Last week, Washington’s Seizure of Sunk Capital: Part II speculated about the legal situation on appeal of the Federal Reserve Board’s then-imminent regulations pursuant to the Durbin amendment, starting from the premise that the final rule would not change much from the proposal.
But a funny thing happened on the way to the courthouse—the FRB changed the rule substantially. It greatly expanded the types of costs that can be considered by the FRB in setting interchange fees, and it almost doubled the allowable price cap.
On the crucial issue of requiring that more than one processing network be available, the final rule makes clear that having one PIN and one signature network satisfies the law. Since this is the almost universal practice for current debit cards, compliance is easy. Also, it makes clear that the issuing bank gets to choose the networks with which it will deal; the merchant cannot select Fly-by-Night, Inc. This, too, eases issuer concerns.
These modifications greatly change the legal situation. While the language of the Durbin amendment is still as described in the article—it is a “the moon is green cheese” statute—as interpreted by the FRB it allows the issuer bank to recapture capital and most overhead costs, eliminating only corporate overhead and other remote expenditures. Reversing for such trivia will not appeal to a reviewing court, and rightly so. Serious constitutional matters should not ride on arcane cost accounting, even if the basis of the law remains a bad one.
The banks and their allies may well decide that, while they may not have dodged the bullet, it only winged them, and they are best off to call it a day.
Whether the merchants will see it the same way is an interesting question. They may feel that the final rule deprives them of the fruits of their successful lobbying, as it does, and attack the FRB’s interpretation.
Under the famous (to admin law geeks) Chevron doctrine, a reviewing court gives huge deference to agency interpretations, but the FRB really does push the Chevron envelope with this one, however much I agree with the result. If the rule is attacked, then of course the Fed, joined by the banks, will argue that this interpretation was necessary to avoid unconstitutionality. Then the same basic issues anticipated in my earlier article would be litigated, but with the FRB on the side of economic liberties instead of against them.
Other issues, such as the possible impact on innovation, remain in limbo. The rule will apply to debit card substitutes, but it is difficult to guess how this will work. For example, suppose someone comes up with an iPhone app that enables a network that will debit an account at any bank that signs up with the service—how would the multiple network rule affect this? Is it forbidden, a priori? This does not seem to have been the FRB’s intention, but I don’t see how to avoid this conclusion.
The time for filing appeals is running, so stay tuned. It ain’t over ‘til it’s over.
Finally, speaking as a one-time supervisor of rulemaking proceedings, the FRB staff deserves tremendous credit for the job it did in a very difficult situation. The final product is thoroughly professional and thoughtful.