Late last year, the Federal Reserve issued a proposed rule that imposes on every bank and credit union an obligation that is virtually unheard of outside of the context of railroads and other common carriers – a “must carry” obligation. [1] According to the Federal Reserve, this obligation flows from language added to the Electronic Funds Transfer Act by Section 1075 of the Dodd-Frank Wall Street Reform and Consumer Protection Act:
[A]n issuer or payment card network shall not directly or through any agent, processor, or licensed member of a payment card network, by contract, requirement, condition, penalty, or otherwise, restrict the number of payment card networks on which an electronic debit transaction may be processed to—
(i) 1 such network; or
(ii) 2 or more such networks which are owned, controlled, or otherwise operated by —
(I) affiliated persons; or
(II) networks affiliated with such issuer. [2]
The Federal Reserve reads this addition to the Electronic Funds Transfer Act to require all debit cards issued in the United States to carry the transactions of (i.e., participate in) at least two different debit networks.
With the industry consumed by the impact of proposed interchange rate caps, the Federal Reserve’s proposed interpretation of 920(b) has attracted very little attention. This essay gives the proposed rule some of the attention that it is due. It does not try to catalog the potential inefficiencies, disruptions or unintended consequences that are likely to be caused by Section 920(b), which even the Federal Reserve has not attempted to identify let alone assess. Instead, it places Section 920(b) in its proper economic and historical context. It argues that Section 920(b) has a direct antecedent in the settlement agreement that resolved In re Visa Check/MasterMoney Antitrust Litigation. It argues that the language should be understood to restrict financial institutions and debit networks from entering into exclusive contracts rather than to create an affirmative obligation for issuers to contract with multiple networks or to allow access via an authorization method that they do not want to support. This essay also argues that the Federal Reserve’s effort to remake the industry by reallocating a property right—i.e., the right to direct a payment – among the various parties essential to a modern payment system – i.e., consumers, merchants, financial institutions and networks – will create significant costs for all concerned but not, in the long run, achieve any coherent objective.
Routing and Exclusivity – In Need of a Public Airing
Fifty years ago, Ronald Coase published a paper, The Problem of Social Cost, [3] that is generally remembered for what is now known as the Coase Theorem. [4] Although that proposition helped earn Coase the Nobel Prize for Economics, it plays only a supporting role in the paper. Coase’s paper is directed at another problem -the tendency toward government interference with market outcomes whenever those outcomes differ from the outcomes predicted by models of perfect competition. The paper criticizes the prevailing approach to regulation and recommends that policy makers adopt a different approach:
[S]tart [the] analysis with a situation approximating that which actually exists, … examine the effects of a proposed policy change, and … attempt to decide whether the new situation would be, in total, better or worse than the original one. [5]
In the half-century since Coase offered his alternative, it is fair to say that legislators, regulators and courts have not always heeded his advice. The recipe for government intervention still frequently begins with the observation that a real-world market has produced an outcome that, on its face, is difficult to reconcile with the hypothesized model of perfect competition. But parties facing the prospect of well-intentioned but wrong-headed intervention have been able to arm themselves with the kind of information identified by Coase and then use the ordinary processes of legislation, regulation and litigation to check the interventionist tendency to regulate real-world outcomes. Even if those efforts have not always succeeded in forestalling intervention, the process at least provides an opportunity to shape or deflect it.
Unfortunately, not every law, regulation or court decision follows the usual process. Sometimes industries find themselves grappling with the consequences of complex laws that emerged, literally, at the eleventh hour of legislative processes closed to public comment. Such is the case with Section 920(b) of the Dodd-Frank Wall Street Reform and Consumer Protect Act. Section 920(b) directs the Federal Reserve to issue rules implementing statutory language governing debit card issuance and the routing of debit card transactions. Section 920(b) was added to the legislation at midnight on the last day of the conference commissioned to reconcile the conflicting versions of the legislation that had emerged from the House and Senate. [6] Unlike the rate setting provisions, which could at least be traced to Senator Durbin’s floor amendment, Section 920(b) had no antecedent. [7]
In the year since the exclusivity and routing provision was tacked onto Dodd-Frank, it has not received nearly the scrutiny that it should. On its face, the exclusivity and routing provision applies to all “debit transactions.” The Federal Reserve has indicated that it plans to define “debit” broadly. The proposed definition of “debit” embraces “any card, or other payment code or device, issued or approved for use through a payment card network to debit an account, regardless of whether authorization is based on signature, personal identification number (PIN), or other means.” [8] Unlike the rate setting provision, the statute does not contain an express exemption for small issuers or reloadable stored-value cards. Moreover, although the statutory language appears only to prohibit a network from entering into an exclusive dealing arrangement with an issuer, both of the Federal Reserve’s provisional interpretations of the statutory language will require all debit cards to participate in at least two networks. [9] Because the Federal Reserve’s proposed rule will also give merchants that accept transactions across the networks supported by a particular card the ability to dictate how the transaction will be routed, it is, as one industry insider has quipped, the debit industry equivalent of putting “Coke and Pepsi on the same can [s]” and letting the merchant decide how to fill them. [10]
These twin obligations would be very disruptive to the debit industry in the near term. Every issuer would be required to ensure that every card supports transactions on at least two networks, including issuers that currently contract with only a single network and provide access through only one authorization method (i.e., signature or PIN but not both). Networks would be forbidden from preventing merchants from directing a debit transaction over the network of the merchant’s and not the consumer’s choice. As the Federal Reserve has acknowledged, these obligations would almost certainly suppress competition among networks to develop new authorization methods. [11] They would also make it difficult for issuers to offer rights or benefits conditional on routing over a particular network.
Because the Federal Reserve’s proposed interpretation of Section 920(b) would deprive consumers of any ability to determine how merchants access funds via a debit card, networks would have very little reason to develop or support distinct offerings for consumers. Consumer groups have expressed some concern that Visa and MasterCard will respond to the rule by eliminating the consumer protections that they have extended beyond the level required by federal law. [12] Visa’s comment letter amplifies this concern, observing that the proposed rule suppresses the incentives for debit networks to compete along any dimension other than those that appeal to merchants. [13] If every debit card must support at least two networks and the merchant gets to choose how to route the transaction, the merchant will choose the network that maximizes their benefits and minimizes their costs regardless of the impact on the other parties to the transaction, including the consumer. Because these effects flow from legislative language that was added, literally, at the eleventh hour without public debate, they have not received a public airing.
The absence of any true legislative history makes it impossible to know what problem the statutory language is designed to solve. This language does appear to have a direct forebear in a provision of the settlement that resolved the last great U.S. debit row—In re Visa Check/MasterMoney Antitrust Litigation. [14] That context provides support for an interpretation of the language that differs from those reflected in the Federal Reserve’s proposals or offered by the lone academic to have weighed in on the issue. [15] That context also illustrates the flaws in the renewed effort to remake the payment industry by focusing on the role that one party – the merchant – plays in a transaction that by definition requires the participation and consent of multiple parties.
Statutory language like the routing and exclusivity provision of the Durbin Amendment reassigns a property interest. That reassignment may impose significant costs on the affected industry. But the government has re-assigned very similar rights in the past, and those efforts have not succeeded in reorienting the industry in favor of payment recipients. Those past failures strongly suggest (1) that consumers like to control how they make payments and (2) that their preference cannot be overcome by legal fiat. This does not mean that the debit industry will survive in any recognizable form if the Federal Reserve adheres to its current legislative course. Rather, financial institutions will look for other ways to deliver consumers what they apparently value more than the merchants – the right to direct a retail payment.
Placing the Exclusivity and Routing Provision in Its Proper Context – The Resolution of In re Visa Check
The current debate has roots in the merchant class action against Visa and MasterCard, In re Visa Check. Indeed, the lobbying effort that produced the Durbin Amendment seems like an extension of the earlier litigation. The same trade associations that participated in the earlier case led the lobbying effort. [16] Both had the same aim, i.e., reducing the price that merchants pay to accept debit card transactions. [17] Given this relationship, the Durbin Amendment should be interpreted against the backdrop of the earlier litigation and the settlement that it produced.
The First Resolution of In re Visa Check
When the merchants filed the earlier case, they did not principally attack the mechanism that Visa and MasterCard used to set interchange rates. Instead, they complained about the rules and practices that, they claimed, the networks had used to suppress the development of competing debit systems. The merchants chiefly targeted the network’s respective Honor All Cards rules and the rules that the merchants claimed prevented them from encouraging consumers to use other forms of payment. But the merchants did not limit their case to an attack on those rules.
The merchants devoted considerable time and attention to the tactics that the networks had used to build their debit businesses at the expense of the PIN debit networks. Most of that aspect of the merchant case focused on Visa. Visa had acquired a PIN debit network, Interlink, in 1989. Following that acquisition, Visa viewed the other PIN debit networks as competitors, and Visa competed vigorously with the PIN debit networks for business. In the litigation, the merchants framed Visa’s competition with the PIN debit networks as an effort to wipe competing debit businesses “from the face of the earth” by contracting with banks to remove the marks or “bugs” of those cards from debit cards bearing the Visa mark. [18]
The parties settled the case after nearly seven years of litigation. [19] The agreements reflect the scope of the ambition to remake the debit industry that had launched the litigation. Visa and MasterCard agreed to bifurcate their Honor All Cards rules. They agreed to add visual identifiers that would enable debit cards to be distinguished from other types of cards at the point of sale. They agreed to allow merchants to steer consumers to other forms of payment. They also agreed to pay the merchants a combined sum of $3.3 billion with two-thirds coming from Visa and one-third from MasterCard. Although the two networks settled on essentially the same terms, the merchants demanded and Visa eventually acceded to an additional concession that related directly to Visa’s supposed campaign against other PIN debit networks: Visa agreed for a period of two years not to enter into contracts with issuers that barred those issuers from putting the marks of other networks on their debit cards. [20]
Representatives of the merchants claimed that the settlement would remake the industry. They argued that merchants would threaten to reject Visa and MasterCard debit cards en masse once the networks dropped their Honor All Cards rules. This threat, they insisted, would force the price of debit acceptance down. According to the National Retail Federation (NRF), which had been a plaintiff in the debit card case, the settlement “establish [ed] the right of retailers to choose what forms of payment to accept.” [21] NRF estimated that the settlement would “sav [e] the industry an estimated $100 billion in reduced fees through the end of the decade.” [22] Mallory Duncan, General Counsel of NRF, labeled the settlement a “victory.” [23]
The Durbin Amendment Imposes a Slightly Modified End on the Earlier Fight
Merchant euphoria at the settlement agreement passed quickly. Merchants did not stop accepting Visa or MasterCard debit cards, and consumers did not stop using them. In the months that followed the settlement, the number and volume of debit transactions rose. The price of debit acceptance did not fall as the lawyers and economists who litigated on behalf of merchants predicted. [24] The price that most merchants paid to accept debit transactions remained essentially flat. Rates for Visa and MasterCard debit transactions dropped a bit. But rates for credit transactions and some PIN debit transactions rose. [25]
By 2005, NRF was no longer describing the In re Visa Check/MasterMoney settlement as a victory. Instead, it was leading the campaign to persuade the federal government to set the price of acceptance. [26] That campaign culminated in the successful passage of the Durbin Amendment. The Durbin Amendment carries forward the relief that the merchants had negotiated at the conclusion of the earlier case. It addresses essentially the same two issues as the earlier settlement agreement – the price of acceptance and exclusivity. The Durbin Amendment imposes a significantly more intrusive intervention on the price side than the earlier settlement agreement. Rather than assume a fall in the price of debit transactions, the Durbin Amendment instructs the Federal Reserve to set standards for the setting of interchange rates. [27]
Although the remedies on the rate side are different, the remedies on exclusivity side are quite similar. The settlement agreement precluded Visa from “enter [ing] into a contract with a member financial institution that prohibits the financial institution from issuing an ATM and/or POS debit card of any competing ATM and/or POS network.” [28] The exclusivity language of 920(b) directs the Federal Reserve to issue regulations accomplishing the same thing. It bars issuers and networks from entering into contracts that “require [], condition, penal [ize], or otherwise restrict the number of payment cards on which an electronic debit transaction maybe processed.” [29]
This language, even absent the context of the earlier settlement agreement, does not support the “must carry” obligation that the Board has provisionally read into it. Nothing in this language appears to require an issuer to contract with a network to provide debit functionality that it, for whatever reason, does not want to offer to its customers. [30] As the Board has expressly acknowledged in soliciting comment on its proposed interpretations of this provision, “the statute does not expressly require issuers to offer multiple unaffiliated signature and multiple unaffiliated PIN debit card network choices on each card.” [31] Although the Federal Reserve’s notice of proposed rulemaking explains how merchants might benefit from the imposition of a “must carry” obligation on issuers, it does not attempt to justify the decision to read such a requirement into the statute. The link to the earlier settlement agreement reinforces the conclusion that flows from the plain language. Like the earlier settlement agreement, this provision should be understood to prevent issuers from entering into “contract [s] … that restrict the number of payment card networks” with which they deal to a single entity.
Exclusivity, Routing and the Problem of Social Cost
The relationship between Section 920(b) and In re Visa Check provides a contemporary example of Coase’s larger point: government intervention in a private market is unlikely to force that market to behave like the hypothetical market of perfect competition. The comparison that is the basis for the intervention overlooks the reasons that actual markets behave differently than a hypothetically perfect market. Plaintiffs negotiated an end to the In re Visa Check on an assumption about how the payment industry should work rather than an analysis of how the industry actually works or why it works that way. The settlement gave the merchants what they bargained for but not what they wanted.
As Coase explained, the differences between actual markets and hypothesized markets do not provide a basis for government intervention or a road map for the content of such intervention. Actual markets always behave differently than the textbook model of perfect competition. The model of perfect competition does not predict market outcomes in the real world, because it was not designed to do so. Moreover, and this is the insight for which Coase’s paper is justly famous, the initial allocation of property rights does not determine how a perfect market will ultimately allocate those property rights. A frictionless market allocates property rights to their highest and best use, and the ultimate allocation is independent of the initial allocation. The right to inflict harm (or be free from it) is simply a property right, and in a frictionless market, it will be allocated to whomever values it most.
Coase made this point using a simple example based on a rancher and a neighboring farmer. As he observed, when transaction costs are low, the legal allocation of responsibility for damage wrought by straying cattle does not affect the number of cows raised, the bushels of wheat grown or the precautions taken to prevent the former from stomping on the latter. What matters is the marginal benefit from the next cow, the marginal cost of the trampled wheat and the cost of technologies that prevent cows from trampling wheat. If the next cow is worth more than the value of the trampled wheat grown, then the wheat will not be grown regardless of whether the law assigns the obligation to avoid the trampling to the farmer or rancher. The rancher and the farmer will bargain to the outcome that produces the largest mutual gain, and they will figure out a way to share that gain. [32]
This insight, as Coase recognized, does not always apply in the real world. In the real world, the distribution of property rights affects the market outcome, because transaction costs prevent people from exploiting all the potential gains from trade. But where those transaction costs are low, Coase’s framework does apply. That is, when parties can trade with relative ease (i.e., when transaction costs are low), property rights will migrate to those who value them the most (i.e., can put them to their highest and best use). The payment business appears to be such an environment. Transaction costs are low, and the sender of the payment (the rancher) values the right to send a payment (the right to trample wheat) more than the recipient of the payment (the farmer). For this reason, the right to direct a payment has consistently migrated to the sender of the payment and away from the recipient of the payment, and it will likely do so again.
The assertion that senders will ultimately acquire the right to determine how a payment is routed is, of course, contestable. Had Section 920(b) received a hearing, this point could have been debated. For present purposes, it should suffice to observe that the Durbin Amendment represents only the most recent effort by the federal government to dictate the price that merchants pay to accept retail payments but not the first such effort. The failure of the In re Visa Check settlement to remake the industry is recent history. But the federal government intervened in this industry twice prior to that settlement. [33]
The two previous occasions may fairly be regarded as ancient history – the first took place during the Civil War, and the second occurred slightly more than 100 years ago. During the Civil War, the federal government attempted to drive state bank notes, which featured a discount upon redemption, out of circulation. State banks responded by developing the checking account and the check, which like the bank notes they replaced, were redeemed at a discount to their face value. In the early part of the 20th century, the federal government attempted to eliminate discount fees on checks. By the time that effort finally succeeded, general purpose payment cards had begun to replace checks at the point of sale. [34]
The abrupt reallocation of this property right will, however, impose significant costs on the other participants in the system. Under the Federal Reserve’s proposed interpretation of 920(b), all debit cards will carry the marks of multiple networks, and merchants will gain the right to choose how to route transactions when those cards are presented for payment. Merchants will not bear all the costs associated with that choice. Different networks offer different protections against the risks and costs of fraud, for example. So long as merchants retain the routing right, they will choose the networks that impose the least risk and cost to them, even if those networks create more risks and impose great costs on issuers and consumers. The Federal Reserve’s proposed rule specifically acknowledges that merchants will seek to shift these costs to consumers and issuers. [35]
This brings the issue full circle. The Federal Reserve has admitted that its reading of the statute will likely (1) suppress innovation in the debit industry; (2) make it difficult, if not impossible, for debit-using consumers to decide how to direct funds from their bank accounts to merchants; and (3) shift costs to consumers. The repeated failures of past attempts to override consumer preference by legal fiat reinforce the conclusion that seemingly follows from these concessions – the effort to force this industry to mirror a “perfect” market will be very disruptive and, in the long run, fail. Fortunately, the language of 920(b) provides a path out of this thicket. It does not provide for a “must carry” obligation, and the Federal Reserve should not strain to create one.
* Tom is partner in the San Francisco office of O’Melveny & Myers LLP, where he works on antitrust and financial services litigation and counseling. He is also an adjunct professor at U.C. Berkeley Law School. His clients in the industry include Visa. Tom thanks Robert Litan, Todd Zywicki, Joshua Wright, Thomas Hubbard, Michael Moore, Ed Morse and David Evans for their comments on an earlier draft of this essay. Tom is indebted to his colleague, Monica Voicu, for excellent research assistance.
[1] See Debit Card Interchange Fees and Routing; Proposed Rule, 75 Fed. Reg. 81722, 81749 (“Proposed Reg II”) (discussing two alternative interpretations for the routing provision, both of which require cards to carry the marks of multiple networks).
[2] Section 920(b) of the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq.
[3] 3 J. Law & Econ. 1 (1960).
[4] The Coase Theorem is generally understood to assert that when transaction costs are zero or, as Coase puts it in his paper, “the pricing system is assumed to work smoothly,” the legal allocation of responsibility for a particular harm does not affect the ultimate allocation of resources between the activity that produces the harm and the activity that is harmed.
[5] Coase, 3 J. Law & Econ. at 22.
[6] Adam Frisch, Worst Case Avoided, But A Few Questions Linger 1 (Jun. 21, 2010) (on file with author).
[7] See Senate Amendment 3989 to Senate Bill 3217 (Restoring American Financial Stability Act of 2010) (available at http://tinyurl.com/2z7wz).
[8] Debit Card Interchange Fees and Routing; Proposed Rule, 75 Fed. Reg. 81722, 81729 (“Proposed Reg II”).
[9] Proposed Reg II, 75 Fed Reg at 81749.
[10] U.S. Banker, Back Porch (April 2011) (quoting Chris McWilton, MasterCard’s president of U.S. markets) (available at http://www.americanbanker.com/usb_issues/121_4/back-porch-1034644-1.html).
[11] See Proposed Reg II, 75 Fed Reg at 81749. (“[A]n issuer may be unable to implement these new methods of card authorization if the rule requires that such transactions be capable of being processed on multiple unaffiliated networks.”).
[12] See, e.g., Letter from Gail Hillebrand of Consumers Union to Board of Governors at 2 (February 8, 2011 )(“Hillebrand Letter”)(urging the Federal Reserve to implement the routing and exclusivity rules in a way that does not deprive consumers of risk and security protections).
[13] See, e.g., Letter from Josh Floum to Board of Governors at 27 (February 22, 2011)(“We believe that networks should be free to innovate on all dimensions, including authorization processing structure and other features or functionality of debit cards, to put the best product on the market.”) (available at http://tinyurl.com/3d4b6f6).
[14] 297 F. Supp. 2d 503 (E.D.N.Y. 2003), aff’d sub nom., Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F. 3d 96 (2d Cir. 2005).
[15] Adam J. Levitin, Cross-Routing: PIN and Signature Debit Interchangeability Under the Durbin Amendment, Lydian J. (Dec. 2010) (available at http://www.pymnts.com/assets/Lydian_Journal/LydianJournalDecember.pdf).
[16] Compare In re Visa Check/MasterMoney Antitrust Litigation, Second Amended Compl. ¶¶ 9-29 (May 26, 1999) (the National Retail Federation, the Food Marketing Insitute and others as plaintiffs) with Merchant Payment Coalition, About Us (listing the Food Marketing Institute and National Retail Federation as members) (available at http://www.unfaircreditcardfees.com/site/page/about).
[17] Lloyd Constantine, Priceless: The Case That Brought Down The Visa/MasterCard Cartel 13 (2009) (explaining that the Visa Check/MasterMoney case originated with the Limited’s objection that “the price of … debit transactions was the same as for credit cards, with no justification”).
[18] Id. at 150 (quoting deposition testimony from Ron Congemi, then CEO of the Star Network, that attorneys for the merchants played at the hearing on summary judgment).
[19] See In re Visa Check/MasterMoney Antitrust Litigation, MasterCard Settlement Agreement (Jun. 4, 2003) (available at http://www.inrevisacheckmastermoneyantitrustlitigation.com/mc_sa.pdf) and Visa Settlement Agreement (Jun. 4, 2003) (available at http://www.inrevisacheckmastermoneyantitrustlitigation.com/v_sa.pdf).
[20] Merchants can also be said to have been for exclusivity in the debit industry before they were against it. In the settlement of an earlier antitrust case about the debit industry, the attorney who later represented the merchants in In re Visa Check insisted that debit issuers exclusively partner with one or the other of the networks. State of New York v. VISA U.S.A., Inc., 1990-1 Trade Cas. (CCH) ¶ 69,016 (S.D.N.Y. 1990). This flip-flopping also suggests that the costs and benefits of exclusivity, co-residence of debit network functionality on a single card and the control over routing is likely context specific. The Federal Reserve has not made any effort to explain why co-mingling of network functionality better suits the current industry context than it apparently did in the early 1990s.
[21] National Retail Federation, Annual Report 2003 6.
[22] Id.
[23] ConsumerAffairs.com, Visa, MasterCard to Pay $3 Billion in Debit Card Suit: Consumers Win/Lose – Take Your Pick (http://www.consumeraffairs.com/news03/debit_suit.html) (May 1, 2003)
[24] Professor Franklin Fisher estimated that the price drop in debit acceptance would save merchants between $25.3 and $87.5 billion over ten years. In re Visa Check/MasterMoney Antitrust Litigation, Supp. Decl. of Franklin Fisher Valuing Benefits to Class of Visa and MasterCard Settlement Agreements ¶ 9 (available at http://www.inrevisacheckmastermoneyantitrustlitigation.com/4cz.pdf).
[25] ICLE, The Law and Economics of Interchange Fees 20 (Dec. 2009).
[26] See Merchant Payment Coalition, Merchants Welcome Fed Conference on Interchange Fees (May 2, 2005) (identifying Mallory Duncan, General Counsel of the National Retail Federation, as head of the MPC) (available at http://www.paymentsnews.com/2005/05/merchants_welco.html).
[27] See Section 920(a) of the Electronic Funds Transfer Act, 15 U.S.C. 1693 et seq. (“EFTA”). P.L. 111-203 (July 21, 2010) § 1075(a) amends the EFTA by adding Section 920.
[28] See Visa Settlement Agreement ¶ 20.
[29] Section 920(b) of the EFTA.
[30] Consumer groups have raised this concern with the Federal Reserve, worrying that its proposed interpretation will require to issuers to contract with networks that do not protect consumers against the risk of fraud. See Hillebrand Letter at 4 (“A debit card is only as secure against misuse by thieves as the least secure of any of its multiple functionalities.”).
[31] 75 Fed. Reg. 81749.
[32] Coase, 3 J. Law & Econ at 2-7.
[33] Thomas P. Brown, Keeping Electronic Money Valuable 136 (2009) (published in Robert E. Litan and Martin Neil Bailey, eds., Moving Money: The Future of Consumer Payments).
[34] The role that the Federal Reserve played in forcing checks to clear at par in the United States makes for an interesting story, and this is not the first essay to see an analogy between that intervention and the recent disputes. See Lloyd Constantine, et al., Repairing the Failed Debit Card Market: Lessons from an Historically Interventionist Federal Reserve and the Recent Visa Check/MasterMoney Antitrust Litigation, 2 N.Y.U. J. L. & B. 147 (2005) (discussing the “aggressive measures” that the Federal Reserve used to force at-par clearance of checks on the banking industry in the 20th century).
[35] Proposed Reg II, 75 Fed. Reg. at 81748-49 (“Requiring multiple unaffiliated payment card networks, coupled with a merchant’s ability to route electronic debit transactions over any of the networks, could reduce the ability of a cardholder to control, and perhaps even to know, over which network a transaction would be routed.”)
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