IB 

Union Calendar No. 588 

110TH CONGRESS 

2D SESSION H. R. 5546 

[Report No. 110–913] 

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 

OCTOBER 3, 2008 

Additional sponsors: Mr. CARNEY, Mr. ELLISON, Ms. EDDIE BERNICE JOHNSON of Texas, Ms. MCCOLLUM of Minnesota, Mr. YARMUTH, Mr. 

SHULER, Mr. WHITFIELD of Kentucky, Mr. ENGLISH of Pennsylvania, 

Mr. WAMP, Mr. TIBERI, Mr. PORTER, Mr. CARNAHAN, Mr. MARSHALL, 

Mr. ALLEN, Ms. JACKSON-LEE of Texas, Mr. KAGEN, Mr. GONZALEZ, 

Mr. MCNERNEY, Mr. JONES of North Carolina, Mr. BAIRD, Mr. 

MELANCON, Mr. DAVID DAVIS of Tennessee, Mr. KING of Iowa, Mr. INSLEE, Mr. JACKSON of Illinois, Mr. VISCLOSKY, Mr. HOEKSTRA, Mr. RAHALL, Mr. BISHOP of Georgia, Mr. FATTAH, Mr. KLEIN of Florida, and 

Mr. STUPAK

OCTOBER 3, 2008 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 


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[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on March 6, 2008] 

A BILL 

To amend the antitrust laws to ensure competitive marketbased rates and terms for merchants’ access to electronic 

payment systems. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Credit Card Fair Fee 

5 Act of 2008’’. 

6 SEC. 2. LIMITED ANTITRUST IMMUNITY FOR THE NEGOTIA7 TION AND DETERMINATION OF RATES AND 

8 TERMS FOR ACCESS TO COVERED ELEC9 TRONIC PAYMENT SYSTEMS. 

10 (a) DEFINITIONS.—For purposes of this Act: 

11 (1) ‘‘Access agreement’’ means an agreement giv12 ing a merchant permission to access a covered elec13 tronic payment system to accept credit cards and/or 

14 debit cards from consumers for payment for goods 

15 and services as well as to receive payment for such 

16 goods and services, conditioned solely upon the mer17 chant complying with the rates and terms specified in 

18 the agreement. 


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1 (2) ‘‘Acquirer’’ means a financial institution 

2 that provides services allowing merchants to access an 

3 electronic payment system to accept credit cards and/ 

4 or debit cards for payment, but does not include inde5 pendent third party processors that may act as the 

6 acquirer’s agent in processing general-purpose credit 

7 or debit card transactions. 

8 (3) ‘‘Antitrust Division’’ means the Antitrust 

9 Division of the U.S. Department of Justice. 

10 (4) ‘‘Antitrust laws’’ has the meaning given it in 

11 subsection (a) of the first section of the Clayton Act 

12 (15 U.S.C. 12(a)), except that such term includes sec13 tion 5 of the Federal Trade Commission Act (15 

14 U.S.C. 45) to the extent such section 5 applies to un15 fair methods of competition as well as any similar 

16 State law. 

17 (5) ‘‘Credit card’’ means any general-purpose 

18 card or other device issued or approved for use by a 

19 financial institution allowing the cardholder to ob20 tain goods or services on credit on terms specified by 

21 that financial institution. 

22 (6) ‘‘Covered electronic payment system’’ means 

23 an electronic payment system that has been used for 

24 at least 20 percent of the combined dollar value of 

25 U.S. credit card, signature-based debit card, and 


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1 PIN-based debit card payments processed in the ap2 plicable calendar year immediately preceding the 

3 year in which the conduct in question occurs. 

4 (7) ‘‘Debit card’’ means any general-purpose 

5 card or other device issued or approved for use by a 

6 financial institution for use in debiting a cardholder’s 

7 account for the purpose of that cardholder obtaining 

8 goods or services, whether authorization is signature9 based or PIN-based. 

10 (8) ‘‘Electronic payment system’’ means the pro11 prietary services and infrastructure that route infor12 mation and data to facilitate transaction authoriza13 tion, clearance, and settlement that merchants must 

14 access in order to accept a specific brand of general15 purpose credit cards and/or debit cards as payment 

16 for goods and services. 

17 (9) ‘‘Financial institution’’ has the same mean18 ing as in section 603(t) of the Fair Credit Reporting 

19 Act. 

20 (10) ‘‘Issuer’’ means a financial institution that 

21 issues credit cards and/or debit cards or approves the 

22 use of other devices for use in an electronic payment 

23 system, but does not include independent third party 

24 processors that may act as the issuer’s agent in procVerDate Aug 31 2005 23:31 Oct 03, 2008 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H5546.RH H5546

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1 essing general-purpose credit card or debit card trans2 actions. 

3 (11) ‘‘Market power’’ means the ability profit4 ably to raise prices above those that would be charged 

5 in a perfectly competitive market. 

6 (12) ‘‘Merchant’’ means any person who accepts 

7 credit cards and/or debit cards in payment for goods 

8 or services that they provide. 

9 (13) ‘‘Negotiating party’’ means 1 or more pro10 viders of a covered electronic payment system or 1 or 

11 more merchants who have access to or who are seeking 

12 access to that covered electronic payment system, as 

13 the case may be, and who are in the process of negoti14 ating or who have executed a voluntarily negotiated 

15 access agreement that is still in effect. 

16 (14) ‘‘Person’’ has the meaning given it in sub17 section (a) of the first section of the Clayton Act (15 

18 U.S.C. 12(a)). 

19 (15) ‘‘Provider’’ means any person who owns, 

20 operates, controls, serves as an issuer for, or serves as 

21 an acquirer for a covered electronic payment system. 

22 (16) ‘‘State’’ has the meaning given it in section 

23 4G(2) of the Clayton Act (15 U.S.C. 15g(2)). 

24 (17) ‘‘Terms’’ means all rules applicable either to 

25 providers of a single covered electronic payment sysVerDate Aug 31 2005 23:31 Oct 03, 2008 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H5546.RH H5546

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1 tem or to merchants, and that are required in order 

2 to provide or access that covered electronic payment 

3 system for processing credit card and/or debit card 

4 transactions. 

5 (18) ‘‘Voluntarily negotiated access agreement’’ 

6 means an executed agreement voluntarily negotiated 

7 between 1 or more providers of a single covered elec8 tronic payment system and 1 or more merchants that 

9 sets the rates and terms pursuant to which the 1 or 

10 more merchants can access that covered electronic 

11 payment system to accept credit cards and/or debit 

12 cards from consumers for payment of goods and serv13 ices, and receive payment for such goods and services. 

14 (b) LIMITED ANTITRUST IMMUNITY FOR NEGOTIATION

15 OF ACCESS RATES AND TERMS TO COVERED ELECTRONIC

16 PAYMENT SYSTEMS.—(1) Except as provided in paragraph 

17 (2) and notwithstanding any provision of the antitrust 

18 laws, in negotiating access rates and terms any providers 

19 of a single covered electronic payment system and any mer20 chants may jointly negotiate and agree upon the rates and 

21 terms for access to the covered electronic payment system, 

22 including through the use of common agents that represent 

23 either providers of a single covered electronic payment sys24 tem or merchants on a non-exclusive basis. Any providers 

25 of a single covered electronic payment system also may 


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1 jointly determine the proportionate division among them2 selves of paid access fees. 

3 (2) Notwithstanding any other provision of this Act, 

4 the immunity otherwise applicable under paragraph (1) 

5 shall not apply to a provider of a single covered electronic 

6 payment system, or to a merchant, during any period in 

7 which such provider, or such merchant, is engaged in any 

8 unlawful boycott. 

9 (c) NONDISCRIMINATION.—For any given covered elec10 tronic payment system, the rates and terms of a voluntarily 

11 negotiated access agreement reached under the authority of 

12 this section shall be the same for all merchants, regardless 

13 of merchant category or volume of transactions (either in 

14 number or dollar value) generated. For any given covered 

15 electronic payment system, the rates and terms of a volun16 tarily negotiated access agreement reached under the au17 thority of this section shall be the same for all participating 

18 providers, regardless of provider category or volume of 

19 transactions (either in number or dollar value) generated. 

20 (d) FACILITATION OF NEGOTIATION.— 

21 (1) SCHEDULE.—Within one month following 

22 enactment of this Act, the negotiating parties shall 

23 file with the Antitrust Division a schedule for nego24 tiations. If the negotiating parties do not file such a 

25 schedule within one month from the date of enactVerDate Aug 31 2005 23:31 Oct 03, 2008 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H5546.RH H5546

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1 ment, the Antitrust Division shall issue such a sched2 ule and inform the negotiating parties of the schedule. 

3 In either case, the Antitrust Division shall make the 

4 schedule available to all negotiating parties. 

5 (2) INITIAL DISCLOSURE.—Within one month 

6 following enactment of this Act, the persons described 

7 in this subsection shall make the initial disclosures 

8 described in paragraphs (3), (4), and (5) to facilitate 

9 negotiations under the limited antitrust immunity 

10 provided for by this section. 

11 (3) ISSUERS, ACQUIRERS, AND OWNERS.—Any 

12 person who is 1 of the 10 largest issuers for a covered 

13 electronic payment system in terms of number of 

14 cards issued, any person who is 1 of the 10 largest 

15 acquirers for a covered electronic payment system in 

16 terms of number of merchants served, and any person 

17 who operates or controls a covered electronic payment 

18 system shall produce to the Antitrust Division and to 

19 all negotiating parties— 

20 (A) an itemized list of the costs necessary to 

21 provide the covered electronic payment system 

22 that were incurred by the person during the most 

23 recent full calendar year before the initiation of 

24 the negotiation; and 


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1 (B) any access agreement between that per2 son and 1 or more merchants with regard to that 

3 covered electronic payment system. 

4 (4) MERCHANTS.—Any person who is 1 of the 10 

5 largest merchants using the covered electronic pay6 ment system, determined based on dollar amount of 

7 transactions made with the covered electronic pay8 ment system, shall produce to the Antitrust Division 

9 and to all negotiating parties— 

10 (A) an itemized list of the costs necessary to 

11 access an electronic payment system during the 

12 most recent full calendar year prior to the initi13 ation of the proceeding; and 

14 (B) any access agreement between that per15 son and 1 or more providers with regard to that 

16 covered electronic payment system. 

17 (5) DISAGREEMENT.—Any disagreement regard18 ing whether a person is required to make an initial 

19 disclosure under this clause, or the contents of such a 

20 disclosure, shall be resolved by the Antitrust Division. 

21 (6) ATTENDANCE OF ANTITRUST DIVISION.—A 

22 representative of the Antitrust Division shall attend 

23 all negotiation sessions conducted under the authority 

24 of this section. 


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1 (e) TRANSPARENCY OF VOLUNTARILY NEGOTIATED AC2 CESS AGREEMENTS.— 

3 (1) VOLUNTARILY NEGOTIATED ACCESS AGREE4 MENTS BETWEEN NEGOTIATING PARTIES.—A volun5 tarily negotiated access agreement may be executed at 

6 any time between 1 or more providers of a covered 

7 electronic payment system and 1 or more merchants. 

8 (2) FILING AGREEMENTS WITH THE ANTITRUST

9 DIVISION.—The negotiating parties shall jointly file 

10 with the Antitrust Division a clear intelligible copy 

11 of— 

12 (A) any voluntarily negotiated access agree13 ment that affects any market in the United 

14 States or elsewhere; 

15 (B) the various components of the inter16 change fee; 

17 (C) a description of how access fees that 

18 merchants pay are allocated among financial in19 stitutions and how they are spent; 

20 (D) whether a variation in fees exists 

21 among card types; 

22 (E) any documentation relating to a volun23 tarily negotiated access agreement evidencing 

24 any consideration being given or any marketing 


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1 or promotional agreements between the negoti2 ating parties; 

3 (F) a comparison of interchange rates in 

4 current use in the 10 foreign countries having 

5 the highest volume of credit card transactions 

6 with the interchange rates charged in the United 

7 States under such agreement; and 

8 (G) any amendments to that voluntarily ne9 gotiated access agreement or documentation. 

10 (3) TIMING AND AVAILABILITY OF FILINGS.—The 

11 negotiating parties to any voluntarily negotiated ac12 cess agreement executed after the date of enactment of 

13 this Act shall jointly file the voluntarily negotiated 

14 access agreement, and any documentation or amend15 ments described in paragraph (2), with the Antitrust 

16 Division not later than 30 days after the date of exe17 cution of the voluntarily negotiated access agreement 

18 or amendment or after the creation of the documenta19 tion. The Antitrust Division shall make publicly 

20 available any voluntarily negotiated access agree21 ment, amendment, or accompanying documentation 

22 filed under this paragraph. 

23 (f) REPORT TO CONGRESS BY THE ANTITRUST DIVI24 SION.—Within seven months after the date of enactment of 

25 this Act, the Antitrust Division shall transmit to the House 


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1 Committee on the Judiciary and the Senate Committee on 

2 the Judiciary a report on the negotiations conducted under 

3 the authority of this section during the first six months after 

4 the date of enactment and, if a voluntarily negotiated agree5 ment is reached, whether such access rates and terms will 

6 have an adverse effect on competition and how such rates 

7 compare with access rates and terms in current use in other 

8 countries. Such report shall contain a chronology of the ne9 gotiations, an assessment of whether the parties have nego10 tiated in good faith, an assessment of the quality of the data 

11 provided by the parties in their initial disclosures, a de12 scription of any voluntarily negotiated agreements reached 

13 during the negotiations, and any recommendations of the 

14 Antitrust Division concerning how Congress should respond 

15 to the conduct of the negotiations. 

16 (g) EFFECT ON PENDING LAWSUITS.—Nothing in this 

17 section shall affect liability in any action pending on the 

18 date of enactment of this section. 

19 SEC. 3. OPT-OUT. 

20 Nothing in this Act shall limit the ability of acquirers 

21 or issuers that are regulated by the National Credit Union 

22 Administration or that, together with affiliates, have assets 

23 of less than $1,000,000,000, to opt out of negotiations under 

24 this Act. 


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1 SEC. 4. CARDHOLDER SAVINGS. 

2 Any agreements reached pursuant to the authority 

3 provided in section 2 shall provide that— 

4 (1) when any fees that a merchant is charged for 

5 access to a covered electronic payment system are re6 duced pursuant to any such agreement, the merchant 

7 shall pass the benefits of any such reduction in fees 

8 on to its customers or employees; and 

9 (2) when any fees that a financial institution 

10 collects for access to a covered electronic payment sys11 tem are increased pursuant to any such agreement, 

12 the financial institution shall pass the benefits of any 

13 such increase in fees on to its customers or employees. 

14 SEC. 5. EFFECTIVE DATE. 

15 This Act shall take effect on the date of the enactment 

16 of this Act. 


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Union Calendar No. 588 

110TH CONGRESS 

2D SESSION H. R. 5546 

[Report No. 110–913] 

A BILL 

To amend the antitrust laws to ensure competitive 

cess to electronic payment systems. market-based rates and terms for merchants’ acOCTOBER 3, 2008 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


wwoods2 on PRODPC68 with BILLS