[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5546 Introduced in House (IH)]







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 Representatives 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''.

SEC. 2. LIMITED ANTITRUST IMMUNITY FOR THE NEGOTIATION AND 
              DETERMINATION OF RATES AND TERMS FOR ACCESS TO COVERED 
              ELECTRONIC 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 specified 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 includes section 5 of the 
        Federal Trade Commission 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 calendar 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 obtain 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 cardholder's account for the purpose of 
        that cardholder obtaining goods or services, whether 
        authorization is signature-based or PIN-based.
            (10) ``Electronic payment system'' means the proprietary 
        services and infrastructure that route information and data to 
        facilitate transaction authorization, clearance, and settlement 
        that merchants must access in order to accept a specific brand 
        of general-purpose credit and/or debit cards as payment for 
        goods and services.
            (11) ``Financial institution'' has the same meaning as in 
        section 603(t) of the Fair Credit Reporting 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 payment 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 profitably to raise 
        prices above those that would be charged in a perfectly 
        competitive market.
            (14) ``Merchant'' means any person who accepts credit cards 
        and/or debit cards in payment for goods or services that they 
        provide.
            (15) ``Normal rate of return'' means the average rate of 
        return that a firm would receive in an industry when conditions 
        of perfect competition prevail.
            (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 subsection (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 section 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 electronic 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 
        electronic 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 system by merchants shall be subject to this 
Act.
    (c) Authority and Limited Antitrust Immunity for Negotiations and 
Participation in Proceedings.--Notwithstanding any provision of the 
antitrust laws, in negotiating access rates and terms and participating 
in any proceedings in accordance with subsection (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 
covered electronic payment system, including through the use of common 
agents that represent either providers of a single covered electronic 
payment system or merchants on a non-exclusive basis. Any providers of 
a single covered electronic payment system also may jointly determine 
the proportionate 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 covered 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 
        period 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 single covered electronic payment system 
                shall, subject to paragraph (4), be binding on all 
                providers of that single covered electronic payment 
                system and merchants affected by this paragraph during 
                the 3-year period specified in subparagraph (1). For 
                any given covered electronic payment system, such rates 
                and terms shall be the same for all merchants, 
                regardless of merchant category or volume of 
                transactions (either in number or dollar value) 
                generated.
                    (B) Standard for determinations.--In establishing 
                rates and terms for access to a covered electronic 
                payment system by merchants, the Electronic Payment 
                System Judges shall establish rates and terms that most 
                closely represent the rates and terms that would be 
                negotiated in a hypothetical perfectly 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 determining 
                such rates and terms, the Electronic Payment System 
                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. The Electronic Payment System 
                Judges shall not include any anticompetitive rates or 
                terms.
                    (C) Use of existing rates and terms as evidence.--
                In determining such rates and terms, the Electronic 
                Payment System Judges generally shall decide the 
                appropriate weight to be given to any evidence 
                submitted by a party regarding the rates and terms for 
                access to comparable electronic payment systems, 
                including rates and terms set forth in voluntarily 
                negotiated access agreements filed pursuant to 
                subparagraph (4). The Electronic Payment System Judges 
                shall give significant weight, however, to rates 
                voluntarily negotiated between one or more providers of 
                a single covered electronic payments system and one or 
                more merchants that are substantially below those rates 
                reflective of the market power of covered electronic 
                payment systems that existed prior to the enactment of 
                this Act.
            (3) Initiation.--The procedures under subparagraphs (1) and 
        (2) shall be initiated pursuant to section 5.
            (4) Voluntarily negotiated access agreements.--
                    (A) Agreements between the parties.--Voluntarily 
                negotiated access agreements 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 parties in lieu of 
                any determination by the Electronic Payment System 
                Judges.
                    (B) Filing agreements with the electronic payment 
                system judges.--Any providers 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 access 
                agreements that affect any domestic or international 
                market, including related documentation evidencing any 
                consideration being given, any marketing or promotional 
                agreements between the parties, and any subsequent 
                amendments to such agreements and documentation.
                    (C) Timing of and access to filings.--The parties 
                to any voluntarily negotiated access agreement executed 
                subsequent to the enactment 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, amendments, and related documentation 
                executed subsequent 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 perfectly 
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 determining such rates and terms, the Electronic 
Payment System 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 procedural rulings that would apply to the proceedings conducted by 
the Electronic Payment System Judges.
    (d) Administrative Support.--The Antitrust Division 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 Payment System Judges 
and staff shall be in the Antitrust Division or Commission.
    (f) Qualifications of Electronic Payment System 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 electronic 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 section 551 
        of title 5, but does not include mediation.
    (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 appointed to a term of 6 years, and of 
the remaining individuals 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. Thereafter, 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 predecessor 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 expeditiously 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 appointed to fill the vacancy 
        occurring before the expiration 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 Electronic 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 
        during 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 administrative 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 administrative law judges 
        pursuant to such section. The compensation of the Electronic 
        Payment System Judges shall not be subject to any regulations 
        adopted 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 System Judge.--
            (1) In making determinations.--
                    (A) In general.--The Electronic Payment System 
                Judges shall have full independence in making 
                determinations concerning adjustments and 
                determinations of rates and terms for access to covered 
                electronic payment systems and in issuing other rulings 
                under this title, except that the Electronic Payment 
                System Judges may consult with the Antitrust Division 
                and Commission on any matter other than a question of 
                fact.
                    (B) Consultation.--Notwithstanding the provisions 
                of subparagraph (A), the Electronic Payment System 
                Judges shall consult with the Antitrust Division and 
                Commission with respect to any determination or ruling 
                that would require that any act be performed by the 
                Antitrust Division and Commission, and any such 
                determination or ruling shall not be binding upon the 
                Antitrust Division or Commission.
            (2) Performance appraisals.--
                    (A) In general.--Notwithstanding any other 
                provision of law or any regulation of the Antitrust 
                Division and Commission, and subject to subparagraph 
                (B), the Electronic Payment System Judges shall not 
                receive performance appraisals.
                    (B) Relating to sanction or removal.--To the extent 
                that the Antitrust Division and Commission adopt 
                regulations under subsection (m) relating to the 
                sanction or removal 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 receive 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 Division and Commission 
shall adopt regulations regarding the standards of conduct, including 
financial conflict of interest 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, 
neglect of duty, or any disqualifying physical or mental disability. 
Any such sanction or removal may be made only after notice and 
opportunity for a hearing, but the Antitrust Division and Commission 
may suspend the Electronic 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 regulations issued by the Electronic 
        Payment System Judges and the Antitrust Division and 
        Commission, and on the basis of a written record, prior 
        determinations and interpretations of the Electronic Payment 
        System Judges under this Act, and decisions of the court of 
        appeals under this section.
            (2) Judges acting as panel and individually.--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 proceedings under 
        paragraphs (1) and (2) of subsection (b), as the Chief Judge 
        considers appropriate.
            (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 Electronic 
        Payment System Judges its final offer of rates and terms. 
        Simultaneously, the party obligated to pay access fee payments 
        shall file with the Electronic 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 Electronic 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 determination 
        under this Act may issue his or her dissenting opinion, which 
        shall be included with the determination.
    (b) Procedures.--
            (1) Initiation.--The Electronic Payment System Judges shall 
        cause to be published in the Federal 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 voluntary negotiation period among the 
                parties.
                    (B) Length.--The voluntary negotiation period 
                initiated under subparagraph (A) shall be 3 months. 
                Nothing in this subsection, however, prohibits parties 
                from negotiating and entering into voluntarily 
                negotiated access agreements at any other time.
                    (C) Determination of need for subsequent 
                proceedings.--At the close of the voluntary negotiation 
                proceedings, the Electronic Payment System Judges shall 
                determine if further proceedings under this Act are 
                necessary. 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 extent certain providers or 
                merchants pursue voluntarily negotiated access 
                agreements.
            (3) Regulations.--
                    (A) In general.--The Electronic Payment 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 enactment 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 
                System Judges shall consider the regulations issued by 
                the Copyright Royalty Judges pursuant to 17 U.S.C. 
                803(b)(6).
                    (B) Requirements.--Regulations issued under 
                subparagraph (A) shall include the following:
                            (i) Written direct statements.--The written 
                        direct statements of the parties to a 
                        proceeding shall be filed by a date specified 
                        by the Electronic Payment System 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). 
                        Notwithstanding the preceding sentence, the 
                        Electronic Payment System Judges may allow a 
                        party in a proceeding to file an amended 
                        written direct statement based on new 
                        information 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 
                        statements'' means witness statements, 
                        testimony, 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.--Following 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 conducting and completing 
                        discovery. Such schedule shall be determined by 
                        the Electronic 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 proceeding 
                        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 electronic payment system, the 10 
                        largest acquirers for the covered electronic 
                        payment system, and any person operating or 
                        controlling the covered electronic payment 
                        system must produce to merchants both the costs 
                        necessary to provide that electronic payment 
                        system for processing credit and/or debit card 
                        transactions that were incurred during the most 
                        recent full calendar year prior to the 
                        initiation of the 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 regarding rates 
                        and terms for access to the covered electronic 
                        payment system. Any disagreement between the 
                        providers of a single covered electronic 
                        payment system and the merchants regarding 
                        which persons are required to make such initial 
                        disclosures shall be resolved by the Electronic 
                        Payment 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 identified 
                                by the other party. Each party also 
                                shall be permitted to take five 
                                additional depositions in the entire 
                                proceeding.
                                    (II) A deposition notice or 
                                subpoena may name as the deponent a 
                                public or private corporation or a 
                                partnership or association and describe 
                                with reasonable particularity the 
                                matters on which examination is 
                                requested. In that event, the 
                                organization 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 testify. 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 permitted 
                                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 permitted 
                                under this clause.
                            (v) Written discovery.--In a proceeding 
                        under this Act to determine access rates and 
                        terms, each party shall be permitted to serve 
                        written discovery requests on 10 persons. These 
                        written discovery requests may include requests 
                        for production or inspection, a total of no 
                        more than 10 requests for admission in the 
                        entire proceeding, and a total of no more than 
                        25 interrogatories 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 interrogatories permitted under 
                        this clause.
                            (vi) Subpoenas.--Upon the request of a 
                        party to a proceeding to determine access rates 
                        and terms, the Electronic Payment System Judges 
                        may issue a subpoena commanding a person to 
                        appear and give testimony, or to produce and 
                        permit inspection of documents or tangible 
                        things, if the Electronic Payment System 
                        Judges' resolution of the proceeding may be 
                        substantially impaired by the absence of such 
                        testimony or production of documents or 
                        tangible things. Such subpoena shall specify 
                        with reasonable particularity the materials to 
                        be produced or the scope and nature 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 requests.--
                        Any objection to such a request or subpoena 
                        shall be resolved by a motion or request to 
                        compel production made to 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 
                        Payment System Judge when permitted under 
                        subsection (a)(2). Upon such motion, the 
                        Electronic Payment System Judges may order 
                        discovery pursuant to regulations established 
                        under this paragraph. In determining whether 
                        discovery will be granted under this clause, 
                        the Electronic Payment System Judges may 
                        consider--
                                    (I) whether the burden or expense 
                                of producing the requested information 
                                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 
                                information or materials would be 
                                unreasonably cumulative or duplicative, 
                                or are obtainable from another source 
                                that is more convenient, less 
                                burdensome, 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 access 
                        agreements.--In proceedings to determine access 
                        rates and terms, the Electronic Payment System 
                        Judges shall make available to the parties all 
                        documents filed pursuant to section 3(d)(4), 
                        including related documentation evidencing any 
                        consideration being given, any marketing or 
                        promotional 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 between the parties. The 
                        settlement conference shall be held during a 
                        21-day period following the end of the 
                        discovery period and shall take place outside 
                        the presence of the Electronic Payment System 
                        Judges.
                            (x) Direct and rebuttal hearings.--At the 
                        conclusion of the 21-day period following the 
                        end of the discovery period, the Electronic 
                        Payment System Judges shall determine if 
                        further proceedings 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 submitted in the 
                        written direct statement or written rebuttal 
                        statement of a party without a sponsoring 
                        witness, except for requests for admission that 
                        have been admitted by the receiving party, 
                        where the Electronic 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 admitted in 
                        proceedings under this Act to the extent deemed 
                        relevant and reliable by the Electronic Payment 
                        System Judges.
                            (xiii) Applicability of the federal 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 substantial 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;
                            (iii) answer an interrogatory submitted 
                        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 document 
                        or the truth of any matter as requested under 
                        section 3(b)(3)(B), and the person requesting 
                        the admissions thereafter proves the 
                        genuineness of the document or the truth of the 
                        matter.
                For purposes of this Act, any disclosure, answer, or 
                response that is false or substantially misleading, 
                evasive, or incomplete is to be treated 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 Payment 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.
                    (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 Payment System 
                        Judges, of not more than $25,000 for each 
                        violation. Each day of violation shall 
                        constitute a separate violation.
                            (ii) Notice and hearings.--No civil penalty 
                        may be assessed under this subsection 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 determining 
                        the amount of any penalty assessed pursuant to 
                        this subsection, the Electronic Payment System 
                        Judges shall take into account the nature, 
                        circumstances, extent, and gravity of the 
                        violation or violations and, with respect to 
                        the violator, ability to pay, any prior history 
                        of such violations, the degree of culpability, 
                        economic benefit or savings (if any) resulting 
                        from the violation, and such other matters as 
                        justice may require.
                            (iv) Review.--Any person who requested 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 review of such order with 
                        the United States Court of Appeals for the 
                        District of Columbia Circuit. Such a petition 
                        may be filed only within the 30-day period 
                        beginning on the date the order making such 
                        assessment 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 Division shall represent 
                        the Electronic Payment System Judges before the 
                        court.
                            (v) Enforcement.--If any person fails to 
                        pay an assessment of a civil penalty after it 
                        has become a final and unappealable order or 
                        after the appropriate court has entered final 
                        judgment, the Electronic Payment System Judges 
                        shall request 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 hearing such action, the court shall 
                        have authority to review the violation and the 
                        assessment of the civil penalty on the record.
    (c) Determination of Electronic Payment System Judges.--
            (1) Timing.--The Electronic Payment System Judges shall 
        issue their determination in a proceeding the earlier of either 
        (i) 11 months after the conclusion of the 21-day settlement 
        conference period under subsection (b)(3)(B)(ix) or (ii) 15 
        days before the expiration of the then current statutory rates 
        and terms.
            (2) Rehearings.--
                    (A) In general.--The Electronic Payment System 
                Judges may, in exceptional cases, upon motion of a 
                party in a proceeding under this Act, order a 
                rehearing, after the determination in the proceeding is 
                issued under paragraph (1), on such matters as the 
                Electronic Payment System Judges determine to be 
                appropriate.
                    (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 rehearing is ordered, any 
                opposing party shall not be required to participate in 
                the rehearing, except that nonparticipation may give 
                rise to the limitations with respect to judicial review 
                provided for in subsection (d)(1).
                    (D) No negative inference.--No negative inference 
                shall be drawn from lack of participation in a 
                rehearing.
                    (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 expiration 
                        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 determination or 
                        regulations.
                            (iii) Notwithstanding clause (ii), whenever 
                        access fees described in clause (ii) are paid, 
                        the recipient of those payments shall, within 
                        60 days after the motion for rehearing is 
                        resolved or, if the motion is granted, within 
                        60 days after the rehearing is concluded, 
                        return any excess amounts previously paid to 
                        the extent necessary to comply with the final 
                        determination of access rates and terms by the 
                        Electronic Payment System Judges. Any 
                        underpayment of access fees resulting from a 
                        rehearing shall be paid within the same period.
            (3) Contents of determination.--A determination 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 Payment 
        System Judges. The Electronic Payment System Judges shall make 
        publicly available in their entirety all determinations issued 
        pursuant to this paragraph.
            (4) Continuing jurisdiction.--The Electronic Payment System 
        Judges may, with the approval of the Antitrust Division and 
        Commission, issue an amendment to a written determination to 
        correct any technical or clerical errors in the determination 
        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 proceeding and 
        shall be published in the Federal Register.
            (5) Protective order.--The Electronic Payment 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 published 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 
        determination and corrections in such other manner as the 
        Antitrust Division and Commission consider appropriate, 
        including, but not limited to, publication on the Internet. The 
        Electronic Payment System Judges also shall make the 
        determination, corrections, and the accompanying record 
        available for public inspection and copying.
            (7) Late payment.--A determination of Electronic 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 Electronic Payment 
        System Judges under subsection (c) may, within 30 days after 
        the publication of the determination 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 participate 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 determination of the Electronic Payment System 
        Judges shall be final, and shall take effect as set forth in 
        paragraph (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 affected by the determination on 
                appeal from paying 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 previously paid (and interest thereon, if 
                ordered pursuant to paragraph (3)) to the extent 
                necessary to comply with the final determination of 
                access rates and terms on appeal. Any underpayment of 
                access fees resulting from an appeal (and interest 
                thereon, if ordered pursuant to paragraph (3)) shall be 
                paid within the same period.
            (3) Jurisdiction of court.--If the court, pursuant to 
        section 706 of title 5, modifies or vacates a determination of 
        the Electronic Payment System Judges, the court may enter its 
        own determination 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 Electronic Payment System Judges and remand the case to 
        the Electronic Payment System Judges for further 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 administration.--Section 307 of 
        the Legislative Branch Appropriations 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.

SEC. 5. INSTITUTION OF PROCEEDINGS BEFORE ELECTRONIC 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 payment systems, to be effective for the period 
        beginning on January 1, 2010, and ending on December 31, 2011. 
        The Electronic Payment System Judges shall cause notice of 
        commencement of such proceedings 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 
                resolution of motions, orders, and disputes pending at 
                the end of such period.
                    (B) Consideration of changes in rates and terms 
                between date of enactment and initial determination.--
                In determining the access rates and terms under section 
                3 for access to covered electronic payment systems, 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 
                between 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 reflect the economic impact such changes 
                had on the parties.
    (b) Subsequent Proceedings.--Subsequent to the proceedings 
addressed in subsection (a), proceedings referred to in section 3(d)(1) 
shall next be commenced in 2010 to determine access rates and terms to 
become effective 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.

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 negotiated 
        access agreement for a period shorter than would otherwise 
        apply under a determination pursuant 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 additional period the rates remain in effect beyond that 
contemplated in the voluntarily negotiated access agreement.

SEC. 7. EFFECTIVE DATE.

    The effective date of this Act shall be the date of enactment.
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