On June 4, Judiciary Committee Chairman John Conyers, Jr. (D-Mich.), joined by Congressman Bill Shuster (R-PA), introduced the Credit Card Fair Fee Act of 2009, designated H.R. 2695. On June 9, Senate Majority Whip Richard Durbin (D-Ill.) introduced companion legislation having the same title in the Senate, designated S. 1212. Both H.R. 2695 and S. 1212 would create a limited exemption to U.S. antitrust laws, and thereby permit merchants to collectively negotiate access fees (also known as “merchant discount rates”) with covered electronic payment systems and their issuers and acquirers (collectively referred to as “providers”). The legislation mandates negotiations between merchants and providers and establishes certain procedural requirements, enforced by the Attorney General, to govern those negotiations. The stated purpose of the legislation is to counteract the imbalance of market power between providers and merchants when these parties negotiate fees for access to covered electronic payment systems. Additionally, the legislation in the Senate would require the appointment of three Electronic Payment Systems Judges to establish the fees and terms for access to a covered electronic payment system in the event that the providers and merchants do not execute a voluntarily negotiated access agreement.
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