II 

111TH CONGRESS 

1ST SESSION S. 1212 

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 9, 2009 

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 2009’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) ACCESS.—The term ‘‘access’’— 

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

10 conduct transaction authorization, clearance, 

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1 and settlement involving the acceptance of cred2 it cards or debit cards from consumers for pay3 ment for goods or services and the receipt of 

4 payment for such goods or services; and 

5 (B) when used as a noun means the per6 mission or authority to use to conduct trans7 actions described in subparagraph (A). 

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

9 agreement’’ means an agreement between 1 or more 

10 merchants and 1 or more providers giving the mer11 chant access to a covered electronic payment system, 

12 conditioned solely upon the merchant complying with 

13 the fees and terms specified in the agreement. 

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

15 (A) means a financial institution that pro16 vides services allowing merchants to access an 

17 electronic payment system to accept credit 

18 cards or debit cards for payment; and 

19 (B) does not include an independent third 

20 party processor that may act as the agent of a 

21 financial institution described in subparagraph 

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

23 debit card transactions. 

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

25 has the meaning given that term in section 551 of 

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

2 mediation. 

3 (5) ANTITRUST LAWS.—The term ‘‘antitrust 

4 laws’’— 

5 (A) has the meaning given that term in 

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

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

8 (B) includes— 

9 (i) section 5 of the Federal Trade 

10 Commission Act (15 U.S.C. 45) to the ex11 tent section 5 applies to unfair methods of 

12 competition; and 

13 (ii) State antitrust laws. 

14 (6) CHAIRMAN.—The term ‘‘Chairman’’ means 

15 the Chairman of the Federal Trade Commission. 

16 (7) COVERED ELECTRONIC PAYMENT SYS17 TEM.—The term ‘‘covered electronic payment sys18 tem’’ means an electronic payment system that 

19 routes information and data to facilitate transaction 

20 authorization, clearance, and settlement for not less 

21 than 10 percent of the combined dollar value of 

22 credit card or debit card payments processed in the 

23 United States in the most recent full calendar year. 

24 (8) CREDIT CARD.—The term ‘‘credit card’’ 

25 means any general-purpose card or other credit deWWOODS2 on PRODPC68 with BILLS

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1 vice issued or approved for use by a financial institu2 tion for use in allowing the cardholder to obtain 

3 goods or services on credit on terms specified by 

4 that financial institution. 

5 (9) DEBIT CARD.—The term ‘‘debit card’’ 

6 means any general-purpose card or other device 

7 issued or approved for use by a financial institution 

8 for use in debiting the account of a cardholder for 

9 the purpose of that cardholder obtaining goods or 

10 services, whether authorization is signature-based or 

11 PIN-based. 

12 (10) ELECTRONIC PAYMENT SYSTEM.—The 

13 term ‘‘electronic payment system’’ means the propri14 etary services, infrastructure, and software that 

15 route information and data to facilitate transaction 

16 authorization, clearance, and settlement and that 

17 merchants are required to access in order to accept 

18 a specific brand of general-purpose credit cards or 

19 debit cards as payment for goods or services. 

20 (11) ELECTRONIC PAYMENT SYSTEM

21 JUDGES.—The term ‘‘Electronic Payment System 

22 Judges’’ means the Electronic Payment System 

23 Judges appointed under section 4(a). 

24 (12) FEES.—The term ‘‘fees’’ means any mone25 tary charges, rates, assessments, or other payments 

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1 imposed by a provider upon a merchant for the mer2 chant to access an electronic payment system. 

3 (13) FINANCIAL INSTITUTION.—The term ‘‘fi4 nancial institution’’ has the meaning given that term 

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

6 (15 U.S.C. 1681a(t)). 

7 (14) ISSUER.—The term ‘‘issuer’’— 

8 (A) means a financial institution that 

9 issues credit cards or debit cards or approves 

10 the use of other devices for use in an electronic 

11 payment system; and 

12 (B) does not include an independent third 

13 party processor that may act as the agent of a 

14 financial institution described in subparagraph 

15 (A) in processing general-purpose credit or 

16 debit card transactions. 

17 (15) MARKET POWER.—The term ‘‘market 

18 power’’ means the ability to profitably raise prices 

19 above those that would be charged in a perfectly 

20 competitive market. 

21 (16) MERCHANT.—The term ‘‘merchant’’ 

22 means any person who accepts or who seeks to ac23 cept credit cards or debit cards in payment for goods 

24 or services provided by the person. 

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1 (17) NEGOTIATING PARTY.—The term ‘‘negoti2 ating party’’ means 1 or more providers of a covered 

3 electronic payment system or 1 or more merchants 

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

5 covered electronic payment system, as the case may 

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

7 have executed a voluntarily negotiated access agree8 ment that is still in effect. 

9 (18) NORMAL RATE OF RETURN.—The term 

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

11 return that a firm would receive in an industry when 

12 conditions of perfect competition prevail. 

13 (19) PROCEEDING PARTY.—The term ‘‘pro14 ceeding party’’ means collectively all providers of a 

15 covered electronic payment system or collectively all 

16 merchants who have access to or who are seeking ac17 cess to that covered electronic payment system, as 

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

19 Electronic Payment System Judges are conducting a 

20 proceeding under this Act relating to that covered 

21 electronic payment system. 

22 (20) PERSON.—The term ‘‘person’’ has the 

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

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

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1 (21) PROVIDER.—The term ‘‘provider’’ means 

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

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

4 electronic payment system. 

5 (22) STATE.—The term ‘‘State’’ has the mean6 ing given that term in section 4G(2) of the Clayton 

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

8 (23) TERMS.—The term ‘‘terms’’ means any 

9 and all rules and conditions that are applicable to 

10 providers of an electronic payment system or to mer11 chants, as the case may be, and that are required 

12 in order for merchants to access that electronic pay13 ment system. 

14 (24) VOLUNTARILY NEGOTIATED ACCESS

15 AGREEMENT.—The term ‘‘voluntarily negotiated ac16 cess agreement’’ means an access agreement volun17 tarily negotiated between 1 or more providers of a 

18 covered electronic payment system and 1 or more 

19 merchants that sets the fees and terms under which 

20 the merchant can access that covered electronic pay21 ment system. 

22 (25) WRITTEN DIRECT STATEMENTS.—The 

23 term ‘‘written direct statements’’ means witness 

24 statements, testimony, and exhibits to be presented 

25 in proceedings under this Act, and such other inforWWOODS2 on PRODPC68 with BILLS

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1 mation that is necessary to establish fees and terms 

2 for access to covered electronic payment systems as 

3 set forth in regulations issued by the Electronic Pay4 ment System Judges under section 5(b)(4). 

5 SEC. 3. ACCESS TO COVERED ELECTRONIC PAYMENT SYS6 TEMS; LIMITED ANTITRUST IMMUNITY FOR 

7 THE NEGOTIATION AND DETERMINATION OF 

8 FEES AND TERMS; STANDARDS FOR ESTAB9 LISHMENT OF FEES AND TERMS. 

10 (a) ACCESS TO COVERED ELECTRONIC PAYMENT

11 SYSTEMS.—Access by a merchant to any covered elec12 tronic payment system and the fees and terms of such ac13 cess shall be subject to this Act. 

14 (b) AUTHORITY AND LIMITED ANTITRUST IMMUNITY

15 FOR NEGOTIATIONS OF FEES AND TERMS AND PARTICI16 PATION IN PROCEEDINGS.— 

17 (1) IN GENERAL.—Notwithstanding any provi18 sion of the antitrust laws— 

19 (A) in negotiating fees and terms and par20 ticipating in any proceedings under subsection 

21 (c), any providers of a covered electronic pay22 ment system and any merchants who have ac23 cess to or who are seeking access to that cov24 ered electronic payment system may jointly ne25 gotiate and agree upon the fees and terms for 

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1 access to the covered electronic payment sys2 tem, including through the use of common 

3 agents that represent the providers of the cov4 ered electronic payment system or the mer5 chants on a nonexclusive basis; and 

6 (B) any providers of a single covered elec7 tronic payment system also may jointly deter8 mine the proportionate division among such 

9 providers of paid fees. 

10 (2) LIMITATIONS.—The immunity from the 

11 antitrust laws conferred under this subsection shall 

12 not apply to a provider of a covered electronic pay13 ment system or to a merchant during any period in 

14 which such provider, or such merchant, is engaged 

15 in— 

16 (A) any unlawful boycott; 

17 (B) any allocation with a competitor of a 

18 geographical area; 

19 (C) any unlawful tying arrangement; or 

20 (D) any exchange of information with, or 

21 agreement with, a competitor that is not rea22 sonably required to carry out the negotiations 

23 and proceedings described in subsection (c). 

24 (c) ESTABLISHMENT OF FEES AND TERMS.— 

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1 (1) VOLUNTARILY NEGOTIATED ACCESS AGREE2 MENTS.— 

3 (A) AGREEMENTS BETWEEN NEGOTIATING

4 PARTIES.—A voluntarily negotiated access 

5 agreement may be executed at any time be6 tween 1 or more providers of a covered elec7 tronic payment system and 1 or more mer8 chants. With respect to the negotiating parties, 

9 such executed voluntarily negotiated access 

10 agreement shall supersede any fees or terms es11 tablished by the Electronic Payment System 

12 Judges under paragraph (3) relating to that 

13 covered electronic payment system. 

14 (B) FILING AGREEMENTS WITH THE ELEC15 TRONIC PAYMENT SYSTEM JUDGES.—The nego16 tiating parties shall jointly file with the Elec17 tronic Payment System Judges— 

18 (i) any voluntarily negotiated access 

19 agreement that affects any market in the 

20 United States or elsewhere; 

21 (ii) any documentation relating to a 

22 voluntarily negotiated access agreement ev23 idencing any consideration being given or 

24 any marketing or promotional agreement 

25 between the negotiating parties; and 

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1 (iii) any amendment to that volun2 tarily negotiated access agreement or docu3 mentation. 

4 (C) TIMING AND AVAILABILITY OF FIL5 INGS.—The negotiating parties to any volun6 tarily negotiated access agreement executed 

7 after the date of enactment of this Act shall 

8 jointly file the voluntarily negotiated access 

9 agreement, and any documentation or amend10 ment described in subparagraph (B), with the 

11 Electronic Payment System Judges not later 

12 than 30 days after the date of execution of the 

13 voluntarily negotiated access agreement or 

14 amendment or the date of the creation of the 

15 documentation, as the case may be. The Elec16 tronic Payment System Judges shall make pub17 licly available any voluntarily negotiated access 

18 agreement, amendment, or accompanying docu19 mentation filed under this paragraph. 

20 (2) INITIATION OF PROCEEDINGS.—The pro21 ceedings under this subsection to establish fees and 

22 terms for access to a covered electronic payment sys23 tem shall be initiated in accordance with section 6. 

24 (3) PROCEEDINGS.— 

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1 (A) IN GENERAL.—The Electronic Pay2 ment System Judges shall conduct proceedings 

3 as specified under this Act to establish fees and 

4 terms for access to a covered electronic pay5 ment system. Except as specifically provided in 

6 a voluntarily negotiated access agreement, a 

7 provider of a covered electronic payment system 

8 may not directly or indirectly charge fees or set 

9 terms for access to a covered electronic pay10 ment system that are not in accordance with 

11 the fees and terms established by the Electronic 

12 Payment System Judges pursuant to pro13 ceedings under this Act. 

14 (B) PERIOD OF APPLICABILITY.—Except 

15 as provided in section 6, the fees and terms es16 tablished under this paragraph with respect to 

17 a covered electronic payment system shall apply 

18 during the 3-year period beginning on January 

19 1 of the second year following the year in which 

20 the proceedings to establish such fees and terms 

21 are commenced. 

22 (C) STANDARD FOR ESTABLISHMENT OF

23 FEES AND TERMS BY THE ELECTRONIC PAY24 MENT SYSTEM JUDGES.— 

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1 (i) IN GENERAL.—In establishing fees 

2 and terms for access to a covered elec3 tronic payment system under subpara4 graph (A), the Electronic Payment System 

5 Judges— 

6 (I) shall be limited to selecting, 

7 without modification, 1 of the 2 final 

8 offers of fees and terms filed by the 

9 proceeding parties pursuant to section 

10 5(c)(2)(A); and 

11 (II) shall select the final offer of 

12 fees and terms that most closely rep13 resent the fees and terms that would 

14 be negotiated in a hypothetical per15 fectly competitive marketplace for ac16 cess to an electronic payment system 

17 between a willing buyer with no mar18 ket power and a willing seller with no 

19 market power. 

20 (ii) STANDARDS.—In determining 

21 which final offer of fees and terms to se22 lect, the Electronic Payment System 

23 Judges— 

24 (I) shall consider the costs of 

25 transaction authorization, clearance, 

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1 and settlement that are necessary to 

2 operate and to access an electronic 

3 payment system; 

4 (II) shall consider a normal rate 

5 of return in a hypothetical perfectly 

6 competitive marketplace; 

7 (III) shall avoid selecting a final 

8 offer of fees and terms that would 

9 have anticompetitive effects within the 

10 issuer market, the acquirer market, or 

11 the merchant market; 

12 (IV) may select a final offer that 

13 is a schedule of fees and terms that 

14 varies based upon cost-based dif15 ferences in types of credit card and 

16 debit card transactions (which may in17 clude whether a transaction is of a 

18 signature-based, PIN-based, or card19 not-present type); 

20 (V) may select a final offer that 

21 is a schedule of fees and terms that 

22 provides alternative fees and terms for 

23 those acquirers or issuers that are 

24 regulated by the National Credit 

25 Union Administration or that, toWWOODS2 on PRODPC68 with BILLS

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1 gether with affiliates of the acquirer 

2 or issuer, have assets in a total 

3 amount of less than $1,000,000,000; 

4 and 

5 (VI) may not select a final offer 

6 that is a schedule of fees and terms 

7 that varies based on type of merchant 

8 or volume of transactions (either in 

9 number or dollar value). 

10 (D) USE OF EXISTING FEES AND TERMS

11 AS EVIDENCE.—In establishing fees and terms 

12 for access to a covered electronic payment sys13 tem under this paragraph, the Electronic Pay14 ment System Judges— 

15 (i) shall decide the weight to be given 

16 to any evidence submitted by a proceeding 

17 party regarding the fees and terms for ac18 cess to comparable electronic payment sys19 tems, including fees and terms in volun20 tarily negotiated access agreements filed 

21 under paragraph (1); and 

22 (ii) shall give significant weight to 

23 fees in a voluntarily negotiated access 

24 agreement that are substantially below the 

25 fees reflective of the market power of the 

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1 covered electronic payment systems that 

2 existed before the date of enactment of this 

3 Act. 

4 SEC. 4. ELECTRONIC PAYMENT SYSTEM JUDGES. 

5 (a) APPOINTMENT.—The Attorney General and the 

6 Chairman shall jointly appoint 3 full-time Electronic Pay7 ment System Judges, and shall appoint 1 of the 3 Elec8 tronic Payment System Judges as the Chief Electronic 

9 Payment System Judge. 

10 (b) DUTIES.—The Electronic Payment System 

11 Judges shall establish fees and terms for access to covered 

12 electronic payment systems in accordance with this Act. 

13 (c) RULINGS.—The Electronic Payment System 

14 Judges may make any necessary procedural or evidentiary 

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

16 commencing a proceeding under this Act, make any proce17 dural ruling that will apply to a proceeding under this Act. 

18 (d) ADMINISTRATIVE SUPPORT.—The Attorney Gen19 eral and Chairman shall provide the Electronic Payment 

20 System Judges with the necessary administrative services 

21 related to proceedings under this Act. 

22 (e) LOCATION.—The offices of the Electronic Pay23 ment System Judges and staff shall be located in the of24 fices of the Department of Justice or the Federal Trade 

25 Commission. 

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1 (f) QUALIFICATIONS OF ELECTRONIC PAYMENT SYS2 TEM JUDGES.—Each Electronic Payment System Judge 

3 shall be an attorney who has at least 7 years of legal expe4 rience. The Chief Electronic Payment System Judge shall 

5 have at least 5 years of experience in adjudications, arbi6 trations, or court trials. At least 1 Electronic Payment 

7 System Judge who is not the Chief Electronic Payment 

8 System Judge shall have significant knowledge of elec9 tronic payment systems. At least one Electronic Payment 

10 System Judge shall have significant knowledge of econom11 ics. An individual may serve as an Electronic Payment 

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

13 conflict of interest under the standards established under 

14 subsection (m). 

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

16 Judge shall hire, at minimum, 3 full-time staff members 

17 to assist the Electronic Payment System Judges in per18 forming the duties of the Electronic Payment System 

19 Judges under this Act. 

20 (h) TERMS.— 

21 (1) INITIAL APPOINTMENTS.—For the first ap22 pointments of Electronic Payment System Judges 

23 after the date of enactment of this Act— 

24 (A) the Chief Electronic Payment System 

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

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1 (B) 1 Electronic Payment System Judge 

2 who is not the Chief Electronic Payment Sys3 tem Judge shall be appointed for a term of 4 

4 years; and 

5 (C) 1 Electronic Payment System Judge 

6 who is not the Chief Electronic Payment Sys7 tem Judge shall be appointed for a term of 2 

8 years. 

9 (2) SUBSEQUENT APPOINTMENT.—After the 

10 appointments under paragraph (1), an Electronic 

11 Payment System Judge shall be appointed for a 

12 term of 6 years. 

13 (3) REAPPOINTMENT.—An individual serving as 

14 an Electronic Payment System Judge may be re15 appointed to subsequent terms. 

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

17 an Electronic Payment System Judge shall begin on 

18 the date on which the term of the predecessor of 

19 that Electronic Payment System Judge ends. If a 

20 successor Electronic Payment System Judge has not 

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

22 office of an Electronic Payment System Judge ends, 

23 the individual serving that term may continue to 

24 serve as an interim Electronic Payment System 

25 Judge until a successor is appointed. 

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1 (i) VACANCIES OR INCAPACITY.— 

2 (1) VACANCIES.—The Attorney General and the 

3 Chairman shall act expeditiously to fill any vacancy 

4 in the position of Electronic Payment System Judge, 

5 and may appoint an interim Electronic Payment 

6 System Judge to serve until an Electronic Payment 

7 System Judge is appointed to fill the vacancy under 

8 this section. An Electronic Payment System Judge 

9 appointed to fill a vacancy occurring before the expi10 ration of the term for which the predecessor of that 

11 individual was appointed shall be appointed for the 

12 remainder of that term. 

13 (2) INCAPACITY.—If an Electronic Payment 

14 System Judge is temporarily unable to perform the 

15 duties of an Electronic Payment System Judge, the 

16 Attorney General and Chairman may appoint an in17 terim Electronic Payment System Judge to perform 

18 such duties during the period of such incapacity. 

19 (j) COMPENSATION.— 

20 (1) JUDGES.—The Chief Electronic Payment 

21 System Judge shall receive compensation at the rate 

22 of basic pay payable for level AL–1 for administra23 tive law judges under section 5372(b) of title 5, 

24 United States Code, and each Electronic Payment 

25 System Judge who is not the Chief Electronic PayWWOODS2 on PRODPC68 with BILLS

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1 ment System Judge shall receive compensation at 

2 the rate of basic pay payable for level AL–2 for ad3 ministrative law judges under such section. The 

4 compensation of the Electronic Payment System 

5 Judges shall not be subject to any regulations adopt6 ed by the Office of Personnel Management under its 

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

8 States Code. 

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

10 appointed under subsection (g)— 

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

12 be not more than the basic rate of pay payable 

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

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

15 be not less than the basic rate of pay payable 

16 for GS–13 of the General Schedule and not 

17 more than the basic rate of pay payable for 

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

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

20 be not less than the basic rate of pay payable 

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

22 than the basic rate of pay payable for level 10 

23 of GS–11 of such Schedule. 

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1 (3) LOCALITY PAY.—All rates of pay estab2 lished under this subsection shall include locality 

3 pay. 

4 (k) INDEPENDENCE OF ELECTRONIC PAYMENT SYS5 TEM JUDGES.— 

6 (1) IN MAKING DETERMINATIONS.— 

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

8 subparagraph (B), the Electronic Payment Sys9 tem Judges— 

10 (i) shall have full independence in es11 tablishing fees and terms for access to cov12 ered electronic payment systems and in 

13 issuing any other ruling under this Act; 

14 and 

15 (ii) may consult with the Attorney 

16 General and the Chairman on any matter 

17 other than a question of fact. 

18 (B) CONSULTATION.—The Electronic Pay19 ment System Judges shall consult with the At20 torney General and the Chairman regarding 

21 any determination or ruling that would require 

22 that any act be performed by the Attorney Gen23 eral or the Chairman, and any such determina24 tion or ruling shall not be binding upon the At25 torney General or the Chairman. 

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1 (2) PERFORMANCE APPRAISALS.— 

2 (A) IN GENERAL.—Notwithstanding any 

3 other provision of law or any regulation of the 

4 Department of Justice or Federal Trade Com5 mission, and subject to subparagraph (B), the 

6 Electronic Payment System Judges shall not 

7 receive performance appraisals. 

8 (B) RELATING TO SANCTION OR RE9 MOVAL.—To the extent that the Attorney Gen10 eral and the Chairman adopt regulations under 

11 subsection (m) relating to the sanction or re12 moval of an Electronic Payment System Judge 

13 and such regulations require documentation to 

14 establish the cause of such sanction or removal, 

15 the Electronic Payment System Judge may re16 ceive an appraisal related specifically to the 

17 cause of the sanction or removal. 

18 (l) INCONSISTENT DUTIES BARRED.—No Electronic 

19 Payment System Judge may undertake duties that conflict 

20 with the duties and responsibilities of an Electronic Pay21 ment System Judge under this Act. 

22 (m) STANDARDS OF CONDUCT.—The Attorney Gen23 eral and the Chairman shall adopt regulations regarding 

24 the standards of conduct, including financial conflict of 

25 interest and restrictions against ex parte communications, 

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1 which shall govern the Electronic Payment System Judges 

2 and the proceedings under this Act. 

3 (n) REMOVAL OR SANCTION.—The Attorney General 

4 and the Chairman acting jointly may sanction or remove 

5 an Electronic Payment System Judge for violation of the 

6 standards of conduct adopted under subsection (m), mis7 conduct, neglect of duty, or any disqualifying physical or 

8 mental disability. Any such sanction or removal may be 

9 made only after notice and opportunity for a hearing. The 

10 Attorney General and the Chairman may suspend an Elec11 tronic Payment System Judge during the pendency of 

12 such a hearing. The Attorney General and the Chairman 

13 shall appoint an interim Electronic Payment System 

14 Judge during the period of any suspension under this sub15 section. 

16 SEC. 5. PROCEEDINGS OF ELECTRONIC PAYMENT SYSTEM 

17 JUDGES. 

18 (a) PROCEEDINGS.— 

19 (1) IN GENERAL.—The Electronic Payment 

20 System Judges shall act in accordance with regula21 tions issued by the Electronic Payment System 

22 Judges, the Attorney General, and the Chairman, 

23 and on the basis of a written record, prior deter24 minations and interpretations of the Electronic PayWWOODS2 on PRODPC68 with BILLS

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1 ment System Judges under this Act, and decisions 

2 of the court of appeals of the United States. 

3 (2) JUDGES ACTING AS PANEL AND INDIVID4 UALLY.—The Electronic Payment System Judges 

5 shall preside over hearings in proceedings under this 

6 Act en banc. The Chief Electronic Payment System 

7 Judge may designate an Electronic Payment System 

8 Judge to preside individually over such collateral 

9 and administrative proceedings as the Chief Judge 

10 considers appropriate. 

11 (b) PROCEDURES.— 

12 (1) COMMENCEMENT.—The Electronic Payment 

13 System Judges shall cause to be published in the 

14 Federal Register a notice of commencement of pro15 ceedings under section 3(c) to establish fees and 

16 terms for access to a covered electronic payment sys17 tem. 

18 (2) MANDATORY NEGOTIATION PERIOD.— 

19 (A) IN GENERAL.—Promptly after the 

20 commencement of a proceeding under section 

21 3(c) to establish fees and terms for access to a 

22 covered electronic payment system, the Elec23 tronic Payment System Judges shall initiate a 

24 period for negotiations for the purpose of 

25 achieving a voluntarily negotiated access agreeWWOODS2 on PRODPC68 with BILLS

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1 ment. Nothing in this paragraph shall preclude 

2 the proceeding parties or any members thereof 

3 from conducting negotiations before or after the 

4 mandatory negotiation period for the purpose of 

5 achieving a voluntarily negotiated access agree6 ment. 

7 (B) LENGTH.—The period for negotiations 

8 initiated under subparagraph (A) shall be 3 

9 months. 

10 (C) DETERMINATION OF NEED FOR FUR11 THER PROCEEDINGS.—At the close of the pe12 riod for negotiations initiated under subpara13 graph (A), the Electronic Payment System 

14 Judges shall determine if further proceedings 

15 under this Act are necessary. 

16 (3) PROCEEDING PARTIES IN FURTHER PRO17 CEEDINGS.— 

18 (A) IN GENERAL.—In any further pro19 ceeding ordered by the Electronic Payment Sys20 tem Judges under paragraph (2)(C), there shall 

21 be only 2 proceeding parties, 1 consisting of all 

22 providers of the covered electronic payment sys23 tem and the other consisting of all merchants 

24 that have access to or seek access to the cov25 ered electronic payment system. Each proWWOODS2 on PRODPC68 with BILLS

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1 ceeding party shall bear its own costs. A pro2 vider of a covered electronic payment system or 

3 a merchant that has access to or seeks access 

4 to the covered electronic payment system may 

5 choose not to participate in the proceeding as a 

6 member of a proceeding party, but unless such 

7 provider or merchant executes a voluntarily ne8 gotiated access agreement, such provider or 

9 merchant shall be bound by the determination 

10 of the Electronic Payment System Judges with 

11 regard to the fees and terms for access to the 

12 covered electronic payment system. 

13 (B) RULE OF CONSTRUCTION.—Nothing in 

14 this paragraph may be construed to prohibit the 

15 proceeding parties or any members thereof in a 

16 proceeding under subparagraph (A) from nego17 tiating and entering into a voluntarily nego18 tiated access agreement at any other time. 

19 (4) REGULATIONS.— 

20 (A) AUTHORIZATION.— 

21 (i) IN GENERAL.—The Electronic 

22 Payment System Judges may issue regula23 tions to carry out the duties of the Elec24 tronic Payment System Judges under this 

25 Act. All regulations issued by the ElecWWOODS2 on PRODPC68 with BILLS

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1 tronic Payment System Judges are subject 

2 to the approval of the Attorney General 

3 and the Chairman. Not later than 120 

4 days after the date on which all Electronic 

5 Payment System Judges are appointed 

6 under section 4(h)(1), the Electronic Pay7 ment System Judges shall issue regula8 tions to govern proceedings under this sub9 section. In setting these regulations, the 

10 Electronic Payment System Judges shall 

11 consider the regulations issued by the 

12 Copyright Royalty Judges under section 

13 803(b)(6) of title 17, United States Code. 

14 (ii) SCOPE.—The regulations issued 

15 under clause (i) shall include regulations 

16 regarding the procedures described in sub17 paragraph (B). 

18 (B) PROCEDURES.— 

19 (i) WRITTEN DIRECT STATEMENTS.— 

20 The written direct statements of the pro21 ceeding parties shall be filed by a date 

22 specified by the Electronic Payment Sys23 tem Judges, which may be not earlier than 

24 4 months, and not later than 5 months, 

25 after the end of the voluntary negotiation 

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1 period under paragraph (2). Notwith2 standing the preceding sentence, the Elec3 tronic Payment System Judges may allow 

4 a proceeding party to file an amended writ5 ten direct statement based on new infor6 mation received during the discovery proc7 ess, not later than 15 days after the end 

8 of the discovery period specified in clause 

9 (ii). 

10 (ii) DISCOVERY SCHEDULE.—Fol11 lowing the submission to the Electronic 

12 Payment System Judges of written direct 

13 statements by the proceeding parties, the 

14 Electronic Payment System Judges shall 

15 meet with the proceeding parties to set a 

16 schedule for conducting and completing 

17 discovery. Such schedule shall be deter18 mined by the Electronic Payment System 

19 Judges. Discovery in such proceedings 

20 shall be permitted for a period of not 

21 longer than 60 days, except for discovery 

22 ordered by the Electronic Payment System 

23 Judges in connection with the resolution of 

24 motions, orders, and disputes pending at 

25 the end of such period. 

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1 (iii) INITIAL DISCLOSURES.— 

2 (I) IN GENERAL.—In a pro3 ceeding under this Act to determine 

4 fees and terms for access to a covered 

5 electronic payment system, certain 

6 persons shall make initial disclosures 

7 not later than 30 days after the date 

8 of commencement of the proceeding, 

9 in accordance with this clause. 

10 (II) ISSUERS, ACQUIRERS, AND

11 OWNERS.—Any person who is 1 of the 

12 10 largest issuers for a covered elec13 tronic payment system in terms of 

14 number of cards issued, any person 

15 who is 1 of the 10 largest acquirers 

16 for a covered electronic payment sys17 tem based on dollar amount of trans18 actions made by merchants they serve, 

19 and any person who owns or controls 

20 the relevant covered electronic pay21 ment system and establishes the terms 

22 and conditions through which issuers 

23 and acquirers participate in the cov24 ered electronic payment system, shall 

25 produce to the Electronic Payment 

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1 System Judges and to both pro2 ceedings parties— 

3 (aa) an itemized list of the 

4 costs necessary to operate the 

5 covered electronic payment sys6 tem that were incurred by the 

7 person during the most recent 

8 full calendar year before the initi9 ation of the proceeding; and 

10 (bb) any access agreement 

11 between that person and 1 or 

12 more merchants with regard to 

13 that covered electronic payment 

14 system. 

15 (III) MERCHANTS.—Any person 

16 who is 1 of the 10 largest merchants 

17 using the relevant covered electronic 

18 payment system, determined based on 

19 dollar amount of transactions made 

20 with the covered electronic payment 

21 system, shall produce to the Elec22 tronic Payment System Judges and to 

23 both proceeding parties— 

24 (aa) an itemized list of the 

25 costs necessary to access the elecWWOODS2 on PRODPC68 with BILLS

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1 tronic payment system during the 

2 most recent full calendar year 

3 prior to the initiation of the pro4 ceeding; and 

5 (bb) any access agreement 

6 between that person and 1 or 

7 more providers with regard to 

8 that covered electronic payment 

9 system. 

10 (IV) DISAGREEMENT.—Any dis11 agreement regarding whether a person 

12 is required to make an initial disclo13 sure under this clause, or the contents 

14 of such a disclosure, shall be resolved 

15 by the Electronic Payment System 

16 Judges. 

17 (iv) DEPOSITIONS.— 

18 (I) IN GENERAL.—In a pro19 ceeding under this Act to determine 

20 fees and terms for access to a covered 

21 electronic payment system, each pro22 ceeding party shall be permitted to 

23 take depositions of every witness iden24 tified by the other proceeding party. 

25 Except as provided in subclause (III), 

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1 each proceeding party also shall be 

2 permitted to take 5 additional deposi3 tions in the entire proceeding. 

4 (II) ORGANIZATIONAL ENTI5 TIES.—A deposition notice or sub6 poena may name as the deponent a 

7 person who is an individual or a per8 son who is not an individual. Such 

9 deposition notice or subpoena shall de10 scribe with reasonable particularity 

11 the matters on which examination is 

12 requested. If the deposition notice or 

13 subpoena names a person who is not 

14 an individual, the deponent person so 

15 named shall designate 1 or more offi16 cers, directors, or managing agents, or 

17 other individual persons who consent 

18 to testify on behalf of the deponent 

19 person, and may set forth, for each 

20 individual person designated, the mat21 ters on which the individual person 

22 will testify. A subpoena shall advise a 

23 nonparty deponent person of the duty 

24 of the deponent person to make such 

25 a designation. An individual person 

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1 designated under this subclause shall 

2 testify as to matters known or reason3 ably available to the deponent person. 

4 (III) ADDITIONAL DEPOSI5 TIONS.—The Electronic Payment Sys6 tem Judges may increase the per7 mitted number of depositions for good 

8 cause in exceptional circumstances, 

9 and shall resolve any disputes among 

10 persons within either proceeding party 

11 regarding the allocation of the deposi12 tions permitted under this clause. 

13 (v) WRITTEN DISCOVERY.—In a pro14 ceeding under this Act to determine fees 

15 and terms for access to a covered elec16 tronic payment system, each proceeding 

17 party shall be permitted to serve written 

18 discovery requests on 10 persons. These 

19 written discovery requests may include re20 quests for production or inspection, a total 

21 of no more than 10 requests for admission 

22 in the entire proceeding, and a total of no 

23 more than 25 interrogatories in the entire 

24 proceeding. The Electronic Payment Sys25 tem Judges may increase the permitted 

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1 number of requests for admission or inter2 rogatories for good cause in exceptional 

3 circumstances, and shall resolve any dis4 putes among persons within either pro5 ceeding party regarding the allocation of 

6 the requests for admission or interrog7 atories permitted under this clause. 

8 (vi) SUBPOENAS.—Upon the request 

9 of a party to a proceeding to determine 

10 fees and terms for access to a covered elec11 tronic payment system, the Electronic Pay12 ment System Judges may issue a subpoena 

13 commanding a person to appear and give 

14 testimony, or to produce and permit in15 spection of documents or tangible things, if 

16 the resolution of the proceeding by the 

17 Electronic Payment System Judges may be 

18 substantially impaired by the absence of 

19 such testimony or production of documents 

20 or tangible things. A subpoena under this 

21 clause shall specify with reasonable par22 ticularity the materials to be produced or 

23 the scope and nature of the required testi24 mony. Nothing in this clause shall preclude 

25 the Electronic Payment System Judges 

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1 from requesting the production by a person 

2 of information or materials relevant to the 

3 resolution by the Electronic Payment Sys4 tem Judges of a material issue of fact. 

5 (vii) OBJECTIONS TO DISCOVERY RE6 QUESTS.— 

7 (I) IN GENERAL.—Any objection 

8 to a request or subpoena under clause 

9 (v) or (vi) shall be resolved by a mo10 tion or request to compel production 

11 made to the Electronic Payment Sys12 tem Judges in accordance with regula13 tions adopted by the Electronic Pay14 ment System Judges. Each motion or 

15 request to compel discovery shall be 

16 determined by the Electronic Payment 

17 System Judges, or by an Electronic 

18 Payment System Judge when per19 mitted under subsection (a)(2). Upon 

20 such motion or request to compel dis21 covery, the Electronic Payment Sys22 tem Judges may order discovery 

23 under regulations established under 

24 this paragraph. 

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1 (II) CONSIDERATIONS.—In deter2 mining whether discovery will be 

3 granted under this clause, the Elec4 tronic Payment System Judges may 

5 consider— 

6 (aa) whether the burden or 

7 expense of producing the re8 quested information or materials 

9 outweighs the likely benefit, tak10 ing into account the needs and 

11 resources of the proceeding par12 ties, the importance of the issues 

13 at stake, and the probative value 

14 of the requested information or 

15 materials in resolving such 

16 issues; 

17 (bb) whether the requested 

18 information or materials would 

19 be unreasonably cumulative or 

20 duplicative, or are obtainable 

21 from another source that is more 

22 convenient, less burdensome, or 

23 less expensive; and 

24 (cc) whether the proceeding 

25 party seeking discovery has had 

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1 ample opportunity by discovery in 

2 the proceeding or by other means 

3 to obtain the information sought. 

4 (viii) VOLUNTARILY NEGOTIATED AC5 CESS AGREEMENTS.—In proceedings to de6 termine fees and terms for access to a cov7 ered electronic payment system, the Elec8 tronic Payment System Judges shall make 

9 available to the proceeding parties all docu10 ments filed under section 3(c)(1). 

11 (ix) SETTLEMENT CONFERENCE.— 

12 The Electronic Payment System Judges 

13 shall order a settlement conference between 

14 the proceeding parties to facilitate the 

15 presentation of offers of settlement be16 tween the parties. The settlement con17 ference shall be held during the 21-day pe18 riod beginning on the date on which the 

19 discovery period ends and shall take place 

20 outside the presence of the Electronic Pay21 ment System Judges. 

22 (x) DIRECT AND REBUTTAL HEAR23 INGS.—At the conclusion of the 21-day pe24 riod described in clause (ix), the Electronic 

25 Payment System Judges shall determine if 

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1 further proceedings under this Act are nec2 essary. If the Electronic Payment System 

3 Judges determine further proceedings 

4 under this Act are necessary, the Elec5 tronic Payment System Judges shall 

6 schedule a direct hearing of not more than 

7 30 court days and a rebuttal hearing of 

8 not more than 20 court days during which 

9 both proceeding parties will be allowed to 

10 offer witness testimony and documents. 

11 (xi) SPONSORING WITNESSES.—No 

12 evidence, including exhibits, may be sub13 mitted in the written direct statement or 

14 written rebuttal statement of a proceeding 

15 party without a sponsoring witness, except 

16 for— 

17 (I) requests for admission that 

18 have been admitted by the receiving 

19 proceeding party; 

20 (II) evidence of which the Elec21 tronic Payment System Judges have 

22 taken official notice; 

23 (III) incorporation by reference 

24 of past records; or 

25 (IV) good cause shown. 

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1 (xii) HEARSAY.—Hearsay may be ad2 mitted in proceedings under this Act to the 

3 extent determined relevant and reliable by 

4 the Electronic Payment System Judges. 

5 (xiii) APPLICABILITY OF THE FED6 ERAL RULES OF EVIDENCE.—To the extent 

7 not inconsistent with this subparagraph, 

8 the Federal Rules of Evidence shall apply 

9 to proceedings under this Act. 

10 (5) PENALTIES FOR FAILURE TO COMPLY WITH

11 A DISCOVERY REQUEST.— 

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

13 failed to comply with a discovery request if the 

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

15 fails, without substantial justification, to— 

16 (i) make initial disclosures required 

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

18 (ii) be sworn or answer a question as 

19 a deponent after being directed to do so by 

20 the Electronic Payment System Judges 

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

22 (4)(B); 

23 (iii) answer an interrogatory sub24 mitted under paragraph (4)(B)(v); 

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1 (iv) produce nonprivileged documents 

2 requested under clause (v) or (vi) of para3 graph (4)(B); or 

4 (v) admit the genuineness of any doc5 ument or the truth of any matter as re6 quested under paragraph (4)(B)(v), and 

7 the person requesting the admissions 

8 thereafter proves the genuineness of the 

9 document or the truth of the matter. 

10 (B) FALSE OR MISLEADING RESPONSES.— 

11 For purposes of this Act, any disclosure, an12 swer, or response that is false or substantially 

13 misleading, evasive, or incomplete shall be 

14 deemed a failure to comply with a discovery re15 quest. 

16 (C) 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 proceeding party seeking discovery and 

25 obtaining the order. 

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1 (D) CIVIL PENALTY.— 

2 (i) GENERALLY.—Any person who 

3 fails to comply with a discovery request 

4 under this Act shall be subject to a civil 

5 penalty, which shall be assessed by the 

6 Electronic Payment System Judges, of not 

7 more than $25,000 for each violation. 

8 Each day of violation shall constitute a 

9 separate violation. 

10 (ii) NOTICE AND HEARINGS.—No civil 

11 penalty may be assessed under this sub12 paragraph except under 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 under this subparagraph, the Elec22 tronic Payment System Judges shall take 

23 into account the nature, circumstances, ex24 tent, and gravity of the violation or viola25 tions and, with respect to the violator, abilWWOODS2 on PRODPC68 with BILLS

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1 ity to pay, any prior history of such viola2 tions, the degree of culpability, economic 

3 benefit or savings (if any) resulting from 

4 the violation, and such other matters as 

5 justice may require. 

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

8 penalty under this subparagraph and who 

9 is 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 not later than 30 days after the date 

15 on which the order making such assess16 ment was issued. The United States Court 

17 of Appeals for the District of Columbia 

18 Circuit shall have jurisdiction to enter a 

19 judgment affirming, modifying, or setting 

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

21 Electronic Payment System Judges under 

22 this subparagraph, or the court may re23 mand the proceeding to the Electronic 

24 Payment System Judges for such further 

25 action as the court may direct. The AttorWWOODS2 on PRODPC68 with BILLS

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1 ney General shall represent the Electronic 

2 Payment System Judges before the court. 

3 (v) ENFORCEMENT.—If any person 

4 fails to pay an assessment of a civil pen5 alty after the civil penalty has become a 

6 final and unappealable order or after the 

7 appropriate court has entered final judg8 ment, the Electronic Payment System 

9 Judges shall request the Attorney General 

10 to institute a civil action in an appropriate 

11 district court of the United States to col12 lect the penalty, and such court shall have 

13 jurisdiction to hear and decide any such 

14 action. In hearing such action, the court 

15 shall have authority to review the violation 

16 and the assessment of the civil penalty on 

17 the record. 

18 (c) DETERMINATION OF ELECTRONIC PAYMENT SYS19 TEM JUDGES.— 

20 (1) TIMING.—The Electronic Payment System 

21 Judges shall issue a determination in a proceeding 

22 not later than the earlier of— 

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

24 settlement conference period under subsection 

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

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

2 fees and terms in effect for the relevant covered 

3 electronic payment system expire. 

4 (2) DETERMINATION.— 

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

6 commencement of a direct hearing in a pro7 ceeding under subsection (b)(4)(B)(x), each 

8 proceeding party shall file with the Electronic 

9 Payment System Judges and with the other 

10 proceeding party a final offer of fees and terms 

11 for access to the covered electronic payment 

12 system. A proceeding party may not amend a 

13 final offer submitted under this subparagraph, 

14 except with the express consent of the Elec15 tronic Payment System Judges and the other 

16 proceeding party. 

17 (B) SELECTION BETWEEN FINAL OF18 FERS.—After the conclusion of the direct hear19 ing and rebuttal hearing, the Electronic Pay20 ment System Judges shall make their deter21 mination by selecting 1 of the 2 final offers 

22 filed by the proceeding parties. The Electronic 

23 Payment System Judges shall make their selec24 tion in accordance with the standards described 

25 in section 3(c)(3)(C). 

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1 (C) VOTING AND DISSENTING OPINIONS.— 

2 A final determination of the Electronic Pay3 ment System Judges in a proceeding under this 

4 Act shall be made by majority vote. An Elec5 tronic Payment System Judge dissenting from 

6 the majority on any determination under this 

7 Act may issue a dissenting opinion, which shall 

8 be included with the determination. 

9 (3) REHEARINGS.— 

10 (A) IN GENERAL.—The Electronic Pay11 ment System Judges may, in exceptional cases, 

12 upon motion of a proceeding party, order a re13 hearing, after the determination in the pro14 ceeding is issued under paragraph (2), on such 

15 matters as the Electronic Payment System 

16 Judges determine to be appropriate. 

17 (B) TIMING FOR FILING MOTION.—Any 

18 motion for a rehearing under subparagraph (A) 

19 shall be filed not later than 15 days after the 

20 date on which the Electronic Payment System 

21 Judges deliver to the parties in the proceeding 

22 their initial determination concerning fees and 

23 terms. 

24 (C) PARTICIPATION BY OPPOSING PARTY

25 NOT REQUIRED.—In any case in which a reWWOODS2 on PRODPC68 with BILLS

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1 hearing is ordered under this paragraph, any 

2 opposing proceeding party shall not be required 

3 to participate in the rehearing, except that non4 participation may give rise to the limitations 

5 with respect to judicial review provided for in 

6 subsection (d)(1). 

7 (D) NO NEGATIVE INFERENCE.—The Elec8 tronic Payment System Judges may not draw a 

9 negative inference from lack of participation in 

10 a rehearing. 

11 (E) CONTINUITY OF FEES AND TERMS.— 

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

13 the Electronic Payment System Judges on 

14 any motion for a rehearing is not rendered 

15 before the expiration of the fees and terms 

16 in effect for the relevant covered electronic 

17 payment system, in the case of a pro18 ceeding to determine successor fees and 

19 terms for fees and terms that expire on a 

20 specified date, the initial determination of 

21 the Electronic Payment System Judges 

22 that is the subject of the rehearing motion 

23 shall be effective as of the day following 

24 the date on which the fees and terms that 

25 were previously in effect expire. 

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1 (ii) FEE PAYMENTS.—The pendency 

2 of a motion for a rehearing under this 

3 paragraph shall not relieve a person obli4 gated to make fee payments for access to 

5 a covered electronic payment system who 

6 would be affected by the determination on 

7 that motion from paying the fees required 

8 and complying with the terms under the 

9 relevant determination. 

10 (iii) OVERPAYMENTS AND UNDERPAY11 MENTS.—Notwithstanding clause (ii), if 

12 fees described in clause (ii) are paid— 

13 (I) the recipient of such fees 

14 shall, not later than 60 days after the 

15 date on which the motion for rehear16 ing is resolved or, if the motion is 

17 granted, 60 days after the date on 

18 which the rehearing is concluded, re19 turn any excess fees described in 

20 clause (ii), to the extent necessary to 

21 comply with the final determination 

22 by the Electronic Payment System 

23 Judges of fees and terms for access to 

24 the covered electronic payment sys25 tem; and 

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1 (II) a person obligated to make 

2 fee payments shall, not later than 60 

3 days after the date on which the mo4 tion for rehearing is resolved or, if the 

5 motion is granted, 60 days after the 

6 date on which the rehearing is con7 cluded, pay the recipient the amount 

8 of any underpayment of fees described 

9 in clause (ii), to the extent necessary 

10 to comply with the final determination 

11 by the Electronic Payment System 

12 Judges of fees and terms for access to 

13 the covered electronic payment sys14 tem. 

15 (4) CONTENTS OF DETERMINATION.—A deter16 mination of the Electronic Payment System Judges 

17 shall establish the fees and terms for access to the 

18 relevant covered electronic payment system, shall be 

19 supported by the written record, and shall set forth 

20 the findings of fact relied on by the Electronic Pay21 ment System Judges. The Electronic Payment Sys22 tem Judges shall make publicly available in their en23 tirety all determinations issued under this para24 graph. 

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1 (5) CONTINUING JURISDICTION.—The Elec2 tronic Payment System Judges may, with the ap3 proval of the Attorney General and the Chairman, 

4 issue an amendment to a written determination to 

5 correct any technical or clerical errors in the deter6 mination in response to unforeseen circumstances 

7 that would frustrate the proper implementation of 

8 such determination. Such amendment shall be set 

9 forth in a written addendum to the determination 

10 that shall be distributed to the proceeding parties 

11 and shall be published in the Federal Register. 

12 (6) PROTECTIVE ORDER.—The Electronic Pay13 ment System Judges may issue such orders as may 

14 be appropriate to protect confidential information, 

15 including orders excluding confidential information 

16 from the record of the determination that is pub17 lished or made available to the public, except that 

18 any fees and terms of an access agreement, includ19 ing voluntarily negotiated access agreements filed 

20 under section 3(c)(1), may not be excluded from 

21 publication. 

22 (7) PUBLICATION OF DETERMINATION.—Not 

23 later than 60 days after the date on which the Elec24 tronic Payment System Judges issue a determina25 tion under this subsection, the Attorney General and 

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1 the Chairman shall cause the determination, and 

2 any corrections thereto, to be published in the Fed3 eral Register. The Electronic Payment System 

4 Judges also shall publicize the determination and 

5 any corrections in such other manner as the Attor6 ney General and the Chairman consider appropriate, 

7 including publication on the Internet. The Electronic 

8 Payment System Judges also shall make the deter9 mination, corrections, and the accompanying record 

10 available for public inspection and copying. 

11 (8) LATE PAYMENT.—A determination of Elec12 tronic Payment System Judges— 

13 (A) may include terms with respect to late 

14 payment; and 

15 (B) may not include any provision in such 

16 terms described in subparagraph (A) that pre17 vents a provider of a covered electronic payment 

18 system from asserting other rights or remedies 

19 provided under this Act. 

20 (d) JUDICIAL REVIEW.— 

21 (1) APPEAL.—Any determination of the Elec22 tronic Payment System Judges under subsection (c) 

23 may, not later than 30 days after the date of publi24 cation of the determination in the Federal Register, 

25 be appealed, to the United States Court of Appeals 

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1 for the District of Columbia Circuit, by any ag2 grieved member of a proceeding party under this Act 

3 who would be bound by the determination. Any pro4 ceeding party that did not participate in a rehearing 

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

6 rehearing at any stage of judicial review of the hear7 ing determination. If no appeal is brought within the 

8 30-day period under this paragraph, the determina9 tion of the Electronic Payment System Judges shall 

10 be final, and shall take effect as described in para11 graph (2). 

12 (2) EFFECT OF FEES AND TERMS.— 

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

14 appeal under this subsection shall not relieve a 

15 person obligated to make fee payments for ac16 cess to a covered electronic payment system 

17 who would be affected by the determination on 

18 appeal from paying the fees required and com19 plying with the terms under the relevant deter20 mination or regulations. 

21 (B) OVERPAYMENTS AND UNDERPAY22 MENTS.—Notwithstanding subparagraph (A), if 

23 fees described in subparagraph (A) are paid— 

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

25 later than 60 days after the date on which 

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1 the appeal is resolved return any excess 

2 fees described in subparagraph (A) (and 

3 interest thereon, if ordered under para4 graph (3)), to the extent necessary to com5 ply with the final determination of fees and 

6 terms on appeal; and 

7 (ii) a person obligated to make fee 

8 payments shall, not later than 60 days 

9 after the date on which the appeal is re10 solved, pay the recipient the amount of any 

11 underpayment of fees described in sub12 paragraph (A) (and interest thereon, if or13 dered under paragraph (3)), to the extent 

14 necessary to comply with the final deter15 mination of fees and terms on appeal. 

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

17 States Court of Appeals for the District of Columbia 

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

19 Code, modifies or vacates a determination of the 

20 Electronic Payment System Judges, the court may 

21 enter its own determination with respect to the 

22 amount or distribution of fees and costs, and order 

23 the repayment of any excess fees, the payment of 

24 any underpaid fees, and the payment of interest per25 taining respectively thereto, in accordance with its 

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1 final judgment. The court also may vacate the deter2 mination of the Electronic Payment System Judges 

3 and remand the case to the Electronic Payment Sys4 tem Judges for further proceedings. 

5 (e) AUTHORIZATION OF APPROPRIATIONS.—There 

6 are authorized to be appropriated such sums as may be 

7 necessary to carry out this Act. 

8 SEC. 6. INSTITUTION OF PROCEEDINGS BEFORE ELEC9 TRONIC PAYMENT SYSTEM JUDGES. 

10 (a) INITIAL PROCEEDINGS.— 

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

12 be commenced as soon as practicable after the date 

13 of enactment of this Act to establish fees and terms 

14 for access to covered electronic payment systems 

15 under section 3(c), which shall be effective during 

16 the period beginning on January 1, 2011, and end17 ing on December 31, 2012. The Electronic Payment 

18 System Judges shall cause notice of commencement 

19 of such proceedings to be published in the Federal 

20 Register. 

21 (2) PROCEDURES SPECIFIC TO THE INITIAL

22 PROCEEDINGS.— 

23 (A) DISCOVERY PERIOD.—Notwithstanding 

24 section 5(b)(4)(B)(ii), discovery in the initial 

25 proceedings described in paragraph (1) shall be 

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1 permitted for a period of 90 days, except for 

2 discovery ordered by the Electronic Payment 

3 System Judges in connection with the resolu4 tion of motions, orders, and disputes pending at 

5 the end of such period. 

6 (B) CONSIDERATION OF CHANGES IN FEES

7 AND TERMS BETWEEN DATE OF ENACTMENT

8 AND INITIAL DETERMINATION.—In establishing 

9 the fees and terms under section 3(c) for access 

10 to covered electronic payment systems, to be ef11 fective during the period beginning on January 

12 1, 2011, and ending on December 31, 2012, the 

13 Electronic Payment System Judges shall con14 sider changes in fees and terms made by a cov15 ered electronic payments system between the 

16 date of enactment of this Act and such initial 

17 determination. Based upon such consideration, 

18 the Electronic Payment System Judges may ad19 just the fees established for the period begin20 ning on January 1, 2011, and ending on De21 cember 31, 2012, to reflect the economic impact 

22 such changes had on the parties. 

23 (b) SUBSEQUENT PROCEEDINGS.—After completion 

24 of the proceedings required under subsection (a), pro25 ceedings under section 3(c) to establish fees and terms for 

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1 access to covered electronic payment systems shall be com2 menced in 2011, and every 3 years thereafter. 

3 SEC. 7. GENERAL RULE FOR VOLUNTARILY NEGOTIATED 

4 ACCESS AGREEMENTS. 

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

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

7 time as would otherwise apply to fees and terms estab8 lished under this Act, except that the Electronic Payment 

9 System Judges shall adjust any such fees to reflect infla10 tion during any additional period the fees remain in effect 

11 beyond that contemplated in the voluntarily negotiated ac12 cess agreement. 

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

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

15 electronic payment system under this Act that— 

16 (1) are agreed upon as part of a voluntarily ne17 gotiated access agreement for a period shorter than 

18 would otherwise apply under a determination under 

19 this Act; and 

20 (2) are adopted by the Electronic Payment Sys21 tem Judges as part of a determination under this 

22 Act. 

Æ 

WWOODS2 on PRODPC68 with BILLS