I 

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 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’’. 


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1 SEC. 2. LIMITED ANTITRUST IMMUNITY FOR THE NEGOTIA2 TION AND DETERMINATION OF RATES AND 

3 TERMS FOR ACCESS TO COVERED ELEC4 TRONIC PAYMENT SYSTEMS. 

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

6 (1) ‘‘Access agreement’’ means an agreement 

7 giving a merchant permission to access a covered 

8 electronic payment system to accept credit cards 

9 and/or debit cards from consumers for payment for 

10 goods and services as well as to receive payment for 

11 such goods and services, conditioned solely upon the 

12 merchant complying with the rates and terms speci13 fied in the agreement. 

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

15 that provides services allowing merchants to access 

16 an electronic payment system to accept credit cards 

17 and/or debit cards for payment, but does not include 

18 independent third party processors that may act as 

19 the acquirer’s agent in processing general-purpose 

20 credit or debit card transactions. 

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

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

23 (4) ‘‘Antitrust Laws’’ has the meaning given it 

24 in subsection (a) of the first section of the Clayton 

25 Act (15 U.S.C. 12(a)), except that such term in26 cludes section 5 of the Federal Trade Commission 


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1 Act (15 U.S.C. 45) to the extent section 5 applies 

2 to unfair methods of competition as well as any 

3 similar State law. 

4 (5) ‘‘Base year’’ means the most recent full cal5 endar year prior to the initiation of a proceeding 

6 under this Act. 

7 (6) ‘‘Commission’’ means the Federal Trade 

8 Commission Bureau of Competition. 

9 (7) ‘‘Credit card’’ means any general-purpose 

10 card or other device issued or approved for use by 

11 a financial institution allowing the cardholder to ob12 tain goods or services on credit on terms specified by 

13 that financial institution. 

14 (8) ‘‘Covered electronic payment system’’ means 

15 an electronic payment system that has been used for 

16 at least 20% of the combined dollar value of U.S. 

17 credit, signature-based debit, and PIN-based debit 

18 card payments processed in the applicable base year. 

19 (9) ‘‘Debit card’’ means any general-purpose 

20 card or other device issued or approved for use by 

21 a financial institution for use in debiting a card22 holder’s account for the purpose of that cardholder 

23 obtaining goods or services, whether authorization is 

24 signature-based or PIN-based. 


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1 (10) ‘‘Electronic payment system’’ means the 

2 proprietary services and infrastructure that route in3 formation and data to facilitate transaction author4 ization, clearance, and settlement that merchants 

5 must access in order to accept a specific brand of 

6 general-purpose credit and/or debit cards as pay7 ment for goods and services. 

8 (11) ‘‘Financial institution’’ has the same 

9 meaning as in section 603(t) of the Fair Credit Re10 porting Act. 

11 (12) ‘‘Issuer’’ means a financial institution that 

12 issues credit cards and/or debit cards or approves 

13 the use of other devices for use in an electronic pay14 ment system, but does not include independent third 

15 party processors that may act as the issuer’s agent 

16 in processing general-purpose credit or debit card 

17 transactions; 

18 (13) ‘‘Market power’’ means the ability profit19 ably to raise prices above those that would be 

20 charged in a perfectly competitive market. 

21 (14) ‘‘Merchant’’ means any person who ac22 cepts credit cards and/or debit cards in payment for 

23 goods or services that they provide. 

24 (15) ‘‘Normal rate of return’’ means the aver25 age rate of return that a firm would receive in an 


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1 industry when conditions of perfect competition pre2 vail. 

3 (16) ‘‘Party’’ means either all providers of a 

4 single covered electronic payment system collectively 

5 or all merchants collectively. 

6 (17) ‘‘Person’’ has the meaning given it in sub7 section (a) of the first section of the Clayton Act (15 

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

9 (18) ‘‘Provider’’ means any person who owns, 

10 operates, controls, serves as an issuer, or serves as 

11 an acquirer for a covered electronic payment system. 

12 (19) ‘‘State’’ has the meaning given it in sec13 tion 4G(2) of the Clayton Act (15 U.S.C. 15g(2)). 

14 (20) ‘‘Terms’’ means all rules applicable either 

15 to providers of a single covered electronic payment 

16 system or to merchants, and that are required in 

17 order to provide or access that covered electronic 

18 payment system for processing credit and/or debit 

19 card transactions. 

20 (21) ‘‘Voluntarily negotiated access agreement’’ 

21 means an executed agreement voluntarily negotiated 

22 between 1 or more providers of a single covered elec23 tronic payment system and 1 or more merchants 

24 that sets the rates and terms pursuant to which the 

25 1 or more merchants can access that covered elecVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 tronic payment system to accept credit cards and/or 

2 debit cards from consumers for payment of goods 

3 and services, and receive payment for such goods 

4 and services. 

5 (b) ACCESS TO COVERED ELECTRONIC PAYMENT

6 SYSTEMS.—Access to any covered electronic payment sys7 tem by merchants shall be subject to this Act. 

8 (c) AUTHORITY AND LIMITED ANTITRUST IMMUNITY

9 FOR NEGOTIATIONS AND PARTICIPATION IN PRO10 CEEDINGS.—Notwithstanding any provision of the anti11 trust laws, in negotiating access rates and terms and par12 ticipating in any proceedings in accordance with sub13 section (d), any providers of a single covered electronic 

14 payment system and any merchants may jointly negotiate 

15 and agree upon the rates and terms for access to the cov16 ered electronic payment system, including through the use 

17 of common agents that represent either providers of a sin18 gle covered electronic payment system or merchants on a 

19 non-exclusive basis. Any providers of a single covered elec20 tronic payment system also may jointly determine the pro21 portionate division among themselves of paid access fees. 

22 (d) DETERMINATION OF ACCESS RATES AND

23 TERMS.— 

24 (1) PROCEEDINGS.—Proceedings under this Act 

25 shall determine rates and terms for access to a covVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 ered electronic payment system during the 3-year 

2 period beginning on January 1 of the second year 

3 following the year in which the proceedings are to be 

4 commenced, except where a different transitional pe5 riod is provided under section 6. Except as specified 

6 in a voluntarily negotiated access agreement, no 

7 other fees, terms, or conditions of any kind may be 

8 imposed directly or indirectly on any merchant for 

9 accessing a covered electronic payment system. The 

10 parties to each proceeding shall bear their own costs. 

11 (2) DETERMINATIONS OF THE ELECTRONIC

12 PAYMENT SYSTEM JUDGES.— 

13 (A) APPLICABILITY.—The schedule of 

14 rates and terms determined by the Electronic 

15 Payment System Judges with respect to a sin16 gle covered electronic payment system shall, 

17 subject to paragraph (4), be binding on all pro18 viders of that single covered electronic payment 

19 system and merchants affected by this para20 graph during the 3-year period specified in sub21 paragraph (1). For any given covered electronic 

22 payment system, such rates and terms shall be 

23 the same for all merchants, regardless of mer24 chant category or volume of transactions (either 

25 in number or dollar value) generated. 


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1 (B) STANDARD FOR DETERMINATIONS.— 

2 In establishing rates and terms for access to a 

3 covered electronic payment system by mer4 chants, the Electronic Payment System Judges 

5 shall establish rates and terms that most closely 

6 represent the rates and terms that would be ne7 gotiated in a hypothetical perfectly competitive 

8 marketplace for access to an electronic payment 

9 system between a willing buyer with no market 

10 power and a willing seller with no market 

11 power. In determining such rates and terms, 

12 the Electronic Payment System Judges shall 

13 consider the costs necessary to provide and ac14 cess an electronic payment system for proc15 essing credit and/or debit card transactions as 

16 well as a normal rate of return in such a hypo17 thetical perfectly competitive marketplace. The 

18 Electronic Payment System Judges shall not in19 clude any anticompetitive rates or terms. 

20 (C) USE OF EXISTING RATES AND TERMS

21 AS EVIDENCE.—In determining such rates and 

22 terms, the Electronic Payment System Judges 

23 generally shall decide the appropriate weight to 

24 be given to any evidence submitted by a party 

25 regarding the rates and terms for access to 


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1 comparable electronic payment systems, includ2 ing rates and terms set forth in voluntarily ne3 gotiated access agreements filed pursuant to 

4 subparagraph (4). The Electronic Payment Sys5 tem Judges shall give significant weight, how6 ever, to rates voluntarily negotiated between 

7 one or more providers of a single covered elec8 tronic payments system and one or more mer9 chants that are substantially below those rates 

10 reflective of the market power of covered elec11 tronic payment systems that existed prior to the 

12 enactment of this Act. 

13 (3) INITIATION.—The procedures under sub14 paragraphs (1) and (2) shall be initiated pursuant to 

15 section 5. 

16 (4) VOLUNTARILY NEGOTIATED ACCESS AGREE17 MENTS.— 

18 (A) AGREEMENTS BETWEEN THE PAR19 TIES.—Voluntarily negotiated access agree20 ments may be executed at any time between 1 

21 or more providers of a single covered electronic 

22 payment system and 1 or more merchants, and 

23 such voluntarily negotiated access agreements 

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1 ties in lieu of any determination by the Elec2 tronic Payment System Judges. 

3 (B) FILING AGREEMENTS WITH THE ELEC4 TRONIC PAYMENT SYSTEM JUDGES.—Any pro5 viders of a single covered electronic payment 

6 system and merchants affected by this section 

7 must jointly file with the Electronic Payment 

8 System Judges any voluntarily negotiated ac9 cess agreements that affect any domestic or 

10 international market, including related docu11 mentation evidencing any consideration being 

12 given, any marketing or promotional agree13 ments between the parties, and any subsequent 

14 amendments to such agreements and docu15 mentation. 

16 (C) TIMING OF AND ACCESS TO FILINGS.— 

17 The parties to any voluntarily negotiated access 

18 agreement executed subsequent to the enact19 ment of the Credit Card Fair Fee Act of 2008 

20 must jointly file such agreement, amendment, 

21 or documentation with the Electronic Payment 

22 System Judges within 30 days of executing the 

23 agreement, amendment, or documentation. The 

24 Electronic Payment System Judges shall make 

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1 ments, and related documentation executed sub2 sequent to the date of enactment of this Act. 

3 SEC. 3. ELECTRONIC PAYMENT SYSTEM JUDGES. 

4 (a) APPOINTMENT.—The Antitrust Division and 

5 Commission shall appoint 3 full-time Electronic Payment 

6 System Judges, and shall appoint 1 of the 3 as the Chief 

7 Electronic Payment System Judge. 

8 (b) FUNCTIONS.—Subject to the provisions of this 

9 Act, the function of the Electronic Payment System 

10 Judges shall be to make determinations of access rates 

11 and terms calculated to most closely represent the rates 

12 and terms that would be negotiated in a hypothetical per13 fectly competitive marketplace for access to an electronic 

14 payment system between a willing buyer with no market 

15 power and a willing seller with no market power. In deter16 mining such rates and terms, the Electronic Payment Sys17 tem Judges shall consider the costs necessary to provide 

18 and access an electronic payment system for processing 

19 credit and/or debit card transactions as well as a normal 

20 rate of return in such a hypothetical perfectly competitive 

21 marketplace. 

22 (c) RULINGS.—The Electronic Payment System 

23 Judges may make any necessary procedural or evidentiary 

24 rulings in any proceeding under this Act and may, before 

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1 dural rulings that would apply to the proceedings con2 ducted by the Electronic Payment System Judges. 

3 (d) ADMINISTRATIVE SUPPORT.—The Antitrust Divi4 sion and Commission shall provide the Electronic Payment 

5 System Judges with the necessary administrative services 

6 related to proceedings under this Act. 

7 (e) LOCATION.—The offices of the Electronic Pay8 ment System Judges and staff shall be in the Antitrust 

9 Division or Commission. 

10 (f) QUALIFICATIONS OF ELECTRONIC PAYMENT SYS11 TEM JUDGES.— 

12 (1) IN GENERAL.—Each Electronic Payment 

13 System Judge shall be an attorney who has at least 

14 7 years of legal experience. The Chief Electronic 

15 Payment System Judge shall have at least 5 years 

16 of experience in adjudications, arbitrations, or court 

17 trials. Of the other 2 Electronic Payment System 

18 Judges, 1 shall have significant knowledge of elec19 tronic payment systems, and the other shall have 

20 significant knowledge of economics. An individual 

21 may serve as an Electronic Payment System Judge 

22 only if the individual is free of any financial conflict 

23 of interest under subsection (m). 

24 (2) DEFINITION.—In this subsection, the term 

25 ‘‘adjudication’’ has the meaning given that term in 


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1 section 551 of title 5, but does not include medi2 ation. 

3 (g) STAFF.—The Chief Electronic Payment System 

4 Judge shall hire 3 full-time staff members to assist the 

5 Electronic Payment System Judges in performing their 

6 functions. 

7 (h) TERMS.—The individual first appointed as the 

8 Chief Electronic Payment System Judge shall be ap9 pointed to a term of 6 years, and of the remaining individ10 uals first appointed as Electronic Payment System 

11 Judges, 1 shall be appointed to a term of 4 years, and 

12 the other shall be appointed to a term of 2 years. There13 after, the terms of succeeding Electronic Payment System 

14 Judges shall each be 6 years. An individual serving as an 

15 Electronic Payment System Judge may be reappointed to 

16 subsequent terms. The term of an Electronic Payment 

17 System Judge shall begin when the term of the prede18 cessor of that Electronic Payment System Judge ends. 

19 When the term of office of an Electronic Payment System 

20 Judge ends, the individual serving that term may continue 

21 to serve until a successor is installed. 

22 (i) VACANCIES OR INCAPACITY.— 

23 (1) VACANCIES.—If a vacancy should occur in 

24 the position of Electronic Payment System Judge, 

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1 peditiously to fill the vacancy, and may appoint an 

2 interim Electronic Payment System Judge to serve 

3 until another Electronic Payment System Judge is 

4 appointed under this section. An individual ap5 pointed to fill the vacancy occurring before the expi6 ration of the term for which the predecessor of that 

7 individual was appointed shall be appointed for the 

8 remainder of that term. 

9 (2) INCAPACITY.—In the case in which an Elec10 tronic Payment System Judge is temporarily unable 

11 to perform his or her duties, the Antitrust Division 

12 and Commission may appoint an interim Electronic 

13 Payment System Judge to perform such duties dur14 ing the period of such incapacity. 

15 (j) COMPENSATION.— 

16 (1) JUDGES.—The Chief Electronic Payment 

17 System Judge shall receive compensation at the rate 

18 of basic pay payable for level AL–1 for administra19 tive law judges pursuant to section 5372(b) of title 

20 5, and each of the other two Electronic Payment 

21 System Judges shall receive compensation at the 

22 rate of basic pay payable for level AL–2 for adminis23 trative law judges pursuant to such section. The 

24 compensation of the Electronic Payment System 

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1 ed by the Office of Personnel Management pursuant 

2 to its authority under section 5376(b)(1) of title 5. 

3 (2) STAFF MEMBERS.—Of the staff members 

4 appointed under subsection (g)— 

5 (A) the rate of pay of 1 staff member shall 

6 be not more than the basic rate of pay payable 

7 for level 10 of GS–15 of the General Schedule; 

8 (B) the rate of pay of 1 staff member shall 

9 be not less than the basic rate of pay payable 

10 for GS–13 of the General Schedule and not 

11 more than the basic rate of pay payable for 

12 level 10 of GS–14 of such Schedule; and 

13 (C) the rate of pay for the third staff 

14 member shall be not less than the basic rate of 

15 pay payable for GS–8 of the General Schedule 

16 and not more than the basic rate of pay payable 

17 for level 10 of GS–11 of such Schedule. 

18 (3) LOCALITY PAY.—All rates of pay referred to 

19 under this subsection shall include locality pay. 

20 (k) INDEPENDENCE OF ELECTRONIC PAYMENT SYS21 TEM JUDGE.— 

22 (1) IN MAKING DETERMINATIONS.— 

23 (A) IN GENERAL.—The Electronic Pay24 ment System Judges shall have full independ25 ence in making determinations concerning adVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 justments and determinations of rates and 

2 terms for access to covered electronic payment 

3 systems and in issuing other rulings under this 

4 title, except that the Electronic Payment Sys5 tem Judges may consult with the Antitrust Di6 vision and Commission on any matter other 

7 than a question of fact. 

8 (B) CONSULTATION.—Notwithstanding the 

9 provisions of subparagraph (A), the Electronic 

10 Payment System Judges shall consult with the 

11 Antitrust Division and Commission with respect 

12 to any determination or ruling that would re13 quire that any act be performed by the Anti14 trust Division and Commission, and any such 

15 determination or ruling shall not be binding 

16 upon the Antitrust Division or Commission. 

17 (2) PERFORMANCE APPRAISALS.— 

18 (A) IN GENERAL.—Notwithstanding any 

19 other provision of law or any regulation of the 

20 Antitrust Division and Commission, and subject 

21 to subparagraph (B), the Electronic Payment 

22 System Judges shall not receive performance 

23 appraisals. 

24 (B) RELATING TO SANCTION OR RE25 MOVAL.—To the extent that the Antitrust DiviVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 sion and Commission adopt regulations under 

2 subsection (m) relating to the sanction or re3 moval of an Electronic Payment System Judge 

4 and such regulations require documentation to 

5 establish the cause of such sanction or removal, 

6 the Electronic Payment System Judge may re7 ceive an appraisal related specifically to the 

8 cause of the sanction or removal. 

9 (l) INCONSISTENT DUTIES BARRED.—No Electronic 

10 Payment System Judge may undertake duties that conflict 

11 with his or her duties and responsibilities as an Electronic 

12 Payment System Judge. 

13 (m) STANDARDS OF CONDUCT.—The Antitrust Divi14 sion and Commission shall adopt regulations regarding the 

15 standards of conduct, including financial conflict of inter16 est and restrictions against ex parte communications, 

17 which shall govern the Electronic Payment System Judges 

18 and the proceedings under this Act. 

19 (n) REMOVAL OR SANCTION.—The Antitrust Division 

20 and Commission may sanction or remove an Electronic 

21 Payment System Judge for violation of the standards of 

22 conduct adopted under subsection (m), misconduct, ne23 glect of duty, or any disqualifying physical or mental dis24 ability. Any such sanction or removal may be made only 

25 after notice and opportunity for a hearing, but the AntiVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 trust Division and Commission may suspend the Elec2 tronic Payment System Judge during the pendency of 

3 such hearing. The Antitrust Division and Commission 

4 shall appoint an interim Electronic Payment System 

5 Judge during the period of any such suspension. 

6 SEC. 4. PROCEEDINGS OF ELECTRONIC PAYMENT SYSTEM 

7 JUDGES. 

8 (a) PROCEEDINGS.— 

9 (1) IN GENERAL.—The Electronic Payment 

10 System Judges shall act in accordance with regula11 tions issued by the Electronic Payment System 

12 Judges and the Antitrust Division and Commission, 

13 and on the basis of a written record, prior deter14 minations and interpretations of the Electronic Pay15 ment System Judges under this Act, and decisions 

16 of the court of appeals under this section. 

17 (2) JUDGES ACTING AS PANEL AND INDIVID18 UALLY.—The Electronic Payment System Judges 

19 shall preside over hearings in proceedings under this 

20 Act en banc. The Chief Electronic Payment System 

21 Judge may designate an Electronic Payment System 

22 Judge to preside individually over such collateral 

23 and administrative proceedings, and over such pro24 ceedings under paragraphs (1) and (2) of subsection 

25 (b), as the Chief Judge considers appropriate. 


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1 (3) DETERMINATION LIMITED TO CHOOSING

2 ONE OF THE TWO FINAL OFFERS.—Prior to the 

3 commencement of a direct hearing in a proceeding 

4 under section 5(b)(3)(B)(xi), the party entitled to 

5 receive access fee payments shall file with the Elec6 tronic Payment System Judges its final offer of 

7 rates and terms. Simultaneously, the party obligated 

8 to pay access fee payments shall file with the Elec9 tronic Payment System Judges its final offer of 

10 rates and terms. The parties also shall exchange 

11 these final offers, which cannot be amended. In 

12 making a determination under section 5(c), the Elec13 tronic Payment System Judges shall be limited to 

14 choosing, without modification, one of these two 

15 final offers. 

16 (4) VOTING AND DISSENTING OPINIONS.—Final 

17 determinations of the Electronic Payment System 

18 Judges in proceedings under this Act shall be made 

19 by majority vote. An Electronic Payment System 

20 Judge dissenting from the majority on any deter21 mination under this Act may issue his or her dis22 senting opinion, which shall be included with the de23 termination. 

24 (b) PROCEDURES.— 


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1 (1) INITIATION.—The Electronic Payment Sys2 tem Judges shall cause to be published in the Fed3 eral Register notice of commencement of proceedings 

4 referred to in section 3 as provided under section 6. 

5 (2) VOLUNTARY NEGOTIATION PERIOD.— 

6 (A) IN GENERAL.—Promptly after the 

7 commencement of a proceeding, the Electronic 

8 Payment System Judges shall initiate a vol9 untary negotiation period among the parties. 

10 (B) LENGTH.—The voluntary negotiation 

11 period initiated under subparagraph (A) shall 

12 be 3 months. Nothing in this subsection, how13 ever, prohibits parties from negotiating and en14 tering into voluntarily negotiated access agree15 ments at any other time. 

16 (C) DETERMINATION OF NEED FOR SUB17 SEQUENT PROCEEDINGS.—At the close of the 

18 voluntary negotiation proceedings, the Elec19 tronic Payment System Judges shall determine 

20 if further proceedings under this Act are nec21 essary. In any such proceeding, all providers of 

22 the covered electronic payment system shall 

23 participate as a single party and all merchants 

24 shall participate as a single party, except to the 


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1 extent certain providers or merchants pursue 

2 voluntarily negotiated access agreements. 

3 (3) REGULATIONS.— 

4 (A) IN GENERAL.—The Electronic Pay5 ment System Judges may issue regulations to 

6 carry out their functions under this title. All 

7 regulations issued by the Electronic Payment 

8 System Judges are subject to the approval of 

9 the Antitrust Division and Commission. Not 

10 later than 120 days after Electronic Payment 

11 System Judges are first appointed after the en12 actment of the Credit Card Fair Fee Act of 

13 2008, such judges shall issue regulations to 

14 govern proceedings under this Act. In setting 

15 these regulations, the Electronic Payment Sys16 tem Judges shall consider the regulations 

17 issued by the Copyright Royalty Judges pursu18 ant to 17 U.S.C. 803(b)(6). 

19 (B) REQUIREMENTS.—Regulations issued 

20 under subparagraph (A) shall include the fol21 lowing: 

22 (i) WRITTEN DIRECT STATEMENTS.— 

23 The written direct statements of the par24 ties to a proceeding shall be filed by a date 

25 specified by the Electronic Payment SysVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 tem Judges, which may be not earlier than 

2 4 months, and not later than 5 months, 

3 after the end of the voluntary negotiation 

4 period under paragraph (3). Notwith5 standing the preceding sentence, the Elec6 tronic Payment System Judges may allow 

7 a party in a proceeding to file an amended 

8 written direct statement based on new in9 formation received during the discovery 

10 process, within 15 days after the end of 

11 the discovery period specified in clause (ii). 

12 In this Act, the term ‘‘written direct state13 ments’’ means witness statements, testi14 mony, and exhibits to be presented in the 

15 proceedings, and such other information 

16 that is necessary to establish access terms 

17 and rates as set forth in regulations issued 

18 by the Electronic Payment System Judges. 

19 (ii) DISCOVERY SCHEDULE.—Fol20 lowing the submission to the Electronic 

21 Payment System Judges of written direct 

22 statements by the parties to a proceeding, 

23 the judges shall meet with the parties for 

24 the purpose of setting a schedule for con25 ducting and completing discovery. Such 


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1 schedule shall be determined by the Elec2 tronic Payment System Judges. Discovery 

3 in such proceedings shall be permitted for 

4 a period of 60 days, except for discovery 

5 ordered by the Electronic Payment System 

6 Judges in connection with the resolution of 

7 motions, orders, and disputes pending at 

8 the end of such period. 

9 (iii) INITIAL DISCLOSURES.—In a pro10 ceeding under this Act to determine rates 

11 and terms for access to a single covered 

12 electronic payment system, certain persons 

13 must make initial disclosures within 30 

14 days of commencement of the proceeding. 

15 The 10 largest issuers for the covered elec16 tronic payment system, the 10 largest 

17 acquirers for the covered electronic pay18 ment system, and any person operating or 

19 controlling the covered electronic payment 

20 system must produce to merchants both 

21 the costs necessary to provide that elec22 tronic payment system for processing cred23 it and/or debit card transactions that were 

24 incurred during the most recent full cal25 endar year prior to the initiation of the 


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1 proceeding and any agreements regarding 

2 rates and terms for access to the covered 

3 electronic payment system. The 10 largest 

4 merchants in terms of utilization of the 

5 covered electronic payment system must 

6 produce to the providers of the covered 

7 electronic payment system both the costs 

8 necessary to access an electronic payment 

9 system for processing credit and/or debit 

10 card transactions during the most recent 

11 full calendar year prior to the initiation of 

12 the proceeding and any agreements regard13 ing rates and terms for access to the cov14 ered electronic payment system. Any dis15 agreement between the providers of a sin16 gle covered electronic payment system and 

17 the merchants regarding which persons are 

18 required to make such initial disclosures 

19 shall be resolved by the Electronic Pay20 ment System Judges. 

21 (iv) DEPOSITIONS.— 

22 (I) In a proceeding under this 

23 Act to determine access rates and 

24 terms, each party shall be permitted 

25 to take depositions of every witness 


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1 identified by the other party. Each 

2 party also shall be permitted to take 

3 five additional depositions in the en4 tire proceeding. 

5 (II) A deposition notice or sub6 poena may name as the deponent a 

7 public or private corporation or a 

8 partnership or association and de9 scribe with reasonable particularity 

10 the matters on which examination is 

11 requested. In that event, the organiza12 tion so named shall designate one or 

13 more officers, directors, or managing 

14 agents, or other persons who consent 

15 to testify on its behalf, and may set 

16 forth, for each person designated, the 

17 matters on which the person will tes18 tify. A subpoena shall advise a non19 party organization of its duty to make 

20 such a designation. The persons so 

21 designated shall testify as to matters 

22 known or reasonably available to the 

23 organization. 

24 (III) The Electronic Payment 

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1 mitted number of depositions for good 

2 cause in exceptional circumstances, 

3 and shall resolve any disputes among 

4 persons within either party regarding 

5 the allocation of the depositions per6 mitted under this clause. 

7 (v) WRITTEN DISCOVERY.—In a pro8 ceeding under this Act to determine access 

9 rates and terms, each party shall be per10 mitted to serve written discovery requests 

11 on 10 persons. These written discovery re12 quests may include requests for production 

13 or inspection, a total of no more than 10 

14 requests for admission in the entire pro15 ceeding, and a total of no more than 25 in16 terrogatories in the entire proceeding. The 

17 Electronic Payment System Judges may 

18 increase the permitted number of requests 

19 for admission or interrogatories for good 

20 cause in exceptional circumstances, and 

21 shall resolve any disputes among persons 

22 within either party regarding the allocation 

23 of the requests for admission or interrog24 atories permitted under this clause. 


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1 (vi) SUBPOENAS.—Upon the request 

2 of a party to a proceeding to determine ac3 cess rates and terms, the Electronic Pay4 ment System Judges may issue a subpoena 

5 commanding a person to appear and give 

6 testimony, or to produce and permit in7 spection of documents or tangible things, if 

8 the Electronic Payment System Judges’ 

9 resolution of the proceeding may be sub10 stantially impaired by the absence of such 

11 testimony or production of documents or 

12 tangible things. Such subpoena shall speci13 fy with reasonable particularity the mate14 rials to be produced or the scope and na15 ture of the required testimony. Nothing in 

16 this clause shall preclude the Electronic 

17 Payment System Judges from requesting 

18 the production by a person of information 

19 or materials relevant to the resolution by 

20 the Electronic Payment System Judges of 

21 a material issue of fact. 

22 (vii) OBJECTIONS TO DISCOVERY RE23 QUESTS.—Any objection to such a request 

24 or subpoena shall be resolved by a motion 

25 or request to compel production made to 


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1 the Electronic Payment System Judges in 

2 accordance with regulations adopted by the 

3 Electronic Payment System Judges. Each 

4 motion or request to compel discovery shall 

5 be determined by the Electronic Payment 

6 System Judges, or by an Electronic Pay7 ment System Judge when permitted under 

8 subsection (a)(2). Upon such motion, the 

9 Electronic Payment System Judges may 

10 order discovery pursuant to regulations es11 tablished under this paragraph. In deter12 mining whether discovery will be granted 

13 under this clause, the Electronic Payment 

14 System Judges may consider— 

15 (I) whether the burden or ex16 pense of producing the requested in17 formation or materials outweighs the 

18 likely benefit, taking into account the 

19 needs and resources of the parties, the 

20 importance of the issues at stake, and 

21 the probative value of the requested 

22 information or materials in resolving 

23 such issues; 

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1 sonably cumulative or duplicative, or 

2 are obtainable from another source 

3 that is more convenient, less burden4 some, or less expensive; and 

5 (III) whether the party seeking 

6 discovery has had ample opportunity 

7 by discovery in the proceeding or by 

8 other means to obtain the information 

9 sought. 

10 (viii) VOLUNTARILY NEGOTIATED AC11 CESS AGREEMENTS.—In proceedings to de12 termine access rates and terms, the Elec13 tronic Payment System Judges shall make 

14 available to the parties all documents filed 

15 pursuant to section 3(d)(4), including re16 lated documentation evidencing any consid17 eration being given, any marketing or pro18 motional agreements between the parties, 

19 and subsequent amendments to such 

20 agreements and documentation. 

21 (ix) SETTLEMENT CONFERENCE.— 

22 The Electronic Payment System Judges 

23 shall order a settlement conference between 

24 the parties in the proceeding to facilitate 

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1 tween the parties. The settlement con2 ference shall be held during a 21-day pe3 riod following the end of the discovery pe4 riod and shall take place outside the pres5 ence of the Electronic Payment System 

6 Judges. 

7 (x) DIRECT AND REBUTTAL HEAR8 INGS.—At the conclusion of the 21-day pe9 riod following the end of the discovery pe10 riod, the Electronic Payment System 

11 Judges shall determine if further pro12 ceedings under this Act are necessary. If 

13 so, the Electronic Payment System Judges 

14 shall schedule a direct hearing of not more 

15 than 30 court days and a rebuttal hearing 

16 of not more than 20 court days during 

17 which both parties will be allowed to put 

18 on witnesses. 

19 (xi) SPONSORING WITNESSES.—No 

20 evidence, including exhibits, may be sub21 mitted in the written direct statement or 

22 written rebuttal statement of a party with23 out a sponsoring witness, except for re24 quests for admission that have been admit25 ted by the receiving party, where the ElecVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 tronic Payment System Judges have taken 

2 official notice, in the case of incorporation 

3 by reference of past records, or for good 

4 cause shown. 

5 (xii) HEARSAY.—Hearsay may be ad6 mitted in proceedings under this Act to the 

7 extent deemed relevant and reliable by the 

8 Electronic Payment System Judges. 

9 (xiii) APPLICABILITY OF THE FED10 ERAL RULES OF EVIDENCE.—To the extent 

11 not inconsistent with this subparagraph, 

12 the Federal Rules of Evidence shall apply 

13 to proceedings under this Act. 

14 (4) PENALTIES FOR FAILURE TO COMPLY WITH

15 A DISCOVERY REQUEST.— 

16 (A) FAILURE TO COMPLY.—Any person 

17 fails to comply with a discovery request if they, 

18 their employee, or agent fails, without substan19 tial justification, to: 

20 (i) make initial disclosures required 

21 under section 3(b)(3)(B); 

22 (ii) be sworn or to answer a question 

23 as a deponent after being directed to do so 

24 by the Electronic Payment System Judges; 


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1 (iii) answer an interrogatory sub2 mitted pursuant to section 3(b)(3)(B); 

3 (iv) produce non-privileged documents 

4 requested pursuant to section 3(b)(3)(B); 

5 or 

6 (v) admit the genuineness of any doc7 ument or the truth of any matter as re8 quested under section 3(b)(3)(B), and the 

9 person requesting the admissions there10 after proves the genuineness of the docu11 ment or the truth of the matter. 

12 For purposes of this Act, any disclosure, an13 swer, or response that is false or substantially 

14 misleading, evasive, or incomplete is to be treat15 ed as a failure to disclose, answer, or respond. 

16 (B) NEGATIVE INFERENCE IN CURRENT

17 PROCEEDING.—If any person fails to comply 

18 with a discovery request, the Electronic Pay19 ment System Judges may issue an order that 

20 the matters regarding which the order was 

21 made or any other designated facts shall be 

22 taken to be established for the purposes of the 

23 current proceeding in accordance with the claim 

24 of the person seeking discovery and obtaining 

25 the order. 


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1 (C) CIVIL PENALTY.— 

2 (i) GENERALLY.—Any person who 

3 fails to comply with a discovery request 

4 shall be subject to a civil penalty, which 

5 shall be assessed by the Electronic Pay6 ment System Judges, of not more than 

7 $25,000 for each violation. Each day of 

8 violation shall constitute a separate viola9 tion. 

10 (ii) NOTICE AND HEARINGS.—No civil 

11 penalty may be assessed under this sub12 section except pursuant to an order of the 

13 Electronic Payment System Judges and 

14 unless the person accused of the violation 

15 was given prior notice and opportunity to 

16 request and participate in a hearing before 

17 the Electronic Payment System Judges 

18 with respect to the violation. 

19 (iii) DETERMINING AMOUNT.—In de20 termining the amount of any penalty as21 sessed pursuant to this subsection, the 

22 Electronic Payment System Judges shall 

23 take into account the nature, cir24 cumstances, extent, and gravity of the vio25 lation or violations and, with respect to the 


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1 violator, ability to pay, any prior history of 

2 such violations, the degree of culpability, 

3 economic benefit or savings (if any) result4 ing from the violation, and such other mat5 ters as justice may require. 

6 (iv) REVIEW.—Any person who re7 quested a hearing with respect to a civil 

8 penalty under this subsection and who is 

9 aggrieved by an order assessing the civil 

10 penalty may file a petition for judicial re11 view of such order with the United States 

12 Court of Appeals for the District of Co13 lumbia Circuit. Such a petition may be 

14 filed only within the 30-day period begin15 ning on the date the order making such as16 sessment was issued. The court shall have 

17 jurisdiction to enter a judgment affirming, 

18 modifying, or setting aside in whole or in 

19 part, the order of the Electronic Payment 

20 System Judges, or the court may remand 

21 the proceeding to the Electronic Payment 

22 System Judges for such further action as 

23 the court may direct. The Antitrust Divi24 sion shall represent the Electronic Pay25 ment System Judges before the court. 


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1 (v) ENFORCEMENT.—If any person 

2 fails to pay an assessment of a civil pen3 alty after it has become a final and 

4 unappealable order or after the appropriate 

5 court has entered final judgment, the Elec6 tronic Payment System Judges shall re7 quest the Antitrust Division to institute a 

8 civil action in an appropriate district court 

9 of the United States to collect the penalty, 

10 and such court shall have jurisdiction to 

11 hear and decide any such action. In hear12 ing such action, the court shall have au13 thority to review the violation and the as14 sessment of the civil penalty on the record. 

15 (c) DETERMINATION OF ELECTRONIC PAYMENT SYS16 TEM JUDGES.— 

17 (1) TIMING.—The Electronic Payment System 

18 Judges shall issue their determination in a pro19 ceeding the earlier of either (i) 11 months after the 

20 conclusion of the 21-day settlement conference pe21 riod under subsection (b)(3)(B)(ix) or (ii) 15 days 

22 before the expiration of the then current statutory 

23 rates and terms. 

24 (2) REHEARINGS.— 


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1 (A) IN GENERAL.—The Electronic Pay2 ment System Judges may, in exceptional cases, 

3 upon motion of a party in a proceeding under 

4 this Act, order a rehearing, after the determina5 tion in the proceeding is issued under para6 graph (1), on such matters as the Electronic 

7 Payment System Judges determine to be appro8 priate. 

9 (B) TIMING FOR FILING MOTION.—Any 

10 motion for a rehearing under subparagraph (A) 

11 may be filed only within 15 days after the date 

12 on which the Electronic Payment System 

13 Judges deliver to the parties in the proceeding 

14 their initial determination concerning rates and 

15 terms. 

16 (C) PARTICIPATION BY OPPOSING PARTY

17 NOT REQUIRED.—In any case in which a re18 hearing is ordered, any opposing party shall not 

19 be required to participate in the rehearing, ex20 cept that nonparticipation may give rise to the 

21 limitations with respect to judicial review pro22 vided for in subsection (d)(1). 

23 (D) NO NEGATIVE INFERENCE.—No nega24 tive inference shall be drawn from lack of par25 ticipation in a rehearing. 


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1 (E) CONTINUITY OF RATES AND TERMS.— 

2 (i) If the decision of the Electronic 

3 Payment System Judges on any motion for 

4 a rehearing is not rendered before the expi5 ration of the statutory rates and terms 

6 that were previously in effect, in the case 

7 of a proceeding to determine successors to 

8 rates and terms that expire on a specified 

9 date, then the initial determination of the 

10 Electronic Payment System Judges that is 

11 the subject of the rehearing motion shall 

12 be effective as of the day following the date 

13 on which the rates and terms that were 

14 previously in effect expire. 

15 (ii) The pendency of a motion for a 

16 rehearing under this paragraph shall not 

17 relieve persons obligated to make access 

18 fee payments who would be affected by the 

19 determination on that motion from paying 

20 the access fees required and complying 

21 with the terms under the relevant deter22 mination or regulations. 

23 (iii) Notwithstanding clause (ii), 

24 whenever access fees described in clause 

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1 ments shall, within 60 days after the mo2 tion for rehearing is resolved or, if the mo3 tion is granted, within 60 days after the 

4 rehearing is concluded, return any excess 

5 amounts previously paid to the extent nec6 essary to comply with the final determina7 tion of access rates and terms by the Elec8 tronic Payment System Judges. Any un9 derpayment of access fees resulting from a 

10 rehearing shall be paid within the same pe11 riod. 

12 (3) CONTENTS OF DETERMINATION.—A deter13 mination of the Electronic Payment System Judges 

14 shall include the rates and terms for access to the 

15 relevant covered electronic payment system, shall be 

16 supported by the written record, and shall set forth 

17 the findings of fact relied on by the Electronic Pay18 ment System Judges. The Electronic Payment Sys19 tem Judges shall make publicly available in their en20 tirety all determinations issued pursuant to this 

21 paragraph. 

22 (4) CONTINUING JURISDICTION.—The Elec23 tronic Payment System Judges may, with the ap24 proval of the Antitrust Division and Commission, 

25 issue an amendment to a written determination to 


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1 correct any technical or clerical errors in the deter2 mination in response to unforeseen circumstances 

3 that would frustrate the proper implementation of 

4 such determination. Such amendment shall be set 

5 forth in a written addendum to the determination 

6 that shall be distributed to the parties to the pro7 ceeding and shall be published in the Federal Reg8 ister. 

9 (5) PROTECTIVE ORDER.—The Electronic Pay10 ment System Judges may issue such orders as may 

11 be appropriate to protect confidential information, 

12 including orders excluding confidential information 

13 from the record of the determination that is pub14 lished or made available to the public, except that 

15 any terms or rates of an access agreement, including 

16 those set forth in filings under section 3(d)(4), may 

17 not be excluded. 

18 (6) PUBLICATION OF DETERMINATION.—Within 

19 60 days of the Electronic Payment System Judges 

20 issuing a determination pursuant to this subsection, 

21 the Antitrust Division and Commission shall cause 

22 the determination, and any corrections thereto, to be 

23 published in the Federal Register. The Electronic 

24 Payment System Judges also shall publicize the de25 termination and corrections in such other manner as 


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1 the Antitrust Division and Commission consider ap2 propriate, including, but not limited to, publication 

3 on the Internet. The Electronic Payment System 

4 Judges also shall make the determination, correc5 tions, and the accompanying record available for 

6 public inspection and copying. 

7 (7) LATE PAYMENT.—A determination of Elec8 tronic Payment System Judges may include terms 

9 with respect to late payment, but in no way shall 

10 such terms prevent providers of a single covered 

11 electronic payment system from asserting other 

12 rights or remedies provided under this title. 

13 (d) JUDICIAL REVIEW.— 

14 (1) APPEAL.—Any determination of the Elec15 tronic Payment System Judges under subsection (c) 

16 may, within 30 days after the publication of the de17 termination in the Federal Register, be appealed, to 

18 the United States Court of Appeals for the District 

19 of Columbia Circuit, by any aggrieved party to the 

20 proceeding under this Act who would be bound by 

21 the determination. Any party that did not partici22 pate in a rehearing may not raise any issue that was 

23 the subject of that rehearing at any stage of judicial 

24 review of the hearing determination. If no appeal is 

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1 tion of the Electronic Payment System Judges shall 

2 be final, and shall take effect as set forth in para3 graph (2). 

4 (2) EFFECT OF RATES AND TERMS.— 

5 (A) The pendency of an appeal under this 

6 subsection shall not relieve persons obligated to 

7 make access fee payments who would be af8 fected by the determination on appeal from pay9 ing the access fees required and complying with 

10 the terms under the relevant determination or 

11 regulations. 

12 (B) Notwithstanding subparagraph (A), 

13 whenever access fees described in subparagraph 

14 (A) are paid, the recipient of such payments 

15 shall, within 60 days after the final resolution 

16 of the appeal, return any excess amounts pre17 viously paid (and interest thereon, if ordered 

18 pursuant to paragraph (3)) to the extent nec19 essary to comply with the final determination of 

20 access rates and terms on appeal. Any under21 payment of access fees resulting from an appeal 

22 (and interest thereon, if ordered pursuant to 

23 paragraph (3)) shall be paid within the same 

24 period. 


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1 (3) JURISDICTION OF COURT.—If the court, 

2 pursuant to section 706 of title 5, modifies or va3 cates a determination of the Electronic Payment 

4 System Judges, the court may enter its own deter5 mination with respect to the amount or distribution 

6 of access fees and costs, and order the repayment of 

7 any excess fees, the payment of any underpaid fees, 

8 and the payment of interest pertaining respectively 

9 thereto, in accordance with its final judgment. The 

10 court also may vacate the determination of the Elec11 tronic Payment System Judges and remand the case 

12 to the Electronic Payment System Judges for fur13 ther proceedings. 

14 (e) ADMINISTRATIVE MATTERS.— 

15 (1) AUTHORIZATION OF APPROPRIATIONS.— 

16 There are authorized to be appropriated such sums 

17 as may be necessary to pay the costs incurred under 

18 this Act. All funds made available pursuant to this 

19 subparagraph shall remain available until expended. 

20 (2) POSITIONS REQUIRED FOR ADMINISTRA21 TION.—Section 307 of the Legislative Branch Ap22 propriations Act, 1994, shall not apply to employee 

23 positions in the Antitrust Division and Commission 

24 that are required to be filled in order to carry out 

25 section 3. 


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1 SEC. 5. INSTITUTION OF PROCEEDINGS BEFORE ELEC2 TRONIC PAYMENT SYSTEM JUDGES. 

3 (a) INITIAL PROCEEDINGS.— 

4 (1) TIMING.—Proceedings referred to in section 

5 3(d)(1) shall be commenced as soon as practicable 

6 after the effective date of the Credit Card Fair Fee 

7 Act of 2008 to determine access terms and rates 

8 under section 3 for access to covered electronic pay9 ment systems, to be effective for the period begin10 ning on January 1, 2010, and ending on December 

11 31, 2011. The Electronic Payment System Judges 

12 shall cause notice of commencement of such pro13 ceedings to be published in the Federal Register. 

14 (2) PROCEDURES SPECIFIC TO THE INITIAL

15 PROCEEDINGS.— 

16 (A) DISCOVERY PERIOD.—Notwithstanding 

17 section 5(b)(4)(B)(iv), discovery in the initial 

18 proceedings addressed in this subsection shall 

19 be permitted for a period of 90 days, except for 

20 discovery ordered by the Electronic Payment 

21 System Judges in connection with the resolu22 tion of motions, orders, and disputes pending at 

23 the end of such period. 

24 (B) CONSIDERATION OF CHANGES IN

25 RATES AND TERMS BETWEEN DATE OF ENACT26 MENT AND INITIAL DETERMINATION.—In deterVerDate Aug 31 2005 22:45 Mar 06, 2008 Jkt 069200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 mining the access rates and terms under section 

2 3 for access to covered electronic payment sys3 tems, to be effective for the period beginning on 

4 January 1, 2010 and ending on December 31, 

5 2011, the Electronic Payment System Judges 

6 shall consider changes in rates and terms made 

7 by a covered electronic payments system be8 tween the date of enactment of this Act and 

9 such initial determination. Based upon such 

10 consideration, the Electronic Payment System 

11 Judges may adjust their determination of the 

12 rates and terms for this initial proceeding to re13 flect the economic impact such changes had on 

14 the parties. 

15 (b) SUBSEQUENT PROCEEDINGS.—Subsequent to the 

16 proceedings addressed in subsection (a), proceedings re17 ferred to in section 3(d)(1) shall next be commenced in 

18 2010 to determine access rates and terms to become effec19 tive on January 1, 2012. Thereafter, such proceedings 

20 shall be repeated in each subsequent third calendar year. 

21 The Electronic Payment System Judges shall cause notice 

22 of commencement of proceedings referred to in section 

23 3(d)(1) to be published in the Federal Register. 


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1 SEC. 6. GENERAL RULE FOR VOLUNTARILY NEGOTIATED 

2 ACCESS AGREEMENTS. 

3 Any access rates or terms under this title that— 

4 (1) are agreed to pursuant to a voluntarily ne5 gotiated access agreement for a period shorter than 

6 would otherwise apply under a determination pursu7 ant to this Act and 

8 (2) are then adopted by the Electronic Payment 

9 System Judges as part of a determination under this 

10 Act 

11 shall remain in effect for such period of time as would 

12 otherwise apply under such determination, except that the 

13 Electronic Payment System Judges shall adjust those 

14 rates to reflect national monetary inflation during the ad15 ditional period the rates remain in effect beyond that con16 templated in the voluntarily negotiated access agreement. 

17 SEC. 7. EFFECTIVE DATE. 

18 The effective date of this Act shall be the date of en19 actment. 

Æ 


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