I 
110TH CONGRESS 
2D SESSION 
H. R. 5546 
To amend the antitrust laws to ensure competitive market-based rates and 
terms for merchants’ access to electronic payment systems. 
IN THE HOUSE OF REPRESENTATIVES 
MARCH 6, 2008 
Mr. CONYERS (for himself, Mr. CANNON, Ms. ZOE LOFGREN of California, 
Mr. SHUSTER, Mr. WEINER, Mr. DELAHUNT, Mr. PLATTS, Mr. WELCH 
of Vermont, Mr. SULLIVAN, Mr. WILSON of South Carolina, Mr. 
GOHMERT, Mr. HALL of Texas, Mr. BOOZMAN, and Mr. PETERSON of 
Pennsylvania) introduced the following bill; which was referred to the 
Committee on the Judiciary 
A BILL 
To amend the antitrust laws to ensure competitive market- 
based rates and terms for merchants’ access to electronic 
payment systems. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Credit Card Fair Fee 
Act of 2008’’. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
SEC. 2. LIMITED ANTITRUST IMMUNITY FOR THE NEGOTIA-
TION AND DETERMINATION OF RATES AND 
TERMS FOR ACCESS TO COVERED ELEC-
TRONIC PAYMENT SYSTEMS. 
(a) DEFINITIONS.—For purposes of this Act: 
(1) ‘‘Access agreement’’ means an agreement 
giving a merchant permission to access a covered 
electronic payment system to accept credit cards 
and/or debit cards from consumers for payment for 
goods and services as well as to receive payment for 
such goods and services, conditioned solely upon the 
merchant complying with the rates and terms speci-
fied in the agreement. 
(2) ‘‘Acquirer’’ means a financial institution 
that provides services allowing merchants to access 
an electronic payment system to accept credit cards 
and/or debit cards for payment, but does not include 
independent third party processors that may act as 
the acquirer’s agent in processing general-purpose 
credit or debit card transactions. 
(3) ‘‘Antitrust Division’’ means the Antitrust 
Division of the U.S. Department of Justice. 
(4) ‘‘Antitrust Laws’’ has the meaning given it 
in subsection (a) of the first section of the Clayton 
Act (15 U.S.C. 12(a)), except that such term in-
cludes section 5 of the Federal Trade Commission 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
Act (15 U.S.C. 45) to the extent section 5 applies 
to unfair methods of competition as well as any 
similar State law. 
(5) ‘‘Base year’’ means the most recent full cal-
endar year prior to the initiation of a proceeding 
under this Act. 
(6) ‘‘Commission’’ means the Federal Trade 
Commission Bureau of Competition. 
(7) ‘‘Credit card’’ means any general-purpose 
card or other device issued or approved for use by 
a financial institution allowing the cardholder to ob-
tain goods or services on credit on terms specified by 
that financial institution. 
(8) ‘‘Covered electronic payment system’’ means 
an electronic payment system that has been used for 
at least 20% of the combined dollar value of U.S. 
credit, signature-based debit, and PIN-based debit 
card payments processed in the applicable base year. 
(9) ‘‘Debit card’’ means any general-purpose 
card or other device issued or approved for use by 
a financial institution for use in debiting a card-
holder’s account for the purpose of that cardholder 
obtaining goods or services, whether authorization is 
signature-based or PIN-based. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(10) ‘‘Electronic payment system’’ means the 
proprietary services and infrastructure that route in-
formation and data to facilitate transaction author-
ization, clearance, and settlement that merchants 
must access in order to accept a specific brand of 
general-purpose credit and/or debit cards as pay-
ment for goods and services. 
(11) ‘‘Financial institution’’ has the same 
meaning as in section 603(t) of the Fair Credit Re-
porting Act. 
(12) ‘‘Issuer’’ means a financial institution that 
issues credit cards and/or debit cards or approves 
the use of other devices for use in an electronic pay-
ment system, but does not include independent third 
party processors that may act as the issuer’s agent 
in processing general-purpose credit or debit card 
transactions; 
(13) ‘‘Market power’’ means the ability profit-
ably to raise prices above those that would be 
charged in a perfectly competitive market. 
(14) ‘‘Merchant’’ means any person who ac-
cepts credit cards and/or debit cards in payment for 
goods or services that they provide. 
(15) ‘‘Normal rate of return’’ means the aver-
age rate of return that a firm would receive in an 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
industry when conditions of perfect competition pre-
vail. 
(16) ‘‘Party’’ means either all providers of a 
single covered electronic payment system collectively 
or all merchants collectively. 
(17) ‘‘Person’’ has the meaning given it in sub-
section (a) of the first section of the Clayton Act (15 
U.S.C. 12(a)). 
(18) ‘‘Provider’’ means any person who owns, 
operates, controls, serves as an issuer, or serves as 
an acquirer for a covered electronic payment system. 
(19) ‘‘State’’ has the meaning given it in sec-
tion 4G(2) of the Clayton Act (15 U.S.C. 15g(2)). 
(20) ‘‘Terms’’ means all rules applicable either 
to providers of a single covered electronic payment 
system or to merchants, and that are required in 
order to provide or access that covered electronic 
payment system for processing credit and/or debit 
card transactions. 
(21) ‘‘Voluntarily negotiated access agreement’’ 
means an executed agreement voluntarily negotiated 
between 1 or more providers of a single covered elec-
tronic payment system and 1 or more merchants 
that sets the rates and terms pursuant to which the 
1 or more merchants can access that covered elec-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
tronic payment system to accept credit cards and/or 
debit cards from consumers for payment of goods 
and services, and receive payment for such goods 
and services. 
(b) ACCESS
TO COVERED ELECTRONIC PAYMENT 
SYSTEMS.—Access to any covered electronic payment sys-
tem by merchants shall be subject to this Act. 
(c) AUTHORITY AND LIMITED ANTITRUST IMMUNITY 
FOR
NEGOTIATIONS
AND
PARTICIPATION
IN
PRO-
CEEDINGS.—Notwithstanding any provision of the anti-
trust laws, in negotiating access rates and terms and par-
ticipating in any proceedings in accordance with sub-
section (d), any providers of a single covered electronic 
payment system and any merchants may jointly negotiate 
and agree upon the rates and terms for access to the cov-
ered electronic payment system, including through the use 
of common agents that represent either providers of a sin-
gle covered electronic payment system or merchants on a 
non-exclusive basis. Any providers of a single covered elec-
tronic payment system also may jointly determine the pro-
portionate division among themselves of paid access fees. 
(d) DETERMINATION
OF
ACCESS
RATES
AND 
TERMS.— 
(1) PROCEEDINGS.—Proceedings under this Act 
shall determine rates and terms for access to a cov-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
ered electronic payment system during the 3-year 
period beginning on January 1 of the second year 
following the year in which the proceedings are to be 
commenced, except where a different transitional pe-
riod is provided under section 6. Except as specified 
in a voluntarily negotiated access agreement, no 
other fees, terms, or conditions of any kind may be 
imposed directly or indirectly on any merchant for 
accessing a covered electronic payment system. The 
parties to each proceeding shall bear their own costs. 
(2) DETERMINATIONS
OF
THE
ELECTRONIC 
PAYMENT SYSTEM JUDGES.— 
(A) 
APPLICABILITY.—The 
schedule 
of 
rates and terms determined by the Electronic 
Payment System Judges with respect to a sin-
gle covered electronic payment system shall, 
subject to paragraph (4), be binding on all pro-
viders of that single covered electronic payment 
system and merchants affected by this para-
graph during the 3-year period specified in sub-
paragraph (1). For any given covered electronic 
payment system, such rates and terms shall be 
the same for all merchants, regardless of mer-
chant category or volume of transactions (either 
in number or dollar value) generated. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
comparable electronic payment systems, includ-
ing rates and terms set forth in voluntarily ne-
gotiated access agreements filed pursuant to 
subparagraph (4). The Electronic Payment Sys-
tem Judges shall give significant weight, how-
ever, to rates voluntarily negotiated between 
one or more providers of a single covered elec-
tronic payments system and one or more mer-
chants that are substantially below those rates 
reflective of the market power of covered elec-
tronic payment systems that existed prior to the 
enactment of this Act. 
(3) INITIATION.—The procedures under sub-
paragraphs (1) and (2) shall be initiated pursuant to 
section 5. 
(4) VOLUNTARILY NEGOTIATED ACCESS AGREE-
MENTS.— 
(A) AGREEMENTS
BETWEEN
THE
PAR-
TIES.—Voluntarily negotiated access agree-
ments may be executed at any time between 1 
or more providers of a single covered electronic 
payment system and 1 or more merchants, and 
such voluntarily negotiated access agreements 
shall be given effect with respect to those par-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
ties in lieu of any determination by the Elec-
tronic Payment System Judges. 
(B) FILING AGREEMENTS WITH THE ELEC-
TRONIC PAYMENT SYSTEM JUDGES.—Any pro-
viders of a single covered electronic payment 
system and merchants affected by this section 
must jointly file with the Electronic Payment 
System Judges any voluntarily negotiated ac-
cess agreements that affect any domestic or 
international market, including related docu-
mentation evidencing any consideration being 
given, any marketing or promotional agree-
ments between the parties, and any subsequent 
amendments to such agreements and docu-
mentation. 
(C) TIMING OF AND ACCESS TO FILINGS.— 
The parties to any voluntarily negotiated access 
agreement executed subsequent to the enact-
ment of the Credit Card Fair Fee Act of 2008 
must jointly file such agreement, amendment, 
or documentation with the Electronic Payment 
System Judges within 30 days of executing the 
agreement, amendment, or documentation. The 
Electronic Payment System Judges shall make 
publicly available all such agreements, amend-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
ments, and related documentation executed sub-
sequent to the date of enactment of this Act. 
SEC. 3. ELECTRONIC PAYMENT SYSTEM JUDGES. 
(a) APPOINTMENT.—The Antitrust Division and 
Commission shall appoint 3 full-time Electronic Payment 
System Judges, and shall appoint 1 of the 3 as the Chief 
Electronic Payment System Judge. 
(b) FUNCTIONS.—Subject to the provisions of this 
Act, the function of the Electronic Payment System 
Judges shall be to make determinations of access rates 
and terms calculated to most closely represent the rates 
and terms that would be negotiated in a hypothetical per-
fectly competitive marketplace for access to an electronic 
payment system between a willing buyer with no market 
power and a willing seller with no market power. In deter-
mining such rates and terms, the Electronic Payment Sys-
tem Judges shall consider the costs necessary to provide 
and access an electronic payment system for processing 
credit and/or debit card transactions as well as a normal 
rate of return in such a hypothetical perfectly competitive 
marketplace. 
(c) RULINGS.—The Electronic Payment System 
Judges may make any necessary procedural or evidentiary 
rulings in any proceeding under this Act and may, before 
commencing a proceeding under this Act, make any proce-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
dural rulings that would apply to the proceedings con-
ducted by the Electronic Payment System Judges. 
(d) ADMINISTRATIVE SUPPORT.—The Antitrust Divi-
sion and Commission shall provide the Electronic Payment 
System Judges with the necessary administrative services 
related to proceedings under this Act. 
(e) LOCATION.—The offices of the Electronic Pay-
ment System Judges and staff shall be in the Antitrust 
Division or Commission. 
(f) QUALIFICATIONS OF ELECTRONIC PAYMENT SYS-
TEM JUDGES.— 
(1) IN
GENERAL.—Each Electronic Payment 
System Judge shall be an attorney who has at least 
7 years of legal experience. The Chief Electronic 
Payment System Judge shall have at least 5 years 
of experience in adjudications, arbitrations, or court 
trials. Of the other 2 Electronic Payment System 
Judges, 1 shall have significant knowledge of elec-
tronic payment systems, and the other shall have 
significant knowledge of economics. An individual 
may serve as an Electronic Payment System Judge 
only if the individual is free of any financial conflict 
of interest under subsection (m). 
(2) DEFINITION.—In this subsection, the term 
‘‘adjudication’’ has the meaning given that term in 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00012
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
section 551 of title 5, but does not include medi-
ation. 
(g) STAFF.—The Chief Electronic Payment System 
Judge shall hire 3 full-time staff members to assist the 
Electronic Payment System Judges in performing their 
functions. 
(h) TERMS.—The individual first appointed as the 
Chief Electronic Payment System Judge shall be ap-
pointed to a term of 6 years, and of the remaining individ-
uals first appointed as Electronic Payment System 
Judges, 1 shall be appointed to a term of 4 years, and 
the other shall be appointed to a term of 2 years. There-
after, the terms of succeeding Electronic Payment System 
Judges shall each be 6 years. An individual serving as an 
Electronic Payment System Judge may be reappointed to 
subsequent terms. The term of an Electronic Payment 
System Judge shall begin when the term of the prede-
cessor of that Electronic Payment System Judge ends. 
When the term of office of an Electronic Payment System 
Judge ends, the individual serving that term may continue 
to serve until a successor is installed. 
(i) VACANCIES OR INCAPACITY.— 
(1) VACANCIES.—If a vacancy should occur in 
the position of Electronic Payment System Judge, 
the Antitrust Division and Commission shall act ex-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00013
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
peditiously to fill the vacancy, and may appoint an 
interim Electronic Payment System Judge to serve 
until another Electronic Payment System Judge is 
appointed under this section. An individual ap-
pointed to fill the vacancy occurring before the expi-
ration of the term for which the predecessor of that 
individual was appointed shall be appointed for the 
remainder of that term. 
(2) INCAPACITY.—In the case in which an Elec-
tronic Payment System Judge is temporarily unable 
to perform his or her duties, the Antitrust Division 
and Commission may appoint an interim Electronic 
Payment System Judge to perform such duties dur-
ing the period of such incapacity. 
(j) COMPENSATION.— 
(1) JUDGES.—The Chief Electronic Payment 
System Judge shall receive compensation at the rate 
of basic pay payable for level AL–1 for administra-
tive law judges pursuant to section 5372(b) of title 
5, and each of the other two Electronic Payment 
System Judges shall receive compensation at the 
rate of basic pay payable for level AL–2 for adminis-
trative law judges pursuant to such section. The 
compensation of the Electronic Payment System 
Judges shall not be subject to any regulations adopt-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00014
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
ed by the Office of Personnel Management pursuant 
to its authority under section 5376(b)(1) of title 5. 
(2) STAFF MEMBERS.—Of the staff members 
appointed under subsection (g)— 
(A) the rate of pay of 1 staff member shall 
be not more than the basic rate of pay payable 
for level 10 of GS–15 of the General Schedule; 
(B) the rate of pay of 1 staff member shall 
be not less than the basic rate of pay payable 
for GS–13 of the General Schedule and not 
more than the basic rate of pay payable for 
level 10 of GS–14 of such Schedule; and 
(C) the rate of pay for the third staff 
member shall be not less than the basic rate of 
pay payable for GS–8 of the General Schedule 
and not more than the basic rate of pay payable 
for level 10 of GS–11 of such Schedule. 
(3) LOCALITY PAY.—All rates of pay referred to 
under this subsection shall include locality pay. 
(k) INDEPENDENCE OF ELECTRONIC PAYMENT SYS-
TEM JUDGE.— 
(1) IN MAKING DETERMINATIONS.— 
(A) IN
GENERAL.—The Electronic Pay-
ment System Judges shall have full independ-
ence in making determinations concerning ad-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00015
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
sion and Commission adopt regulations under 
subsection (m) relating to the sanction or re-
moval of an Electronic Payment System Judge 
and such regulations require documentation to 
establish the cause of such sanction or removal, 
the Electronic Payment System Judge may re-
ceive an appraisal related specifically to the 
cause of the sanction or removal. 
(l) INCONSISTENT DUTIES BARRED.—No Electronic 
Payment System Judge may undertake duties that conflict 
with his or her duties and responsibilities as an Electronic 
Payment System Judge. 
(m) STANDARDS OF CONDUCT.—The Antitrust Divi-
sion and Commission shall adopt regulations regarding the 
standards of conduct, including financial conflict of inter-
est and restrictions against ex parte communications, 
which shall govern the Electronic Payment System Judges 
and the proceedings under this Act. 
(n) REMOVAL OR SANCTION.—The Antitrust Division 
and Commission may sanction or remove an Electronic 
Payment System Judge for violation of the standards of 
conduct adopted under subsection (m), misconduct, ne-
glect of duty, or any disqualifying physical or mental dis-
ability. Any such sanction or removal may be made only 
after notice and opportunity for a hearing, but the Anti-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00017
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
trust Division and Commission may suspend the Elec-
tronic Payment System Judge during the pendency of 
such hearing. The Antitrust Division and Commission 
shall appoint an interim Electronic Payment System 
Judge during the period of any such suspension. 
SEC. 4. PROCEEDINGS OF ELECTRONIC PAYMENT SYSTEM 
JUDGES. 
(a) PROCEEDINGS.— 
(1) IN
GENERAL.—The Electronic Payment 
System Judges shall act in accordance with regula-
tions issued by the Electronic Payment System 
Judges and the Antitrust Division and Commission, 
and on the basis of a written record, prior deter-
minations and interpretations of the Electronic Pay-
ment System Judges under this Act, and decisions 
of the court of appeals under this section. 
(2) JUDGES ACTING AS PANEL AND INDIVID-
UALLY.—The Electronic Payment System Judges 
shall preside over hearings in proceedings under this 
Act en banc. The Chief Electronic Payment System 
Judge may designate an Electronic Payment System 
Judge to preside individually over such collateral 
and administrative proceedings, and over such pro-
ceedings under paragraphs (1) and (2) of subsection 
(b), as the Chief Judge considers appropriate. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00018
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(3) DETERMINATION
LIMITED
TO
CHOOSING 
ONE
OF
THE
TWO
FINAL
OFFERS.—Prior to the 
commencement of a direct hearing in a proceeding 
under section 5(b)(3)(B)(xi), the party entitled to 
receive access fee payments shall file with the Elec-
tronic Payment System Judges its final offer of 
rates and terms. Simultaneously, the party obligated 
to pay access fee payments shall file with the Elec-
tronic Payment System Judges its final offer of 
rates and terms. The parties also shall exchange 
these final offers, which cannot be amended. In 
making a determination under section 5(c), the Elec-
tronic Payment System Judges shall be limited to 
choosing, without modification, one of these two 
final offers. 
(4) VOTING AND DISSENTING OPINIONS.—Final 
determinations of the Electronic Payment System 
Judges in proceedings under this Act shall be made 
by majority vote. An Electronic Payment System 
Judge dissenting from the majority on any deter-
mination under this Act may issue his or her dis-
senting opinion, which shall be included with the de-
termination. 
(b) PROCEDURES.— 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00019
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(1) INITIATION.—The Electronic Payment Sys-
tem Judges shall cause to be published in the Fed-
eral Register notice of commencement of proceedings 
referred to in section 3 as provided under section 6. 
(2) VOLUNTARY NEGOTIATION PERIOD.— 
(A) IN
GENERAL.—Promptly after the 
commencement of a proceeding, the Electronic 
Payment System Judges shall initiate a vol-
untary negotiation period among the parties. 
(B) LENGTH.—The voluntary negotiation 
period initiated under subparagraph (A) shall 
be 3 months. Nothing in this subsection, how-
ever, prohibits parties from negotiating and en-
tering into voluntarily negotiated access agree-
ments at any other time. 
(C) DETERMINATION OF NEED FOR SUB-
SEQUENT PROCEEDINGS.—At the close of the 
voluntary negotiation proceedings, the Elec-
tronic Payment System Judges shall determine 
if further proceedings under this Act are nec-
essary. In any such proceeding, all providers of 
the covered electronic payment system shall 
participate as a single party and all merchants 
shall participate as a single party, except to the 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00020
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
extent certain providers or merchants pursue 
voluntarily negotiated access agreements. 
(3) REGULATIONS.— 
(A) IN
GENERAL.—The Electronic Pay-
ment System Judges may issue regulations to 
carry out their functions under this title. All 
regulations issued by the Electronic Payment 
System Judges are subject to the approval of 
the Antitrust Division and Commission. Not 
later than 120 days after Electronic Payment 
System Judges are first appointed after the en-
actment of the Credit Card Fair Fee Act of 
2008, such judges shall issue regulations to 
govern proceedings under this Act. In setting 
these regulations, the Electronic Payment Sys-
tem Judges shall consider the regulations 
issued by the Copyright Royalty Judges pursu-
ant to 17 U.S.C. 803(b)(6). 
(B) REQUIREMENTS.—Regulations issued 
under subparagraph (A) shall include the fol-
lowing: 
(i) WRITTEN DIRECT STATEMENTS.— 
The written direct statements of the par-
ties to a proceeding shall be filed by a date 
specified by the Electronic Payment Sys-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00021
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
tem Judges, which may be not earlier than 
4 months, and not later than 5 months, 
after the end of the voluntary negotiation 
period under paragraph (3). Notwith-
standing the preceding sentence, the Elec-
tronic Payment System Judges may allow 
a party in a proceeding to file an amended 
written direct statement based on new in-
formation received during the discovery 
process, within 15 days after the end of 
the discovery period specified in clause (ii). 
In this Act, the term ‘‘written direct state-
ments’’ means witness statements, testi-
mony, and exhibits to be presented in the 
proceedings, and such other information 
that is necessary to establish access terms 
and rates as set forth in regulations issued 
by the Electronic Payment System Judges. 
(ii) 
DISCOVERY
SCHEDULE.—Fol-
lowing the submission to the Electronic 
Payment System Judges of written direct 
statements by the parties to a proceeding, 
the judges shall meet with the parties for 
the purpose of setting a schedule for con-
ducting and completing discovery. Such 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00022
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
schedule shall be determined by the Elec-
tronic Payment System Judges. Discovery 
in such proceedings shall be permitted for 
a period of 60 days, except for discovery 
ordered by the Electronic Payment System 
Judges in connection with the resolution of 
motions, orders, and disputes pending at 
the end of such period. 
(iii) INITIAL DISCLOSURES.—In a pro-
ceeding under this Act to determine rates 
and terms for access to a single covered 
electronic payment system, certain persons 
must make initial disclosures within 30 
days of commencement of the proceeding. 
The 10 largest issuers for the covered elec-
tronic payment system, the 10 largest 
acquirers for the covered electronic pay-
ment system, and any person operating or 
controlling the covered electronic payment 
system must produce to merchants both 
the costs necessary to provide that elec-
tronic payment system for processing cred-
it and/or debit card transactions that were 
incurred during the most recent full cal-
endar year prior to the initiation of the 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00023
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
proceeding and any agreements regarding 
rates and terms for access to the covered 
electronic payment system. The 10 largest 
merchants in terms of utilization of the 
covered electronic payment system must 
produce to the providers of the covered 
electronic payment system both the costs 
necessary to access an electronic payment 
system for processing credit and/or debit 
card transactions during the most recent 
full calendar year prior to the initiation of 
the proceeding and any agreements regard-
ing rates and terms for access to the cov-
ered electronic payment system. Any dis-
agreement between the providers of a sin-
gle covered electronic payment system and 
the merchants regarding which persons are 
required to make such initial disclosures 
shall be resolved by the Electronic Pay-
ment System Judges. 
(iv) DEPOSITIONS.— 
(I) In a proceeding under this 
Act to determine access rates and 
terms, each party shall be permitted 
to take depositions of every witness 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00024
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
identified by the other party. Each 
party also shall be permitted to take 
five additional depositions in the en-
tire proceeding. 
(II) A deposition notice or sub-
poena may name as the deponent a 
public or private corporation or a 
partnership or association and de-
scribe with reasonable particularity 
the matters on which examination is 
requested. In that event, the organiza-
tion so named shall designate one or 
more officers, directors, or managing 
agents, or other persons who consent 
to testify on its behalf, and may set 
forth, for each person designated, the 
matters on which the person will tes-
tify. A subpoena shall advise a non- 
party organization of its duty to make 
such a designation. The persons so 
designated shall testify as to matters 
known or reasonably available to the 
organization. 
(III) The Electronic Payment 
System Judges may increase the per-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00025
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
mitted number of depositions for good 
cause in exceptional circumstances, 
and shall resolve any disputes among 
persons within either party regarding 
the allocation of the depositions per-
mitted under this clause. 
(v) WRITTEN DISCOVERY.—In a pro-
ceeding under this Act to determine access 
rates and terms, each party shall be per-
mitted to serve written discovery requests 
on 10 persons. These written discovery re-
quests may include requests for production 
or inspection, a total of no more than 10 
requests for admission in the entire pro-
ceeding, and a total of no more than 25 in-
terrogatories in the entire proceeding. The 
Electronic Payment System Judges may 
increase the permitted number of requests 
for admission or interrogatories for good 
cause in exceptional circumstances, and 
shall resolve any disputes among persons 
within either party regarding the allocation 
of the requests for admission or interrog-
atories permitted under this clause. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00026
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(vi) SUBPOENAS.—Upon the request 
of a party to a proceeding to determine ac-
cess rates and terms, the Electronic Pay-
ment System Judges may issue a subpoena 
commanding a person to appear and give 
testimony, or to produce and permit in-
spection of documents or tangible things, if 
the Electronic Payment System Judges’ 
resolution of the proceeding may be sub-
stantially impaired by the absence of such 
testimony or production of documents or 
tangible things. Such subpoena shall speci-
fy with reasonable particularity the mate-
rials to be produced or the scope and na-
ture of the required testimony. Nothing in 
this clause shall preclude the Electronic 
Payment System Judges from requesting 
the production by a person of information 
or materials relevant to the resolution by 
the Electronic Payment System Judges of 
a material issue of fact. 
(vii) OBJECTIONS TO DISCOVERY RE-
QUESTS.—Any objection to such a request 
or subpoena shall be resolved by a motion 
or request to compel production made to 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00027
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
the Electronic Payment System Judges in 
accordance with regulations adopted by the 
Electronic Payment System Judges. Each 
motion or request to compel discovery shall 
be determined by the Electronic Payment 
System Judges, or by an Electronic Pay-
ment System Judge when permitted under 
subsection (a)(2). Upon such motion, the 
Electronic Payment System Judges may 
order discovery pursuant to regulations es-
tablished under this paragraph. In deter-
mining whether discovery will be granted 
under this clause, the Electronic Payment 
System Judges may consider— 
(I) whether the burden or ex-
pense of producing the requested in-
formation or materials outweighs the 
likely benefit, taking into account the 
needs and resources of the parties, the 
importance of the issues at stake, and 
the probative value of the requested 
information or materials in resolving 
such issues; 
(II) whether the requested infor-
mation or materials would be unrea-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00028
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
sonably cumulative or duplicative, or 
are obtainable from another source 
that is more convenient, less burden-
some, or less expensive; and 
(III) whether the party seeking 
discovery has had ample opportunity 
by discovery in the proceeding or by 
other means to obtain the information 
sought. 
(viii) VOLUNTARILY NEGOTIATED AC-
CESS AGREEMENTS.—In proceedings to de-
termine access rates and terms, the Elec-
tronic Payment System Judges shall make 
available to the parties all documents filed 
pursuant to section 3(d)(4), including re-
lated documentation evidencing any consid-
eration being given, any marketing or pro-
motional agreements between the parties, 
and subsequent amendments to such 
agreements and documentation. 
(ix) 
SETTLEMENT
CONFERENCE.— 
The Electronic Payment System Judges 
shall order a settlement conference between 
the parties in the proceeding to facilitate 
the presentation of offers of settlement be-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00029
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
tween the parties. The settlement con-
ference shall be held during a 21-day pe-
riod following the end of the discovery pe-
riod and shall take place outside the pres-
ence of the Electronic Payment System 
Judges. 
(x) DIRECT
AND
REBUTTAL
HEAR-
INGS.—At the conclusion of the 21-day pe-
riod following the end of the discovery pe-
riod, the Electronic Payment System 
Judges shall determine if further pro-
ceedings under this Act are necessary. If 
so, the Electronic Payment System Judges 
shall schedule a direct hearing of not more 
than 30 court days and a rebuttal hearing 
of not more than 20 court days during 
which both parties will be allowed to put 
on witnesses. 
(xi) 
SPONSORING
WITNESSES.—No 
evidence, including exhibits, may be sub-
mitted in the written direct statement or 
written rebuttal statement of a party with-
out a sponsoring witness, except for re-
quests for admission that have been admit-
ted by the receiving party, where the Elec-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00030
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
tronic Payment System Judges have taken 
official notice, in the case of incorporation 
by reference of past records, or for good 
cause shown. 
(xii) HEARSAY.—Hearsay may be ad-
mitted in proceedings under this Act to the 
extent deemed relevant and reliable by the 
Electronic Payment System Judges. 
(xiii) APPLICABILITY
OF
THE
FED-
ERAL RULES OF EVIDENCE.—To the extent 
not inconsistent with this subparagraph, 
the Federal Rules of Evidence shall apply 
to proceedings under this Act. 
(4) PENALTIES FOR FAILURE TO COMPLY WITH 
A DISCOVERY REQUEST.— 
(A) FAILURE
TO
COMPLY.—Any person 
fails to comply with a discovery request if they, 
their employee, or agent fails, without substan-
tial justification, to: 
(i) make initial disclosures required 
under section 3(b)(3)(B); 
(ii) be sworn or to answer a question 
as a deponent after being directed to do so 
by the Electronic Payment System Judges; 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00031
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(iii) answer an interrogatory sub-
mitted pursuant to section 3(b)(3)(B); 
(iv) produce non-privileged documents 
requested pursuant to section 3(b)(3)(B); 
or 
(v) admit the genuineness of any doc-
ument or the truth of any matter as re-
quested under section 3(b)(3)(B), and the 
person requesting the admissions there-
after proves the genuineness of the docu-
ment or the truth of the matter. 
For purposes of this Act, any disclosure, an-
swer, or response that is false or substantially 
misleading, evasive, or incomplete is to be treat-
ed as a failure to disclose, answer, or respond. 
(B) NEGATIVE
INFERENCE
IN
CURRENT 
PROCEEDING.—If any person fails to comply 
with a discovery request, the Electronic Pay-
ment System Judges may issue an order that 
the matters regarding which the order was 
made or any other designated facts shall be 
taken to be established for the purposes of the 
current proceeding in accordance with the claim 
of the person seeking discovery and obtaining 
the order. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00032
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(C) CIVIL PENALTY.— 
(i) GENERALLY.—Any person who 
fails to comply with a discovery request 
shall be subject to a civil penalty, which 
shall be assessed by the Electronic Pay-
ment System Judges, of not more than 
$25,000 for each violation. Each day of 
violation shall constitute a separate viola-
tion. 
(ii) NOTICE AND HEARINGS.—No civil 
penalty may be assessed under this sub-
section except pursuant to an order of the 
Electronic Payment System Judges and 
unless the person accused of the violation 
was given prior notice and opportunity to 
request and participate in a hearing before 
the Electronic Payment System Judges 
with respect to the violation. 
(iii) DETERMINING AMOUNT.—In de-
termining the amount of any penalty as-
sessed pursuant to this subsection, the 
Electronic Payment System Judges shall 
take 
into 
account 
the 
nature, 
cir-
cumstances, extent, and gravity of the vio-
lation or violations and, with respect to the 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00033
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
violator, ability to pay, any prior history of 
such violations, the degree of culpability, 
economic benefit or savings (if any) result-
ing from the violation, and such other mat-
ters as justice may require. 
(iv) REVIEW.—Any person who re-
quested a hearing with respect to a civil 
penalty under this subsection and who is 
aggrieved by an order assessing the civil 
penalty may file a petition for judicial re-
view of such order with the United States 
Court of Appeals for the District of Co-
lumbia Circuit. Such a petition may be 
filed only within the 30-day period begin-
ning on the date the order making such as-
sessment was issued. The court shall have 
jurisdiction to enter a judgment affirming, 
modifying, or setting aside in whole or in 
part, the order of the Electronic Payment 
System Judges, or the court may remand 
the proceeding to the Electronic Payment 
System Judges for such further action as 
the court may direct. The Antitrust Divi-
sion shall represent the Electronic Pay-
ment System Judges before the court. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00034
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(v) ENFORCEMENT.—If any person 
fails to pay an assessment of a civil pen-
alty after it has become a final and 
unappealable order or after the appropriate 
court has entered final judgment, the Elec-
tronic Payment System Judges shall re-
quest the Antitrust Division to institute a 
civil action in an appropriate district court 
of the United States to collect the penalty, 
and such court shall have jurisdiction to 
hear and decide any such action. In hear-
ing such action, the court shall have au-
thority to review the violation and the as-
sessment of the civil penalty on the record. 
(c) DETERMINATION OF ELECTRONIC PAYMENT SYS-
TEM JUDGES.— 
(1) TIMING.—The Electronic Payment System 
Judges shall issue their determination in a pro-
ceeding the earlier of either (i) 11 months after the 
conclusion of the 21-day settlement conference pe-
riod under subsection (b)(3)(B)(ix) or (ii) 15 days 
before the expiration of the then current statutory 
rates and terms. 
(2) REHEARINGS.— 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00035
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(A) IN
GENERAL.—The Electronic Pay-
ment System Judges may, in exceptional cases, 
upon motion of a party in a proceeding under 
this Act, order a rehearing, after the determina-
tion in the proceeding is issued under para-
graph (1), on such matters as the Electronic 
Payment System Judges determine to be appro-
priate. 
(B) TIMING
FOR
FILING
MOTION.—Any 
motion for a rehearing under subparagraph (A) 
may be filed only within 15 days after the date 
on which the Electronic Payment System 
Judges deliver to the parties in the proceeding 
their initial determination concerning rates and 
terms. 
(C) PARTICIPATION BY OPPOSING PARTY 
NOT REQUIRED.—In any case in which a re-
hearing is ordered, any opposing party shall not 
be required to participate in the rehearing, ex-
cept that nonparticipation may give rise to the 
limitations with respect to judicial review pro-
vided for in subsection (d)(1). 
(D) NO NEGATIVE INFERENCE.—No nega-
tive inference shall be drawn from lack of par-
ticipation in a rehearing. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00036
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(E) CONTINUITY OF RATES AND TERMS.— 
(i) If the decision of the Electronic 
Payment System Judges on any motion for 
a rehearing is not rendered before the expi-
ration of the statutory rates and terms 
that were previously in effect, in the case 
of a proceeding to determine successors to 
rates and terms that expire on a specified 
date, then the initial determination of the 
Electronic Payment System Judges that is 
the subject of the rehearing motion shall 
be effective as of the day following the date 
on which the rates and terms that were 
previously in effect expire. 
(ii) The pendency of a motion for a 
rehearing under this paragraph shall not 
relieve persons obligated to make access 
fee payments who would be affected by the 
determination on that motion from paying 
the access fees required and complying 
with the terms under the relevant deter-
mination or regulations. 
(iii) 
Notwithstanding 
clause 
(ii), 
whenever access fees described in clause 
(ii) are paid, the recipient of those pay-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00037
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
ments shall, within 60 days after the mo-
tion for rehearing is resolved or, if the mo-
tion is granted, within 60 days after the 
rehearing is concluded, return any excess 
amounts previously paid to the extent nec-
essary to comply with the final determina-
tion of access rates and terms by the Elec-
tronic Payment System Judges. Any un-
derpayment of access fees resulting from a 
rehearing shall be paid within the same pe-
riod. 
(3) CONTENTS OF DETERMINATION.—A deter-
mination of the Electronic Payment System Judges 
shall include the rates and terms for access to the 
relevant covered electronic payment system, shall be 
supported by the written record, and shall set forth 
the findings of fact relied on by the Electronic Pay-
ment System Judges. The Electronic Payment Sys-
tem Judges shall make publicly available in their en-
tirety all determinations issued pursuant to this 
paragraph. 
(4) CONTINUING
JURISDICTION.—The Elec-
tronic Payment System Judges may, with the ap-
proval of the Antitrust Division and Commission, 
issue an amendment to a written determination to 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00038
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
correct any technical or clerical errors in the deter-
mination in response to unforeseen circumstances 
that would frustrate the proper implementation of 
such determination. Such amendment shall be set 
forth in a written addendum to the determination 
that shall be distributed to the parties to the pro-
ceeding and shall be published in the Federal Reg-
ister. 
(5) PROTECTIVE ORDER.—The Electronic Pay-
ment System Judges may issue such orders as may 
be appropriate to protect confidential information, 
including orders excluding confidential information 
from the record of the determination that is pub-
lished or made available to the public, except that 
any terms or rates of an access agreement, including 
those set forth in filings under section 3(d)(4), may 
not be excluded. 
(6) PUBLICATION OF DETERMINATION.—Within 
60 days of the Electronic Payment System Judges 
issuing a determination pursuant to this subsection, 
the Antitrust Division and Commission shall cause 
the determination, and any corrections thereto, to be 
published in the Federal Register. The Electronic 
Payment System Judges also shall publicize the de-
termination and corrections in such other manner as 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00039
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
the Antitrust Division and Commission consider ap-
propriate, including, but not limited to, publication 
on the Internet. The Electronic Payment System 
Judges also shall make the determination, correc-
tions, and the accompanying record available for 
public inspection and copying. 
(7) LATE PAYMENT.—A determination of Elec-
tronic Payment System Judges may include terms 
with respect to late payment, but in no way shall 
such terms prevent providers of a single covered 
electronic payment system from asserting other 
rights or remedies provided under this title. 
(d) JUDICIAL REVIEW.— 
(1) APPEAL.—Any determination of the Elec-
tronic Payment System Judges under subsection (c) 
may, within 30 days after the publication of the de-
termination in the Federal Register, be appealed, to 
the United States Court of Appeals for the District 
of Columbia Circuit, by any aggrieved party to the 
proceeding under this Act who would be bound by 
the determination. Any party that did not partici-
pate in a rehearing may not raise any issue that was 
the subject of that rehearing at any stage of judicial 
review of the hearing determination. If no appeal is 
brought within that 30-day period, the determina-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00040
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
tion of the Electronic Payment System Judges shall 
be final, and shall take effect as set forth in para-
graph (2). 
(2) EFFECT OF RATES AND TERMS.— 
(A) The pendency of an appeal under this 
subsection shall not relieve persons obligated to 
make access fee payments who would be af-
fected by the determination on appeal from pay-
ing the access fees required and complying with 
the terms under the relevant determination or 
regulations. 
(B) Notwithstanding subparagraph (A), 
whenever access fees described in subparagraph 
(A) are paid, the recipient of such payments 
shall, within 60 days after the final resolution 
of the appeal, return any excess amounts pre-
viously paid (and interest thereon, if ordered 
pursuant to paragraph (3)) to the extent nec-
essary to comply with the final determination of 
access rates and terms on appeal. Any under-
payment of access fees resulting from an appeal 
(and interest thereon, if ordered pursuant to 
paragraph (3)) shall be paid within the same 
period. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00041
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
(3) JURISDICTION
OF
COURT.—If the court, 
pursuant to section 706 of title 5, modifies or va-
cates a determination of the Electronic Payment 
System Judges, the court may enter its own deter-
mination with respect to the amount or distribution 
of access fees and costs, and order the repayment of 
any excess fees, the payment of any underpaid fees, 
and the payment of interest pertaining respectively 
thereto, in accordance with its final judgment. The 
court also may vacate the determination of the Elec-
tronic Payment System Judges and remand the case 
to the Electronic Payment System Judges for fur-
ther proceedings. 
(e) ADMINISTRATIVE MATTERS.— 
(1) AUTHORIZATION
OF
APPROPRIATIONS.— 
There are authorized to be appropriated such sums 
as may be necessary to pay the costs incurred under 
this Act. All funds made available pursuant to this 
subparagraph shall remain available until expended. 
(2) POSITIONS
REQUIRED
FOR
ADMINISTRA-
TION.—Section 307 of the Legislative Branch Ap-
propriations Act, 1994, shall not apply to employee 
positions in the Antitrust Division and Commission 
that are required to be filled in order to carry out 
section 3. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00042
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
SEC. 5. INSTITUTION OF PROCEEDINGS BEFORE ELEC-
TRONIC PAYMENT SYSTEM JUDGES. 
(a) INITIAL PROCEEDINGS.— 
(1) TIMING.—Proceedings referred to in section 
3(d)(1) shall be commenced as soon as practicable 
after the effective date of the Credit Card Fair Fee 
Act of 2008 to determine access terms and rates 
under section 3 for access to covered electronic pay-
ment systems, to be effective for the period begin-
ning on January 1, 2010, and ending on December 
31, 2011. The Electronic Payment System Judges 
shall cause notice of commencement of such pro-
ceedings to be published in the Federal Register. 
(2) PROCEDURES
SPECIFIC
TO
THE
INITIAL 
PROCEEDINGS.— 
(A) DISCOVERY PERIOD.—Notwithstanding 
section 5(b)(4)(B)(iv), discovery in the initial 
proceedings addressed in this subsection shall 
be permitted for a period of 90 days, except for 
discovery ordered by the Electronic Payment 
System Judges in connection with the resolu-
tion of motions, orders, and disputes pending at 
the end of such period. 
(B) CONSIDERATION
OF
CHANGES
IN 
RATES AND TERMS BETWEEN DATE OF ENACT-
MENT AND INITIAL DETERMINATION.—In deter-
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00043
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
mining the access rates and terms under section 
3 for access to covered electronic payment sys-
tems, to be effective for the period beginning on 
January 1, 2010 and ending on December 31, 
2011, the Electronic Payment System Judges 
shall consider changes in rates and terms made 
by a covered electronic payments system be-
tween the date of enactment of this Act and 
such initial determination. Based upon such 
consideration, the Electronic Payment System 
Judges may adjust their determination of the 
rates and terms for this initial proceeding to re-
flect the economic impact such changes had on 
the parties. 
(b) SUBSEQUENT PROCEEDINGS.—Subsequent to the 
proceedings addressed in subsection (a), proceedings re-
ferred to in section 3(d)(1) shall next be commenced in 
2010 to determine access rates and terms to become effec-
tive on January 1, 2012. Thereafter, such proceedings 
shall be repeated in each subsequent third calendar year. 
The Electronic Payment System Judges shall cause notice 
of commencement of proceedings referred to in section 
3(d)(1) to be published in the Federal Register. 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00044
Fmt 6652
Sfmt 6201
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS
SEC. 6. GENERAL RULE FOR VOLUNTARILY NEGOTIATED 
ACCESS AGREEMENTS. 
Any access rates or terms under this title that— 
(1) are agreed to pursuant to a voluntarily ne-
gotiated access agreement for a period shorter than 
would otherwise apply under a determination pursu-
ant to this Act and 
(2) are then adopted by the Electronic Payment 
System Judges as part of a determination under this 
Act 
shall remain in effect for such period of time as would 
otherwise apply under such determination, except that the 
Electronic Payment System Judges shall adjust those 
rates to reflect national monetary inflation during the ad-
ditional period the rates remain in effect beyond that con-
templated in the voluntarily negotiated access agreement. 
SEC. 7. EFFECTIVE DATE. 
The effective date of this Act shall be the date of en-
actment. 
Æ 
VerDate Aug 31 2005 
22:45 Mar 06, 2008
Jkt 069200
PO 00000
Frm 00045
Fmt 6652
Sfmt 6301
E:\BILLS\H5546.IH
H5546
hsrobinson on PROD1PC76 with BILLS