[Congressional Record Volume 155, Number 85 (Tuesday, June 9, 2009)]
[Senate]
[Pages S6366-S6371]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN:
  S. 1212. A bill to amend the antitrust laws to ensure competitive 
market-based fees and terms for merchants' access to electronic payment 
systems; to the Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1212

       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 
     2009''.

     SEC. 2. 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 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) 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.
       (6) Chairman.--The term ``Chairman'' means the Chairman of 
     the Federal Trade Commission.
       (7) 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 10 percent of the combined dollar value of credit 
     card or debit card payments processed in the United States in 
     the most recent full calendar year.
       (8) 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.
       (9) 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.
       (10) 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.
       (11) Electronic payment system judges.--The term 
     ``Electronic Payment System Judges'' means the Electronic 
     Payment System Judges appointed under section 4(a).
       (12) 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.
       (13) 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)).
       (14) 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.
       (15) Market power.--The term ``market power'' means the 
     ability to profitably raise prices above those that would be 
     charged in a perfectly competitive market.
       (16) 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.
       (17) 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.
       (18) 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.
       (19) 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.
       (20) 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)).
       (21) 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.
       (22) State.--The term ``State'' has the meaning given that 
     term in section 4G(2) of the Clayton Act (15 U.S.C. 15g(2)).
       (23) 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.

[[Page S6367]]

       (24) 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.
       (25) 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 5(b)(4).

     SEC. 3. ACCESS TO COVERED ELECTRONIC PAYMENT SYSTEMS; LIMITED 
                   ANTITRUST IMMUNITY FOR THE NEGOTIATION AND 
                   DETERMINATION OF FEES AND TERMS; STANDARDS FOR 
                   ESTABLISHMENT OF FEES AND TERMS.

       (a) 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.
       (b) Authority and Limited Antitrust Immunity for 
     Negotiations of Fees and Terms and Participation in 
     Proceedings.--
       (1) In general.--Notwithstanding any provision of the 
     antitrust laws--
       (A) in negotiating fees and terms and participating in any 
     proceedings under subsection (c), 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
       (B) any providers of a single covered electronic payment 
     system also may jointly determine the proportionate division 
     among such providers of paid fees.
       (2) Limitations.--The immunity from the antitrust laws 
     conferred under this subsection shall not apply to a provider 
     of a covered electronic payment system or to a merchant 
     during any period in which such provider, or such merchant, 
     is engaged in--
       (A) any unlawful boycott;
       (B) any allocation with a competitor of a geographical 
     area;
       (C) any unlawful tying arrangement; or
       (D) any exchange of information with, or agreement with, a 
     competitor that is not reasonably required to carry out the 
     negotiations and proceedings described in subsection (c).
       (c) 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 6.
       (3) Proceedings.--
       (A) In general.--The Electronic Payment System Judges shall 
     conduct proceedings as specified 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 
     6, 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 5(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 operate and 
     to 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);
       (V) may select a final offer that is a schedule of fees and 
     terms that provides alternative fees and terms for those 
     acquirers or issuers that are regulated by the National 
     Credit Union Administration or that, together with affiliates 
     of the acquirer or issuer, have assets in a total amount of 
     less than $1,000,000,000; and
       (VI) 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. 4. ELECTRONIC PAYMENT SYSTEM JUDGES.

       (a) Appointment.--The 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 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 
     Department of Justice or the Federal Trade 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. At least 1 Electronic Payment System Judge who is not 
     the Chief Electronic Payment System Judge shall have 
     significant knowledge of electronic payment systems. At least 
     one 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, at minimum, 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.

[[Page S6368]]

       (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 as an 
     interim Electronic Payment System Judge until a successor is 
     appointed.
       (i) Vacancies or Incapacity.--
       (1) Vacancies.--The 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 Electronic Payment System Judge 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 Attorney General and Chairman 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 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 Attorney General and the Chairman 
     regarding any determination or ruling that would require that 
     any act be performed by the Attorney General or the Chairman, 
     and any such determination or ruling shall not be binding 
     upon the Attorney General or the Chairman.
       (2) Performance appraisals.--
       (A) In general.--Notwithstanding any other provision of law 
     or any regulation of the Department of Justice or Federal 
     Trade 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 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 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 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 Attorney General and the 
     Chairman may suspend an Electronic Payment System Judge 
     during the pendency of such a hearing. The Attorney General 
     and the Chairman shall appoint an interim Electronic Payment 
     System Judge during the period of any suspension under this 
     subsection.

     SEC. 5. 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 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 3(c) 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 3(c) 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 Attorney General and the Chairman. Not later 
     than 120 days after the date on which all Electronic Payment 
     System Judges are appointed under section 4(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

[[Page S6369]]

     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 owns or controls the 
     relevant covered electronic payment system and establishes 
     the terms and conditions through which issuers and acquirers 
     participate in the 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 operate 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 3(c)(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);

[[Page S6370]]

       (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 comply with a discovery request.
       (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 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 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 the relevant 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, except with the 
     express consent of the Electronic Payment System Judges and 
     the other proceeding party.
       (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 3(c)(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 the 
     relevant 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 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 
     3(c)(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 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 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.

[[Page S6371]]

       (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. 6. 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 3(c), which shall be 
     effective during the period beginning on January 1, 2011, and 
     ending on December 31, 2012. The Electronic Payment System 
     Judges shall cause notice of commencement of such proceedings 
     to be published in the Federal Register.
       (2) Procedures specific to the initial proceedings.--
       (A) Discovery period.--Notwithstanding section 
     5(b)(4)(B)(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 3(c) for access to covered 
     electronic payment systems, to be effective during the period 
     beginning on January 1, 2011, and ending on December 31, 
     2012, 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, 2011, and 
     ending on December 31, 2012, 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 3(c) to establish fees and terms for access to 
     covered electronic payment systems shall be commenced in 
     2011, and every 3 years thereafter.

     SEC. 7. 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.
                                 ______