I 

111TH CONGRESS 

1ST SESSION H. R. 2695 

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

terms for merchants’ access to electronic payment systems. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 4, 2009 

Mr. CONYERS (for himself and Mr. SHUSTER) introduced the following bill; 

which was referred to the Committee on the Judiciary 

A BILL 

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

payment systems. 

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

3 SECTION 1. SHORT TITLE. 

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

5 Act of 2009’’. 

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

8 TERMS FOR ACCESS TO COVERED ELEC9 TRONIC PAYMENT SYSTEMS. 

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


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

2 giving a merchant permission to access a covered 

3 electronic payment system to accept credit cards 

4 and/or debit cards from consumers for payment for 

5 goods and services as well as to receive payment for 

6 such goods and services, conditioned solely upon the 

7 merchant complying with the rates and terms speci8 fied in the agreement. 

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

10 that provides services allowing merchants to access 

11 an electronic payment system to accept credit cards 

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

13 independent third party processors that may act as 

14 the acquirer’s agent in processing general-purpose 

15 credit or debit card transactions. 

16 (3) ‘‘Antitrust laws’’ has the meaning given it 

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

18 Act (15 U.S.C. 12(a)), except that such term in19 cludes section 5 of the Federal Trade Commission 

20 Act (15 U.S.C. 45) to the extent such section 5 ap21 plies to unfair methods of competition as well as any 

22 similar State law. 

23 (4) ‘‘Credit card’’ means any general-purpose 

24 card or other device issued or approved for use by 

25 a financial institution allowing the cardholder to obVerDate Nov 24 2008 06:25 Jun 05, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2695.IH H2695

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1 tain goods or services on credit on terms specified by 

2 that financial institution. 

3 (5) ‘‘Covered electronic payment system’’ means 

4 an electronic payment system that has been used for 

5 at least 20 percent of the combined dollar value of 

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

7 PIN-based debit card payments processed in the ap8 plicable calendar year immediately preceding the 

9 year in which the conduct in question occurs. 

10 (6) ‘‘Debit card’’ means any general-purpose 

11 card or other device issued or approved for use by 

12 a financial institution for use in debiting a card13 holder’s account for the purpose of that cardholder 

14 obtaining goods or services, whether authorization is 

15 signature-based or PIN-based. 

16 (7) ‘‘Electronic payment system’’ means the 

17 proprietary services and infrastructure that route in18 formation and data to facilitate transaction author19 ization, clearance, and settlement that merchants 

20 must access in order to accept a specific brand of 

21 general-purpose credit cards and/or debit cards as 

22 payment for goods and services. 

23 (8) ‘‘Financial institution’’ has the same mean24 ing as in section 603(t) of the Fair Credit Reporting 

25 Act. 


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1 (9) ‘‘Issuer’’ means a financial institution that 

2 issues credit cards and/or debit cards or approves 

3 the use of other devices for use in an electronic pay4 ment system, but does not include independent third 

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

6 in processing general-purpose credit card or debit 

7 card transactions. 

8 (10) ‘‘Market power’’ means the ability profit9 ably to raise prices above those that would be 

10 charged in a perfectly competitive market. 

11 (11) ‘‘Merchant’’ means any person who ac12 cepts credit cards and/or debit cards in payment for 

13 goods or services that they provide. 

14 (12) ‘‘Negotiating party’’ means 1 or more pro15 viders of a covered electronic payment system or 1 

16 or more merchants who have access to or who are 

17 seeking access to that covered electronic payment 

18 system, as the case may be, and who are in the proc19 ess of negotiating or who have executed a voluntarily 

20 negotiated access agreement that is still in effect. 

21 (13) ‘‘Person’’ has the meaning given it in sub22 section (a) of the first section of the Clayton Act (15 

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

24 (14) ‘‘Provider’’ means any person who owns, 

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


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1 as an acquirer for a covered electronic payment sys2 tem. 

3 (15) ‘‘State’’ has the meaning given it in sec4 tion 4G(2) of the Clayton Act (15 U.S.C. 15g(2)). 

5 (16) ‘‘Terms’’ means all rules applicable either 

6 to providers of a single covered electronic payment 

7 system or to merchants, and that are required in 

8 order to provide or access that covered electronic 

9 payment system for processing credit card and/or 

10 debit card transactions. 

11 (17) ‘‘Voluntarily negotiated access agreement’’ 

12 means an executed agreement voluntarily negotiated 

13 between 1 or more providers of a single covered elec14 tronic payment system and 1 or more merchants 

15 that sets the rates and terms pursuant to which the 

16 1 or more merchants can access that covered elec17 tronic payment system to accept credit cards and/or 

18 debit cards from consumers for payment of goods 

19 and services, and receive payment for such goods 

20 and services. 

21 (b) LIMITED ANTITRUST IMMUNITY FOR NEGOTIA22 TION OF ACCESS RATES AND TERMS TO COVERED ELEC23 TRONIC PAYMENT SYSTEMS.—(1) Except as provided in 

24 paragraph (2) and notwithstanding any provision of the 

25 antitrust laws, in negotiating access rates and terms any 


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1 providers of a single covered electronic payment system 

2 and any merchants may jointly negotiate and agree upon 

3 the rates and terms for access to the covered electronic 

4 payment system, including through the use of common 

5 agents that represent either providers of a single covered 

6 electronic payment system or merchants on a nonexclusive 

7 basis. Any providers of a single covered electronic payment 

8 system also may jointly determine the proportionate divi9 sion among themselves of paid access fees. 

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

11 the immunity otherwise applicable under paragraph (1) 

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

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

14 which such provider, or such merchant, is engaged in— 

15 (A) any unlawful boycott; 

16 (B) any allocation with a competitor of a geo17 graphical area in which an interchange rate will be 

18 charged or paid; 

19 (C) any unlawful tying of an interchange rate 

20 charged or paid to any other product or service; or 

21 (D) any exchange of information with, or agree22 ment with, a competitor relating to the allocation of 

23 revenues lost or redistribution of savings gained 

24 from a voluntarily negotiated access agreement if 

25 such information or agreement is not reasonably reVerDate Nov 24 2008 06:25 Jun 05, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2695.IH H2695

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1 quired to carry out the negotiations and agreements 

2 described under paragraph (1). 

3 (c) NONDISCRIMINATION.—For any given covered 

4 electronic payment system, the rates and terms of a volun5 tarily negotiated access agreement reached under the au6 thority of this section shall be the same for all merchants, 

7 regardless of merchant category or volume of transactions 

8 (either in number or dollar value) generated. For any 

9 given covered electronic payment system, the rates and 

10 terms of a voluntarily negotiated access agreement 

11 reached under the authority of this section shall be the 

12 same for all providers participating in a negotiation ses13 sion conducted under the authority of this section, regard14 less of provider category or volume of transactions (either 

15 in number or dollar value) generated. 

16 (d) FACILITATION OF NEGOTIATION.— 

17 (1) SCHEDULE.—Within 1 month following en18 actment of this Act, the negotiating parties shall file 

19 with the Attorney General a schedule for negotia20 tions. If the negotiating parties do not file such a 

21 schedule within 1 month from the date of enact22 ment, the Attorney General shall issue such a sched23 ule. In either case, the Attorney General shall make 

24 the schedule available to all negotiating parties. 


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1 (2) INITIAL DISCLOSURE.—Within 1 month fol2 lowing enactment of this Act, the persons described 

3 in this subsection shall make the initial disclosures 

4 described in paragraphs (3) and (4) to facilitate ne5 gotiations under the limited antitrust immunity pro6 vided for by this section. 

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

8 person who is 1 of the 10 largest issuers for a cov9 ered electronic payment system in terms of number 

10 of cards issued, any person who is 1 of the 10 larg11 est acquirers for a covered electronic payment sys12 tem in terms of number of merchants served, and 

13 any person who operates or controls a covered elec14 tronic payment system shall produce to the Attorney 

15 General and to all negotiating parties— 

16 (A) an itemized list of the costs necessary 

17 to provide the covered electronic payment sys18 tem that were incurred by the person during 

19 the most recent full calendar year before the 

20 initiation of the negotiation; and 

21 (B) any access agreement between that 

22 person and 1 or more merchants with regard to 

23 that covered electronic payment system. 

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

25 10 largest merchants using the covered electronic 


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1 payment system, determined based on dollar amount 

2 of transactions made with the covered electronic 

3 payment system, shall produce to the Attorney Gen4 eral and to all negotiating parties— 

5 (A) an itemized list of the costs necessary 

6 to access an electronic payment system during 

7 the most recent full calendar year prior to the 

8 initiation of the proceeding; and 

9 (B) any access agreement between that 

10 person and 1 or more providers with regard to 

11 that covered electronic payment system. 

12 (5) DISAGREEMENT.—Any disagreement re13 garding whether a person is required to make an ini14 tial disclosure under this clause, or the contents of 

15 such a disclosure, shall be resolved by the Attorney 

16 General. 

17 (6) ATTENDANCE OF THE DEPARTMENT OF

18 JUSTICE.—A representative of the Attorney General 

19 shall attend all negotiation sessions conducted under 

20 the authority of this section. 

21 (e) TRANSPARENCY OF VOLUNTARILY NEGOTIATED

22 ACCESS AGREEMENTS.— 

23 (1) VOLUNTARILY NEGOTIATED ACCESS AGREE24 MENTS BETWEEN NEGOTIATING PARTIES.—A volun25 tarily negotiated access agreement may be executed 


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1 at any time between 1 or more providers of a cov2 ered electronic payment system and 1 or more mer3 chants. 

4 (2) FILING AGREEMENTS WITH THE ATTORNEY

5 GENERAL.—The negotiating parties shall jointly file 

6 with the Attorney General a clear intelligible copy 

7 of— 

8 (A) any voluntarily negotiated access 

9 agreement that affects any market in the 

10 United States or elsewhere; 

11 (B) the various components of the inter12 change fee; 

13 (C) a description of how access fees that 

14 merchants pay are allocated among financial in15 stitutions and how they are spent; 

16 (D) whether a variation in fees exists 

17 among card types; 

18 (E) any documentation relating to a volun19 tarily negotiated access agreement evidencing 

20 any consideration being given or any marketing 

21 or promotional agreements between the negoti22 ating parties; 

23 (F) a comparison of interchange rates in 

24 current use in the 10 foreign countries having 

25 the highest volume of credit card transactions 


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1 with the interchange rates charged in the 

2 United States under such agreement; and 

3 (G) any amendments to that voluntarily 

4 negotiated access agreement or documentation. 

5 (3) TIMING AND AVAILABILITY OF FILINGS.— 

6 The negotiating parties to any voluntarily negotiated 

7 access agreement executed after the date of enact8 ment of this Act shall jointly file the voluntarily ne9 gotiated access agreement, and any documentation 

10 or amendments described in paragraph (2), with the 

11 Attorney General not later than 30 days after the 

12 date of execution of the voluntarily negotiated access 

13 agreement or amendment or after the creation of the 

14 documentation. The Attorney General shall make 

15 publicly available any voluntarily negotiated access 

16 agreement, amendment, or accompanying docu17 mentation filed under this paragraph. 

18 (f) REPORT TO CONGRESS BY THE ATTORNEY GEN19 ERAL.—Within 7 months after the date of enactment of 

20 this Act, the Attorney General shall transmit to the House 

21 Committee on the Judiciary and the Senate Committee on 

22 the Judiciary a report on the negotiations conducted 

23 under the authority of this section during the first 6 

24 months after the date of enactment and, if a voluntarily 

25 negotiated agreement is reached, whether such access 


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1 rates and terms will have an adverse effect on competition 

2 and how such rates compare with access rates and terms 

3 in current use in other countries. Such report shall contain 

4 a chronology of the negotiations, an assessment of whether 

5 the parties have negotiated in good faith, an assessment 

6 of the quality of the data provided by the parties in their 

7 initial disclosures, a description of any voluntarily nego8 tiated agreements reached during the negotiations, and 

9 any recommendations of the Attorney General concerning 

10 how Congress should respond to the conduct of the nego11 tiations. 

12 (g) EFFECT ON PENDING LAWSUITS.—Nothing in 

13 this section shall affect liability in any action pending on 

14 the date of enactment of this section. 

15 SEC. 3. OPT-OUT. 

16 Nothing in this Act shall limit the ability of acquirers 

17 or issuers that are regulated by the National Credit Union 

18 Administration or that, together with affiliates, have as19 sets of less than $1,000,000,000, to opt out of negotia20 tions under this Act. 

21 SEC. 4. EFFECTIVE DATE. 

22 This Act shall take effect on the date of the enact23 ment of this Act. 

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