DISCOVERY REQUESTS- Any objection to such a request
or subpoena shall be resolved by a motion or request to compel production
made to the Electronic Payment System Judges in accordance with regulations
adopted by the Electronic Payment System Judges. Each motion or request
to compel discovery shall be determined by the Electronic Payment System
Judges, or by an Electronic Payment System Judge when permitted under
subsection (a)(2). Upon such motion, the Electronic Payment System Judges
may order discovery pursuant to regulations established under this paragraph.
In determining whether discovery will be granted under this clause,
the Electronic Payment System Judges may consider--
(I) whether the burden or expense of producing the requested information
or materials outweighs the likely benefit, taking into account the
needs and resources of the parties, the importance of the issues at
stake, and the probative value of the requested information or materials
in resolving such issues;
(II) whether the requested information or materials would be unreasonably
cumulative or duplicative, or are obtainable from another source that
is more convenient, less burdensome, or less expensive; and
(III) whether the party seeking discovery has had ample opportunity
by discovery in the proceeding or by other means to obtain the information
sought.
(viii) VOLUNTARILY NEGOTIATED ACCESS AGREEMENTS- In proceedings to determine
access rates and terms, the Electronic Payment System Judges shall make
available to the parties all documents filed pursuant to section 3(d)(4),
including related documentation evidencing any consideration being given,
any marketing or promotional agreements between the parties, and subsequent
amendments to such agreements and documentation.
(ix) SETTLEMENT CONFERENCE- The Electronic Payment System Judges shall
order a settlement conference between the parties in the proceeding
to facilitate the presentation of offers of settlement between the parties.
The settlement conference shall be held during a 21-day period following
the end of the discovery period and shall take place outside the presence
of the Electronic Payment System Judges.
(x) DIRECT AND REBUTTAL HEARINGS- At the conclusion of the 21-day period
following the end of the discovery period, the Electronic Payment System
Judges shall determine if further proceedings under this Act are necessary.
If so, the Electronic Payment System Judges shall schedule a direct
hearing of not more than 30 court days and a rebuttal hearing of not
more than 20 court days during which both parties will be allowed to
put on witnesses.
(xi) SPONSORING WITNESSES- No evidence, including exhibits, may be submitted
in the written direct statement or written rebuttal statement of a party
without a sponsoring witness, except for requests for admission that
have been admitted by the receiving party, where the Electronic Payment
System Judges have taken official notice, in the case of incorporation
by reference of past records, or for good cause shown.
(xii) HEARSAY- Hearsay may be admitted in proceedings under this Act
to the extent deemed relevant and reliable by the Electronic Payment
System Judges.
(xiii) APPLICABILITY OF THE FEDERAL RULES OF EVIDENCE- To the extent
not inconsistent with this subparagraph, the Federal Rules of Evidence
shall apply to proceedings under this Act.
(4) PENALTIES FOR FAILURE TO COMPLY WITH A DISCOVERY REQUEST-
(A) FAILURE TO COMPLY- Any person fails to comply with a discovery request
if they, their employee, or agent fails, without substantial justification,
to:
(i) make initial disclosures required under section 3(b)(3)(B);
(ii) be sworn or to answer a question as a deponent after being directed
to do so by the Electronic Payment System Judges;
(iii) answer an interrogatory submitted pursuant to section 3(b)(3)(B);
(iv) produce non-privileged documents requested pursuant to section
3(b)(3)(B); or
(v) admit the genuineness of any document or the truth of any matter
as requested under section 3(b)(3)(B), and the person requesting the
admissions thereafter proves the genuineness of the document or the
truth of the matter.
For purposes of this Act, any disclosure, answer, or response that is
false or substantially misleading, evasive, or incomplete is to be treated
as a failure to disclose, answer, or respond.
(B) NEGATIVE INFERENCE IN CURRENT PROCEEDING- If any person fails to comply
with a discovery request, the Electronic Payment System Judges may issue
an order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of
the current proceeding in accordance with the claim of the person seeking
discovery and obtaining the order.
(i) GENERALLY- Any person who fails to comply with a discovery request
shall be subject to a civil penalty, which shall be assessed by the
Electronic Payment System Judges, of not more than $25,000 for each
violation. Each day of violation shall constitute a separate violation.
(ii) NOTICE AND HEARINGS- No civil penalty may be assessed under this
subsection except pursuant to an order of the Electronic Payment System
Judges and unless the person accused of the violation was given prior
notice and opportunity to request and participate in a hearing before
the Electronic Payment System Judges with respect to the violation.
(iii) DETERMINING AMOUNT- In determining the amount of any penalty assessed
pursuant to this subsection, the Electronic Payment System Judges shall
take into account the nature, circumstances, extent, and gravity of
the violation or violations and, with respect to the violator, ability
to pay, any prior history of such violations, the degree of culpability,
economic benefit or savings (if any) resulting from the violation, and
such other matters as justice may require.
(iv) REVIEW- Any person who requested a hearing with respect to a civil
penalty under this subsection and who is aggrieved by an order assessing
the civil penalty may file a petition for judicial review of such order
with the United States Court of Appeals for the District of Columbia
Circuit. Such a petition may be filed only within the 30-day period
beginning on the date the order making such assessment was issued. The
court shall have jurisdiction to enter a judgment affirming, modifying,
or setting aside in whole or in part, the order of the Electronic Payment
System Judges, or the court may remand the proceeding to the Electronic
Payment System Judges for such further action as the court may direct.
The Antitrust Division shall represent the Electronic Payment System
Judges before the court.
(v) ENFORCEMENT- If any person fails to pay an assessment of a civil
penalty after it has become a final and unappealable order or after
the appropriate court has entered final judgment, the Electronic Payment
System Judges shall request the Antitrust Division to institute a civil
action in an appropriate district court of the United States to collect
the penalty, and such court shall have jurisdiction to hear and decide
any such action. In hearing such action, the court shall have authority
to review the violation and the assessment of the civil penalty on the
record.
(c) Determination of Electronic Payment System Judges-
(1) TIMING- The Electronic Payment System Judges shall issue their determination
in a proceeding the earlier of either (i) 11 months after the conclusion
of the 21-day settlement conference period under subsection (b)(3)(B)(ix)
or (ii) 15 days before the expiration of the then current statutory rates
and terms.
(A) IN GENERAL- The Electronic Payment System Judges may, in exceptional
cases, upon motion of a party in a proceeding under this Act, order a
rehearing, after the determination in the proceeding is issued under paragraph
(1), on such matters as the Electronic Payment System Judges determine
to be appropriate.
(B) TIMING FOR FILING MOTION- Any motion for a rehearing under subparagraph
(A) may be filed only within 15 days after the date on which the Electronic
Payment System Judges deliver to the parties in the proceeding their initial
determination concerning rates and terms.
(C) PARTICIPATION BY OPPOSING PARTY NOT REQUIRED- In any case in which
a rehearing is ordered, any opposing party shall not be required to participate
in the rehearing, except that nonparticipation may give rise to the limitations
with respect to judicial review provided for in subsection (d)(1).
(D) NO NEGATIVE INFERENCE- No negative inference shall be drawn from lack
of participation in a rehearing.
(E) CONTINUITY OF RATES AND TERMS-
(i) If the decision of the Electronic Payment System Judges on any motion
for a rehearing is not rendered before the expiration of the statutory
rates and terms that were previously in effect, in the case of a proceeding
to determine successors to rates and terms that expire on a specified
date, then the initial determination of the Electronic Payment System
Judges that is the subject of the rehearing motion shall be effective
as of the day following the date on which the rates and terms that were
previously in effect expire.
(ii) The pendency of a motion for a rehearing under this paragraph shall
not relieve persons obligated to make access fee payments who would
be affected by the determination on that motion from paying the access
fees required and complying with the terms under the relevant determination
or regulations.
(iii) Notwithstanding clause (ii), whenever access fees described in
clause (ii) are paid, the recipient of those payments shall, within
60 days after the motion for rehearing is resolved or, if the motion
is granted, within 60 days after the rehearing is concluded, return
any excess amounts previously paid to the extent necessary to comply
with the final determination of access rates and terms by the Electronic
Payment System Judges. Any underpayment of access fees resulting from
a rehearing shall be paid within the same period.
(3) CONTENTS OF DETERMINATION- A determination of the Electronic Payment
System Judges shall include the rates and terms for access to the relevant
covered electronic payment system, shall be supported by the written record,
and shall set forth the findings of fact relied on by the Electronic Payment
System Judges. The Electronic Payment System Judges shall make publicly
available in their entirety all determinations issued pursuant to this paragraph.
(4) CONTINUING JURISDICTION- The Electronic Payment System Judges may, with
the approval of the Antitrust Division and Commission, issue an amendment
to a written determination to correct any technical or clerical errors in
the determination in response to unforeseen circumstances that would frustrate
the proper implementation of such determination. Such amendment shall be
set forth in a written addendum to the determination that shall be distributed
to the parties to the proceeding and shall be published in the Federal Register.
(5) PROTECTIVE ORDER- The Electronic Payment System Judges may issue such
orders as may be appropriate to protect confidential information, including
orders excluding confidential information from the record of the determination
that is published or made available to the public, except that any terms
or rates of an access agreement, including those set forth in filings under
section 3(d)(4), may not be excluded.
(6) PUBLICATION OF DETERMINATION- Within 60 days of the Electronic Payment
System Judges issuing a determination pursuant to this subsection, the Antitrust
Division and Commission shall cause the determination, and any corrections
thereto, to be published in the Federal Register. The Electronic Payment
System Judges also shall publicize the determination and corrections in
such other manner as the Antitrust Division and Commission consider appropriate,
including, but not limited to, publication on the Internet. The Electronic
Payment System Judges also shall make the determination, corrections, and
the accompanying record available for public inspection and copying.
(7) LATE PAYMENT- A determination of Electronic Payment System Judges may
include terms with respect to late payment, but in no way shall such terms
prevent providers of a single covered electronic payment system from asserting
other rights or remedies provided under this title.
(1) APPEAL- Any determination of the Electronic Payment System Judges under
subsection (c) may, within 30 days after the publication of the determination
in the Federal Register, be appealed, to the United States Court of Appeals
for the District of Columbia Circuit, by any aggrieved party to the proceeding
under this Act who would be bound by the determination. Any party that did
not participate in a rehearing may not raise any issue that was the subject
of that rehearing at any stage of judicial review of the hearing determination.
If no appeal is brought within that 30-day period, the determination of
the Electronic Payment System Judges shall be final, and shall take effect
as set forth in paragraph (2).
(2) EFFECT OF RATES AND TERMS-
(A) The pendency of an appeal under this subsection shall not relieve
persons obligated to make access fee payments who would be affected by
the determination on appeal from paying the access fees required and complying
with the terms under the relevant determination or regulations.
(B) Notwithstanding subparagraph (A), whenever access fees described in
subparagraph (A) are paid, the recipient of such payments shall, within
60 days after the final resolution of the appeal, return any excess amounts
previously paid (and interest thereon, if ordered pursuant to paragraph
(3)) to the extent necessary to comply with the final determination of
access rates and terms on appeal. Any underpayment of access fees resulting
from an appeal (and interest thereon, if ordered pursuant to paragraph
(3)) shall be paid within the same period.
(3) JURISDICTION OF COURT- If the court, pursuant to section 706 of title
5, modifies or vacates a determination of the Electronic Payment System
Judges, the court may enter its own determination with respect to the amount
or distribution of access fees and costs, and order the repayment of any
excess fees, the payment of any underpaid fees, and the payment of interest
pertaining respectively thereto, in accordance with its final judgment.
The court also may vacate the determination of the Electronic Payment System
Judges and remand the case to the Electronic Payment System Judges for further
proceedings.
(e) Administrative Matters-
(1) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as may be necessary to pay the costs incurred under this Act.
All funds made available pursuant to this subparagraph shall remain available
until expended.
(2) POSITIONS REQUIRED FOR ADMINISTRATION- Section 307 of the Legislative
Branch Appropriations Act, 1994, shall not apply to employee positions in
the Antitrust Division and Commission that are required to be filled in
order to carry out section 3.
SEC. 5. INSTITUTION OF PROCEEDINGS BEFORE ELECTRONIC PAYMENT SYSTEM JUDGES.
(1) TIMING- Proceedings referred to in section 3(d)(1) shall be commenced
as soon as practicable after the effective date of the Credit Card Fair
Fee Act of 2008 to determine access terms and rates under section 3 for
access to covered electronic payment systems, to be effective for the period
beginning on January 1, 2010, and ending on December 31, 2011. The Electronic
Payment System Judges shall cause notice of commencement of such proceedings
to be published in the Federal Register.
(2) PROCEDURES SPECIFIC TO THE INITIAL PROCEEDINGS-
(A) DISCOVERY PERIOD- Notwithstanding section 5(b)(4)(B)(iv), discovery
in the initial proceedings addressed in this subsection shall be permitted
for a period of 90 days, except for discovery ordered by the Electronic
Payment System Judges in connection with the resolution of motions, orders,
and disputes pending at the end of such period.
(B) CONSIDERATION OF CHANGES IN RATES AND TERMS BETWEEN DATE OF ENACTMENT
AND INITIAL DETERMINATION- In determining the access rates and terms under
section 3 for access to covered electronic payment systems, to be effective
for the period beginning on January 1, 2010 and ending on December 31,
2011, the Electronic Payment System Judges shall consider changes in rates
and terms made by a covered electronic payments system between the date
of enactment of this Act and such initial determination. Based upon such
consideration, the Electronic Payment System Judges may adjust their determination
of the rates and terms for this initial proceeding to reflect the economic
impact such changes had on the parties.
(b) Subsequent Proceedings- Subsequent to the proceedings addressed in subsection
(a), proceedings referred to in section 3(d)(1) shall next be commenced in
2010 to determine access rates and terms to become effective on January 1,
2012. Thereafter, such proceedings shall be repeated in each subsequent third
calendar year. The Electronic Payment System Judges shall cause notice of
commencement of proceedings referred to in section 3(d)(1) to be published
in the Federal Register.
SEC. 6. GENERAL RULE FOR VOLUNTARILY NEGOTIATED ACCESS AGREEMENTS.
Any access rates or terms under this title that--
(1) are agreed to pursuant to a voluntarily negotiated access agreement
for a period shorter than would otherwise apply under a determination pursuant
to this Act and
(2) are then adopted by the Electronic Payment System Judges as part of
a determination under this Act
shall remain in effect for such period of time as would otherwise apply under
such determination, except that the Electronic Payment System Judges shall
adjust those rates to reflect national monetary inflation during the additional
period the rates remain in effect beyond that contemplated in the voluntarily
negotiated access agreement.
SEC. 7. EFFECTIVE DATE.
The effective date of this Act shall be the date of enactment.
END
