II 

110TH CONGRESS 

2D SESSION S. 3086 

To amend the antitrust laws to ensure competitive market-based fees and 

terms for merchants’ access to electronic payment systems. 

IN THE SENATE OF THE UNITED STATES 

JUNE 5, 2008 

Mr. DURBIN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend the antitrust laws to ensure competitive marketbased fees 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 FEES AND 

8 TERMS FOR ACCESS TO COVERED ELEC9 TRONIC PAYMENT SYSTEMS. 

10 (a) DEFINITIONS.—In this Act: 


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1 (1) ACCESS.—The term ‘‘access’’— 

2 (A) when used as a verb means to use to 

3 conduct transaction authorization, clearance, 

4 and settlement involving the acceptance of cred5 it cards or debit cards from consumers for pay6 ment for goods or services and the receipt of 

7 payment for such goods or services; and 

8 (B) when used as a noun means the per9 mission or authority to use to conduct trans10 actions described in subparagraph (A). 

11 (2) ACCESS AGREEMENT.—The term ‘‘access 

12 agreement’’ means an agreement between 1 or more 

13 merchants and 1 or more providers giving the mer14 chant access to a covered electronic payment system, 

15 conditioned solely upon the merchant complying with 

16 the fees and terms specified in the agreement. 

17 (3) ACQUIRER.—The term ‘‘acquirer’’— 

18 (A) means a financial institution that pro19 vides services allowing merchants to access an 

20 electronic payment system to accept credit 

21 cards or debit cards for payment; and 

22 (B) does not include an independent third 

23 party processor that may act as the agent of a 

24 financial institution described in subparagraph 


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1 (A) in processing general-purpose credit card or 

2 debit card transactions. 

3 (4) ADJUDICATION.—The term ‘‘adjudication’’ 

4 has the meaning given that term in section 551 of 

5 title 5, United States Code, and does not include 

6 mediation. 

7 (5) ANTITRUST DIVISION.—The term ‘‘Anti8 trust Division’’ means the Antitrust Division of the 

9 Department of Justice. 

10 (6) ANTITRUST LAWS.—The term ‘‘antitrust 

11 laws’’— 

12 (A) has the meaning given that term in 

13 subsection (a) of the first section of the Clayton 

14 Act (15 U.S.C. 12(a)); and 

15 (B) also includes— 

16 (i) section 5 of the Federal Trade 

17 Commission Act (15 U.S.C. 45) to the ex18 tent section 5 applies to unfair methods of 

19 competition; and 

20 (ii) State antitrust laws. 

21 (7) ASSISTANT ATTORNEY GENERAL.—The 

22 term ‘‘Assistant Attorney General’’ means the As23 sistant Attorney General in charge of the Antitrust 

24 Division of the Department of Justice. 


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1 (8) CHAIRMAN.—The term ‘‘Chairman’’ means 

2 the Chairman of the Federal Trade Commission. 

3 (9) COMMISSION.—The term ‘‘Commission’’ 

4 means the Bureau of Competition of the Federal 

5 Trade Commission. 

6 (10) COVERED ELECTRONIC PAYMENT SYS7 TEM.—The term ‘‘covered electronic payment sys8 tem’’ means an electronic payment system that 

9 routes information and data to facilitate transaction 

10 authorization, clearance, and settlement for not less 

11 than 20 percent of the combined dollar value of 

12 credit card and debit card payments processed in the 

13 United States in the most recent full calendar year. 

14 (11) CREDIT CARD.—The term ‘‘credit card’’ 

15 means any general-purpose card or other credit de16 vice issued or approved for use by a financial institu17 tion for use in allowing the cardholder to obtain 

18 goods or services on credit on terms specified by 

19 that financial institution. 

20 (12) DEBIT CARD.—The term ‘‘debit card’’ 

21 means any general-purpose card or other device 

22 issued or approved for use by a financial institution 

23 for use in debiting the account of a cardholder for 

24 the purpose of that cardholder obtaining goods or 


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1 services, whether authorization is signature-based or 

2 PIN-based. 

3 (13) ELECTRONIC PAYMENT SYSTEM.—The 

4 term ‘‘electronic payment system’’ means the propri5 etary services, infrastructure, and software that 

6 route information and data to facilitate transaction 

7 authorization, clearance, and settlement and that 

8 merchants are required to access in order to accept 

9 a specific brand of general-purpose credit cards or 

10 debit cards as payment for goods or services. 

11 (14) ELECTRONIC PAYMENT SYSTEM

12 JUDGES.—The term ‘‘Electronic Payment System 

13 Judges’’ means the Electronic Payment System 

14 Judges appointed under section 3(a). 

15 (15) FEES.—The term ‘‘fees’’ means any mone16 tary charges, rates, assessments, or other payments 

17 imposed by a provider upon a merchant for the mer18 chant to access an electronic payment system. 

19 (16) FINANCIAL INSTITUTION.—The term ‘‘fi20 nancial institution’’ has the meaning given that term 

21 in section 603(t) of the Fair Credit Reporting Act 

22 (15 U.S.C. 1681a(t)). 

23 (17) ISSUER.—The term ‘‘issuer’’— 

24 (A) means a financial institution that 

25 issues credit cards or debit cards or approves 


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1 the use of other devices for use in an electronic 

2 payment system; and 

3 (B) does not include an independent third 

4 party processor that may act as the agent of a 

5 financial institution described in subparagraph 

6 (A) in processing general-purpose credit or 

7 debit card transactions. 

8 (18) MARKET POWER.—The term ‘‘market 

9 power’’ means the ability to profitably raise prices 

10 above those that would be charged in a perfectly 

11 competitive market. 

12 (19) MERCHANT.—The term ‘‘merchant’’ 

13 means any person who accepts or who seeks to ac14 cept credit cards or debit cards in payment for goods 

15 or services provided by the person. 

16 (20) NEGOTIATING PARTY.—The term ‘‘negoti17 ating party’’ means 1 or more providers of a covered 

18 electronic payment system or 1 or more merchants 

19 who have access to or who are seeking access to that 

20 covered electronic payment system, as the case may 

21 be, and who are in the process of negotiating or who 

22 have executed a voluntarily negotiated access agree23 ment that is still in effect. 

24 (21) NORMAL RATE OF RETURN.—The term 

25 ‘‘normal rate of return’’ means the average rate of 


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1 return that a firm would receive in an industry when 

2 conditions of perfect competition prevail. 

3 (22) PROCEEDING PARTY.—The term ‘‘pro4 ceeding party’’ means collectively all providers of a 

5 covered electronic payment system or collectively all 

6 merchants who have access to or who are seeking ac7 cess to that covered electronic payment system, as 

8 the case may be, during the period in which the 

9 Electronic Payment System Judges are conducting a 

10 proceeding under this Act relating to that covered 

11 electronic payment system. 

12 (23) PERSON.—The term ‘‘person’’ has the 

13 meaning given that term in subsection (a) of the 

14 first section of the Clayton Act (15 U.S.C. 12(a)). 

15 (24) PROVIDE.—The term ‘‘provide’’ means to 

16 make available for access. 

17 (25) PROVIDER.—The term ‘‘provider’’ means 

18 any person who owns, operates, controls, serves as 

19 an issuer for, or serves as an acquirer for a covered 

20 electronic payment system. 

21 (26) STATE.—The term ‘‘State’’ has the mean22 ing given that term in section 4G(2) of the Clayton 

23 Act (15 U.S.C. 15g(2)). 

24 (27) TERMS.—The term ‘‘terms’’ means any 

25 and all rules and conditions that are applicable to 


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1 providers of an electronic payment system or to mer2 chants, as the case may be, and that are required 

3 in order for merchants to access that electronic pay4 ment system. 

5 (28) VOLUNTARILY NEGOTIATED ACCESS

6 AGREEMENT.—The term ‘‘voluntarily negotiated ac7 cess agreement’’ means an access agreement volun8 tarily negotiated between 1 or more providers of a 

9 covered electronic payment system and 1 or more 

10 merchants that sets the fees and terms under which 

11 the merchant can access that covered electronic pay12 ment system. 

13 (29) WRITTEN DIRECT STATEMENTS.—The 

14 term ‘‘written direct statements’’ means witness 

15 statements, testimony, and exhibits to be presented 

16 in proceedings under this Act, and such other infor17 mation that is necessary to establish fees and terms 

18 for access to covered electronic payment systems as 

19 set forth in regulations issued by the Electronic Pay20 ment System Judges under section 4(b)(4). 

21 (b) ACCESS TO COVERED ELECTRONIC PAYMENT

22 SYSTEMS.—Access by a merchant to any covered elec23 tronic payment system and the fees and terms of such ac24 cess shall be subject to this Act. 


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1 (c) AUTHORITY AND LIMITED ANTITRUST IMMUNITY

2 FOR NEGOTIATIONS AND PARTICIPATION IN PRO3 CEEDINGS.—Notwithstanding any provision of the anti4 trust laws— 

5 (1) in negotiating fees and terms and partici6 pating in any proceedings under subsection (d), any 

7 providers of a covered electronic payment system 

8 and any merchants who have access to or who are 

9 seeking access to that covered electronic payment 

10 system may jointly negotiate and agree upon the 

11 fees and terms for access to the covered electronic 

12 payment system, including through the use of com13 mon agents that represent the providers of the cov14 ered electronic payment system or the merchants on 

15 a nonexclusive basis; and 

16 (2) any providers of a single covered electronic 

17 payment system also may jointly determine the pro18 portionate division among such providers of paid 

19 fees. 

20 (d) ESTABLISHMENT OF FEES AND TERMS.— 

21 (1) VOLUNTARILY NEGOTIATED ACCESS AGREE22 MENTS.— 

23 (A) AGREEMENTS BETWEEN NEGOTIATING

24 PARTIES.—A voluntarily negotiated access 

25 agreement may be executed at any time beVerDate Aug 31 2005 06:39 Jun 06, 2008 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3086.IS S3086

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1 tween 1 or more providers of a covered elec2 tronic payment system and 1 or more mer3 chants. With respect to the negotiating parties, 

4 such executed voluntarily negotiated access 

5 agreement shall supersede any fees or terms es6 tablished by the Electronic Payment System 

7 Judges under paragraph (3) relating to that 

8 covered electronic payment system. 

9 (B) FILING AGREEMENTS WITH THE ELEC10 TRONIC PAYMENT SYSTEM JUDGES.—The nego11 tiating parties shall jointly file with the Elec12 tronic Payment System Judges— 

13 (i) any voluntarily negotiated access 

14 agreement that affects any market in the 

15 United States or elsewhere; 

16 (ii) any documentation relating to a 

17 voluntarily negotiated access agreement ev18 idencing any consideration being given or 

19 any marketing or promotional agreement 

20 between the negotiating parties; and 

21 (iii) any amendment to that volun22 tarily negotiated access agreement or docu23 mentation. 

24 (C) TIMING AND AVAILABILITY OF FIL25 INGS.—The negotiating parties to any volunVerDate Aug 31 2005 06:39 Jun 06, 2008 Jkt 069200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3086.IS S3086

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1 tarily negotiated access agreement executed 

2 after the date of enactment of this Act shall 

3 jointly file the voluntarily negotiated access 

4 agreement, and any documentation or amend5 ment described in subparagraph (B), with the 

6 Electronic Payment System Judges not later 

7 than 30 days after the date of execution of the 

8 voluntarily negotiated access agreement or 

9 amendment or the date of the creation of the 

10 documentation, as the case may be. The Elec11 tronic Payment System Judges shall make pub12 licly available any voluntarily negotiated access 

13 agreement, amendment, or accompanying docu14 mentation filed under this paragraph. 

15 (2) INITIATION OF PROCEEDINGS.—The pro16 ceedings under this subsection to establish fees and 

17 terms for access to a covered electronic payment sys18 tem shall be initiated in accordance with section 5. 

19 (3) PROCEEDINGS.— 

20 (A) IN GENERAL.—The Electronic Pay21 ment System Judges shall conduct proceedings 

22 under this Act to establish fees and terms for 

23 access to a covered electronic payment system. 

24 Except as specifically provided in a voluntarily 

25 negotiated access agreement, a provider of a 


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1 covered electronic payment system may not di2 rectly or indirectly charge fees or set terms for 

3 access to a covered electronic payment system 

4 that are not in accordance with the fees and 

5 terms established by the Electronic Payment 

6 System Judges pursuant to proceedings under 

7 this Act. 

8 (B) PERIOD OF APPLICABILITY.—Except 

9 as provided in section 5, the fees and terms es10 tablished under this paragraph with respect to 

11 a covered electronic payment system shall apply 

12 during the 3-year period beginning on January 

13 1 of the second year following the year in which 

14 the proceedings to establish such fees and terms 

15 are commenced. 

16 (C) STANDARD FOR ESTABLISHMENT OF

17 FEES AND TERMS BY THE ELECTRONIC PAY18 MENT SYSTEM JUDGES.— 

19 (i) IN GENERAL.—In establishing fees 

20 and terms for access to a covered elec21 tronic payment system under subpara22 graph (A), the Electronic Payment System 

23 Judges— 

24 (I) shall be limited to selecting, 

25 without modification, 1 of the 2 final 


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1 offers of fees and terms filed by the 

2 proceeding parties pursuant to section 

3 4(c)(2)(A); and 

4 (II) shall select the final offer of 

5 fees and terms that most closely rep6 resent the fees and terms that would 

7 be negotiated in a hypothetical per8 fectly competitive marketplace for ac9 cess to an electronic payment system 

10 between a willing buyer with no mar11 ket power and a willing seller with no 

12 market power. 

13 (ii) STANDARDS.—In determining 

14 which final offer of fees and terms to se15 lect, the Electronic Payment System 

16 Judges— 

17 (I) shall consider the costs of 

18 transaction authorization, clearance, 

19 and settlement that are necessary to 

20 provide and access an electronic pay21 ment system; 

22 (II) shall consider a normal rate 

23 of return in a hypothetical perfectly 

24 competitive marketplace; 


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1 (III) shall avoid selecting a final 

2 offer of fees and terms that would 

3 have anticompetitive effects within the 

4 issuer market, the acquirer market, or 

5 the merchant market; 

6 (IV) may select a final offer that 

7 is a schedule of fees and terms that 

8 varies based upon cost-based dif9 ferences in types of credit card and 

10 debit card transactions (which may in11 clude whether a transaction is of a 

12 signature-based, PIN-based, or card13 not-present type); and 

14 (V) may not select a final offer 

15 that is a schedule of fees and terms 

16 that varies based on type of merchant 

17 or volume of transactions (either in 

18 number or dollar value). 

19 (D) USE OF EXISTING FEES AND TERMS

20 AS EVIDENCE.—In establishing fees and terms 

21 for access to a covered electronic payment sys22 tem under this paragraph, the Electronic Pay23 ment System Judges— 

24 (i) shall decide the weight to be given 

25 to any evidence submitted by a proceeding 


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1 party regarding the fees and terms for ac2 cess to comparable electronic payment sys3 tems, including fees and terms in volun4 tarily negotiated access agreements filed 

5 under paragraph (1); and 

6 (ii) shall give significant weight to 

7 fees in a voluntarily negotiated access 

8 agreement that are substantially below the 

9 fees reflective of the market power of the 

10 covered electronic payment systems that 

11 existed before the date of enactment of this 

12 Act. 

13 SEC. 3. ELECTRONIC PAYMENT SYSTEM JUDGES. 

14 (a) APPOINTMENT.—The Assistant Attorney General 

15 and the Chairman shall jointly appoint 3 full-time Elec16 tronic Payment System Judges, and shall appoint 1 of the 

17 3 Electronic Payment System Judges as the Chief Elec18 tronic Payment System Judge. 

19 (b) DUTIES.—The Electronic Payment System 

20 Judges shall establish fees and terms for access to covered 

21 electronic payment systems in accordance with this Act. 

22 (c) RULINGS.—The Electronic Payment System 

23 Judges may make any necessary procedural or evidentiary 

24 ruling in a proceeding under this Act and may, before 


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1 commencing a proceeding under this Act, make any proce2 dural ruling that will apply to a proceeding under this Act. 

3 (d) ADMINISTRATIVE SUPPORT.—The Assistant At4 torney General and Chairman shall provide the Electronic 

5 Payment System Judges with the necessary administrative 

6 services related to proceedings under this Act. 

7 (e) LOCATION.—The offices of the Electronic Pay8 ment System Judges and staff shall be located in the of9 fices of the Antitrust Division or Commission. 

10 (f) QUALIFICATIONS OF ELECTRONIC PAYMENT SYS11 TEM JUDGES.—Each Electronic Payment System Judge 

12 shall be an attorney who has at least 7 years of legal expe13 rience. The Chief Electronic Payment System Judge shall 

14 have at least 5 years of experience in adjudications, arbi15 trations, or court trials. One Electronic Payment System 

16 Judge who is not the Chief Electronic Payment System 

17 Judge shall have significant knowledge of electronic pay18 ment systems, and the other such Electronic Payment 

19 System Judge shall have significant knowledge of econom20 ics. An individual may serve as an Electronic Payment 

21 System Judge only if the individual is free of any financial 

22 conflict of interest under the standards established under 

23 subsection (m). 

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

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


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1 Electronic Payment System Judges in performing the du2 ties of the Electronic Payment System Judges under this 

3 Act. 

4 (h) TERMS.— 

5 (1) INITIAL APPOINTMENTS.—For the first ap6 pointments of Electronic Payment System Judges 

7 after the date of enactment of this Act— 

8 (A) the Chief Electronic Payment System 

9 Judge shall be appointed for a term of 6 years; 

10 (B) 1 Electronic Payment System Judge 

11 who is not the Chief Electronic Payment Sys12 tem Judge shall be appointed for a term of 4 

13 years; and 

14 (C) 1 Electronic Payment System Judge 

15 who is not the Chief Electronic Payment Sys16 tem Judge shall be appointed for a term of 2 

17 years. 

18 (2) SUBSEQUENT APPOINTMENT.—After the 

19 appointments under paragraph (1), an Electronic 

20 Payment System Judge shall be appointed for a 

21 term of 6 years. 

22 (3) REAPPOINTMENT.—An individual serving as 

23 an Electronic Payment System Judge may be re24 appointed to subsequent terms. 


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1 (4) START AND END OF TERMS.—The term of 

2 an Electronic Payment System Judge shall begin on 

3 the date on which the term of the predecessor of 

4 that Electronic Payment System Judge ends. If a 

5 successor Electronic Payment System Judge has not 

6 been appointed as of the date on which the term of 

7 office of an Electronic Payment System Judge ends, 

8 the individual serving that term may continue to 

9 serve until a successor is appointed. 

10 (i) VACANCIES OR INCAPACITY.— 

11 (1) VACANCIES.—The Assistant Attorney Gen12 eral and the Chairman shall act expeditiously to fill 

13 any vacancy in the position of Electronic Payment 

14 System Judge, and may appoint an interim Elec15 tronic Payment System Judge to serve until an 

16 Electronic Payment System Judge is appointed to 

17 fill the vacancy under this section. An individual ap18 pointed to fill a vacancy occurring before the expira19 tion of the term for which the predecessor of that 

20 individual was appointed shall be appointed for the 

21 remainder of that term. 

22 (2) INCAPACITY.—If an Electronic Payment 

23 System Judge is temporarily unable to perform the 

24 duties of an Electronic Payment System Judge, the 

25 Assistant Attorney General and the Commissioner 


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1 may appoint an interim Electronic Payment System 

2 Judge to perform such duties during the period of 

3 such incapacity. 

4 (j) COMPENSATION.— 

5 (1) JUDGES.—The Chief Electronic Payment 

6 System Judge shall receive compensation at the rate 

7 of basic pay payable for level AL–1 for administra8 tive law judges under section 5372(b) of title 5, 

9 United States Code, and each Electronic Payment 

10 System Judge who is not the Chief Electronic Pay11 ment System Judge shall receive compensation at 

12 the rate of basic pay payable for level AL–2 for ad13 ministrative law judges under such section. The 

14 compensation of the Electronic Payment System 

15 Judges shall not be subject to any regulations adopt16 ed by the Office of Personnel Management under its 

17 authority under section 5376(b)(1) of title 5, United 

18 States Code. 

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

20 appointed under subsection (g)— 

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

22 be not more than the basic rate of pay payable 

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

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

25 be not less than the basic rate of pay payable 


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1 for GS–13 of the General Schedule and not 

2 more than the basic rate of pay payable for 

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

4 (C) the rate of pay of 1 staff member shall 

5 be not less than the basic rate of pay payable 

6 for GS–8 of the General Schedule and not more 

7 than the basic rate of pay payable for level 10 

8 of GS–11 of such Schedule. 

9 (3) LOCALITY PAY.—All rates of pay estab10 lished under this subsection shall include locality 

11 pay. 

12 (k) INDEPENDENCE OF ELECTRONIC PAYMENT SYS13 TEM JUDGES.— 

14 (1) IN MAKING DETERMINATIONS.— 

15 (A) IN GENERAL.—Except as provided in 

16 subparagraph (B), the Electronic Payment Sys17 tem Judges— 

18 (i) shall have full independence in es19 tablishing fees and terms for access to cov20 ered electronic payment systems and in 

21 issuing any other ruling under this Act; 

22 and 

23 (ii) may consult with the Assistant At24 torney General and the Chairman on any 

25 matter other than a question of fact. 


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1 (B) CONSULTATION.—The Electronic Pay2 ment System Judges shall consult with the As3 sistant Attorney General and the Commissioner 

4 regarding any determination or ruling that 

5 would require that any act be performed by the 

6 Assistant Attorney General or the Chairman, 

7 and any such determination or ruling shall not 

8 be binding upon the Assistant Attorney General 

9 or the Chairman. 

10 (2) PERFORMANCE APPRAISALS.— 

11 (A) IN GENERAL.—Notwithstanding any 

12 other provision of law or any regulation of the 

13 Antitrust Division or Commission, and subject 

14 to subparagraph (B), the Electronic Payment 

15 System Judges shall not receive performance 

16 appraisals. 

17 (B) RELATING TO SANCTION OR RE18 MOVAL.—To the extent that the Assistant At19 torney General and the Chairman adopt regula20 tions under subsection (m) relating to the sanc21 tion or removal of an Electronic Payment Sys22 tem Judge and such regulations require docu23 mentation to establish the cause of such sanc24 tion or removal, the Electronic Payment System 


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1 Judge may receive an appraisal related specifi2 cally to the cause of the sanction or removal. 

3 (l) INCONSISTENT DUTIES BARRED.—No Electronic 

4 Payment System Judge may undertake duties that conflict 

5 with the duties and responsibilities of an Electronic Pay6 ment System Judge under this Act. 

7 (m) STANDARDS OF CONDUCT.—The Assistant At8 torney General and the Chairman shall adopt regulations 

9 regarding the standards of conduct, including financial 

10 conflict of interest and restrictions against ex parte com11 munications, which shall govern the Electronic Payment 

12 System Judges and the proceedings under this Act. 

13 (n) REMOVAL OR SANCTION.—The Assistant Attor14 ney General and the Chairman acting jointly may sanction 

15 or remove an Electronic Payment System Judge for viola16 tion of the standards of conduct adopted under subsection 

17 (m), misconduct, neglect of duty, or any disqualifying 

18 physical or mental disability. Any such sanction or re19 moval may be made only after notice and opportunity for 

20 a hearing. The Assistant Attorney General and the Chair21 man may suspend an Electronic Payment System Judge 

22 during the pendency of such a hearing. The Assistant At23 torney General and the Chairman shall appoint an interim 

24 Electronic Payment System Judge during the period of 

25 any suspension under this subsection. 


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1 SEC. 4. PROCEEDINGS OF ELECTRONIC PAYMENT SYSTEM 

2 JUDGES. 

3 (a) PROCEEDINGS.— 

4 (1) IN GENERAL.—The Electronic Payment 

5 System Judges shall act in accordance with regula6 tions issued by the Electronic Payment System 

7 Judges, the Assistant Attorney General, and the 

8 Chairman, and on the basis of a written record, 

9 prior determinations and interpretations of the Elec10 tronic Payment System Judges under this Act, and 

11 decisions of the court of appeals of the United 

12 States. 

13 (2) JUDGES ACTING AS PANEL AND INDIVID14 UALLY.—The Electronic Payment System Judges 

15 shall preside over hearings in proceedings under this 

16 Act en banc. The Chief Electronic Payment System 

17 Judge may designate an Electronic Payment System 

18 Judge to preside individually over such collateral 

19 and administrative proceedings as the Chief Judge 

20 considers appropriate. 

21 (b) PROCEDURES.— 

22 (1) COMMENCEMENT.—The Electronic Payment 

23 System Judges shall cause to be published in the 

24 Federal Register a notice of commencement of pro25 ceedings under section 2(d) to establish fees and 


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1 terms for access to a covered electronic payment sys2 tem. 

3 (2) MANDATORY NEGOTIATION PERIOD.— 

4 (A) IN GENERAL.—Promptly after the 

5 commencement of a proceeding under section 

6 2(d) to establish fees and terms for access to a 

7 covered electronic payment system, the Elec8 tronic Payment System Judges shall initiate a 

9 period for negotiations for the purpose of 

10 achieving a voluntarily negotiated access agree11 ment. Nothing in this paragraph shall preclude 

12 the proceeding parties or any members thereof 

13 from conducting negotiations before or after the 

14 mandatory negotiation period for the purpose of 

15 achieving a voluntarily negotiated access agree16 ment. 

17 (B) LENGTH.—The period for negotiations 

18 initiated under subparagraph (A) shall be 3 

19 months. 

20 (C) DETERMINATION OF NEED FOR FUR21 THER PROCEEDINGS.—At the close of the pe22 riod for negotiations initiated under subpara23 graph (A), the Electronic Payment System 

24 Judges shall determine if further proceedings 

25 under this Act are necessary. 


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1 (3) PROCEEDING PARTIES IN FURTHER PRO2 CEEDINGS.— 

3 (A) IN GENERAL.—In any further pro4 ceeding ordered by the Electronic Payment Sys5 tem Judges under paragraph (2)(C), there shall 

6 be only 2 proceeding parties, 1 consisting of all 

7 providers of the covered electronic payment sys8 tem and the other consisting of all merchants 

9 that have access to or seek access to the cov10 ered electronic payment system. Each pro11 ceeding party shall bear its own costs. A pro12 vider of a covered electronic payment system or 

13 a merchant that has access to or seeks access 

14 to the covered electronic payment system may 

15 choose not to participate in the proceeding as a 

16 member of a proceeding party, but unless such 

17 provider or merchant executes a voluntarily ne18 gotiated access agreement, such provider or 

19 merchant shall be bound by the determination 

20 of the Electronic Payment System Judges with 

21 regard to the fees and terms for access to the 

22 covered electronic payment system. 

23 (B) RULE OF CONSTRUCTION.—Nothing in 

24 this paragraph may be construed to prohibit the 

25 proceeding parties or any members thereof in a 


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1 proceeding under subparagraph (A) from nego2 tiating and entering into a voluntarily nego3 tiated access agreement at any other time. 

4 (4) REGULATIONS.— 

5 (A) AUTHORIZATION.— 

6 (i) IN GENERAL.—The Electronic 

7 Payment System Judges may issue regula8 tions to carry out the duties of the Elec9 tronic Payment System Judges under this 

10 Act. All regulations issued by the Elec11 tronic Payment System Judges are subject 

12 to the approval of the Assistant Attorney 

13 General and the Chairman. Not later than 

14 120 days after the date on which all Elec15 tronic Payment System Judges are ap16 pointed under section 3(h)(1), the Elec17 tronic Payment System Judges shall issue 

18 regulations to govern proceedings under 

19 this subsection. In setting these regula20 tions, the Electronic Payment System 

21 Judges shall consider the regulations 

22 issued by the Copyright Royalty Judges 

23 under section 803(b)(6) of title 17, United 

24 States Code. 


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1 (ii) SCOPE.—The regulations issued 

2 under clause (i) shall include regulations 

3 regarding the procedures described in sub4 paragraph (B). 

5 (B) PROCEDURES.— 

6 (i) WRITTEN DIRECT STATEMENTS.— 

7 The written direct statements of the pro8 ceeding parties shall be filed by a date 

9 specified by the Electronic Payment Sys10 tem Judges, which may be not earlier than 

11 4 months, and not later than 5 months, 

12 after the end of the voluntary negotiation 

13 period under paragraph (2). Notwith14 standing the preceding sentence, the Elec15 tronic Payment System Judges may allow 

16 a proceeding party to file an amended writ17 ten direct statement based on new infor18 mation received during the discovery proc19 ess, not later than 15 days after the end 

20 of the discovery period specified in clause 

21 (ii). 

22 (ii) DISCOVERY SCHEDULE.—Fol23 lowing the submission to the Electronic 

24 Payment System Judges of written direct 

25 statements by the proceeding parties, the 


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1 Electronic Payment System Judges shall 

2 meet with the proceeding parties to set a 

3 schedule for conducting and completing 

4 discovery. Such schedule shall be deter5 mined by the Electronic Payment System 

6 Judges. Discovery in such proceedings 

7 shall be permitted for a period of not 

8 longer than 60 days, except for discovery 

9 ordered by the Electronic Payment System 

10 Judges in connection with the resolution of 

11 motions, orders, and disputes pending at 

12 the end of such period. 

13 (iii) INITIAL DISCLOSURES.— 

14 (I) IN GENERAL.—In a pro15 ceeding under this Act to determine 

16 fees and terms for access to a covered 

17 electronic payment system, certain 

18 persons shall make initial disclosures 

19 not later than 30 days after the date 

20 of commencement of the proceeding, 

21 in accordance with this clause. 

22 (II) ISSUERS, ACQUIRERS, AND

23 OWNERS.—Any person who is 1 of the 

24 10 largest issuers for a covered elec25 tronic payment system in terms of 


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1 number of cards issued, any person 

2 who is 1 of the 10 largest acquirers 

3 for a covered electronic payment sys4 tem based on dollar amount of trans5 actions made by merchants they serve, 

6 and any person who operates or con7 trols the relevant covered electronic 

8 payment system shall produce to the 

9 Electronic Payment System Judges 

10 and to both proceedings parties— 

11 (aa) an itemized list of the 

12 costs necessary to provide the 

13 covered electronic payment sys14 tem that were incurred by the 

15 person during the most recent 

16 full calendar year before the initi17 ation of the proceeding; and 

18 (bb) any access agreement 

19 between that person and 1 or 

20 more merchants with regard to 

21 that covered electronic payment 

22 system. 

23 (III) MERCHANTS.—Any person 

24 who is 1 of the 10 largest merchants 

25 using the relevant covered electronic 


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1 payment system, determined based on 

2 dollar amount of transactions made 

3 with the covered electronic payment 

4 system, shall produce to the Elec5 tronic Payment System Judges and to 

6 both proceeding parties— 

7 (aa) an itemized list of the 

8 costs necessary to access the elec9 tronic payment system during the 

10 most recent full calendar year 

11 prior to the initiation of the pro12 ceeding; and 

13 (bb) any access agreement 

14 between that person and 1 or 

15 more providers with regard to 

16 that covered electronic payment 

17 system. 

18 (IV) DISAGREEMENT.—Any dis19 agreement regarding whether a person 

20 is required to make an initial disclo21 sure under this clause, or the contents 

22 of such a disclosure, shall be resolved 

23 by the Electronic Payment System 

24 Judges. 

25 (iv) DEPOSITIONS.— 


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1 (I) IN GENERAL.—In a pro2 ceeding under this Act to determine 

3 fees and terms for access to a covered 

4 electronic payment system, each pro5 ceeding party shall be permitted to 

6 take depositions of every witness iden7 tified by the other proceeding party. 

8 Except as provided in subclause (III), 

9 each proceeding party also shall be 

10 permitted to take 5 additional deposi11 tions in the entire proceeding. 

12 (II) ORGANIZATIONAL ENTI13 TIES.—A deposition notice or sub14 poena may name as the deponent a 

15 person who is an individual or a per16 son who is not an individual. Such 

17 deposition notice or subpoena shall de18 scribe with reasonable particularity 

19 the matters on which examination is 

20 requested. If the deposition notice or 

21 subpoena names a person who is not 

22 an individual, the deponent person so 

23 named shall designate 1 or more offi24 cers, directors, or managing agents, or 

25 other individual persons who consent 


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1 to testify on behalf of the deponent 

2 person, and may set forth, for each 

3 individual person designated, the mat4 ters on which the individual person 

5 will testify. A subpoena shall advise a 

6 nonparty deponent person of the duty 

7 of the deponent person to make such 

8 a designation. An individual person 

9 designated under this subclause shall 

10 testify as to matters known or reason11 ably available to the deponent person. 

12 (III) ADDITIONAL DEPOSI13 TIONS.—The Electronic Payment Sys14 tem Judges may increase the per15 mitted number of depositions for good 

16 cause in exceptional circumstances, 

17 and shall resolve any disputes among 

18 persons within either proceeding party 

19 regarding the allocation of the deposi20 tions permitted under this clause. 

21 (v) WRITTEN DISCOVERY.—In a pro22 ceeding under this Act to determine fees 

23 and terms for access to a covered elec24 tronic payment system, each proceeding 

25 party shall be permitted to serve written 


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1 discovery requests on 10 persons. These 

2 written discovery requests may include re3 quests for production or inspection, a total 

4 of no more than 10 requests for admission 

5 in the entire proceeding, and a total of no 

6 more than 25 interrogatories in the entire 

7 proceeding. The Electronic Payment Sys8 tem Judges may increase the permitted 

9 number of requests for admission or inter10 rogatories for good cause in exceptional 

11 circumstances, and shall resolve any dis12 putes among persons within either pro13 ceeding party regarding the allocation of 

14 the requests for admission or interrog15 atories permitted under this clause. 

16 (vi) SUBPOENAS.—Upon the request 

17 of a party to a proceeding to determine 

18 fees and terms for access to a covered elec19 tronic payment system, the Electronic Pay20 ment System Judges may issue a subpoena 

21 commanding a person to appear and give 

22 testimony, or to produce and permit in23 spection of documents or tangible things, if 

24 the resolution of the proceeding by the 

25 Electronic Payment System Judges may be 


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1 substantially impaired by the absence of 

2 such testimony or production of documents 

3 or tangible things. A subpoena under this 

4 clause shall specify with reasonable par5 ticularity the materials to be produced or 

6 the scope and nature of the required testi7 mony. Nothing in this clause shall preclude 

8 the Electronic Payment System Judges 

9 from requesting the production by a person 

10 of information or materials relevant to the 

11 resolution by the Electronic Payment Sys12 tem Judges of a material issue of fact. 

13 (vii) OBJECTIONS TO DISCOVERY RE14 QUESTS.— 

15 (I) IN GENERAL.—Any objection 

16 to a request or subpoena under clause 

17 (v) or (vi) shall be resolved by a mo18 tion or request to compel production 

19 made to the Electronic Payment Sys20 tem Judges in accordance with regula21 tions adopted by the Electronic Pay22 ment System Judges. Each motion or 

23 request to compel discovery shall be 

24 determined by the Electronic Payment 

25 System Judges, or by an Electronic 


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1 Payment System Judge when per2 mitted under subsection (a)(2). Upon 

3 such motion or request to compel dis4 covery, the Electronic Payment Sys5 tem Judges may order discovery 

6 under regulations established under 

7 this paragraph. 

8 (II) CONSIDERATIONS.—In deter9 mining whether discovery will be 

10 granted under this clause, the Elec11 tronic Payment System Judges may 

12 consider— 

13 (aa) whether the burden or 

14 expense of producing the re15 quested information or materials 

16 outweighs the likely benefit, tak17 ing into account the needs and 

18 resources of the proceeding par19 ties, the importance of the issues 

20 at stake, and the probative value 

21 of the requested information or 

22 materials in resolving such 

23 issues; 

24 (bb) whether the requested 

25 information or materials would 


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1 be unreasonably cumulative or 

2 duplicative, or are obtainable 

3 from another source that is more 

4 convenient, less burdensome, or 

5 less expensive; and 

6 (cc) whether the proceeding 

7 party seeking discovery has had 

8 ample opportunity by discovery in 

9 the proceeding or by other means 

10 to obtain the information sought. 

11 (viii) VOLUNTARILY NEGOTIATED AC12 CESS AGREEMENTS.—In proceedings to de13 termine fees and terms for access to a cov14 ered electronic payment system, the Elec15 tronic Payment System Judges shall make 

16 available to the proceeding parties all docu17 ments filed under section 2(d)(1). 

18 (ix) SETTLEMENT CONFERENCE.— 

19 The Electronic Payment System Judges 

20 shall order a settlement conference between 

21 the proceeding parties to facilitate the 

22 presentation of offers of settlement be23 tween the parties. The settlement con24 ference shall be held during the 21-day pe25 riod beginning on the date on which the 


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1 discovery period ends and shall take place 

2 outside the presence of the Electronic Pay3 ment System Judges. 

4 (x) DIRECT AND REBUTTAL HEAR5 INGS.—At the conclusion of the 21-day pe6 riod described in clause (ix), the Electronic 

7 Payment System Judges shall determine if 

8 further proceedings under this Act are nec9 essary. If the Electronic Payment System 

10 Judges determine further proceedings 

11 under this Act are necessary, the Elec12 tronic Payment System Judges shall 

13 schedule a direct hearing of not more than 

14 30 court days and a rebuttal hearing of 

15 not more than 20 court days during which 

16 both proceeding parties will be allowed to 

17 offer witness testimony and documents. 

18 (xi) SPONSORING WITNESSES.—No 

19 evidence, including exhibits, may be sub20 mitted in the written direct statement or 

21 written rebuttal statement of a proceeding 

22 party without a sponsoring witness, except 

23 for— 


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1 (I) requests for admission that 

2 have been admitted by the receiving 

3 proceeding party; 

4 (II) evidence of which the Elec5 tronic Payment System Judges have 

6 taken official notice; 

7 (III) incorporation by reference 

8 of past records; or 

9 (IV) good cause shown. 

10 (xii) HEARSAY.—Hearsay may be ad11 mitted in proceedings under this Act to the 

12 extent determined relevant and reliable by 

13 the Electronic Payment System Judges. 

14 (xiii) APPLICABILITY OF THE FED15 ERAL RULES OF EVIDENCE.—To the extent 

16 not inconsistent with this subparagraph, 

17 the Federal Rules of Evidence shall apply 

18 to proceedings under this Act. 

19 (5) PENALTIES FOR FAILURE TO COMPLY WITH

20 A DISCOVERY REQUEST.— 

21 (A) FAILURE TO COMPLY.—A person has 

22 failed to comply with a discovery request if the 

23 person, or an employee or agent of the person, 

24 fails, without substantial justification, to— 


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1 (i) make initial disclosures required 

2 under paragraph (4)(B)(iii); 

3 (ii) be sworn or answer a question as 

4 a deponent after being directed to do so by 

5 the Electronic Payment System Judges 

6 under clause (iv) or (vi) of paragraph 

7 (4)(B); 

8 (iii) answer an interrogatory sub9 mitted under paragraph (4)(B)(v); 

10 (iv) produce nonprivileged documents 

11 requested under clause (v) or (vi) of para12 graph (4)(B); or 

13 (v) admit the genuineness of any doc14 ument or the truth of any matter as re15 quested under paragraph (4)(B)(v), and 

16 the person requesting the admissions 

17 thereafter proves the genuineness of the 

18 document or the truth of the matter. 

19 (B) FALSE OR MISLEADING RESPONSES.— 

20 For purposes of this Act, any disclosure, an21 swer, or response that is false or substantially 

22 misleading, evasive, or incomplete shall be 

23 deemed a failure to disclose, answer, or re24 spond. 


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1 (C) NEGATIVE INFERENCE IN CURRENT

2 PROCEEDING.—If any person fails to comply 

3 with a discovery request, the Electronic Pay4 ment System Judges may issue an order that 

5 the matters regarding which the order was 

6 made or any other designated facts shall be 

7 taken to be established for the purposes of the 

8 current proceeding in accordance with the claim 

9 of the proceeding party seeking discovery and 

10 obtaining the order. 

11 (D) CIVIL PENALTY.— 

12 (i) GENERALLY.—Any person who 

13 fails to comply with a discovery request 

14 under this Act shall be subject to a civil 

15 penalty, which shall be assessed by the 

16 Electronic Payment System Judges, of not 

17 more than $25,000 for each violation. 

18 Each day of violation shall constitute a 

19 separate violation. 

20 (ii) NOTICE AND HEARINGS.—No civil 

21 penalty may be assessed under this sub22 paragraph except under an order of the 

23 Electronic Payment System Judges and 

24 unless the person accused of the violation 

25 was given prior notice and opportunity to 


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1 request and participate in a hearing before 

2 the Electronic Payment System Judges 

3 with respect to the violation. 

4 (iii) DETERMINING AMOUNT.—In de5 termining the amount of any penalty as6 sessed under this subparagraph, the Elec7 tronic Payment System Judges shall take 

8 into account the nature, circumstances, ex9 tent, and gravity of the violation or viola10 tions and, with respect to the violator, abil11 ity to pay, any prior history of such viola12 tions, the degree of culpability, economic 

13 benefit or savings (if any) resulting from 

14 the violation, and such other matters as 

15 justice may require. 

16 (iv) REVIEW.—Any person who re17 quested a hearing with respect to a civil 

18 penalty under this subparagraph and who 

19 is aggrieved by an order assessing the civil 

20 penalty may file a petition for judicial re21 view of such order with the United States 

22 Court of Appeals for the District of Co23 lumbia Circuit. Such a petition may be 

24 filed not later than 30 days after the date 

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1 ment was issued. The United States Court 

2 of Appeals for the District of Columbia 

3 Circuit shall have jurisdiction to enter a 

4 judgment affirming, modifying, or setting 

5 aside in whole or in part, an order of the 

6 Electronic Payment System Judges under 

7 this subparagraph, or the court may re8 mand the proceeding to the Electronic 

9 Payment System Judges for such further 

10 action as the court may direct. The Assist11 ant Attorney General shall represent the 

12 Electronic Payment System Judges before 

13 the court. 

14 (v) ENFORCEMENT.—If any person 

15 fails to pay an assessment of a civil pen16 alty after the civil penalty has become a 

17 final and unappealable order or after the 

18 appropriate court has entered final judg19 ment, the Electronic Payment System 

20 Judges shall request the Assistant Attor21 ney General to institute a civil action in an 

22 appropriate district court of the United 

23 States to collect the penalty, and such 

24 court shall have jurisdiction to hear and 

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1 tion, the court shall have authority to re2 view the violation and the assessment of 

3 the civil penalty on the record. 

4 (c) DETERMINATION OF ELECTRONIC PAYMENT SYS5 TEM JUDGES.— 

6 (1) TIMING.—The Electronic Payment System 

7 Judges shall issue a determination in a proceeding 

8 not later than the earlier of— 

9 (A) 11 months after the end of the 21-day 

10 settlement conference period under subsection 

11 (b)(4)(B)(ix); or 

12 (B) 15 days before the date on which the 

13 fees and terms in effect for a covered electronic 

14 payment system expire. 

15 (2) DETERMINATION.— 

16 (A) FILING OF FINAL OFFER.—Before the 

17 commencement of a direct hearing in a pro18 ceeding under subsection (b)(4)(B)(x), each 

19 proceeding party shall file with the Electronic 

20 Payment System Judges and with the other 

21 proceeding party a final offer of fees and terms 

22 for access to the covered electronic payment 

23 system. A proceeding party may not amend a 

24 final offer submitted under this subparagraph. 


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1 (B) SELECTION BETWEEN FINAL OF2 FERS.—After the conclusion of the direct hear3 ing and rebuttal hearing, the Electronic Pay4 ment System Judges shall make their deter5 mination by selecting 1 of the 2 final offers 

6 filed by the proceeding parties. The Electronic 

7 Payment System Judges shall make their selec8 tion in accordance with the standards described 

9 in section 2(d)(3)(C). 

10 (C) VOTING AND DISSENTING OPINIONS.— 

11 A final determination of the Electronic Pay12 ment System Judges in a proceeding under this 

13 Act shall be made by majority vote. An Elec14 tronic Payment System Judge dissenting from 

15 the majority on any determination under this 

16 Act may issue a dissenting opinion, which shall 

17 be included with the determination. 

18 (3) REHEARINGS.— 

19 (A) IN GENERAL.—The Electronic Pay20 ment System Judges may, in exceptional cases, 

21 upon motion of a proceeding party, order a re22 hearing, after the determination in the pro23 ceeding is issued under paragraph (2), on such 

24 matters as the Electronic Payment System 

25 Judges determine to be appropriate. 


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1 (B) TIMING FOR FILING MOTION.—Any 

2 motion for a rehearing under subparagraph (A) 

3 shall be filed not later than 15 days after the 

4 date on which the Electronic Payment System 

5 Judges deliver to the parties in the proceeding 

6 their initial determination concerning fees and 

7 terms. 

8 (C) PARTICIPATION BY OPPOSING PARTY

9 NOT REQUIRED.—In any case in which a re10 hearing is ordered under this paragraph, any 

11 opposing proceeding party shall not be required 

12 to participate in the rehearing, except that non13 participation may give rise to the limitations 

14 with respect to judicial review provided for in 

15 subsection (d)(1). 

16 (D) NO NEGATIVE INFERENCE.—The Elec17 tronic Payment System Judges may not draw a 

18 negative inference from lack of participation in 

19 a rehearing. 

20 (E) CONTINUITY OF FEES AND TERMS.— 

21 (i) IN GENERAL.—If the decision of 

22 the Electronic Payment System Judges on 

23 any motion for a rehearing is not rendered 

24 before the expiration of the fees and terms 

25 in effect for a covered electronic payment 


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1 system, in the case of a proceeding to de2 termine successor fees and terms for fees 

3 and terms that expire on a specified date, 

4 the initial determination of the Electronic 

5 Payment System Judges that is the subject 

6 of the rehearing motion shall be effective 

7 as of the day following the date on which 

8 the fees and terms that were previously in 

9 effect expire. 

10 (ii) FEE PAYMENTS.—The pendency 

11 of a motion for a rehearing under this 

12 paragraph shall not relieve a person obli13 gated to make fee payments for access to 

14 a covered electronic payment system who 

15 would be affected by the determination on 

16 that motion from paying the fees required 

17 and complying with the terms under the 

18 relevant determination. 

19 (iii) OVERPAYMENTS AND UNDERPAY20 MENTS.—Notwithstanding clause (ii), if 

21 fees described in clause (ii) are paid— 

22 (I) the recipient of such fees 

23 shall, not later than 60 days after the 

24 date on which the motion for rehear25 ing is resolved or, if the motion is 


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1 granted, 60 days after the date on 

2 which the rehearing is concluded, re3 turn any excess fees described in 

4 clause (ii), to the extent necessary to 

5 comply with the final determination 

6 by the Electronic Payment System 

7 Judges of fees and terms for access to 

8 the covered electronic payment sys9 tem; and 

10 (II) a person obligated to make 

11 fee payments shall, not later than 60 

12 days after the date on which the mo13 tion for rehearing is resolved or, if the 

14 motion is granted, 60 days after the 

15 date on which the rehearing is con16 cluded, pay the recipient the amount 

17 of any underpayment of fees described 

18 in clause (ii), to the extent necessary 

19 to comply with the final determination 

20 by the Electronic Payment System 

21 Judges of fees and terms for access to 

22 the covered electronic payment sys23 tem. 

24 (4) CONTENTS OF DETERMINATION.—A deter25 mination of the Electronic Payment System Judges 


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1 shall establish the fees and terms for access to the 

2 relevant covered electronic payment system, shall be 

3 supported by the written record, and shall set forth 

4 the findings of fact relied on by the Electronic Pay5 ment System Judges. The Electronic Payment Sys6 tem Judges shall make publicly available in their en7 tirety all determinations issued under this para8 graph. 

9 (5) CONTINUING JURISDICTION.—The Elec10 tronic Payment System Judges may, with the ap11 proval of the Assistant Attorney General and the 

12 Chairman, issue an amendment to a written deter13 mination to correct any technical or clerical errors in 

14 the determination in response to unforeseen cir15 cumstances that would frustrate the proper imple16 mentation of such determination. Such amendment 

17 shall be set forth in a written addendum to the de18 termination that shall be distributed to the pro19 ceeding parties and shall be published in the Federal 

20 Register. 

21 (6) PROTECTIVE ORDER.—The Electronic Pay22 ment System Judges may issue such orders as may 

23 be appropriate to protect confidential information, 

24 including orders excluding confidential information 

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1 lished or made available to the public, except that 

2 any fees and terms of an access agreement, includ3 ing voluntarily negotiated access agreements filed 

4 under section 2(d)(1), may not be excluded from 

5 publication. 

6 (7) PUBLICATION OF DETERMINATION.—Not 

7 later than 60 days after the date on which the Elec8 tronic Payment System Judges issue a determina9 tion under this subsection, the Assistant Attorney 

10 General and the Chairman shall cause the deter11 mination, and any corrections thereto, to be pub12 lished in the Federal Register. The Electronic Pay13 ment System Judges also shall publicize the deter14 mination and any corrections in such other manner 

15 as the Assistant Attorney General and the Chairman 

16 consider appropriate, including publication on the 

17 Internet. The Electronic Payment System Judges 

18 also shall make the determination, corrections, and 

19 the accompanying record available for public inspec20 tion and copying. 

21 (8) LATE PAYMENT.—A determination of Elec22 tronic Payment System Judges— 

23 (A) may include terms with respect to late 

24 payment; and 


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1 (B) may not include any provision in such 

2 terms described in subparagraph (A) that pre3 vents a provider of a covered electronic payment 

4 system from asserting other rights or remedies 

5 provided under this Act. 

6 (d) JUDICIAL REVIEW.— 

7 (1) APPEAL.—Any determination of the Elec8 tronic Payment System Judges under subsection (c) 

9 may, not later than 30 days after the date of publi10 cation of the determination in the Federal Register, 

11 be appealed, to the United States Court of Appeals 

12 for the District of Columbia Circuit, by any ag13 grieved member of a proceeding party under this Act 

14 who would be bound by the determination. Any pro15 ceeding party that did not participate in a rehearing 

16 may not raise any issue that was the subject of that 

17 rehearing at any stage of judicial review of the hear18 ing determination. If no appeal is brought within the 

19 30-day period under this paragraph, the determina20 tion of the Electronic Payment System Judges shall 

21 be final, and shall take effect as described in para22 graph (2). 

23 (2) EFFECT OF FEES AND TERMS.— 

24 (A) FEE PAYMENTS.—The pendency of an 

25 appeal under this subsection shall not relieve a 


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1 person obligated to make fee payments for ac2 cess to a covered electronic payment system 

3 who would be affected by the determination on 

4 appeal from paying the fees required and com5 plying with the terms under the relevant deter6 mination or regulations. 

7 (B) OVERPAYMENTS AND UNDERPAY8 MENTS.—Notwithstanding subparagraph (A), if 

9 fees described in subparagraph (A) are paid— 

10 (i) the recipient of such fees shall, not 

11 later than 60 days after the date on which 

12 the appeal is resolved return any excess 

13 fees described in subparagraph (A) (and 

14 interest thereon, if ordered under para15 graph (3)), to the extent necessary to com16 ply with the final determination of fees and 

17 terms on appeal; and 

18 (ii) a person obligated to make fee 

19 payments shall, not later than 60 days 

20 after the date on which the appeal is re21 solved, pay the recipient the amount of any 

22 underpayment of fees described in sub23 paragraph (A) (and interest thereon, if or24 dered under paragraph (3)), to the extent 


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1 necessary to comply with the final deter2 mination of fees and terms on appeal. 

3 (3) JURISDICTION OF COURT.—If the United 

4 States Court of Appeals for the District of Columbia 

5 Circuit, under section 706 of title 5, United States 

6 Code, modifies or vacates a determination of the 

7 Electronic Payment System Judges, the court may 

8 enter its own determination with respect to the 

9 amount or distribution of fees and costs, and order 

10 the repayment of any excess fees, the payment of 

11 any underpaid fees, and the payment of interest per12 taining respectively thereto, in accordance with its 

13 final judgment. The court also may vacate the deter14 mination of the Electronic Payment System Judges 

15 and remand the case to the Electronic Payment Sys16 tem Judges for further proceedings. 

17 (e) AUTHORIZATION OF APPROPRIATIONS.—There 

18 are authorized to be appropriated such sums as may be 

19 necessary to carry out this Act. 

20 SEC. 5. INSTITUTION OF PROCEEDINGS BEFORE ELEC21 TRONIC PAYMENT SYSTEM JUDGES. 

22 (a) INITIAL PROCEEDINGS.— 

23 (1) TIMING.—Proceedings under this Act shall 

24 be commenced as soon as practicable after the date 

25 of enactment of this Act to establish fees and terms 


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1 for access to covered electronic payment systems 

2 under section 2(d), which shall be effective during 

3 the period beginning on January 1, 2010, and end4 ing on December 31, 2011. The Electronic Payment 

5 System Judges shall cause notice of commencement 

6 of such proceedings to be published in the Federal 

7 Register. 

8 (2) PROCEDURES SPECIFIC TO THE INITIAL

9 PROCEEDINGS.— 

10 (A) DISCOVERY PERIOD.—Notwithstanding 

11 section 4(b)(4)(B)(ii), discovery in the initial 

12 proceedings described in paragraph (1) shall be 

13 permitted for a period of 90 days, except for 

14 discovery ordered by the Electronic Payment 

15 System Judges in connection with the resolu16 tion of motions, orders, and disputes pending at 

17 the end of such period. 

18 (B) CONSIDERATION OF CHANGES IN FEES

19 AND TERMS BETWEEN DATE OF ENACTMENT

20 AND INITIAL DETERMINATION.—In establishing 

21 the fees and terms under section 2(d) for access 

22 to covered electronic payment systems, to be ef23 fective during the period beginning on January 

24 1, 2010, and ending on December 31, 2011, the 

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1 sider changes in fees and terms made by a cov2 ered electronic payments system between the 

3 date of enactment of this Act and such initial 

4 determination. Based upon such consideration, 

5 the Electronic Payment System Judges may ad6 just the fees established for the period begin7 ning on January 1, 2010, and ending on De8 cember 31, 2011, to reflect the economic impact 

9 such changes had on the parties. 

10 (b) SUBSEQUENT PROCEEDINGS.—After completion 

11 of the proceedings required under subsection (a), pro12 ceedings under section 2(d) to establish fees and terms 

13 for access to covered electronic payment systems shall be 

14 commenced in 2010, and every 3 years thereafter. 

15 SEC. 6. GENERAL RULE FOR VOLUNTARILY NEGOTIATED 

16 ACCESS AGREEMENTS. 

17 (a) IN GENERAL.—Any fees or terms described in 

18 subsection (b) shall remain in effect for such period of 

19 time as would otherwise apply to fees and terms estab20 lished under this Act, except that the Electronic Payment 

21 System Judges shall adjust any such fees to reflect infla22 tion during any additional period the fees remain in effect 

23 beyond that contemplated in the voluntarily negotiated ac24 cess agreement. 


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1 (b) FEES AND TERMS.—The fees or terms described 

2 in this subsection are fees or terms for access to a covered 

3 electronic payment system under this Act that— 

4 (1) are agreed upon as part of a voluntarily ne5 gotiated access agreement for a period shorter than 

6 would otherwise apply under a determination under 

7 this Act; and 

8 (2) are adopted by the Electronic Payment Sys9 tem Judges as part of a determination under this 

10 Act. 

Æ 


erowe on PROD1PC71 with BILLS