[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3086 Introduced in Senate (IS)]







110th CONGRESS
  2d Session
                                S. 3086

To amend the antitrust laws to ensure competitive market-based fees and 
       terms for merchants' access to electronic payment systems.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 5, 2008

  Mr. Durbin introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend the antitrust laws to ensure competitive market-based fees 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 FEES AND TERMS FOR ACCESS TO COVERED 
              ELECTRONIC PAYMENT SYSTEMS.

    (a) Definitions.--In this Act:
            (1) Access.--The term ``access''--
                    (A) when used as a verb means to use to conduct 
                transaction authorization, clearance, and settlement 
                involving the acceptance of credit cards or debit cards 
                from consumers for payment for goods or services and 
                the receipt of payment for such goods or services; and
                    (B) when used as a noun means the permission or 
                authority to use to conduct transactions described in 
                subparagraph (A).
            (2) Access agreement.--The term ``access agreement'' means 
        an agreement between 1 or more merchants and 1 or more 
        providers giving the merchant access to a covered electronic 
        payment system, conditioned solely upon the merchant complying 
        with the fees and terms specified in the agreement.
            (3) Acquirer.--The term ``acquirer''--
                    (A) means a financial institution that provides 
                services allowing merchants to access an electronic 
                payment system to accept credit cards or debit cards 
                for payment; and
                    (B) does not include an independent third party 
                processor that may act as the agent of a financial 
                institution described in subparagraph (A) in processing 
                general-purpose credit card or debit card transactions.
            (4) Adjudication.--The term ``adjudication'' has the 
        meaning given that term in section 551 of title 5, United 
        States Code, and does not include mediation.
            (5) Antitrust division.--The term ``Antitrust Division'' 
        means the Antitrust Division of the Department of Justice.
            (6) Antitrust laws.--The term ``antitrust laws''--
                    (A) has the meaning given that term in subsection 
                (a) of the first section of the Clayton Act (15 U.S.C. 
                12(a)); and
                    (B) also includes--
                            (i) section 5 of the Federal Trade 
                        Commission Act (15 U.S.C. 45) to the extent 
                        section 5 applies to unfair methods of 
                        competition; and
                            (ii) State antitrust laws.
            (7) Assistant attorney general.--The term ``Assistant 
        Attorney General'' means the Assistant Attorney General in 
        charge of the Antitrust Division of the Department of Justice.
            (8) Chairman.--The term ``Chairman'' means the Chairman of 
        the Federal Trade Commission.
            (9) Commission.--The term ``Commission'' means the Bureau 
        of Competition of the Federal Trade Commission.
            (10) Covered electronic payment system.--The term ``covered 
        electronic payment system'' means an electronic payment system 
        that routes information and data to facilitate transaction 
        authorization, clearance, and settlement for not less than 20 
        percent of the combined dollar value of credit card and debit 
        card payments processed in the United States in the most recent 
        full calendar year.
            (11) Credit card.--The term ``credit card'' means any 
        general-purpose card or other credit device issued or approved 
        for use by a financial institution for use in allowing the 
        cardholder to obtain goods or services on credit on terms 
        specified by that financial institution.
            (12) Debit card.--The term ``debit card'' means any 
        general-purpose card or other device issued or approved for use 
        by a financial institution for use in debiting the account of a 
        cardholder for the purpose of that cardholder obtaining goods 
        or services, whether authorization is signature-based or PIN-
        based.
            (13) Electronic payment system.--The term ``electronic 
        payment system'' means the proprietary services, 
        infrastructure, and software that route information and data to 
        facilitate transaction authorization, clearance, and settlement 
        and that merchants are required to access in order to accept a 
        specific brand of general-purpose credit cards or debit cards 
        as payment for goods or services.
            (14) Electronic payment system judges.--The term 
        ``Electronic Payment System Judges'' means the Electronic 
        Payment System Judges appointed under section 3(a).
            (15) Fees.--The term ``fees'' means any monetary charges, 
        rates, assessments, or other payments imposed by a provider 
        upon a merchant for the merchant to access an electronic 
        payment system.
            (16) Financial institution.--The term ``financial 
        institution'' has the meaning given that term in section 603(t) 
        of the Fair Credit Reporting Act (15 U.S.C. 1681a(t)).
            (17) Issuer.--The term ``issuer''--
                    (A) means a financial institution that issues 
                credit cards or debit cards or approves the use of 
                other devices for use in an electronic payment system; 
                and
                    (B) does not include an independent third party 
                processor that may act as the agent of a financial 
                institution described in subparagraph (A) in processing 
                general-purpose credit or debit card transactions.
            (18) Market power.--The term ``market power'' means the 
        ability to profitably raise prices above those that would be 
        charged in a perfectly competitive market.
            (19) Merchant.--The term ``merchant'' means any person who 
        accepts or who seeks to accept credit cards or debit cards in 
        payment for goods or services provided by the person.
            (20) Negotiating party.--The term ``negotiating party'' 
        means 1 or more providers of a covered electronic payment 
        system or 1 or more merchants who have access to or who are 
        seeking access to that covered electronic payment system, as 
        the case may be, and who are in the process of negotiating or 
        who have executed a voluntarily negotiated access agreement 
        that is still in effect.
            (21) Normal rate of return.--The term ``normal rate of 
        return'' means the average rate of return that a firm would 
        receive in an industry when conditions of perfect competition 
        prevail.
            (22) Proceeding party.--The term ``proceeding party'' means 
        collectively all providers of a covered electronic payment 
        system or collectively all merchants who have access to or who 
        are seeking access to that covered electronic payment system, 
        as the case may be, during the period in which the Electronic 
        Payment System Judges are conducting a proceeding under this 
        Act relating to that covered electronic payment system.
            (23) Person.--The term ``person'' has the meaning given 
        that term in subsection (a) of the first section of the Clayton 
        Act (15 U.S.C. 12(a)).
            (24) Provide.--The term ``provide'' means to make available 
        for access.
            (25) Provider.--The term ``provider'' means any person who 
        owns, operates, controls, serves as an issuer for, or serves as 
        an acquirer for a covered electronic payment system.
            (26) State.--The term ``State'' has the meaning given that 
        term in section 4G(2) of the Clayton Act (15 U.S.C. 15g(2)).
            (27) Terms.--The term ``terms'' means any and all rules and 
        conditions that are applicable to providers of an electronic 
        payment system or to merchants, as the case may be, and that 
        are required in order for merchants to access that electronic 
        payment system.
            (28) Voluntarily negotiated access agreement.--The term 
        ``voluntarily negotiated access agreement'' means an access 
        agreement voluntarily negotiated between 1 or more providers of 
        a covered electronic payment system and 1 or more merchants 
        that sets the fees and terms under which the merchant can 
        access that covered electronic payment system.
            (29) Written direct statements.--The term ``written direct 
        statements'' means witness statements, testimony, and exhibits 
        to be presented in proceedings under this Act, and such other 
        information that is necessary to establish fees and terms for 
        access to covered electronic payment systems as set forth in 
        regulations issued by the Electronic Payment System Judges 
        under section 4(b)(4).
    (b) Access to Covered Electronic Payment Systems.--Access by a 
merchant to any covered electronic payment system and the fees and 
terms of such access 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--
            (1) in negotiating fees and terms and participating in any 
        proceedings under subsection (d), any providers of a covered 
        electronic payment system and any merchants who have access to 
        or who are seeking access to that covered electronic payment 
        system may jointly negotiate and agree upon the fees and terms 
        for access to the covered electronic payment system, including 
        through the use of common agents that represent the providers 
        of the covered electronic payment system or the merchants on a 
        nonexclusive basis; and
            (2) any providers of a single covered electronic payment 
        system also may jointly determine the proportionate division 
        among such providers of paid fees.
    (d) Establishment of Fees and Terms.--
            (1) Voluntarily negotiated access agreements.--
                    (A) Agreements between negotiating parties.--A 
                voluntarily negotiated access agreement may be executed 
                at any time between 1 or more providers of a covered 
                electronic payment system and 1 or more merchants. With 
                respect to the negotiating parties, such executed 
                voluntarily negotiated access agreement shall supersede 
                any fees or terms established by the Electronic Payment 
                System Judges under paragraph (3) relating to that 
                covered electronic payment system.
                    (B) Filing agreements with the electronic payment 
                system judges.--The negotiating parties shall jointly 
                file with the Electronic Payment System Judges--
                            (i) any voluntarily negotiated access 
                        agreement that affects any market in the United 
                        States or elsewhere;
                            (ii) any documentation relating to a 
                        voluntarily negotiated access agreement 
                        evidencing any consideration being given or any 
                        marketing or promotional agreement between the 
                        negotiating parties; and
                            (iii) any amendment to that voluntarily 
                        negotiated access agreement or documentation.
                    (C) Timing and availability of filings.--The 
                negotiating parties to any voluntarily negotiated 
                access agreement executed after the date of enactment 
                of this Act shall jointly file the voluntarily 
                negotiated access agreement, and any documentation or 
                amendment described in subparagraph (B), with the 
                Electronic Payment System Judges not later than 30 days 
                after the date of execution of the voluntarily 
                negotiated access agreement or amendment or the date of 
                the creation of the documentation, as the case may be. 
                The Electronic Payment System Judges shall make 
                publicly available any voluntarily negotiated access 
                agreement, amendment, or accompanying documentation 
                filed under this paragraph.
            (2) Initiation of proceedings.--The proceedings under this 
        subsection to establish fees and terms for access to a covered 
        electronic payment system shall be initiated in accordance with 
        section 5.
            (3) Proceedings.--
                    (A) In general.--The Electronic Payment System 
                Judges shall conduct proceedings under this Act to 
                establish fees and terms for access to a covered 
                electronic payment system. Except as specifically 
                provided in a voluntarily negotiated access agreement, 
                a provider of a covered electronic payment system may 
                not directly or indirectly charge fees or set terms for 
                access to a covered electronic payment system that are 
                not in accordance with the fees and terms established 
                by the Electronic Payment System Judges pursuant to 
                proceedings under this Act.
                    (B) Period of applicability.--Except as provided in 
                section 5, the fees and terms established under this 
                paragraph with respect to a covered electronic payment 
                system shall apply during the 3-year period beginning 
                on January 1 of the second year following the year in 
                which the proceedings to establish such fees and terms 
                are commenced.
                    (C) Standard for establishment of fees and terms by 
                the electronic payment system judges.--
                            (i) In general.--In establishing fees and 
                        terms for access to a covered electronic 
                        payment system under subparagraph (A), the 
                        Electronic Payment System Judges--
                                    (I) shall be limited to selecting, 
                                without modification, 1 of the 2 final 
                                offers of fees and terms filed by the 
                                proceeding parties pursuant to section 
                                4(c)(2)(A); and
                                    (II) shall select the final offer 
                                of fees and terms that most closely 
                                represent the fees 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.
                            (ii) Standards.--In determining which final 
                        offer of fees and terms to select, the 
                        Electronic Payment System Judges--
                                    (I) shall consider the costs of 
                                transaction authorization, clearance, 
                                and settlement that are necessary to 
                                provide and access an electronic 
                                payment system;
                                    (II) shall consider a normal rate 
                                of return in a hypothetical perfectly 
                                competitive marketplace;
                                    (III) shall avoid selecting a final 
                                offer of fees and terms that would have 
                                anticompetitive effects within the 
                                issuer market, the acquirer market, or 
                                the merchant market;
                                    (IV) may select a final offer that 
                                is a schedule of fees and terms that 
                                varies based upon cost-based 
                                differences in types of credit card and 
                                debit card transactions (which may 
                                include whether a transaction is of a 
                                signature-based, PIN-based, or card-
                                not-present type); and
                                    (V) may not select a final offer 
                                that is a schedule of fees and terms 
                                that varies based on type of merchant 
                                or volume of transactions (either in 
                                number or dollar value).
                    (D) Use of existing fees and terms as evidence.--In 
                establishing fees and terms for access to a covered 
                electronic payment system under this paragraph, the 
                Electronic Payment System Judges--
                            (i) shall decide the weight to be given to 
                        any evidence submitted by a proceeding party 
                        regarding the fees and terms for access to 
                        comparable electronic payment systems, 
                        including fees and terms in voluntarily 
                        negotiated access agreements filed under 
                        paragraph (1); and
                            (ii) shall give significant weight to fees 
                        in a voluntarily negotiated access agreement 
                        that are substantially below the fees 
                        reflective of the market power of the covered 
                        electronic payment systems that existed before 
                        the date of enactment of this Act.

SEC. 3. ELECTRONIC PAYMENT SYSTEM JUDGES.

    (a) Appointment.--The Assistant Attorney General and the Chairman 
shall jointly appoint 3 full-time Electronic Payment System Judges, and 
shall appoint 1 of the 3 Electronic Payment System Judges as the Chief 
Electronic Payment System Judge.
    (b) Duties.--The Electronic Payment System Judges shall establish 
fees and terms for access to covered electronic payment systems in 
accordance with this Act.
    (c) Rulings.--The Electronic Payment System Judges may make any 
necessary procedural or evidentiary ruling in a proceeding under this 
Act and may, before commencing a proceeding under this Act, make any 
procedural ruling that will apply to a proceeding under this Act.
    (d) Administrative Support.--The Assistant Attorney General and 
Chairman 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 located in the offices of the Antitrust Division or 
Commission.
    (f) Qualifications of Electronic Payment System Judges.--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. One Electronic Payment System Judge who 
is not the Chief Electronic Payment System Judge shall have significant 
knowledge of electronic payment systems, and the other such Electronic 
Payment System Judge 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 the 
standards established under subsection (m).
    (g) Staff.--The Chief Electronic Payment System Judge shall hire 3 
full-time staff members to assist the Electronic Payment System Judges 
in performing the duties of the Electronic Payment System Judges under 
this Act.
    (h) Terms.--
            (1) Initial appointments.--For the first appointments of 
        Electronic Payment System Judges after the date of enactment of 
        this Act--
                    (A) the Chief Electronic Payment System Judge shall 
                be appointed for a term of 6 years;
                    (B) 1 Electronic Payment System Judge who is not 
                the Chief Electronic Payment System Judge shall be 
                appointed for a term of 4 years; and
                    (C) 1 Electronic Payment System Judge who is not 
                the Chief Electronic Payment System Judge shall be 
                appointed for a term of 2 years.
            (2) Subsequent appointment.--After the appointments under 
        paragraph (1), an Electronic Payment System Judge shall be 
        appointed for a term of 6 years.
            (3) Reappointment.--An individual serving as an Electronic 
        Payment System Judge may be reappointed to subsequent terms.
            (4) Start and end of terms.--The term of an Electronic 
        Payment System Judge shall begin on the date on which the term 
        of the predecessor of that Electronic Payment System Judge 
        ends. If a successor Electronic Payment System Judge has not 
        been appointed as of the date on which the term of office of an 
        Electronic Payment System Judge ends, the individual serving 
        that term may continue to serve until a successor is appointed.
    (i) Vacancies or Incapacity.--
            (1) Vacancies.--The Assistant Attorney General and the 
        Chairman shall act expeditiously to fill any vacancy in the 
        position of Electronic Payment System Judge, and may appoint an 
        interim Electronic Payment System Judge to serve until an 
        Electronic Payment System Judge is appointed to fill the 
        vacancy under this section. An individual appointed to fill a 
        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.--If an Electronic Payment System Judge is 
        temporarily unable to perform the duties of an Electronic 
        Payment System Judge, the Assistant Attorney General and the 
        Commissioner 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 under section 5372(b) 
        of title 5, United States Code, and each Electronic Payment 
        System Judge who is not the Chief Electronic Payment System 
        Judge shall receive compensation at the rate of basic pay 
        payable for level AL-2 for administrative law judges under such 
        section. The compensation of the Electronic Payment System 
        Judges shall not be subject to any regulations adopted by the 
        Office of Personnel Management under its authority under 
        section 5376(b)(1) of title 5, United States Code.
            (2) Staff members.--Of the 3 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 of 1 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 established under this 
        subsection shall include locality pay.
    (k) Independence of Electronic Payment System Judges.--
            (1) In making determinations.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the Electronic Payment System Judges--
                            (i) shall have full independence in 
                        establishing fees and terms for access to 
                        covered electronic payment systems and in 
                        issuing any other ruling under this Act; and
                            (ii) may consult with the Assistant 
                        Attorney General and the Chairman on any matter 
                        other than a question of fact.
                    (B) Consultation.--The Electronic Payment System 
                Judges shall consult with the Assistant Attorney 
                General and the Commissioner regarding any 
                determination or ruling that would require that any act 
                be performed by the Assistant Attorney General or the 
                Chairman, and any such determination or ruling shall 
                not be binding upon the Assistant Attorney General or 
                the Chairman.
            (2) Performance appraisals.--
                    (A) In general.--Notwithstanding any other 
                provision of law or any regulation of the Antitrust 
                Division or 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 Assistant Attorney General and the Chairman 
                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 the duties and responsibilities 
of an Electronic Payment System Judge under this Act.
    (m) Standards of Conduct.--The Assistant Attorney General and the 
Chairman 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 Assistant Attorney General and the 
Chairman acting jointly 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. The Assistant Attorney 
General and the Chairman may suspend an Electronic Payment System Judge 
during the pendency of such a hearing. The Assistant Attorney General 
and the Chairman shall appoint an interim Electronic Payment System 
Judge during the period of any suspension under this subsection.

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, the Assistant Attorney General, and the 
        Chairman, 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 of the United States.
            (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 as the Chief Judge considers 
        appropriate.
    (b) Procedures.--
            (1) Commencement.--The Electronic Payment System Judges 
        shall cause to be published in the Federal Register a notice of 
        commencement of proceedings under section 2(d) to establish 
        fees and terms for access to a covered electronic payment 
        system.
            (2) Mandatory negotiation period.--
                    (A) In general.--Promptly after the commencement of 
                a proceeding under section 2(d) to establish fees and 
                terms for access to a covered electronic payment 
                system, the Electronic Payment System Judges shall 
                initiate a period for negotiations for the purpose of 
                achieving a voluntarily negotiated access agreement. 
                Nothing in this paragraph shall preclude the proceeding 
                parties or any members thereof from conducting 
                negotiations before or after the mandatory negotiation 
                period for the purpose of achieving a voluntarily 
                negotiated access agreement.
                    (B) Length.--The period for negotiations initiated 
                under subparagraph (A) shall be 3 months.
                    (C) Determination of need for further 
                proceedings.--At the close of the period for 
                negotiations initiated under subparagraph (A), the 
                Electronic Payment System Judges shall determine if 
                further proceedings under this Act are necessary.
            (3) Proceeding parties in further proceedings.--
                    (A) In general.--In any further proceeding ordered 
                by the Electronic Payment System Judges under paragraph 
                (2)(C), there shall be only 2 proceeding parties, 1 
                consisting of all providers of the covered electronic 
                payment system and the other consisting of all 
                merchants that have access to or seek access to the 
                covered electronic payment system. Each proceeding 
                party shall bear its own costs. A provider of a covered 
                electronic payment system or a merchant that has access 
                to or seeks access to the covered electronic payment 
                system may choose not to participate in the proceeding 
                as a member of a proceeding party, but unless such 
                provider or merchant executes a voluntarily negotiated 
                access agreement, such provider or merchant shall be 
                bound by the determination of the Electronic Payment 
                System Judges with regard to the fees and terms for 
                access to the covered electronic payment system.
                    (B) Rule of construction.--Nothing in this 
                paragraph may be construed to prohibit the proceeding 
                parties or any members thereof in a proceeding under 
                subparagraph (A) from negotiating and entering into a 
                voluntarily negotiated access agreement at any other 
                time.
            (4) Regulations.--
                    (A) Authorization.--
                            (i) In general.--The Electronic Payment 
                        System Judges may issue regulations to carry 
                        out the duties of the Electronic Payment System 
                        Judges under this Act. All regulations issued 
                        by the Electronic Payment System Judges are 
                        subject to the approval of the Assistant 
                        Attorney General and the Chairman. Not later 
                        than 120 days after the date on which all 
                        Electronic Payment System Judges are appointed 
                        under section 3(h)(1), the Electronic Payment 
                        System Judges shall issue regulations to govern 
                        proceedings under this subsection. In setting 
                        these regulations, the Electronic Payment 
                        System Judges shall consider the regulations 
                        issued by the Copyright Royalty Judges under 
                        section 803(b)(6) of title 17, United States 
                        Code.
                            (ii) Scope.--The regulations issued under 
                        clause (i) shall include regulations regarding 
                        the procedures described in subparagraph (B).
                    (B) Procedures.--
                            (i) Written direct statements.--The written 
                        direct statements of the proceeding parties 
                        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 (2). 
                        Notwithstanding the preceding sentence, the 
                        Electronic Payment System Judges may allow a 
                        proceeding party to file an amended written 
                        direct statement based on new information 
                        received during the discovery process, not 
                        later than 15 days after the end of the 
                        discovery period specified in clause (ii).
                            (ii) Discovery schedule.--Following the 
                        submission to the Electronic Payment System 
                        Judges of written direct statements by the 
                        proceeding parties, the Electronic Payment 
                        System Judges shall meet with the proceeding 
                        parties to set 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 not longer than 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.--
                                    (I) In general.--In a proceeding 
                                under this Act to determine fees and 
                                terms for access to a covered 
                                electronic payment system, certain 
                                persons shall make initial disclosures 
                                not later than 30 days after the date 
                                of commencement of the proceeding, in 
                                accordance with this clause.
                                    (II) Issuers, acquirers, and 
                                owners.--Any person who is 1 of the 10 
                                largest issuers for a covered 
                                electronic payment system in terms of 
                                number of cards issued, any person who 
                                is 1 of the 10 largest acquirers for a 
                                covered electronic payment system based 
                                on dollar amount of transactions made 
                                by merchants they serve, and any person 
                                who operates or controls the relevant 
                                covered electronic payment system shall 
                                produce to the Electronic Payment 
                                System Judges and to both proceedings 
                                parties--
                                            (aa) an itemized list of 
                                        the costs necessary to provide 
                                        the covered electronic payment 
                                        system that were incurred by 
                                        the person during the most 
                                        recent full calendar year 
                                        before the initiation of the 
                                        proceeding; and
                                            (bb) any access agreement 
                                        between that person and 1 or 
                                        more merchants with regard to 
                                        that covered electronic payment 
                                        system.
                                    (III) Merchants.--Any person who is 
                                1 of the 10 largest merchants using the 
                                relevant covered electronic payment 
                                system, determined based on dollar 
                                amount of transactions made with the 
                                covered electronic payment system, 
                                shall produce to the Electronic Payment 
                                System Judges and to both proceeding 
                                parties--
                                            (aa) an itemized list of 
                                        the costs necessary to access 
                                        the electronic payment system 
                                        during the most recent full 
                                        calendar year prior to the 
                                        initiation of the proceeding; 
                                        and
                                            (bb) any access agreement 
                                        between that person and 1 or 
                                        more providers with regard to 
                                        that covered electronic payment 
                                        system.
                                    (IV) Disagreement.--Any 
                                disagreement regarding whether a person 
                                is required to make an initial 
                                disclosure under this clause, or the 
                                contents of such a disclosure, shall be 
                                resolved by the Electronic Payment 
                                System Judges.
                            (iv) Depositions.--
                                    (I) In general.--In a proceeding 
                                under this Act to determine fees and 
                                terms for access to a covered 
                                electronic payment system, each 
                                proceeding party shall be permitted to 
                                take depositions of every witness 
                                identified by the other proceeding 
                                party. Except as provided in subclause 
                                (III), each proceeding party also shall 
                                be permitted to take 5 additional 
                                depositions in the entire proceeding.
                                    (II) Organizational entities.--A 
                                deposition notice or subpoena may name 
                                as the deponent a person who is an 
                                individual or a person who is not an 
                                individual. Such deposition notice or 
                                subpoena shall describe with reasonable 
                                particularity the matters on which 
                                examination is requested. If the 
                                deposition notice or subpoena names a 
                                person who is not an individual, the 
                                deponent person so named shall 
                                designate 1 or more officers, 
                                directors, or managing agents, or other 
                                individual persons who consent to 
                                testify on behalf of the deponent 
                                person, and may set forth, for each 
                                individual person designated, the 
                                matters on which the individual person 
                                will testify. A subpoena shall advise a 
                                nonparty deponent person of the duty of 
                                the deponent person to make such a 
                                designation. An individual person 
                                designated under this subclause shall 
                                testify as to matters known or 
                                reasonably available to the deponent 
                                person.
                                    (III) Additional depositions.--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 proceeding party 
                                regarding the allocation of the 
                                depositions permitted under this 
                                clause.
                            (v) Written discovery.--In a proceeding 
                        under this Act to determine fees and terms for 
                        access to a covered electronic payment system, 
                        each proceeding 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 proceeding 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 fees and 
                        terms for access to a covered electronic 
                        payment system, 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 resolution of the proceeding by 
                        the Electronic Payment System Judges may be 
                        substantially impaired by the absence of such 
                        testimony or production of documents or 
                        tangible things. A subpoena under this clause 
                        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.--
                                    (I) In general.--Any objection to a 
                                request or subpoena under clause (v) or 
                                (vi) 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 or request to compel 
                                discovery, the Electronic Payment 
                                System Judges may order discovery under 
                                regulations established under this 
                                paragraph.
                                    (II) Considerations.--In 
                                determining whether discovery will be 
                                granted under this clause, the 
                                Electronic Payment System Judges may 
                                consider--
                                            (aa) 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 
                                        proceeding parties, the 
                                        importance of the issues at 
                                        stake, and the probative value 
                                        of the requested information or 
                                        materials in resolving such 
                                        issues;
                                            (bb) 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
                                            (cc) whether the proceeding 
                                        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 fees 
                        and terms for access to a covered electronic 
                        payment system, the Electronic Payment System 
                        Judges shall make available to the proceeding 
                        parties all documents filed under section 
                        2(d)(1).
                            (ix) Settlement conference.--The Electronic 
                        Payment System Judges shall order a settlement 
                        conference between the proceeding parties to 
                        facilitate the presentation of offers of 
                        settlement between the parties. The settlement 
                        conference shall be held during the 21-day 
                        period beginning on the date on which the 
                        discovery period ends 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 described in 
                        clause (ix), the Electronic Payment System 
                        Judges shall determine if further proceedings 
                        under this Act are necessary. If the Electronic 
                        Payment System Judges determine further 
                        proceedings under this Act are necessary, 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 proceeding parties 
                        will be allowed to offer witness testimony and 
                        documents.
                            (xi) Sponsoring witnesses.--No evidence, 
                        including exhibits, may be submitted in the 
                        written direct statement or written rebuttal 
                        statement of a proceeding party without a 
                        sponsoring witness, except for--
                                    (I) requests for admission that 
                                have been admitted by the receiving 
                                proceeding party;
                                    (II) evidence of which the 
                                Electronic Payment System Judges have 
                                taken official notice;
                                    (III) incorporation by reference of 
                                past records; or
                                    (IV) good cause shown.
                            (xii) Hearsay.--Hearsay may be admitted in 
                        proceedings under this Act to the extent 
                        determined 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.
            (5) Penalties for failure to comply with a discovery 
        request.--
                    (A) Failure to comply.--A person has failed to 
                comply with a discovery request if the person, or an 
                employee or agent of the person, fails, without 
                substantial justification, to--
                            (i) make initial disclosures required under 
                        paragraph (4)(B)(iii);
                            (ii) be sworn or answer a question as a 
                        deponent after being directed to do so by the 
                        Electronic Payment System Judges under clause 
                        (iv) or (vi) of paragraph (4)(B);
                            (iii) answer an interrogatory submitted 
                        under paragraph (4)(B)(v);
                            (iv) produce nonprivileged documents 
                        requested under clause (v) or (vi) of paragraph 
                        (4)(B); or
                            (v) admit the genuineness of any document 
                        or the truth of any matter as requested under 
                        paragraph (4)(B)(v), and the person requesting 
                        the admissions thereafter proves the 
                        genuineness of the document or the truth of the 
                        matter.
                    (B) False or misleading responses.--For purposes of 
                this Act, any disclosure, answer, or response that is 
                false or substantially misleading, evasive, or 
                incomplete shall be deemed a failure to disclose, 
                answer, or respond.
                    (C) 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 proceeding party 
                seeking discovery and obtaining the order.
                    (D) Civil penalty.--
                            (i) Generally.--Any person who fails to 
                        comply with a discovery request under this Act 
                        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 subparagraph except 
                        under 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 under this 
                        subparagraph, 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 subparagraph 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 not later than 30 days after the 
                        date on which the order making such assessment 
                        was issued. The United States Court of Appeals 
                        for the District of Columbia Circuit shall have 
                        jurisdiction to enter a judgment affirming, 
                        modifying, or setting aside in whole or in 
                        part, an order of the Electronic Payment System 
                        Judges under this subparagraph, or the court 
                        may remand the proceeding to the Electronic 
                        Payment System Judges for such further action 
                        as the court may direct. The Assistant Attorney 
                        General 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 the 
                        civil penalty has become a final and 
                        unappealable order or after the appropriate 
                        court has entered final judgment, the 
                        Electronic Payment System Judges shall request 
                        the Assistant Attorney General 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 a determination in a proceeding not later than the 
        earlier of--
                    (A) 11 months after the end of the 21-day 
                settlement conference period under subsection 
                (b)(4)(B)(ix); or
                    (B) 15 days before the date on which the fees and 
                terms in effect for a covered electronic payment system 
                expire.
            (2) Determination.--
                    (A) Filing of final offer.--Before the commencement 
                of a direct hearing in a proceeding under subsection 
                (b)(4)(B)(x), each proceeding party shall file with the 
                Electronic Payment System Judges and with the other 
                proceeding party a final offer of fees and terms for 
                access to the covered electronic payment system. A 
                proceeding party may not amend a final offer submitted 
                under this subparagraph.
                    (B) Selection between final offers.--After the 
                conclusion of the direct hearing and rebuttal hearing, 
                the Electronic Payment System Judges shall make their 
                determination by selecting 1 of the 2 final offers 
                filed by the proceeding parties. The Electronic Payment 
                System Judges shall make their selection in accordance 
                with the standards described in section 2(d)(3)(C).
                    (C) Voting and dissenting opinions.--A final 
                determination of the Electronic Payment System Judges 
                in a proceeding 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 a dissenting opinion, which shall be 
                included with the determination.
            (3) Rehearings.--
                    (A) In general.--The Electronic Payment System 
                Judges may, in exceptional cases, upon motion of a 
                proceeding party, order a rehearing, after the 
                determination in the proceeding is issued under 
                paragraph (2), 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) shall be filed not 
                later than 15 days after the date on which the 
                Electronic Payment System Judges deliver to the parties 
                in the proceeding their initial determination 
                concerning fees and terms.
                    (C) Participation by opposing party not required.--
                In any case in which a rehearing is ordered under this 
                paragraph, any opposing proceeding 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.--The Electronic Payment 
                System Judges may not draw a negative inference from 
                lack of participation in a rehearing.
                    (E) Continuity of fees and terms.--
                            (i) In general.--If the decision of the 
                        Electronic Payment System Judges on any motion 
                        for a rehearing is not rendered before the 
                        expiration of the fees and terms in effect for 
                        a covered electronic payment system, in the 
                        case of a proceeding to determine successor 
                        fees and terms for fees and terms that expire 
                        on a specified date, 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 fees and terms that were previously 
                        in effect expire.
                            (ii) Fee payments.--The pendency of a 
                        motion for a rehearing under this paragraph 
                        shall not relieve a person obligated to make 
                        fee payments for access to a covered electronic 
                        payment system who would be affected by the 
                        determination on that motion from paying the 
                        fees required and complying with the terms 
                        under the relevant determination.
                            (iii) Overpayments and underpayments.--
                        Notwithstanding clause (ii), if fees described 
                        in clause (ii) are paid--
                                    (I) the recipient of such fees 
                                shall, not later than 60 days after the 
                                date on which the motion for rehearing 
                                is resolved or, if the motion is 
                                granted, 60 days after the date on 
                                which the rehearing is concluded, 
                                return any excess fees described in 
                                clause (ii), to the extent necessary to 
                                comply with the final determination by 
                                the Electronic Payment System Judges of 
                                fees and terms for access to the 
                                covered electronic payment system; and
                                    (II) a person obligated to make fee 
                                payments shall, not later than 60 days 
                                after the date on which the motion for 
                                rehearing is resolved or, if the motion 
                                is granted, 60 days after the date on 
                                which the rehearing is concluded, pay 
                                the recipient the amount of any 
                                underpayment of fees described in 
                                clause (ii), to the extent necessary to 
                                comply with the final determination by 
                                the Electronic Payment System Judges of 
                                fees and terms for access to the 
                                covered electronic payment system.
            (4) Contents of determination.--A determination of the 
        Electronic Payment System Judges shall establish the fees 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 
        under this paragraph.
            (5) Continuing jurisdiction.--The Electronic Payment System 
        Judges may, with the approval of the Assistant Attorney General 
        and the Chairman, 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 
        proceeding parties and shall be published in the Federal 
        Register.
            (6) 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 fees and terms of an access agreement, including 
        voluntarily negotiated access agreements filed under section 
        2(d)(1), may not be excluded from publication.
            (7) Publication of determination.--Not later than 60 days 
        after the date on which the Electronic Payment System Judges 
        issue a determination under this subsection, the Assistant 
        Attorney General and the Chairman 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 any corrections in such 
        other manner as the Assistant Attorney General and the Chairman 
        consider appropriate, including 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.
            (8) Late payment.--A determination of Electronic Payment 
        System Judges--
                    (A) may include terms with respect to late payment; 
                and
                    (B) may not include any provision in such terms 
                described in subparagraph (A) that prevents a provider 
                of a covered electronic payment system from asserting 
                other rights or remedies provided under this Act.
    (d) Judicial Review.--
            (1) Appeal.--Any determination of the Electronic Payment 
        System Judges under subsection (c) may, not later than 30 days 
        after the date of 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 
        member of a proceeding party under this Act who would be bound 
        by the determination. Any proceeding 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 the 
        30-day period under this paragraph, the determination of the 
        Electronic Payment System Judges shall be final, and shall take 
        effect as described in paragraph (2).
            (2) Effect of fees and terms.--
                    (A) Fee payments.--The pendency of an appeal under 
                this subsection shall not relieve a person obligated to 
                make fee payments for access to a covered electronic 
                payment system who would be affected by the 
                determination on appeal from paying the fees required 
                and complying with the terms under the relevant 
                determination or regulations.
                    (B) Overpayments and underpayments.--
                Notwithstanding subparagraph (A), if fees described in 
                subparagraph (A) are paid--
                            (i) the recipient of such fees shall, not 
                        later than 60 days after the date on which the 
                        appeal is resolved return any excess fees 
                        described in subparagraph (A) (and interest 
                        thereon, if ordered under paragraph (3)), to 
                        the extent necessary to comply with the final 
                        determination of fees and terms on appeal; and
                            (ii) a person obligated to make fee 
                        payments shall, not later than 60 days after 
                        the date on which the appeal is resolved, pay 
                        the recipient the amount of any underpayment of 
                        fees described in subparagraph (A) (and 
                        interest thereon, if ordered under paragraph 
                        (3)), to the extent necessary to comply with 
                        the final determination of fees and terms on 
                        appeal.
            (3) Jurisdiction of court.--If the United States Court of 
        Appeals for the District of Columbia Circuit, under section 706 
        of title 5, United States Code, 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 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) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this Act.

SEC. 5. INSTITUTION OF PROCEEDINGS BEFORE ELECTRONIC PAYMENT SYSTEM 
              JUDGES.

    (a) Initial Proceedings.--
            (1) Timing.--Proceedings under this Act shall be commenced 
        as soon as practicable after the date of enactment of this Act 
        to establish fees and terms for access to covered electronic 
        payment systems under section 2(d), which shall be effective 
        during 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 
                4(b)(4)(B)(ii), discovery in the initial proceedings 
                described in paragraph (1) 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 fees and terms 
                between date of enactment and initial determination.--
                In establishing the fees and terms under section 2(d) 
                for access to covered electronic payment systems, to be 
                effective during the period beginning on January 1, 
                2010, and ending on December 31, 2011, the Electronic 
                Payment System Judges shall consider changes in fees 
                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 the 
                fees established for the period beginning on January 1, 
                2010, and ending on December 31, 2011, to reflect the 
                economic impact such changes had on the parties.
    (b) Subsequent Proceedings.--After completion of the proceedings 
required under subsection (a), proceedings under section 2(d) to 
establish fees and terms for access to covered electronic payment 
systems shall be commenced in 2010, and every 3 years thereafter.

SEC. 6. GENERAL RULE FOR VOLUNTARILY NEGOTIATED ACCESS AGREEMENTS.

    (a) In General.--Any fees or terms described in subsection (b) 
shall remain in effect for such period of time as would otherwise apply 
to fees and terms established under this Act, except that the 
Electronic Payment System Judges shall adjust any such fees to reflect 
inflation during any additional period the fees remain in effect beyond 
that contemplated in the voluntarily negotiated access agreement.
    (b) Fees and Terms.--The fees or terms described in this subsection 
are fees or terms for access to a covered electronic payment system 
under this Act that--
            (1) are agreed upon as part of a voluntarily negotiated 
        access agreement for a period shorter than would otherwise 
        apply under a determination under this Act; and
            (2) are adopted by the Electronic Payment System Judges as 
        part of a determination under this Act.
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