1.This Act may be cited as the
Credit Card Fair Fee Act of
2008
.
2.Limited antitrust
immunity for the negotiation and determination of fees and terms for access to
covered electronic payment systems
(a)In
this Act:
(1)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)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)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)The
term adjudication has the meaning given that term in section 551
of title 5, United States Code, and does not include mediation.
(5)The term Antitrust Division means the
Antitrust Division of the Department of Justice.
(6)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 GeneralThe term Assistant Attorney General
means the Assistant Attorney General in charge of the Antitrust Division of the
Department of Justice.
(8)The
term Chairman means the Chairman of the Federal Trade
Commission.
(9)The
term Commission means the Bureau of Competition of the Federal
Trade Commission.
(10)Covered
electronic payment systemThe 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)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)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 systemThe 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 JudgesThe term Electronic Payment System
Judges means the Electronic Payment System Judges appointed under
section 3(a).
(15)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)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)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)The term market power means the ability to
profitably raise prices above those that would be charged in a perfectly
competitive market.
(19)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)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)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)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)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)The
term provide means to make available for access.
(25)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)The
term State has the meaning given that term in section 4G(2) of the
Clayton Act (15 U.S.C. 15g(2)).
(27)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 agreementThe 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
statementsThe 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 systemsAccess 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
proceedingsNotwithstanding 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 partiesA 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 judgesThe
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 filingsThe 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
proceedingsThe 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)
(A)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)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 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)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 evidenceIn 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.
3.Electronic payment
system judges
(a)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)The
Electronic Payment System Judges shall establish fees and terms for access to
covered electronic payment systems in accordance with this Act.
(c)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)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)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 judgesEach 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)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)
(1)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)After the appointments under paragraph (1), an
Electronic Payment System Judge shall be appointed for a term of 6
years.
(3)An
individual serving as an Electronic Payment System Judge may be reappointed to
subsequent terms.
(4)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)
(1)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)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)
(1)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)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)All rates of pay established under this subsection shall
include locality pay.
(k)Independence of
electronic payment system judges
(1)
(A)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)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)
(A)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 removalTo 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 barredNo Electronic Payment System Judge may undertake
duties that conflict with the duties and responsibilities of an Electronic
Payment System Judge under this Act.
(m)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)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.
4.Proceedings of
electronic payment system judges
(a)
(1)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 individuallyThe 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)
(1)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)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)The
period for negotiations initiated under subparagraph (A) shall be 3
months.
(C)Determination of
need for further proceedingsAt 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 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)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)
(A)
(i)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)The
regulations issued under clause (i) shall include regulations regarding the
procedures described in subparagraph (B).
(B)
(i)Written direct
statementsThe 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)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)
(I)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 ownersAny 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)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)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)
(I)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)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)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)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)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)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)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 agreementsIn 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)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 hearingsAt 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)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
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 EvidenceTo 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)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 responsesFor 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 proceedingIf 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)
(i)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)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)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)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)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)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)
(A)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 offersAfter 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 opinionsA 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)
(A)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)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 requiredIn 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)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)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)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 underpaymentsNotwithstanding 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
determinationA 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)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)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
determinationNot 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)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)
(1)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)
(A)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 underpaymentsNotwithstanding 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)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
appropriationsThere are authorized to be appropriated such sums
as may be necessary to carry out this Act.
5.Institution of
proceedings before electronic payment system judges
(a)
(1)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)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
determinationIn 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)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.
6.General rule for
voluntarily negotiated access agreements
(a)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)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.