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ICLE White Paper Executive Summary This study assesses the likely consequences of implementing the Credit Card Competition Act (CCCA), which proposes to require issuers of most Visa and . . .
This study assesses the likely consequences of implementing the Credit Card Competition Act (CCCA), which proposes to require issuers of most Visa and Mastercard branded credit cards in the United States to include a second network on their cards, and to allow merchants to route transactions on a network other than the primary network branded on the card.
Proponents of the Credit Card Competition Act (CCCA) claim that it would “enhance credit card competition and choice in order to reduce excessive credit card fees.” In fact, by forcing most U.S. credit-card issuers to include a second network on all their cards, the CCCA would remove the choice of network from the issuer and cardholder, and place it in the hands of the merchant and the acquiring bank.
There is some uncertainty as to the legislation’s anticipated effects, as nothing quite like it has ever been implemented anywhere in the world. We can, however, make some inferences based on the known effects of prior regulations driven by similar motives, in the United States and in such jurisdictions as Europe and Australia.
The primary U.S. payment-card networks—Visa, Mastercard, American Express, and Discover—constantly vie with one another to attract customers, investing billions of dollars in innovations that improve the user experience and reduce fraud and theft.
At the same time, hundreds of banks and credit unions compete to offer a broad range of credit cards to American consumers, choosing the network for each card based on the fit between the network’s terms, the card’s purposes, and its intended market.
Credit cards offer numerous benefits, including access to credit (interest-free, if paid in full by the due date), fraud protection, and chargebacks. Many also offer purchase insurance, fee-free international transactions, and consumer rewards like loyalty points and cash back.
Many rewards cards are co-branded with partners such as airlines, hotels, and retailers. The relationship between partners and card issuers is highly synergistic, with issuers generating revenue—due to increased use and associated interchange fees—while partners receive payments for rewards, marketing, and other ancillary benefits (such as lounge access, in the case of airlines). For the top six U.S. airlines alone, these deals represent more than 5% of total revenue—and five times their net revenue.
Credit-card rewards, including cash back and travel points, have become an important part of many consumers’ budgeting decisions. Indeed, it is not uncommon for consumers to have two or three different rewards credit cards, enabling them to choose which to use at time of a purchase based, at least in part, on the rewards they receive from any particular card.
While the CCCA would likely reduce the interchange fees paid by acquiring banks to issuing banks, overall bank fees are unlikely to fall dramatically. Rather, banks would shift fees from interchange to other sources of revenue, including late fees and interest.
The reduction in interchange fees would almost certainly significantly reduce rewards and other benefits to cardholders, as happened when price controls were imposed on debit cards following the implementation of a provision of the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 known as the “Durbin amendment,” after sponsoring Sen. Richard Durbin (D-Ill.), who is also lead sponsor of the CCCA. The reduction in interchange fees, in turn, would make certain types of cards less viable. As such, the CCCA would reduce choice for consumers.
Exempted card issuers—especially those of the large three-party networks, American Express and Discover—would likely benefit from the CCCA, as they would still be able to offer rewards and the security of their networks would not be affected.
Merchants who partner with exempted three-party card issuers also would almost certainly benefit, at the expense of other merchants whose co-branded cards are issued by banks that are covered by the legislation. For example, Delta Airlines, which has a card co-branded with American Express, would benefit at the expense of all other airlines. Merchants that co-brand with a three-party card would not only benefit from higher merchant fees, but also from customers switching to receive higher levels of loyalty rewards. Moreover, those who currently spend the most on their co-branded cards would likely be most motivated to switch.
Given the relatively low margins of the U.S. airline industry and the significant proportion of revenue that loyalty rewards represent, the combination of reduced loyalty revenue and reduced customer revenue could be absolutely devastating for the industry (except, as noted, for Delta).
To make matters worse, the CCCA may also affect many airlines’ costs of capital. For example, a reduction in expected revenue from the sale of rewards could result in credit rating agencies downgrading the bonds that United and American Airlines’ rewards-program subsidiaries issued during the COVID-19 pandemic. That could trigger covenants requiring the parent companies to post additional capital, which would, in turn, increase the parents’ capital costs.
In general, the combination of reduced revenue and reduced loyalty-program memberships—leading to lower revenue from higher-value customers—would reduce airlines’ expected future profitability, which would increase capital costs. This may not pose a problem in periods when demand for air travel is high. In a downturn, however, it could result in a bankruptcy—previously avoided due to the airline’s ability to securitize its loyalty program.
One potential outcome is that bank issuers and airlines choose to cancel their co-branded agreements by mutual consent, so that the airlines could make similar arrangements solely with three-party card networks. While this would clearly be beneficial for those three-party networks, and could mitigate the harm to the airlines, it would be enormously costly, and the losers would be issuers, four-party networks, cardholders (especially those with lower credit scores who did not qualify for the three-party-network cards), and the U.S. economy as a whole.
It is also possible that issuers will do what they appear to have done in the EU: increase interest rates and late fees so that they can continue to offer some level of rewards. In that case, the CCCA would have brought about what some critics of credit-card rewards have previously falsely accused issuers of doing: using credit cards to transfer wealth from lower-income, lower-spending consumers who maintain a revolving balance to higher-income, higher-spending consumers who pay off their balances every month.
Either way, the CCCA effectively picks winners and losers. The winners will be three-party cards—especially American Express—and merchants that co-brand with those cards, such as Delta (and their customers), as well as big-box retailers. The losers will be Visa, Mastercard, the other airlines, the card issuers, and their customers. Overall, merchants are also likely to lose, as consumers spend less, which could translate into lower rates of economic growth. Unfortunately, the number and scale of those who lose is likely to be far greater than the number and scale of those who win.
Over the past 20 years, payment cards have become increasingly vital to the U.S. economy, largely replacing checks as the preferred means of making a whole range of payments. Underpinning this shift have been innovations in payments technologies that have made them quicker, more convenient, more secure, and less costly for both consumers and merchants.1F[1] These innovations have been driven by competition:
Credit-card issuers guarantee payment to merchants, so long as those merchants comply with the terms and conditions set by the card network.[2] In so doing, credit cards provide a means of payment that has lower counterparty risk for the merchant than checks. At the same time, card issuers effectively assume the risk of default and collection.
Back in 2010, Sen. Richard Durbin (D-Ill.) himself recognized that operating credit cards is an expensive enterprise that entails counterparty, default, and collection risk, which is why credit cards were excluded from the original Durbin amendment. As he noted at the time:
About half of the transactions that take place now using plastic are with credit cards, and there is a fee charged—usually 1 or 2 percent of the actual amount that is charged to the credit card. It is understandable because the credit card company is creating this means of payment. It is also running the risk of default and collection, where someone does not pay off their credit card. So, the fee is understandable because there is risk associated with it.[3]
For early card-payment systems, offering a means of payment and being exposed to counterparty, collection, and default risk were pretty much the core features of the product. This is because there were only two parties: the merchant and the consumer. The “card” (a metal plate) enabled merchants to maintain a record of credit provided to regular customers, who would then settle up at the end of the month.3F[4]
So, had Sen. Durbin been referring to the Charge Plate—or to its modern equivalent, which are merchant-issued charge cards—his characterization of the costs would have been largely correct. But nearly all modern payment networks are either three- or four-party systems that are fundamentally more complex.
In the 1950s, Diners Club and then American Express both established “three-party” systems, which enabled consumers to use the same card at multiple merchants.4F[5] In a three-party system, the card issuer pays merchants directly, and bills and collects from cardholders directly.5F[6]
The following decade, several organizations developed “four-party” systems, which have four main parties: issuer, consumer, merchant, and acquirer. The issuer contracts with the consumer, providing the card, issuing bills, etc. The acquirer contracts with the merchant, making payment. The rules of the system are set by the network operator, which also facilitates settlement between the issuer and the acquirer, and monitors for fraud and other abuse.6F[7] Visa and Mastercard are the primary global four-party networks.
One of the major challenges faced by both three- and four-party payment systems is to persuade both merchants and consumers of their value. If too few merchants accept a particular form of payment, consumers will have little reason to hold it and issuers will have little incentive to issue it. Likewise, if too few consumers hold a card, merchants will have little reason to accept it.
Conceptually, economists describe such scenarios as “two-sided markets”: consumers are on one side, merchants on the other, and the payment system acts as the platform that facilitates interactions between them.7F[8] While payment cards are a prominent example of a two-sided market, there are many others, including newspapers, shopping malls, social-networking sites, and search engines. Indeed, the rise of the internet has made two-sided markets practically ubiquitous.
All platform operators that facilitate two-sided markets face essentially the same challenge: how to create incentives for participation on each side of the market to maximize the joint net benefits of the platform to all participants—and to allocate costs accordingly.8F[9] Thus, the platform operator can be expected to set the respective prices charged to participants on each side of the market to achieve this maximand.9F[10] If the operator sets the price too high for some consumers, they will be unwilling to use the platform; similarly, if the operator sets the price too high for some merchants, they will not be willing to use the platform. As the U.S. Supreme Court put it:
To optimize sales, the network must find the balance of pricing that encourages the greatest number of matches between cardholders and merchants.[11]
This brings us to transaction fees, which are the primary mechanism that credit-card-network operators use to balance the market. In three-party systems (American Express and Discover), the card-network operator acts as both issuer and acquirer, and charges merchants a card-processing fee (typically a percentage of the transaction amount) directly. In four-party systems, the issuer charges the acquirer an “interchange fee” (set by the networks) that is then incorporated into the fees those acquirers charge to merchants (called a “merchant-discount rate” in the United States). The schematics in Figure 3 show how these different systems operate.
The interchange fees charged on four-party cards vary by location, type of merchant, type and size of transaction, and type of card. An important factor determining the size of interchange fee charged to a particular card is the extent of benefits associated with the card—and, in particular, any rewards that accrue to the cardholder.
The various three- and four-party payment networks have been engaged in a decades-long process of dynamic competition, in which each has sought—and continues to seek—to discover how to maximize value to their networks of merchants and consumers. This has involved considerable investment in innovative products, including more effective ways to encourage participation, as well as the identification and prevention of fraud and theft.[12]
It has also involved experimentation with differing levels of transaction fees. The early three-party schemes charged a transaction fee of as much as 7%.15F[13] Competition and innovation (including, especially, innovation in measures to reduce delinquency, fraud, and theft) drove those rates down. For U.S. credit cards, interchange fees range from about 1.4% to 3.5%, while the average is approximately 2.2%.18F[14]
In general, economists have concluded that the “optimal” interchange fee is elusive, and that the closest proxy is to be found through unforced market competition. They have therefore cautioned against intervention without sufficient evidence of a significant market failure.25F[15]
Despite these cautions, governments have intervened in the operation of payment systems in various ways. As we have documented previously, many of these regulations have slowed the shift toward more innovative, quicker, and more convenient payment systems, while also reducing other benefits and harming, in particular, poorer consumers and smaller merchants.2F[16]
Introduced in June 2023 by Sens. Richard Durbin (D-Ill.), Roger Marshall (R-Kan.), Peter Welch (D-Vt.), and J.D. Vance (R-Ohio), the Credit Card Competition Act of 2023[17] would continue this trend, to the detriment of consumers and businesses. As this paper documents, co-branded cards generate significant revenue for the merchants whose brand appears on the card. As Section II documents, this appears to be particularly true for airlines. While many other merchants also have valuable co-branded agreements, they generally represent a much lower proportion of total revenue. Hence, assessing the potential effect of the CCCA on airline co-branded credit cards—and on the airlines themselves—is particularly important.
As documented in Section IV, there are broadly two potential outcomes of the CCCA with respect of U.S. airlines:
While the second outcome would clearly be worse, in both cases, Americans would have choices taken away, costs would increase, and economic growth would be adversely affected. Moreover, far from reducing merchants’ costs, most merchants would be adversely affected, as the costs of acquiring credit cards would not fall and could, indeed, rise (and, of course, merchants with co-branded loyalty-rewards cards would suffer substantial revenue losses). In short, there is basically no scenario in which the Credit Card Competition Act is actually good for competition, American consumers, or the U.S. economy as a whole.
The study proceeds as follows:
Loyalty-rewards programs have existed for hundreds of years. The first documented program in the United States was established in 1793 by a merchant in Sudbury, New Hampshire, who gave away copper tokens to customers, which could be redeemed for goods.[18] Over time, programs became more sophisticated, with copper tokens replaced, first, by stamps and, later on, by plastic cards with magnetic stripes that encoded the owner’s account information (reward information being recorded on a central database that could be accessed using the card, enabling rewards to be deposited or used). These days, rewards are mostly held in online accounts and accessed via websites and mobile apps, although cards are often still distributed—albeit mainly symbolically.
While we are mainly concerned here with airlines loyalty-rewards programs, and specifically with the role of credit cards co-branded by those programs, it helps to have a more general appreciation of the nature and function of loyalty-rewards programs. Toward that end, this section begins with a basic explanation of the economics of loyalty-rewards programs. It then explores the nature and function of credit-card reward programs, before discussing airline/credit-card co-branded reward programs in more detail.
Loyalty-rewards programs function primarily as marketing tools to encourage customers to become and remain loyal to a particular merchant. Program participants typically receive points toward rewards each time they make a purchase associated with the program, creating incentives to buy goods and services from that merchant.
These incentives are enhanced by structuring the programs in tiers and making them time-limited, so that participants who purchase more goods or services in a particular period receive higher levels of rewards. Such features are prominent in airline-reward programs, which typically offer inducements to participants in the form of upgrades, waived baggage fees, and use of airport lounges, which become available upon spending a certain amount over the course of a year.[19]
Loyalty-reward programs that distribute specific goods or services in return for reward points, coupons, or stamps likely benefit from the ability to purchase goods or services at a bulk discount.[20]
Merchants may also use rewards redemptions as a means to practice price discrimination, offering specific goods and services to reward-program participants for reduced reward redemptions. For example, airlines typically offer seats for fewer reward points during off-peak periods. Such discounts reduce the marginal cost of the rewards program, enabling merchants to make use of otherwise-unfilled capacity or to sell bulk-purchased goods, while simultaneously providing additional benefits to loyal customers.
Card-based and digital (i.e., app-based or online) reward programs also collect data on the purchasing habits of program participants. As a result, program operators and partners can target marketing at specific participants and more effectively build longer-term customer relationships with them.
American Airlines established the first airline loyalty-rewards program, AAdvantage, in 1981.[21] The other major carriers soon followed suit, realizing that such programs can be an effective means to offer incentives for loyalty. The standard loyalty-rewards program was boosted in 1982 when American Airlines introduced a “gold” tier for higher-value customers.[22] Again, other airlines followed suit, and most have since developed multiple tiers. The evidence shows that airline loyalty-reward schemes are highly effective ways to attract and retain high-value customers.[23]
The value of airline loyalty-reward programs was demonstrated in an unusual way during the COVID-19 pandemic. The collapse in demand for air travel caused more than 40 airlines around the world to file for bankruptcy.[24] Initially, some U.S. carriers issued bonds with very high coupons, as they hemorrhaged cash.[25] Then, in June 2020, United Airlines created a separate bankruptcy-remote entity for its rewards programs, and used it as collateral to issue $5 billion in bonds at a more favorable rate than the airline itself would have received.[26] American and Delta took the same approach.[27]
Credit-card rewards programs are similar in many elements of their basic operation to other reward programs. Card users receive rewards either in the form of cashback or points (or “miles”) that can be redeemed for various goods and services (the specific goods and services available vary, depending on nature of the rewards-program operator and any partners or affiliates).
Many card issuers offer credit cards that are co-branded with merchants, ranging from retailers to hotels. Among the most popular cards are those co-branded with airlines. Before delving into the particulars of airline co-branded cards, however, it is worth briefly considering the mechanics of co-branded cards in general.
Each co-branded card offering exists by way of an agreement between the card issuer and the co-brand entity. This agreement typically specifies the amount the card issuer will pay the co-brand entity for the purchase of loyalty-reward points, as well as marketing opportunities. These agreements enable issuers, in turn, to make further agreements with cardholders, offering them specific rewards in return for specific spending amounts.
By offering rewards, card issuers provide card holders with incentives to use their card. Meanwhile, the rewards themselves also create loyalty toward the co-brand entity. And the co-brand entity is typically able to adjust the redemption rate of loyalty rewards in order to encourage the use of rewards in ways that reduce the marginal cost of the rewards redemption to the co-brand entity. That, in turn, enables the co-brand entity to offer rewards to card issuers at a discount. In this way, rewards programs can generate significant profits for co-brand entities and issuers, while generating loyalty to the brand and the card for cardholders.
Credit-card-based reward programs can be a highly effective way both to increase the use of cards and to enhance customer loyalty. Survey data demonstrate the effectiveness of rewards programs as a means of encouraging loyalty. A 2015 survey by Technology Advice of U.S. shoppers found that more than 80% of respondents said they were more likely to shop at stores that offered loyalty programs.[28]
Credit-card issuers, in turn, fund the programs partly by charging annual fees to users and partly by charging interchange fees to merchants.
Merchants undoubtedly benefit from credit-card-reward programs both directly and indirectly. Direct benefits come from the ability to target marketing to reward-program members through discounts, additional rewards, and other inducements. As noted, card-based rewards programs enable merchants to customize marketing to specific individuals and groups based on information gathered through card use about their purchasing habits. This can result in a substantial increase in spending per-transaction (known as “ticket lift”).
Research by Mastercard, for example, found that international travelers to the United States who were offered incentives to shop at certain merchants spent four times as much on their cards as cardholders not redeeming such offers.[29] Indirect benefits come from increased use of credit cards in general, which leads to increased spending, due to reduced liquidity constraints, as well as reduced transaction costs and better transaction management.
Credit-card issuers also benefit from credit-card rewards programs, through additional card uptake and usage, as well as from fees charged to merchants and third-party reward-card operators for transaction-related information that better enables them to target marketing efforts.[30]
Arguably the greatest beneficiaries of reward programs, however, are consumers with reward credit cards. Such consumers benefit directly, both from the rewards themselves and from the various additional inducements offered by merchants and card issuers as part of marketing efforts. A survey by Ipsos conducted at the end of 2020 found that 60% of Americans consider credit-card rewards to be “very important” for them, while over half said the prospect of rewards influences their purchasing decisions.[31] Meanwhile, a more recent survey by WalletHub found that 80% of respondents said that inflation had made them more interested in credit-card rewards.[32]
Moreover, due to the better targeting of these inducements made possible by the use of individual transaction data, owners of rewards credit cards likely receive offers that are more relevant than poorly differentiated mass marketing and advertising. In the WalletHub survey, 58% of Americans said they go out of their way to spend at merchants who offer additional credit-card rewards.[33]
Many merchants with loyalty-rewards programs partner with affiliated (non-competing) merchants to expand their program’s reach. Airlines notably partner with providers of related travel services, such as hotels and car-rental services, offering additional loyalty-rewards points in return for spending dollars at those partners. The partners in these programs purchase the loyalty-rewards points from the airlines, thereby generating additional revenue for the airline.
In 2022, loyalty-rewards programs represented 7.6% of total revenue for the top six U.S. domestic airlines (“loyalty income” column in Table 1). Given the airlines’ relatively thin profit margins (“net income” column in Table 1), this revenue is clearly important even in good times. Indeed, in 2019, the net cash income of the loyalty-rewards programs for the three largest U.S. airlines was $7.8 billion and the margin on those programs ranged from 39% to 53%.[34]
[35]
But loyalty-rewards income can be even more important during downturns. During the 2009-2010 recession, both American Airlines and Delta reported pre-selling $1 billion of loyalty rewards to their co-branded credit-card issuers (Citibank and American Express, respectively).[36] And during the COVID-19 pandemic, the airlines were essentially kept afloat by their loyalty-rewards programs, in general, and their co-branded cards, in particular.
In 2020, for example, American Airlines sold $3.65 billion of loyalty rewards, of which $2.9 billion came from sales to co-branded cards and other partners, resulting in adjusted earnings before interest, taxes, depreciation and amortization (EBITDA) for the loyalty-rewards program of $2.1 billion.[37] It is noteworthy that those partner-rewards sales were only 25% lower in 2020 than in 2019, suggesting that co-branded cards were responsible for about 70% of the total.[38] Meanwhile, Delta, United, and American raised more than $10 billion by issuing debt backed by their loyalty programs, enabling them to avoid bankruptcy.[39]
For airlines, the most significant loyalty-reward partnership is with credit-card issuers.[40] While the airlines do not usually break out the numbers specifically for co-branded cards, they are clear in their annual reports about the importance of their partnerships with credit-card issuers. Consider the following four examples:
As these descriptions indicate, revenues to airlines from co-branded cards are a combination of loyalty rewards, which issuers purchase from the airlines and then allocate to cardholders in accordance with the terms of agreements between the issuers and cardholders; payments for marketing, which includes such items as sending promotional materials to the airlines’ lists of loyalty-rewards members; and payments for ancillary benefits, such as lounge access for some cardholders.
Previous estimates indicate that the proportion of “loyalty revenue” attributable to co-branded credit cards is in the 70% to 80% range.[47] At the lower end of that range (70%), the top six airline co-branded cards would have generated just over $10 billion in value in 2022. Plausibly, the number is somewhat higher. As such, revenue from co-branded cards would represent at least 5% of the operating revenue of the six largest airlines and five times those airlines’ net revenue.
Per the discussion above about the beneficiaries of co-branded reward programs, it seems reasonable to infer that airline co-branded reward cards are highly valued by consumers, airlines, the partners, and the card issuers.
The Credit Card Competition Act of 2023 (CCCA) was introduced in the U.S. Senate on June 7, 2023, by Sens. Richard Durbin (D-Ill.), Roger Marshall (R-Kan.), Peter Welch (D-Vt.), and J.D. Vance (R-Ohio). If enacted, the bill would direct the Federal Reserve Board to promulgate regulations to prohibit banks with assets of $100 billion or more from issuing credit cards[48] that could be used with either (1) only one payment network, (2) only two affiliated payment networks,[49] or (3) only the two payment networks with the “largest market share.”[50] The bill also directs the Federal Reserve Board to promulgate rules prohibiting credit-card processors from limiting merchants’ ability to choose which network they use to route a payment.[51] Furthermore, it would effectively require interoperability of credit-card “tokens.”
While the bill does not explicitly name Visa or Mastercard, they are clearly its primary target. The legislation defines “largest market share” by number of cards issued, which is far larger for both Visa and Mastercard than for any three-party network (i.e., American Express and Discover), primarily because of the intense competition among banks to supply cards.[52] In addition, the Federal Reserve Board would be required to review market share every three years and, if the identities of two largest networks have changed, then the third requirement would no longer apply.[53] As if that weren’t clear enough, the legislation also states that “The regulations … shall not apply to a credit card issued in a 3-party payment system model.”[54]
In his summary of the act, Sen. Durbin claims:
[T]he giant banks that issue the overwhelming majority of Visa and Mastercard credit cards would have to choose a second competitive network to go on each card, and then a merchant would get to choose which of those networks to use to process a transaction. This competition and choice between networks would incentivize better service and lower cost; in fact, for more than a decade, federal law has required debit cards to carry at least two debit networks and this requirement of a choice of debit networks has fostered increased competition and innovation in the debit network market and has helped hold down fees.
That is, to say the least, an optimistic appraisal of the proposed legislation. While it is highly plausible that the CCCA would, if enacted, lead to a reduction in interchange fees, it appears highly unlikely that it offers incentives for better service. Indeed, the opposite is far more likely. The reason is asymmetric counterparty risk and, specifically, the lack of adequate incentives on the part of larger merchants and acquirers to choose networks that manage fraud risk. This is a problem that Todd Zywicki and I discuss at length in our recent paper on the regulation of routing in payment networks.[55] As we note there:
[E]ach party to a transaction has somewhat different incentives regarding the choice of network. In general, the card issuer and cardholder both have strong incentives to route payments over the main branded network associated with the card, thereby ensuring the use of all the security and anti-fraud protections available from an EMV card, including 3DS for online transactions and the ability for cardholders to place temporary holds on their cards. Some merchants also have incentives to route over the main branded network, especially smaller merchants selling higher-value goods online, given the potential for very expensive chargebacks from unauthorized transactions. However, many other merchants, especially larger high-volume merchants, would have incentives to use the lowest cost routing, especially those that are able to take advantage of the EMV chip and PIN for POS transactions, and those that have their own machine-learning-based fraud monitoring systems that enable them to reduce potential chargebacks on their own. Finally, acquirers generally have less incentive to avoid fraud and stronger incentives to route transactions over the least-cost route.
Since the CCCA would shift the choice of network from the issuer to the merchant and/or acquirer, and since those parties generally have weaker incentives to route transactions over more secure networks with better fraud detection, the likeliest effect is that the CCCA would reduce investments in fraud prevention. As we also noted in the paper on regulating routing, mandating “competition” over routing would cause data fragmentation, with some transactions being routed over the primary network while others are routed over the secondary network. The end result is that the networks’ fraud-detection algorithms would be less effective.[56] Thus, at least when it comes to fraud prevention, the CCCA would likely result in worse service, not better.
As noted, for reasons explained in Section II, this paper is primarily interested in the effect of the CCCA on airline co-branded rewards cards. Subsequent sections draw on evidence regarding the effects of other interchange-fee regulations, both in the United States and around the world. As a prelude, here is what American Airlines said in its 2022 annual report about the legislation’s potential implications (referring to a near-identical bill that was introduced in the 117th Congress):
We may also be impacted by competition regulations affecting certain of our major commercial partners, including our co-branded credit card partners. For example, there has previously been bipartisan legislation proposed in Congress called the Credit Card Competition Act designed to increase credit card transaction routing options for merchants which, if enacted, could result in a reduction of the fees levied on credit card transactions. If this legislation were successful, it could fundamentally alter the profitability of our agreements with co-branded credit card partners and the benefits we provide to our consumers through the co-branded credit cards issued by these partners.[57]
Over the past four decades, jurisdictions across the world have imposed a range of regulations on payment cards.[58] The most common of these have been price controls on interchange fees. Because three-party card networks are closed loop, there is technically no “interchange” fee and, in many but not all cases, regulations have been interpreted as not applying to them.[59] Some jurisdictions have also imposed other regulations, of which the most relevant for the current analysis is the Durbin amendment’s routing requirements. This section discusses evidence of the effects of these two types of regulation in order to provide insights into what might be expected from the CCCA. (For additional details, see our recent literature review.[60])
In every jurisdiction that has introduced price controls on interchange fees, issuing banks have responded by adjusting their offerings. In the case of credit cards, this has typically meant some combination of reduced card benefits (rewards, insurance, and so on); increased annual fees; and/or increased interest rates. In the case of debit cards, it has means reduced card benefits, increased bank-account fees, and overdraft charges. Some notable examples:
When the Reserve Bank of Australia (RBA) imposed price controls on credit-card interchange fees in 2003, it made clear that one of its objectives was to reduce the use of credit cards by making them less attractive as a payment solution for consumers.[61] The ploy appears to have worked, as annual fees for rewards credit cards rose, and the rate of rewards fell significantly:
In addition, issuers introduced caps on the total number of rewards that could be earned in a given period.[64] This turns the conventional rewards-card model on its head: instead of creating incentives to use the rewards card more to achieve specific additional benefits, Australian credit-card issuers now provide incentives for rewards-card holders to switch cards when they reach the cap.
Shortly after Australia’s interchange-fee caps for four-party cards came into force in 2003, two banks introduced three-party credit cards with annual fees and rewards similar to those that previously existed on their four-party cards.72F[65] In addition, several issuers introduced packages of two similar premium rewards cards, one that operates on a four-party network and one that operates on a three-party network.73F[66] The reason these “companion cards” were created is that far fewer merchants accept three-party cards than four-party cards; with both cards, consumers could use the higher-earning three-party card where it is accepted and the lower-earning four-party card elsewhere.
Unsurprisingly, the market share of three-party cards, while still relatively small, increased considerably following the 2003 regulations. By volume of transactions, three-party cards increased from about 10% in 2002 to about 16% in 2013 (a 60% increase). By value of transactions, they increased their market share from about 15% in 2002 to more than 20% in 2013 (a 33% increase).
In October 2015, the RBA designated American Express Companion Cards a “payment system”74F[67] and subsequently announced that, as of July 1, 2017, the cards would be subject to the same interchange-fee caps as other designated cards.75F[68] Following the introduction of these caps, companion cards were discontinued and the market share by volume of three-party cards fell back to between 7% and 8% (but subsequently rose again slightly to about 8%).76F[69] By value, three-party cards’ market share of transactions also fell steeply after mid-2017, but is now back to about 20%.[70]
In 2005, the Spanish government introduced gradually tightening price controls on interchange fees by “agreement” with the country’s banks. For credit cards, the controls started at 1.4% in 2006, falling to 0.79% in 2009-10. In response, local issuers reduced the rewards available from cards.57F[71] Meanwhile, from 2008 to 2010, issuers increased interest rates on credit cards from an average of 3% above the European Central Bank (ECB) base rate in 2005 to 4.6% above base.58F[72] As a result, income from interest payments was nearly 80% higher from 2006 to 2010 than in 2005, representing a total incremental increase in income from interest over the period of about €2.6 billion (although this could be an overstatement, since we are only comparing to revenue in 2005). At the same time, average annual fees on credit cards rose by 50%, from €22.94 to €34.39, generating incremental revenue over the period of €1.7 billion.
In 2014, the European Union (EU) adopted the Interchange Fee Regulation (IFR), which imposed price controls on debit- and credit-card interchange fees at 0.2% and 0.3%, respectively, with the regulation taking effect Jan. 1, 2015. The IFR initially applied only to four-party cards (primarily to Visa and Mastercard, but also some domestic payment cards).
In response to the IFR, credit-card issuers significantly reduced rewards on credit cards, or terminated rewards cards altogether.[73] Several airlines have nonetheless continued to co-brand rewards cards. American Express cards were all initially excluded from the rules, so airlines that already had an Amex co-branded card (such as British Airways) were not affected. Following a decision by the European Court of Justice in 2018, however, the IFR was deemed to also apply to co-branded cards issued by three-party networks.
As in Australia, issuers in the EU increased annual fees on cards that already had fees.[74] The total revenue from annual fees fell, however, presumably because consumers switched to cards without fees (Table 2). Issuers nonetheless made up much of the revenue lost from the interchange price controls by increasing interest rates. As noted below, this enabled them to continue to offer rewards. As Table 2 shows, while revenue from interchange fees fell by nearly 50% between 2014 and 2018, issuer revenue related to credit cards fell by less than 5%.[75]
[76]
In addition, while rewards in the EU fell significantly across the board, some co-branded airline-rewards cards in the EU and the United Kingdom (which retained IFR caps on domestic transactions post-Brexit) earn at a rate that is nominally worth the equivalent of 1% to 1.5% of the amount spent on the card—that is, three to five times the interchange fee. For example, American Express (whose co-branded cards are now subject to the same fee caps as four-party cards) offers two British Airways co-branded cards in the UK, one that has an annual fee of £250 and earns 1.5 Avios per £1 on general spend, and 3 Avios per £1 spent on BA. The other card has no annual fee and earns 1 Avio per £1 spent. [77] Meanwhile, the value of each Avios is between 0.66 and 1.5p, depending on its use.[78]
There are several feasibly explanations for why the value of rewards exceeds the amount of interchange fees. First, issuers may be able to purchase airline-loyalty rewards at a significant discount. Because airlines know that they will be able to encourage holders to redeem them on flights that otherwise would not be full, the marginal cost is likely much lower than the nominal value. Second, other partner companies that redeem loyalty rewards may also be willing to do so at a discount, knowing that such redemptions both encourage loyalty to that partner and, in some cases, will only represent partial payment for goods and services, thereby acting effectively as a discount on larger purchases. Third, card issuers may be using other income—such as annual fees, interest, and late fees—to cover the shortfall. It is possible that all three explanations are true.
If card issuers in the EU are using additional revenue from higher-interest charges and late fees to cross-subsidize rewards cards—including airline co-branded rewards cards—then the IFR is effectively highly regressive. This is because late fees and interest charges are predominantly paid by individuals with lower credit scores and who spend less on their cards but keep a revolving balance, whereas rewards are earned primarily by people with higher credit scores who pay off their balance each month.
When the Federal Reserve adopted Regulation II, implementing the interchange-fee price controls required by the Durbin amendment to Dodd-Frank, some covered issuing banks initially responded by stating that they would introduce consumer fees for the use of debit cards.[79] That idea immediately met with backlash, so the banks instead increased monthly account fees and increased the minimum balance required for free checking, as documented by economists at the Federal Reserve.[80] Banks also essentially eliminated rewards for debit cards. Evidence suggests that the higher bank-account charges and higher minimum-balance requirement for free checking most likely led to a significant increase in the number of unbanked individuals. [81]
Meanwhile, the evidence also suggests that consumers received little, if anything, in return. A survey conducted by economists at the Federal Reserve Bank of Richmond two years after the implementation of Regulation II found that:
[T]he regulation has had limited and unequal impact on merchants’ debit acceptance costs. In the sample of 420 merchants across 26 sectors, two-thirds reported no change or did not know the change of debit costs post-regulation. One-fourth of the merchants, however, reported an increase of debit costs, especially for small-ticket transactions. Finally, less than 10 percent of merchants reported a decrease of debit costs. The impact varies substantially across different merchant sectors. The survey results also show asymmetric merchant reactions to changing debit costs in terms of adjusting prices and debit restrictions. A sizable fraction of merchants are found to raise prices or debit restrictions as their costs of accepting debit cards increase. However, few merchants are found to reduce prices or debit restrictions as debit costs decrease.[82]
[T]he regulation has had limited and unequal impact on merchants’ debit acceptance costs. In the sample of 420 merchants across 26 sectors, two-thirds reported no change or did not know the change of debit costs post-regulation. One-fourth of the merchants, however, reported an increase of debit costs, especially for small-ticket transactions. Finally, less than 10 percent of merchants reported a decrease of debit costs. The impact varies substantially across different merchant sectors.
The survey results also show asymmetric merchant reactions to changing debit costs in terms of adjusting prices and debit restrictions. A sizable fraction of merchants are found to raise prices or debit restrictions as their costs of accepting debit cards increase. However, few merchants are found to reduce prices or debit restrictions as debit costs decrease.[82]
A subsequent study by economists Vladimir Mukharlyamov and Natasha Sarin investigated the Durbin amendment’s effects on consumers using a proprietary dataset of gasoline sales in different ZIP codes.[83] (Gas is a widely consumed commodity sold in a highly competitive market, and is thus arguably the product most likely to see interchange-fee savings passed through.) The researchers found that gas is, “cheaper in ZIP codes with a greater fraction of transactions paid with debit cards issued by large banks,” which suggests that at least some retailers passed on some savings. They note, however, that “the standard deviation of per-gallon gas prices ($0.252) is 168 times larger than the average per-gallon debit interchange savings ($0.0015). Relatedly, total Durbin savings for gas merchants amount to less than 0.07% of total sales. These points render the quantification of merchants’ pass-through with statistical significance.” In other words, whatever savings retailers passed on to consumers were tiny.
At the same time, using data from bank call reports and the Federal Deposit Insurance Corporation’s summary of deposits, Mukharlyamov and Sarin found that banks covered by the price controls “collectively lost $5.5 billion in annual revenue” from interchange fees. And using data from RateWatch, they found those banks “passed 42 percent of these losses through to their customers.”[84] Specifically:
We estimate that the share of free checking accounts fell from 61 percent to 28 percent as a result of Durbin. Average checking account fees rose from $3.07 per month to $5.92 per month. Monthly minimums to avoid these fees rose by 21 percent, and monthly fees on interest-bearing checking accounts also rose by nearly 14 percent. These higher fees are disproportionately borne by low-income consumers whose account balances do not meet the monthly minimum required for fee waiver.[85]
So, while the Durbin amendment served to dramatically reduce interchange fees on debit transactions, the main effect was to increase bank fees for poorer consumers, causing some of them to leave the banking system altogether and likely become reliant on more expensive forms of credit, such as payday loans.
The only jurisdiction to have thus far implemented regulations mandating “competition” in network routing is the United States, which included such a mandate for debit cards in the Durbin amendment. Some other jurisdictions, most notably Australia, have contemplated such regulations. But in its most recent report on the matter, the RBA rejected mandatory “least cost routing.”[86] This subsection thus focuses on the effects of the Durbin amendment’s routing requirements.
In addition to interchange-fee price controls on “covered” issuers—i.e., banks with assets of at least $10 billion—the Durbin amendment required the Federal Reserve Board to impose routing requirements on the debit transactions of all banks. Specifically, it mandated that these regulations should prohibit issuers and payment networks from imposing network-exclusivity arrangements.[87] In particular, all issuers must ensure that debit-card payments can be routed over at least two unaffiliated networks. It also required the Federal Reserve Board to prohibit issuers and payment networks from restricting merchants and acquirers’ ability to choose the network over which to route a payment.
[88]
As Figure 2 shows, for covered issuers, average interchange fees per-transaction fell to the regulated maximum for both dual-message (signature) transactions and single-message (PIN) transactions immediately following implementation of the Durbin amendment in October 2011. Meanwhile, discounting for inflation, average fees per-transaction for issuers that were exempted from the price controls fell by only about 10% for dual-message transactions, which were not subject to direct competition for routing. For single-message transactions, however, routing was subject increasingly to direct competition, and average fees per-transaction for exempt issuers fell by 30% over the course of eight years; by 2019, fees were only marginally higher than the regulated maximum for covered issuers.
Based on the experience of mandatory routing under the Durbin amendment, then, it seems highly likely that the CCCA would, if implemented, drive down the price of interchange, as proponents want. And issuers would respond as they did to the Durbin amendment, by finding other ways to recoup lost revenue. Consumers would again almost certainly endure the most of this shift through higher card fees, higher interest rates, and fewer benefits, including less generous rewards.
This section draws on the discussion in Section IV to infer the potential effects the CCCA would likely have on co-branded credit cards. It begins with a discussion of the effect on issuer revenue in general. It then looks at how issuers might address the loss of revenue through, e.g., increases in annual card fees, increases in interest rates and late payment fees, reduction in rewards, reduction in other benefits, and the introduction of “companion cards.” This is followed by a discussion of the potential effect on airlines.
As noted, the stated intention of the CCCA is to reduce merchants’ costs by lowering interchange-fee revenue. One proponent of the CCCA has claimed that it “could result in annual savings upward of $15 billion.”[89] But this claim is not supported by any evidence; indeed, so far as this author can tell, it seems to have been plucked out of thin air.
While it is likely that interchange-fee revenue will be reduced, it is difficult to know with any degree of precision by how much, or what other effects might occur. (As to the effect on merchant costs—that is quite another matter, as will be discussed later.) Much will depend on which networks issuers include as the secondary networks on their cards. This, in turn, will likely depend on complex negotiations among the issuers, the primary networks, and the various possible secondary networks. Factors that will affect the decision regarding which network is included as a secondary network on a card are likely to include:
These factors generally militate against single-message networks, three-party networks, and China Union Pay becoming secondary networks on credit cards. As such, many covered issuers might plausibly choose JCB Co. Ltd. (formerly Japan Credit Bureau) as their secondary network, assuming that JCB is not deemed to be a national security risk. JCB is a member of EMVCo and applies the same basic security standards as other EMVCo companies (Visa, Mastercard, American Express, Discover, and China Union Pay).[91] Unlike China Union Pay, however, JCB is a private enterprise, and so should not fall afoul of Article D of the CCCA. JCB has an agreement with Discover that enables JCB cardholders to use their cards in the United States by running them over the Discover network. By adding JCB as the secondary network, issuers would therefore effectively utilize Discover’s network, including the application of EMVCo rules, such as 3DS, which provides enhanced fraud protection for card-not-present transactions.[92]
Since the JCB secondary network would actually be run over the Discover network, the interchange rates that would be applied would presumably be Discover’s, which are similar on average to those of Visa and Mastercard, but appear to be slightly higher for standard cards and slightly lower for the higher-end rewards-type cards.[93] Assuming cards are programmed to apply interchange rates for somewhat equivalent products, the initial effect of the CCCA on interchange-fee revenue could, in theory, be modest.
That sounds like good news. Over the medium to longer term, however, this artificial “competition” between the networks on the card would almost inevitably lead to a gradual reduction in fees, as each network seeks to attract more users in each category. This is precisely what happened with PIN debit networks for banks and credit unions that were exempted from the Durbin amendment’s price controls on interchange fees. This would continue until each network could barely cover its costs in each category. In that case, the effect on interchange-fee revenue could be devastating.
The analogy here is not to the dynamic competition that drives innovation in conventional markets, guided by a process of price discovery that seeks to provide consumers with better goods and lower prices through the development of more efficient processes that consume fewer resources. The analogy here is, rather, the “tragedy of the commons,” or more precisely, the tragedy of open access. In effect, by forcing networks to compete on price alone—maximizing use, while minimizing expenditure on improvements—the result will be diminution in network quality, just as when anglers chase after fish stocks until they are economically exhausted (too depleted to be worth chasing).[94]
We can push the overfishing analogy further. Initially, fishers often do not notice that they are depleting the stock, but over time, they have to increase the amount of effort they put into fishing until the returns no longer justify the investment. A similar thing could happen with payment networks, with the effects initially being muted by decades of investment in security protocols and the collection of transaction data. But over time, the value of those investments and data will wither.
The solution to the open-access problem has been well-known to economists for more than half a century: establish clearly defined and readily enforceable property rights.[95] This has proved challenging in fisheries, but an increasing number of jurisdictions have developed successful approaches of various kinds.[96]
The irony is that the networks have expressly sought to avoid this tragedy by developing clear rules regarding who has access to the data transmitted from their cards, how it is transmitted, to whom, and under what conditions.
Interchange fees, as they exist today, are one of those rules: they are the default in open-network schemes and exist, at least in part, because of the high costs of negotiating and enforcing many bilateral agreements among banks.[97] They are set by payment-network operators, who are able to avoid the problems that would arise if individual issuing banks set their own fees. The latter might lead to fees being set at inefficiently high levels in order to maximize issuing-bank revenue, without regard to the impact on the value of the system as a whole.21F[98]
The CCCA would run roughshod over those rules.
Proponents of the CCCA seem to assume that issuers will simply accept the loss of revenue from interchange fees and do nothing to try to compensate. Based on the experience of both the Durbin amendment and of interchange regulations in other jurisdictions, this is an incorrect assumption.
In practice, it seems almost certain that card issuers would implement one or more of several measures to recover the lost revenue and/or reduce costs. Among other things, they might:
The determination of which fees to increase and by how much will depend on issuers’ views regarding the willingness of cardholders to bear such fees. Likewise, the determination of which benefits to withdraw on which cards will be made—possibly simultaneously with the determination of any increase in annual fees (which could be used to cover such benefits in whole or in part)—on the basis of the effects such changes will have on demand for cards.
As noted earlier, issuers typically cover the costs of rewards on co-branded cards through some combination of annual fees and interchange fees. Issuers also often pay for other items, ranging from lounge access for cardholders to marketing fees for promoting the card and related services, the costs of which also must be paid for by some combination of merchants and users.
Since the costs associated with co-branded rewards cards are typically higher than the costs of other non-rewards cards, the effects of the CCCA would likely be much more severe for such co-branded cards. As such, issuers of co-branded cards may seek to implement additional measures in order to recover revenue and ensure that they meet their obligations to cardholders and co-brand partners.
As noted, in the UK and some EU jurisdictions, issuers have continued to co-brand credit cards with airlines. Moreover, while rewards have been reduced significantly, and many other card benefits—such as insurance and fee-free foreign transactions—have largely been eliminated, the amount earned in rewards per euro or pound spent remains notionally higher than the interchange fee on the card. As also noted, there are several possible explanations for this, including that airlines may sell rewards at a discount, or that issuers were able to make up some of the losses on interchange fees by increasing interest rates, late fees, and foreign transaction fees. If the CCCA were enacted, we might see issuers adopt some combination of these approaches.[100]
In Australia, issuers put caps on the amounts of rewards that could be earned. As noted, this effectively inverts the purpose of such rewards, which are intended to engender loyalty, but if the amount that can be earned is capped or the earning rate declines after a certain spend, then users will have incentives at that point to switch to a different card. While this would reduce the loyalty element of the co-branded card (perversely encouraging disloyalty, in fact), U.S. issuers of multiple co-branded cards might be motivated to pursue this approach in order to drive short-term spending on each of their cards, especially if they have agreements to purchase a certain number or rewards at a discounted price.
The effect of the CCCA on airlines will depend very much on which networks become secondary networks, whether issuers are able to issue companion cards, and all the other factors discussed above. But in almost any imaginable scenario, the airlines that currently co-brand four-party credit cards will see a reduction in revenue. In many scenarios, that revenue reduction could be significant—in some cases it could be 5% to 10% of total revenue. While this would be partly offset by a reduction in liability associated with outstanding loyalty-rewards points, there is a timing mismatch effect: The revenue loss will occur in the short term, while the rewards-redemption effect occurs over a longer time horizon.
In addition, to the extent that airlines are unable either to offer companion cards or switch altogether to three-party cards—and thereby offer their loyal customers continued benefits at a similar level to those available on their current cards—there will almost certainly be some attrition of loyalty. In other words, some proportion of fliers who are currently loyal to American, United, Southwest, JetBlue, Alaska, and other smaller airlines with four-party co-branded credit cards will switch to Delta. Moreover, the evidence suggests that those most likely to switch will be those most adversely affected by the change—that is to say, those who tend to spend the most on their co-branded rewards card.
This likely includes many middle-class consumers who live far away from family members and currently value the rewards from their co-branded card highly. To the extent that those individuals are also among the most loyal to the airlines whose co-branded cards they use, this could have a seriously detrimental effect on the profit margins of the other airlines.
The CCCA may also affect many airlines’ costs of capital. For example, at least for United and American Airlines, a reduction in expected revenue from the sale of rewards could result in the downgrading of the bonds issued during the COVID-19 pandemic by the subsidiaries that now own the rewards programs. That could trigger covenants requiring the parent companies to post additional capital, which in turn would increase the parents’ capital costs. In general, the combination of reduced revenue and reduced membership of loyalty programs—leading to lower revenue from higher-value customers—would reduce airlines’ expected future profitability, which would increase capital costs. In times when demand for air travel is high, this may not pose a dramatic problem. It would, however, likely affect fleet investment, which would adversely affect the flying experience and might lead to the termination of some routes. And in a downturn, it could result in the bankruptcy that the airlines previously avoided, thanks to their ability to securitize their loyalty programs.
This study has focused relatively narrowly on the likely effects of the CCCA on co-branded reward credit cards and the knock-on effects on the co-brand partners, especially airlines. If enacted, however, the law’s effects would be far broader. For example, it would likely cause a reduction in investment in innovation by card issuers and networks for at least two reasons. First, by reducing prospective revenue, the CCCA would reduce network providers’ incentive and ability to invest in innovation. Second, by requiring networks to make tokens interoperable, the CCCA dramatically reduces the incentive to invest in improvements to the security, convenience, and other aspects of tokenized transactions.
Proponents of the Credit Card Competition Act (CCCA) claim that it would “enhance credit card competition and choice in order to reduce excessive credit card fees.” In fact, by forcing the majority of credit-card issuers in the United States to include a second network on all their cards, the CCCA would remove the choice of network from the issuer and cardholder and place it in the hands of the merchant and the acquiring bank.
Indeed, the name of the Credit Card Competition Act would appear to be unintentionally ironic, since one of its main effects would be to reduce competition between issuers, as margins would be reduced, and issuers would be less able to differentiate on the basis of such offerings as co-branded cards (airlines, hotels, retailers). As a result, there would be less pressure to compete on interest rates, which in turn would mean that—as happened in the EU and especially in Spain—issuers would likely increase interest rates in order to offset reduced interchange-fee revenue.
To the extent that issuers use this offsetting revenue from interest to enable them to continue to offer some level of rewards, the CCCA would have brought about what some critics of credit-card rewards have previously falsely accused issuers of doing: using credit cards to transfer wealth from lower-income, lower-spending consumers who maintain a revolving balance to higher-income, higher-spending consumers who pay off their balances every month.[101]
Even if issuers do continue to offer rewards, the evidence from Europe and Australia is that the CCCA would cause such rewards to be diminished significantly, harming consumers both directly and indirectly. The direct harms would come in the form of fewer rewards (except for those consumers who only use three-party cards). The indirect harms would come through the effects on businesses that currently rely heavily on revenue from co-branded cards that would be diminished by the CCCA.
As this study has demonstrated, airlines, in particular, could be adversely affected, leading to reduced fleet investment, termination of routes, and potentially to bankruptcy. There would also likely be a broader adverse effect, as consumers reduce their use of credit cards (including some who give them up), which would result in an overall reduction in consumption—harming both merchants and the broader economy.
When a cardholder submits a transaction for payment, information regarding that payment is sent over a proprietary network. This is called “routing.” There are, broadly, two types of payment network: single-message (PIN) networks that emerged from ATM networks, and dual-message (signature) networks that were developed by the credit-card networks (Visa, Mastercard, American Express, and Discover). In general, credit cards require dual-message networks, whereas debit transactions can run over either type of network. To understand why, it is worth briefly explaining the mechanics of the two systems.
Single-message networks rely on the PIN stored in the card to authenticate a transaction. As a result, the only message that is required is a notification to the issuing bank to debit the account of the cardholder in the amount they have authorized, and to credit that amount the account of the merchant—less the discount fee, which is paid to the acquiring bank. Because of the nature of the transaction, settlement can be effected over banks’ electronic-funds-transfer (EFT) networks that were initially built to settle transactions at shared ATMs, and then over networks of ATMs.[102]
As the name suggests, dual-message networks send two messages: the first is a request for authorization sent to the issuing bank, which confirms the authenticity of the card, checks whether the cardholder has sufficient credit available, and monitors for fraud. If authorized, the second message contains information confirming the amount to be credited to the merchant’s account during clearing and settlement.
For example, if you present your credit card at a sit-down restaurant, the check total would be authorized by the network and a “hold” or “pending transaction” amount would appear on your account. The opportunity to add a tip to the bill permits a second, later message that authorizes payment of the full amount of food, plus a tip to be credited to the merchant. Similar “holds” are also often used by online merchants in order to delay payment (sometimes by as much as several days), thereby reducing the likelihood of fraud and associated chargebacks.[103]
[1] See Developments in Noncash Payments for 2019 and 2020: Findings From the Federal Reserve Payments Study, Federal Reserve Board, (Dec. 2021), available at https://www.federalreserve.gov/publications/files/developments-in-noncash-payments-for-2019-and-2020-20211222.pdf, along with the various previous studies and associated data, https://www.federalreserve.gov/paymentsystems/frps_previous.htm.
[2] See, e.g., Mastercard Rules, Mastercard, https://www.mastercard.us/en-us/business/overview/support/rules.html (last accessed Nov. 16, 2023); Visa Rules and Policy, Visa, https://usa.visa.com/support/consumer/visa-rules.html (last accessed Nov. 16, 2023).
[3] 156 Cong. Rec. S3,571 (daily ed. May 12, 2010), available at https://www.congress.gov/111/crec/2010/05/12/CREC-2010-05-12-pt1-PgS3569-9.pdf.
[4] Claire Tsosie, The History of the Credit Card, NerdWallet.com (Mar. 15, 2021), https://www.nerdwallet.com/article/credit-cards/history-credit-card; see also Jeremy Norman, The Charga-Plate, Precursor of the Credit Card, Circa 1935 to 1950, HistoryofInformation.com, https://www.historyofinformation.com/detail.php?id=1710 (last accessed Nov. 16, 2023).
[5] See Todd J. Zywicki, The Economics of Payment Card Interchange Fees and the Limits of Regulation, International Center for Law & Economics (Jun. 2, 2010), available at http://laweconcenter.org/images/articles/zywicki_interchange.pdf. Several banks also attempted to establish three-party cards during the 1950s. Most of these were unsuccessful. The exception was Bank Americard, which subsequently became a four-party system and eventually rebranded as Visa.
[6] The issuer may arrange separate underwriting. More recently, the processing of three-party card transactions are sub-contracted to other payment processors, but the fundamental three-party legal arrangements remain the same.
[7] For a more detailed explanation of the operation of payment-card systems, see Zywicki, supra note 5, at 27-30.
[8] See Zywicki, supra note 5; see also Jean-Charles Rochet & Jean Tirole, Two-Sided Markets: A Progress Report, 37 Rand J. Econ. 645 (2006); As the U.S. Supreme Court wrote in Ohio v. American Express Co. (585 U.S. Slip Op, 2018, at 2): By providing these services to cardholders and merchants, credit-card companies bring these parties together, and therefore operate what economists call a “two-sided platform.” As the name implies, a two-sided platform offers different products or services to two different groups who both depend on the platform to intermediate between them.”… For credit cards, that interaction is a transaction…. The key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other.
[9] Bruno Jullien, Alessandro Pavan, & Marc Rysman, Two-Sided Markets, Pricing, and Network Effects, in Handbook of Industrial Organization (Vol. 4), 485-592, (2021).
[10] Thomas Eisenmann, Geoffrey Parker, & Marshall W. Van Alstyne, Strategies for Two-Sided Markets, Harv. Bus. Rev. (Oct. 2006).
[11] Ohio v. American Express Co. (585 U.S. Slip Op, 2018), at 13.
[12] Zywicki, supra note 5, at 10.
[13] Tsosie, supra note 4.
[14] Visa USA Interchange Reimbursement Fees, Visa Public (Apr. 23, 2022), available at https://usa.visa.com/content/dam/VCOM/download/merchants/visa-usa-interchange-reimbursement-fees.pdf; Mastercard USA Interchange Rates, HELCIM, https://www.helcim.com/mastercard-usa-interchange-rates (last accessed Nov. 16, 2023).
[15] Jean-Charles Rochet & Jean Tirole, An Economic Analysis of the Determination of Interchange Fees in Payment Card Systems, 2 Rev. Netw. Econ. 69-79 (Jan. 2003).
[16] See Todd J. Zywicki, The Economics of Payment Card Interchange Fees and the Limits of Regulation, International Center for Law & Economics (Jun. 2, 2010), available at http://laweconcenter.org/images/articles/zywicki_interchange.pdf; Todd J. Zywicki, Geoffrey A. Manne, & Julian Morris, Unreasonable and Disproportionate: How the Durbin Amendment Harms Poorer Americans and Small Businesses, International Center for Law & Economics (Apr. 25, 2017); Todd J. Zywicki, Geoffrey A. Manne, & Julian Morris, Price Controls on Payment Card Interchange Fees: The U.S. Experience, George Mason Law & Economics Research Paper No. 14-18, (Jun. 6, 2014).
[17] Credit Card Competition Act of 2023, S. 1838, 118th Cong. § 1 (2023).
[18] James J. Nagle, Trading Stamps: A Long History, The New York Times (Dec. 26, 1971), https://www.nytimes.com/1971/12/26/archives/trading-stamps-a-long-history-premiums-said-to-date-back-in-us-to.html
[19] Michael McCall & Clay Voorhees, The Drivers of Loyalty Program Success, 51 Cornell Hosp. Q. 35 (2010).
[20] This seems to have been an essential part of the business model of trading-stamp programs.
[21] Evert R. de Boera & Sveinn Vidar Gudmundsson, 30 Years of Frequent Flyer Programs, 24 J. Air Transp. Manag. 18-24 (2012).
[22] Id. at 19.
[23] Enny Kristiani, Ujang Sumarwan, Lilik Noor Yulianti, & Asep Saefuddin, Customer Loyalty and Profitability: Empirical Evidence of Frequent Flyer Program, 5 J. Mark. Stud. 62 (2013).
[24] Abigail Ng, Over 40 Airlines Have Failed So Far This Year — And More Are Set to Come, CNBC (Oct. 8, 2020), https://www.cnbc.com/2020/10/08/over-40-airlines-have-failed-in-2020-so-far-and-more-are-set-to-come.html.
[25] For example, on June 30, 2020, American Airlines issued $2.5 billion of bonds dated 2025 with a coupon of 11.75%. American Airlines Inc. Dl-Nts 2020(20/25) Reg. S, Markets Insider, https://markets.businessinsider.com/bonds/american_airlines_incdl-nts_202020-25_regs-bond-2025-usu02413ae95.
[26] Tracy Rucinski, United Airlines Pledges Loyalty Program for $5 Billion Loan, Reuters (Jun 15, 2020), https://www.reuters.com/article/us-health-coronavirus-united-arlns-idUSKBN23M1PB
[27] So Yeon Chun & Evert de Boer, How Loyalty Programs Are Saving Airlines, Harvard Business Review (Apr. 2, 2021), https://hbr.org/2021/04/how-loyalty-programs-are-saving-airlines.
[28] Cameron Graham, Study: Why Customers Participate in Loyalty Programs, TechnologyAdvice.com (Jul. 23, 2014), http://technologyadvice.com/blog/marketing/why-customers-participate-loyalty-programs.
[29] Michelle Geraghty & Trisha Asgierson, Relationship Rewards: A Game Changer for Financial Institutions, Mastercard (2013), available at https://www.mastercard.us/content/dam/mccom/en-us/documents/relationship-rewards-whitepaper.pdf.
[30] See, e.g., Blake Ellis, The Banks’ Billion-Dollar Idea, CNN Money (Jul. 8, 2011), http://money.cnn.com/2011/07/06/pf/banks_sell_shopping_data/index.htm.
[31] Marie-Pierre Lemay & Negar Ballard, Majority Say Credit Card Rewards Are Very Important, and Drive Their Card Usage, Ipsos (Jan. 12, 2021), https://www.ipsos.com/en-us/majority-say-credit-card-rewards-are-very-important-and-drive-their-card-usage.
[32] John S Kiernan, 2023 Credit Card Rewards Survey, WalletHub (Jun. 13, 2023), https://wallethub.com/blog/credit-cards-rewards-survey/63067.
[33] Id.
[34] American Airlines, AAdvantage Investor Presentation March 2021, SEC Form 8-K (Mar. 8, 2021), https://americanairlines.gcs-web.com/node/38926/html, at 26.
[35] “Loyalty revenue” covers various terms used by the airlines in their 10K filings to refer to income related to the generation of loyalty, including co-branded reward cards.
[36] De Boera & Gudmundsson, supra note 21, at 22.
[37] American Airlines, supra note 35, at 37.
[38] Since most of American Airline’s primary loyalty-rewards partners are also travel-related, it seems reasonable to assume that the vast majority of partner income in 2020 was from co-branded cards.
[39] See, infra Section II.B.
[40] The first such card was an American Airlines co-branded card issued by Citibank (De Boera & Gudmundsson, supra note 21, at 19).
[41] American Airlines, 10K Filing (2022), at p. 68.
[42] United Airlines, 10K Filing (2022), at p. 41.
[43] Delta Airlines, 10K Filing (2022), at p. 37.
[44] Southwest Airlines, 10K Filing (2022), at p. 115
[45] Id at 119.
[46] Id.
[47] Jay Sorensen, Frequent Flier Credit Cards Generate More than $4 Billion for Major U.S. Airlines, Ideaworks (2008), available at https://www.ideaworkscompany.com/wp-content/uploads/2012/05/Analysis_USAirlineCC2008.pdf. See also above discussion of revenue from loyalty-rewards programs during the COVID-19 pandemic.
[48] Technically, it prohibits issuers from restricting “the number of payment card networks on which an electronic credit transaction may be processed.”
[49] See S. 1838, §2(a)(2)(A)(II): 2 or more such networks, if— (aa) each such network is owned, controlled, or otherwise operated by— (AA) affiliated persons; or (BB) networks affiliated with such issuer; or (bb) any such network is identified on the list established and updated under subparagraph (D). Subparagraph (D) empowers the Federal Reserve Board, in consultation with the secretary of the U.S. Treasury, to draw up a list of networks that pose a national security risk.
[50] See S. 1838, §2(a)(2)(A)(III): the 2 such networks that hold the 2 largest market shares with respect to the number of credit cards issued in the United States by licensed members of such networks (and enabled to be processed through such networks), as determined by the Board on the date on which the Board prescribes the regulations.
[51] S. 1838, §2(a)(2)(B).
[52] Poonkulali Thangavelu, Credit Card Market Share Statistics, Bankrate.com (Jul. 6, 2023), https://www.bankrate.com/finance/credit-cards/credit-card-market-share-statistics.
[53] S. 1838, §2(a)(2)(A)(III).
[54] S. 1838, §2(a)(2)(C).
[55] Julian Morris & Todd J. Zywicki, Regulating Routing in Payment Networks, International Center for Law & Economics, (Aug. 17, 2022), available at https://laweconcenter.org/wp-content/uploads/2022/08/Regulating-Routing-in-Payment-Networks-final.pdf.
[56] Id.
[57] American Airlines, 10-K Filing (2022), at 39.
[58] For a discussion of these, see Julian Morris, Todd J. Zywicki, & Geoffrey A. Manne, The Effects of Price Controls on Payment-Card Interchange Fees: A Review and Update, International Center For Law & Economics (Mar. 4, 2022).
[59] The multilateral “interchange fee” was developed to address circumstances where the credit-card-issuing bank was different from the merchant-acquiring bank; otherwise, it was considered an “on us” transaction. Since all three-party-card network transactions are “on us” by definition, there is no need for an interchange fee.
[60] Morris, Zywicki, & Manne, supra note 58.
[61] Reform of Credit Card Schemes in Australia: IV Final Reforms And Regulation Impact Statement, Reserve Bank Of Australia (Aug. 2002), at 13.
[62] Emily Perry & Christian Maruthiah, Banking Fees in Australia, Reserve Bank of Australia Bulletin, (Jun. 2018), available at https://www.rba.gov.au/publications/bulletin/2018/jun/pdf/banking-fees-in-australia.pdf, at 5.
[63] Iris Chan, Sophia Chong, & Stephen Mitchell, The Personal Credit Card Market in Australia: Pricing Over the Past Decade, Reserve Bank of Australia Bulletin, (Mar. 2012), available at https://www.rba.gov.au/publications/bulletin/2012/mar/pdf/bu-0312-7.pdf.
[64] See Robert Stillman, William Bishop, Kyla Malcolm, & Nicole Hildebrandt, Regulatory Intervention in the Payment Card Industry by the Reserve Bank of Australia: Analysis of the Evidence, CRA International (2008), at 16.
[65] Chan, et al., supra note 63.
[66] Companion Cards Increase Credit Card Rewards, Mozo, (Dec. 8, 2009).
[67] Designation Under the Payment Systems (Regulation) Act 1998, Designation No 1 of 2015, Reserve Bank of Australia, (Oct. 18, 2015), available at https://www.rba.gov.au/media-releases/2015/pdf/mr-15-19-designation-2015-01-american-express-companion-card.pdf.
[68] Standard No. 1 of 2016, The Setting of Interchange Fees in the Designated Credit Card Schemes and Net Payments to Issuers, Reserve Bank of Australia (May 26, 2016), amended version available at https://www.rba.gov.au/payments-and-infrastructure/review-of-card-payments-regulation/pdf/standard-no-1-of-2016-credit-card-interchange-2018-05-31.pdf.
[69] C1.3: Market Shares of Credit and Charge Card Schemes, Reserve Bank of Australia, (Sep. 2023), https://www.rba.gov.au/statistics/tables/xls/c01-3-hist.xlsx.
[70] Id.
[71] Juan Iranzo, Pascual Fernández, Gustavo Matías, & Manuel Delgado, The Effects of the Mandatory Decrease of Interchange Fees in Spain, Munich Personal Repec Archive, MPRA Paper No. 43097, (Oct. 2012), available at https://mpra.ub.uni-muenchen.de/43097/1/MPRA_%20paper_43097.pdf. at 34-37.
[72] Id. at 27. See also marginal lending-facility rates from the European Central Bank, https://sdw.ecb.europa.eu/browse.do?node=9691107.
[73] Interchange: Card Rewards Cull Takes Hold Across Europe, Loyalty Magazine (Dec. 11, 2015) https://www.loyaltymagazine.com/interchange-card-rewards-cull-takes-hold-across-europe.
[74] Interchange Fee Regulation Impact Assessment Study, Edgar Dunn & Co. (2020), at 22 (noting that, for their sample of cards with fees, annual fees rose by an average of 13% between 2014 and 2018).
[75] Table 2 does not explicitly account for inflation, but cumulative inflation from 2014 to 2018 was 1.75%. European Union Inflation Rate 1960-2023, Macrotrends (2023), https://www.macrotrends.net/countries/EUU/european-union/inflation-rate-cpi.
[76] Edgar Dunn, supra note 74, at 23.
[77] British Airways American Express® Premium Plus Card, American Express, https://www.americanexpress.com/en-gb/credit-cards/ba-premium-plus-credit-card/?linknav=en-gb-amex-cardshop-BritAirwaysAmexCC-details-learnmore-BritAirwaysPremiumPlusCC-rc (last accessed Nov. 16, 2023).
[78] Rob Burgess, What Is the Best Use of American Express Points?, Head for Points (Oct. 7, 2023), https://www.headforpoints.com/2023/10/07/what-is-the-best-use-of-american-express-points-4.
[79] See, e.g., Tara Siegel Bernard, In Retreat, Bank of America Cancels Debit Card Fee, The New York Times (Nov. 1, 2011), http://www.nytimes.com/2011/11/02/business/bank-of-america-drops-plan-for- debit-card-fee.html.
[80] Mark D. Manuszak & Krzysztof Wozniak, The Impact of Price Controls in Two-sided Markets: Evidence from US Debit Card Interchange Fee Regulation, Federal Reserve Board (Jul. 2017), https://doi.org/10.17016/FEDS.2017.074.
[81] Todd J. Zywicki, Geoffrey A. Manne, & Julian Morris, Unreasonable and Disproportionate: How the Durbin Amendment Harms Poorer Americans and Small Businesses, International Center for Law & Economics (Apr. 25, 2017), available at http://laweconcenter.org/images/articles/icle-durbin_update_2017_final.pdf; Morris, Zywicki, & Manne, supra note 58.
[82] Zhu Wang, Scarlett Schwartz, & Neil Mitchell, The Impact of the Durbin Amendment on Merchants: A Survey Study, 100(3) Economic Quarterly 183-208 (2014), at 189.
[83] Vladimir Mukharlyamov & Natasha Sarin, Price Regulation in Two-Sided Markets: Empirical Evidence from Debit Cards, Working Paper (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3328579.
[84] Id. at 3.
[85] Id. at 3.
[86] Review of Retail Payments Regulation: Conclusions Paper, Reserve Bank of Australia (Oct. 2021), https://www.rba.gov.au/payments-and-infrastructure/review-of-retail-payments-regulation/conclusions-paper-202110/index.html.
[87] 15 U.S. Code §1693o–2(b).
[88] Regulation II (Debit Card Interchange Fees and Routing), Fed. Rsrv., https://www.federalreserve.gov/paymentsystems/regii-data-collections.htm; Consumer Price Index: All Items for the United States, Fed. Rsrv. Board of St. Louis, https://fred.stlouisfed.org/series/USACPIALLMINMEI (last accessed Aug. 10, 2022).
[89] Martha Southall, Credit Card Competition Act Could Result in Annual Savings Upward of $15 Billion, CMPSI (Jun. 7, 2023), https://cmspi.com/credit-card-competition-act-could-result-in-annual-savings-upward-of-15-billion. (CMPSI describes itself as “the go-to advisory firm for leading merchants across the globe, looking to supercharge their payments arrangements.”)
[90] S. 1838, §2(a)(2)(D)(II).
[91] Overview of EMVCo, EMVCo.com, https://www.emvco.com/about-us/overview-of-emvco (last accessed Nov. 16, 2023).
[92] For an explanation, see Morris & Zywicki, supra note 55.
[93] Anna G., Interchange Rates, CreditDonkey (Jun. 2, 2023), https://www.creditdonkey.com/interchange-rates.html. Note that these are only selections of all the available rates.
[94] H Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J Political Econ 124 (1954).
[95] Anthony Scott, The Fishery: The Objectives of Sole Ownership, 63(2) J Political Econ Journal of Political Economy 116-124 (Apr. 1955).
[96] See, e.g., Christopher Costello, Introduction to the Symposium on Rights-Based Fisheries Management, 6(2) Rev Environ Econ Policy 212-216 (2012), and related articles.
[97] Eliana Garcés & Brent Lutes, Regulatory Intervention in Card Payment Systems: An Analysis of Regulatory Goals and Impact, working paper, (Sep. 21, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3346472, at 8. As Garces and Lutes note: Practically all open network schemes have set some default interchange fees that apply automatically when no bilateral agreement exists between banks. No widely adopted international scheme relies solely on bilateral negotiations for the interchange fee. This may be due to the excessive level of information complexity that a system of bilaterally negotiated fees would imply for merchants. To assess the cost of a card payment, the merchant would have to know not only the brand and type of the card used, but also the identity of the issuer. Additionally, given that most card systems impose an “honor all cards” rule on merchants, the absence of a common interchange fee may lead some issuing banks to impose high interchange fees for the cards that they issue and that the merchant is forced to accept. Although there are open network schemes that have operated without interchange fees, these are very rare and with limited regional scope.
[98] William F. Baxter, Bank Interchange of Transactional Paper: Legal and Economic Perspectives, 26 J. L. & Econ. 541 (1983), at 572-582.
[99] Edgar Dunn & Co., supra note 74 at 22.
[100] The CFPB is currently considering imposing price controls on late fees. If it were to do that, then issuers would likely compensate in other ways, such as through higher interest rates. Issuers would also likely deny credit cards to individuals with lower credit scores.
[101] Morris & Zywicki, supra note 55.
[102] Stan Sienkiewicz, The Evolution of EFT Networks from ATMs to New On-Line Debit Payment Products, Federal Reserve Bank of Philadelphia Discussion Paper (Apr. 2002), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=927473
[103] Mike Cannon, Credit Card Authorization Hold – How and When to Use, Chargeback Gurus (Dec. 26, 2021), https://www.chargebackgurus.com/blog/credit-card-authorization-holds.
Scholarship Abstract This paper estimates the effect of Disability Insurance and Supplemental Security Income receipt on mortality for individuals on the margin of being allowed versus . . .
This paper estimates the effect of Disability Insurance and Supplemental Security Income receipt on mortality for individuals on the margin of being allowed versus denied benefits. Exploiting the random assignment of administrative law judges to disability insurance cases, we find that benefit allowance increases 10-year mortality rates by 2.8 percentage points for marginal beneficiaries. However, using a Marginal Treatment Effects approach, we find evidence that benefit receipt reduces mortality for inframarginal beneficiaries, who are typically less healthy than marginal beneficiaries. Furthermore, we find suggestive evidence that allowance reduces mortality among those with expensive health conditions such as cancer.
Read at SSRN.
Scholarship Abstract It is always an appropriate time to reevaluate, reexamine, and question the optimal scope and shape of our antitrust institutions. For example, the United . . .
It is always an appropriate time to reevaluate, reexamine, and question the optimal scope and shape of our antitrust institutions. For example, the United States is peculiar in having two distinct antitrust enforcement agencies. More peculiar still, the agencies have both common and unique functions. For example, both the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) review mergers pursuant to Section 7 of the Clayton Act and enforce Sections 1 and 2 of the Sherman Act through civil actions. At the same time, the Division alone is responsible for criminal enforcement of the Sherman Act, and the FTC alone enforces the Clayton Act provisions that prohibit tying and unfair methods of competition. Layered atop the peculiar dual jurisdiction of the FTC and DOJ at the federal level is a remarkably complex and decentralized system of competition enforcement authority distributed among myriad federal sectoral regulators, state attorneys general, and private litigants.
This article asks whether the current distribution of competition functions in the U.S. can be improved by some reorganization or other reform. We answer in the affirmative and propose several changes — perhaps the most significant being consolidating the competition functions of the FTC into the Antitrust Division. We also propose stripping the Federal Communications Commission of authority independently to review mergers, as the Congress did with regard to the Department of Transportation in view of its similarly poor performance reviewing airline mergers. Our more general proposals regarding the authority of sectoral regulators over competition should not be overlooked, however; it would do much good and has little or no downside.
Scholarship Abstract What are the welfare implications of markup heterogeneity across firms? In standard monopolistic competition models, such heterogeneity implies inefficiency even in the presence of . . .
What are the welfare implications of markup heterogeneity across firms? In standard monopolistic competition models, such heterogeneity implies inefficiency even in the presence of free entry. We enrich the standard model with heterogeneous firms so that preferences are non-separable in off-market time and market consumption and show that this changes the welfare implications of markup heterogeneity. In this context, homogeneity of markups is neither necessary nor sufficient for efficiency. The marginal cost of the marginal firm is weakly inefficiently high when off-market time and market consumption are complements and inefficiently low when they are substitutes, and the equilibrium allocation devotes weakly too few resources to firm creation. However, when off-market time and market consumption are perfect complements, markups are heterogeneous across firms and yet the equilibrium allocation is efficient.
TOTM This is the first in what will be a series of posts discussing how new medicines are introduced and regulated in the United States, and . . .
This is the first in what will be a series of posts discussing how new medicines are introduced and regulated in the United States, and how the status quo could be improved. As will be established over the course of the series, the current system is slow and leads to poor outcomes for patients.
Read the full piece here.
Popular Media Reading comments (Ben Thompson, Eric Seufert) on the Meta-Amazon deal to let “shoppers buy Amazon products directly from ads on Instagram and Facebook” (Bloomberg) made me . . .
Reading comments (Ben Thompson, Eric Seufert) on the Meta-Amazon deal to let “shoppers buy Amazon products directly from ads on Instagram and Facebook” (Bloomberg) made me think: could it happen here (in the EU)? Would EU law block it? I don’t think so. Still, given that the deal means “more data for Meta” (and Amazon), we’ll likely see some knee-jerk critical reactions. So, I thought it would be interesting to think through this question. (To be clear: this is not a full legal analysis, just my quick thoughts).
Popular Media The U.S. Justice Department’s landmark antitrust case against Google has wrapped up, leaving the parties to await Judge Amit Mehta’s bench-trial decision in the matter. . . .
The U.S. Justice Department’s landmark antitrust case against Google has wrapped up, leaving the parties to await Judge Amit Mehta’s bench-trial decision in the matter.
But based on the arguments presented and the publicly available evidence, the government has not made its case that the company committed “monopoly maintenance.”
ICLE Issue Brief Abstract The European Commission’s recently unveiled proposal to overhaul the EU’s licensing system for standard-essential patents (SEPs) would see conciliators issue mandatory, albeit nonbinding, pre-trial . . .
The European Commission’s recently unveiled proposal to overhaul the EU’s licensing system for standard-essential patents (SEPs) would see conciliators issue mandatory, albeit nonbinding, pre-trial determinations of fair, reasonable, and non-discriminatory (FRAND) terms. This issue brief investigates the relationship between the proposal’s FRAND-determination process and the test developed by the Court of Justice of the European Union (CJEU) in Huawei v. ZTE, which currently represents the guiding framework for SEP-licensing negotiations in the EU. It aims to demonstrate that, even if the SEP proposal were not intended to displace Huawei, the anti-injunction approach it endorses is inherently inconsistent with the CJEU’s stance, and is essentially a direct response to German case law. Therefore, to the extent that the proposal’s FRAND determinations will coexist with the Huawei bargaining framework, the proposed regulation appears likely to add significant confusion and uncertainty, and to induce licensing disputes, rather than supporting balanced and successful SEP-licensing negotiations.
In April 2023, the European Commission unveiled a proposed regulation to overhaul the EU’s licensing system for standard essential patents (SEPs).[1] The initiative aims to address the causes of allegedly inefficient licensing, such as a lack of transparency with regard to SEPs; fair, reasonable, and non-discriminatory (FRAND) terms and conditions; licensing in the value chain; and limited use of dispute-resolution procedures.[2]
A perceived need to enhance transparency, predictability, and efficiency of SEP licensing is not new to the EU policy agenda.[3] The status quo is perceived as particularly unsatisfactory in the context of the Internet of Things (IoT), where newer players with few resources and little licensing experience (i.e., startups and small and medium-sized enterprises) have entered the market for connectivity.[4] As the number of declared SEPs continues to proliferate and a growing number of industrial, business, and consumer applications make use of standards that include SEPs, the European Commission has increasingly seen the need for a smoother and more balanced SEP-licensing system.[5]
Against this background, the Commission’s SEP proposal would alter the current framework by introducing mandatory registration for enforcement purposes; a system for essentiality checks; and a process to determine both aggregate royalties and FRAND terms and conditions. Unsurprisingly, the proposal has drawn criticism for nearly all its provisions, with some questioning its very rationale. Critics charge that such an intrusive and extensive intervention is unnecessary and dangerous, and that there is no economic justification for the initiative.[6] Indeed, proponents of the proposed regulation justify it by citing limited circumstances and situate their case within a market-failure framework. There is, however, no discernible evidence of a market failure to address. Notably, the concerns reported in the Impact Assessment[7] do not match the results of the primary study that informed it.[8]
The Commission’s Impact Assessment raised concerns that SEP-related disputes will increase because of the growing demand for connectivity (particularly for the IoT) and that, because of high transaction costs and licensing uncertainties, both SEP owners and implementers may be discouraged from participating in standards development and the creation of products that use technology standards potentially subject to SEPs, respectively.[9] The empirical evidence that the Impact Assessment used as its primary input, however, does not support these findings and illustrates a significantly different landscape.
In short, the prevalence of SEP litigation is low relative to non-SEP disputes, and it has not increased over time;[10] the caseload of SEP litigation is relatively stable in Europe (while falling in the United States and increasing in China) and, in more recent years, the share of declared SEPs subject to litigation has fallen;[11] and empirically observable data do not indicate that SEP-licensing conditions have led to pervasive opt-outs from standards-related innovation.[12] Therefore, there is no evidence that FRAND-licensing frictions have caused either SEP owners to contribute less to standards development or SEP implementers to opt for alternative (i.e., without FRAND licensing) standards. There is also nothing to indicate that current SEP-licensing conditions systematically suppress or delay standards implementation.[13]
A further criticism directed at the Commission’s SEP proposal regards its decision to delegate the primary duties related to the licensing and litigation of SEPs to the European Union Intellectual Property Office (EUIPO).[14] The EUIPO has no meaningful experience with patents, but would be placed in charge of one of the most complex areas of patent policy.[15] Moreover, the tasks undertaken by EUIPO (more precisely, by the competence center established under the purview of EUIPO) would undermine the authority in SEP enforcement of national courts and the newly established Unified Patent Court (UPC).
This issue brief will focus on provisions of the Commission’s proposal that would introduce mandatory (albeit nonbinding) pre-trial FRAND determinations by conciliators.[16] Under the SEP proposal, such dispute resolution must be initiated by the SEP holder or implementer prior to the initiation either of a patent-infringement claim or a request to determine or assess FRAND terms and conditions before a competent court of an EU member state.
The brief investigates the relationship between the proposed FRAND-determination process and the test developed by the Court of Justice of the European Union (CJEU) in the landmark ruling Huawei v. ZTE, which represents the current guiding framework for good-faith SEP-licensing negotiations.[17] Indeed, mandatory conciliation is expected to benefit SEP holders and implementers in reaching license agreements more quickly and without costly court proceedings, and it is proposed as a complement to—rather than replacement for—the Huawei process,[18] it is equally evident that the proposed regulation underscores the Commission’s dissatisfaction with the Huawei framework and its implementation by national courts.
Furthermore, the proposed approach marks a consequential departure from the one adopted by the CJEU. While the latter elaborated the so-called “willing licensee” test in order to strike a fair balance among the relevant interests, compulsory pre-trial conciliation would reduce the scope of injunctions for SEP holders beyond Huawei, tilting the balance in favor of implementers. Indeed, implementers would be free to challenge SEPs, but patent owners could not initiate infringement proceedings without first going through the mandatory FRAND-determination process. This issue brief aims to demonstrate that, even if the SEP proposal does not displace Huawei, the proposed conciliation process represents an attempt to discard the CJEU’s framework, rather than complement it.
Furthermore, the proposed restraints on the availability of injunctive relief would appear to reinstate the conflict between the Commission and the German courts that apparent prior to the Huawei decision, when opposing approaches emerged in the Motorola and Samsung cases[19] and the Orange Book Standard ruling, respectively.[20] It was the national courts’ differing interpretations of FRAND determination that provided the original impetus for harmonization at the EU level under Article 114 TFEU.[21] The largest number of SEP disputes are, however, litigated in Germany,[22] and the Commission has appeared sensitive to stakeholder complaints that German court practice is overly friendly to patent owners, and that it contradicts Huawei by expanding the availability of injunctions and amounts to a de facto reinstatement of Orange Book Standard.[23] As a result, the SEP proposal’s no-injunction approach, as well as the length of its proposed FRAND-determination procedure, may alter the bargaining process by imposing costs on patent owners and unduly favoring opportunistic behavior and delay tactics by implementers. The effect would be to make hold-out more attractive.
Finally, this brief questions the expected added value of the SEP proposal’s conciliation process. While distrust of the role of courts in FRAND disputes finds no support in the empirical evidence—which instead demonstrates the absence of an SEP-litigation problem in the EU—the new provisions risk generating confusion and uncertainty, which could fuel further litigation. Such risk is further exacerbated by the proposal’s extraterritorial effects. Indeed, while the regulation would apply only to patents in-force in the EU, the FRAND determination may refer to global rates.[24]
The remainder of this issue brief is structured as follows. Sections II and III compare FRAND determinations under the SEP proposal and the Huawei bargaining framework, respectively. Section IV addresses the relationship between the Huawei code of conduct and the solution advanced by the European Commission. Section V investigates the implications and potential side effects of the SEP proposal. Section VI concludes.
Disagreements regarding the meaning and implementation of FRAND (i.e., about what constitute FRAND terms and conditions, as well as the nature, scope, and implications of FRAND obligations) are among the primary drivers of complexity in SEP licensing.[25] To reduce costs and simplify and speed negotiation of FRAND terms,[26] Title VI of the Commission’s SEP proposal introduces mandatory dispute resolution, which would serve as a precondition to access to the competent court of an EU member state. Indeed, a FRAND determination by a conciliator, selected among candidates proposed by the competence center,[27] would be a mandatory step before an SEP holder could initiate patent-infringement proceedings, or an implementer could request a determination or assessment of FRAND terms and conditions before a competent court.[28] National court enforcement would also be precluded when a determination of FRAND terms and conditions is raised in abuse-of-dominance cases, namely in the national application of the Huawei framework.[29]
The obligation to initiate FRAND determination before the relevant court proceedings is, however, not required for SEPs covering use cases of standards for which the Commission establishes (by means of a delegated act) that there is sufficient evidence that SEP-licensing negotiations on FRAND terms do not give rise to significant difficulties or inefficiencies.[30] Furthermore, the obligation to initiate FRAND determination does not preclude either party’s right to request (pending the FRAND determination) that the competent court of a member state issue a provisional injunction of a financial nature against the alleged infringer.[31] In any case, the provisional injunction would exclude seizure of the alleged infringer’s property, as well as the seizure or delivery of the products suspected of infringing an SEP.
While it would be obligatory to commence the conciliation before initiating a court action, the parties would be free to decide on their level of engagement and would not be prevented from leaving the process at any time.[32] It is even possible to proceed with the FRAND determination with the participation of just one party. Where a party does not reply to the FRAND determination request, or does not commit to comply with the outcome of the FRAND determination, the other party should be able to request either the termination or unilateral continuation of the FRAND determination.[33] The same applies if a party fails to engage in the FRAND determination after the conciliator has been appointed.[34] Where a parallel proceeding is initiated in a third country (i.e., a jurisdiction outside the EU) that results in a legally binding and enforceable decision, the conciliator (or the competence center) shall terminate the FRAND determination upon the request of any other party.[35]
The FRAND determination should be concluded within nine months.[36] At the conclusion of the procedure, the conciliator would make a proposal recommending a FRAND rate.[37] Either party would have the option to accept or reject the proposal. If the parties do not settle and/or do not accept the conciliator’s proposal, the conciliator would be asked to draft a report of the FRAND determination, including both a confidential and a non-confidential version. The latter should contain the proposal for FRAND terms and conditions and the methodology used, and should be provided to the competence center for publication in order to inform any subsequent FRAND determination between the parties and other stakeholders involved in similar negotiations. The Commission’s SEP proposal, however, offers no guidance on how conciliators should set a FRAND royalty or what factors they should consider.
Under existing European law, the evaluation of FRAND commitments in the standard development context is guided by the CJEU’s ruling in Huawei v. ZTE,[38] whose pivotal role was recently confirmed by the Commission’s guidelines on the application of antitrust law to horizontal cooperation agreements.[39]
Huawei represents the most significant attempt to provide a framework for good-faith SEP-licensing negotiations to guide licensors and licensees toward a mutually agreeable FRAND royalty. Toward this aim and in order to strike a fair balance among the relevant interests,[40] the CJEU identified the steps that patent holders and implementers must follow in negotiating a FRAND royalty. Indeed, a balance should be pursued between maintaining free competition and the requirement to safeguard a proprietor’s intellectual-property rights and its right to effective judicial protection.[41]
The exercise of an exclusive right linked to an intellectual-property right may in “exceptional circumstances” involve abusive conduct for the purposes of competition law.[42] In this regard, the CJEU has shown a preference for FRAND determination in the context of negotiations between the parties, using the threat of antitrust liability and patent enforcement as levers to steer both parties toward a mutually agreeable FRAND royalty level. Compliance with the Huawei code of conduct would shield SEP holders from the gaze of competition law and, at the same time, protect implementers from the threat of an injunction and the resulting disruptive effects on sales and production.
More specifically, transposing the essential-facility doctrine’s “exceptional circumstances” test to the standard development scenario,[43] the CJEU finds that the exceptional circumstances in this context are that the patent be essential to standards established by a development organization, and that those patents obtain essentiality status only in return for the holder’s irrevocable commitment to license on FRAND terms.[44]
These premises yield a willing-licensee test. While the alleged infringer must demonstrate more than just a mere willingness to negotiate, the SEP holder is burdened with making the first move and respecting the corresponding behavioral requirements. It is up to the SEP holder to alert the infringer of an alleged violation by naming the patent and specifying how it has been infringed. It is also up to the SEP holder to present a specific and written license offer on FRAND terms, specifying the amount of the royalty and how it is to be calculated.
By contrast, it is up to the alleged infringer to respond diligently to that offer, in accordance with well-established commercial practices, and in good faith, implying that the alleged infringer must not employ delay tactics. If the alleged infringer does not accept the offer, it must make a concrete counteroffer under FRAND conditions within a short period of time. From the point that this counteroffer is rejected by the patent holder, the license seeker already using the patent must provide adequate security, namely by providing a bank guarantee or by depositing the required amounts. In addition, the license seeker must present a precise accounting of past acts of use. If the patent infringer’s conduct does not meet these requirements, or if it employs delay tactics, an allegation of abuse of dominant position against the patent holder would not apply.
As a result, there is no FRAND determination under Huawei. The CJEU did not attempt to specify the content of FRAND, but instead crafted a negotiation framework with mutual obligations for the SEP holder and potential licensees. The goal was to bring parties back to the negotiation table, using the threats of antitrust liability and intellectual-property enforcement as levers to reach a mutually agreeable FRAND royalty level and, ultimately, to avoid a third-party determination. Further, recognizing the existence of different FRAND conditions is implicit in the back-and-forth dialectic of Huawei etiquette. By allowing parties to make diverging FRAND offers and counteroffers, the CJEU acknowledged that there is no unambiguous FRAND point and that several distributional FRAND prices may exist. Therefore, FRAND comprises a range of terms. After all, it is unclear how a rule establishing there could be just one “true” FRAND rate would help parties to negotiate successfully, while identifying a range of legitimate FRAND terms confers on the parties significant and desirable flexibility.[45]
In summary, instead of the methodological approach deployed in the United States, which is concerned with developing tools that allow courts to define royalty rates, the European approach relies on a set of conditions that assess the licensing parties’ FRAND compliance during the negotiations, in order ultimately to leave the actual determination of FRAND rates to the parties themselves.[46] The goal of such an approach is to yield economically efficient royalty rates,[47] and that goal is shared by the European Commission. Indeed, in the 2017 communication on “Setting out the EU approach to Standard Essential Patents,” the Commission stated that the parties are “best placed to arrive at a common understanding of what are fair licensing conditions and fair rates, through good faith negotiations,” and that “there is no one-size-fits-all solution to what FRAND is,” since what can be considered fair and reasonable differs from sector to sector and over time.[48]
In its SEP proposal, the European Commission appears to agree with the Huawei decision’s premise that the relevant parties are best-positioned to determine the terms most appropriate for their specific situation.[49] According to the Commission, however, Huawei has proven inadequate to handle the complexities of SEP-licensing negotiations. as both licensing and enforcement remain inefficient.[50]
Notably, the Commission observes that national courts have adopted differing approaches to FRAND determinations and the process for negotiating FRAND terms and conditions—in particular, with regard to certain specific aspects of the Huawei test.[51] As affirmed in the study that informed the Commission’s Impact Assessment, despite the Huawei procedural framework’s added value of legal certainty, the Commission believes many uncertainties remain and that the framework fails to resolve several contentious debates regarding the scope and content of FRAND obligations, which has, in turn, led national courts to divergent interpretations of the various steps.[52] The Commission therefore justifies its intervention at the EU level by arguing that approaches taken by member states could diverge “partly depending on whether businesses in those Member States are predominantly SEP holders or implementers.”[53]
Few would dispute that the CJEU left a number of issues unresolved in Huawei (e.g., the existence of dominant position with respect to SEPs, the possibility of applying the framework to non-practicing entities, the definition of FRAND terms) and national courts, especially in Germany, have been busy filling those gaps.[54] Diverging approaches have sometimes been adopted, in particular with regard to implementation of the parties’ duties. Among these are determining the proper order to follow in scrutinizing the FRAND nature of offers and counteroffers; the timing and basis for counteroffers; and the ways in which implementers are expected to behave to demonstrate their willingness to strike a deal. But over the years that Huawei has been implemented, national courts have performed their roles effectively, tackling the risks of both hold-up and hold-out, and untangling various contentious questions about SEPs.[55]
Moreover, empirical evidence does not support the Commission’s findings. Indeed, as already noted, inputs provided to the Impact Assessment found that the volume of SEP-litigation cases has been stable in Europe and represent only a very small proportion of patent disputes overall. There is also no evidence that SEP-licensing conditions systematically suppress or delay standards implementation, thus inducing parties to opt out from standards-related innovation.[56]
Other data further contradict the Commission’s narrative. Discrepancies among national interpretations do not appear particularly significant, as the bulk of SEP disputes are litigated in just one member state (i.e., Germany).[57] The same applies to the suspicion that diverging interpretations may reflect the geographical concentration of SEP holders, since around 80% of all SEPs held by EU companies are owned by just two companies (i.e., Nokia and Ericsson), which are established in Finland and Sweden respectively.[58]
The SEP proposal’s FRAND determinations are supposed to coexist with the Huawei bargaining framework. The Commission has been keen to point out that the initiative will “neither interpret the CJEU case law nor adopt methodologies for FRAND determination per se,”[59] and that the conciliation procedure “will complement and not replace the Huawei v ZTE process.”[60] Moreover, according to the Commission, as the proposal “will establish mechanisms that promote the necessary transparency, increase certainty and reduce the potential for inconsistent rulings,” this will be “a significant improvement in the courts’ abilities to handle SEP disputes.”[61] These statements are hard to believe, however, as the rationale for the conciliation process is to replace national courts in implementing Huawei, and the approach the proposal takes is at odds with Huawei.
The Commission seeks to justify the new procedure on grounds that it is needed to address purported uncertainties stemming from diverging national applications of the Huawei procedural framework that, the Commission contends, make it unfit to ensure an efficient SEP-licensing and enforcement ecosystem. Therefore, to prevent or at least limit divergent interpretations, the conciliator would act as a more informed and presumably wiser judge. Indeed, the SEP proposal’s implicit assumption is that conciliators would have greater expertise than courts and would succeed where they have failed. As a consequence, the conciliator will examine the parties’ offers and counteroffers, and consider the Huawei negotiation steps.[62] Further, its final report will contain a summary of the process and include that information needed to assess whether the SEP holder engaged in the Huawei process with an implementer.[63] Moreover, the conciliator’s suggested FRAND royalty could also be used by both SEP holders and implementers to determine the appropriate amount of security the implementer needs to provide under Huawei.[64]
But ultimately, the SEP proposal endorses an anti-injunction approach inconsistent with the CJEU’s stance. In Huawei, the CJEU attempted to strike a fair balance among the relevant interests. Toward this aim, as the SEP proposal notes, the CJEU recognized SEP holders’ right to seek to enforce its patents in national courts.[65] The CJEU acknowledged that the exercise of remedies to protect intellectual-property rights may be considered unlawful for the purposes of competition law only in exceptional circumstances, and subordinated any limitation of injunctions to the demonstration of the licensee’s willingness to sign a FRAND deal.
In contrast, under the SEP proposal, injunctive relief would become unavailable by default and patent holders would be restricted from filing an infringement suit prior to initiating a FRAND determination, regardless of implementers’ willingness. Implementers, meanwhile, would remain free to request determinations of invalidity, as well as declarations of noninfringement and non-essentiality. Indeed, the FRAND determination would also be carried out even if the implementer failed to provide appropriate security, as required under Huawei.
As a result, in contrast to the CJEU’s approach, the SEP proposal would create an imbalance and an uneven bargaining position between licensors and license seekers. Rather than tackling both hold-up and hold-out opportunistic behavior, the Commission appears concerned only about the former—holding that the ability to negotiate a FRAND rate “without the threat of an injunction is important for any implementer.”[66] The only measure proposed to balance the obligations on both sides would be the issuance of provisional injunctions of a financial nature against the alleged infringer, which would ostensibly provide SEP holders who have agreed to license their SEPs on FRAND terms with the necessary judicial protection.[67] This right to an “injunction” would, however, preclude seizing the alleged infringer’s property, including the seizure or delivery of products suspected of infringing a SEP. Moreover, in determining whether a provisional injunction of a financial nature is adequate, the proposal suggests considering, among other things, the applicant’s economic capacity—in particular for small and medium-sized enterprises (SMEs)—in order to prevent abusive use of such a measure.[68]
While it is highly doubtful that the proposed provisional injunctions would discourage hold-out, the conciliation mechanism does not provide any measure that would offer implementers incentives to reach an agreement and accept the results. In addition to being nonbinding, the SEP proposal establishes that the FRAND determination procedure may take as long as nine months, thus potentially granting implementers the ability to benefit from a delay of patent holders’ requests for injunctive relief against infringement.
As reported by the Impact Assessment, SEP holders who responded during the public consultation identified their main problem as being the various reasons used by implementers to delay taking up a license.[69] In this regard, the conciliation process’ nine-month timeframe should be added to the long negotiations that SEP holders already face, as well as the time spent on potential litigation.[70] While the mandatory conciliation procedure would greater expose SEP holders to opportunistic conduct by implementers, the latter would be able to take advantage of further delays without losing any leverage. Indeed, given that the FRAND determination is nonbinding, implementers that pursue hold-out tactics might simply wait until SEP owners complete the process and, if dissatisfied with the outcome, challenge the results.[71]
Reconciling the different approaches taken by the SEP proposal and the Huawei framework will prove particularly interesting in Germany. Since the majority of SEP disputes in the EU are litigated there, the Huawei framework has primarily implemented by German courts.[72] Hence, it is evident that any reference to divergent interpretations at the national level mainly points in the direction of Germany. Indeed, the Commission mentions German case law several times with regard to disagreements and controversies over FRAND terms and conditions.[73]
Further, and more importantly, the Commission’s concern regarding the impact of injunctions on implementers (i.e., the risk that the mere threat of an injunction may place undue pressure on negotiations and force the potential licensee to accept non-FRAND rates) is in striking contrast with the German courts’ traditional stance. Indeed, as a result of the public consultation, the Impact Assessment reported the claims of some respondents according to which: “the national court practice increasingly favours SEP holders” and this “particularly applies in Germany after the Sisvel v. Haier decisions of Germany’s Federal Court of Justice”; “some courts have (mis)interpreted Huawei v. ZTE to impose unrealistic requirements on implementers to prove their willingness”; “injunctions for SEPs under FRAND commitment have become more readily available … in particular [because of] the decision of the Germany’s Federal Court of Justice Sisvel v. Haier.”[74] More explicitly, it is argued that the German Federal Court “effectively contradicted the CJEU’s judgement Huawei v. ZTE and brought back the Orange Book Standard … re-shift[ing] the main burden of negotiations on licensees and increase[ing] the availability of injunctions.”[75]
This background conflict between the European Commission and German courts, which predates Huawei, resurfaces in the Commission’s SEP proposal. After all, the Huawei test itself was developed in response to a request for a preliminary ruling advanced by a German court, the District Court (Landgericht) of Dusseldorf.
The CJEU ruling is usually interpreted as being opposed to the framework previously crafted by the German Federal Court of Justice (BGH) in Orange Book Standard.[76] According to the Orange Book framework, a defendant seeking to rely on a competition-law defense against an SEP holder’s claim for injunction would have to advance an unconditional license offer (i.e., the signing of a FRAND license cannot be made conditional on a court’s findings regarding infringement or the validity of the patent in question) and would be required to behave from the point of offer as if the plaintiff had accepted it. Hence, the defendant must have already paid the offered royalties, albeit in escrow.
In contrast to this approach, which allowed the competition-law defense in a very few cases, the Commission took a different stance in Motorola and Samsung. Those rulings established that infringers could avoid an injunction by stating a (rather unspecific) willingness to license and by accepting the binding determination of a third party.[77] Faced with these differing evaluation criteria endorsed by the BGH and the European Commission—which appeared one-sided in favor of patent holders and infringers, respectively—the CJEU set its own framework to pursue a novel and more balanced approach.
In the aftermath of Huawei, the Sisvel v. Haier decisions aligned German case law with the new European framework, setting the general principles according to which implementers are required to show an unequivocal and unconditional willingness to sign a FRAND license and to engage in constructive negotiations to pursue this aim. This does not, however, preclude the infringer from reserving the right to challenge the use of the license.
Because of the difficulties inherent in applying the willingness criteria in concrete example, Huawei’s case-by-case detection remains challenging, as proven by the German lower courts’ jurisprudence.[78] But despite the perception that German case law is overly friendly to patent owners, however, the attention devoted to the conduct of implementers is consistent with the principles set out by the CJEU, as Huawei revolves around the willingness of license seekers.[79]
The apparent incongruity between the Commission’s SEP proposal and the existing Huawei framework raises a more general question about whether the initiative could possibly be effective, which is further underscored by the inference that the proposed FRAND-determination process is essentially a response to the German courts’ approach.
Given the differing perspectives embraced by the European Commission and German courts, it is not unreasonable to wonder to what extent the conciliator’s advisory opinion will exert any influence on courts, as the conciliation procedure is mandatory but nonbinding. Indeed, courts may simply disregard the FRAND rate proposed by the conciliator. Further, it is unclear whether courts would consider the degree of the licensee’s engagement in the conciliation procedure as a factor for the willingness assessment under Huawei.
Furthermore, the core of the SEP proposal (including the FRAND determination) would not apply to identified use cases of certain standards, or parts thereof, for which there is “sufficient evidence” that SEP-licensing negotiations on FRAND terms do not give rise to “significant difficulties or inefficiencies.”[80] Therefore, certain standards or implementations can be deemed exempt by means of a delegated act, in particular those for which there are “well established commercial relationships and licensing practices,” “such as the standards for wireless communications.”[81] The Commission offers no guidance or specifications, however, on the meaning of the terms that would justify such an important exemption.
Moreover, the newly envisaged FRAND-determination procedure closely resembles the already established alternative-dispute-resolution methods, such as the mediation of FRAND disputes offered by such organizations as the World Intellectual Property Organization (WIPO). As there is no indication that a mediation process overseen by the EUIPO would hold greater appeal to the relevant parties, a further question is raised regarding how the new process would provide additional benefits compared to the solutions already in place.
Finally, although the new regulation would apply to SEPs in-force in one or more member states, FRAND determinations will nevertheless also concern global SEP licenses, unless otherwise specified by the parties in case both parties agree to the FRAND determination or by the party that requested the continuation of the FRAND determination.[82] The EU has been concerned recently by the forum-shopping strategies some companies have undertaken, which have led to increasing requests of antisuit injunctions (ASIs)—that is, orders restraining a party from pursuing foreign proceedings or enforcing a judgment obtained in foreign proceedings.[83] This surge of ASIs and the risks related to their opportunistic use in the SEP landscape is linked to the role that certain national courts (particularly in the United States, United Kingdom, and China) have come to play in establishing themselves as de facto global licensing tribunals. In such a scenario, ASIs may represent a new and dangerous unfair practice adopted, in particular, by Chinese companies, with the support of Chinese courts and authorities. The presumed goal is to promote domestic economic interests and undervalue foreign patents by setting significantly lower FRAND rates. For these reasons, the EU has filed a case against China at the World Trade Organization (WTO) for preventing EU companies from going to foreign courts to protect their SEPs.[84]
If it is true, however, that national courts’ willingness to establish themselves as global licensing tribunals has spurred a race to the courthouse, thereby offering incentives for forum shopping and the adoption of countermeasures such as ASIs, the extraterritorial effects of the SEP proposal may contribute to such a race to the bottom among jurisdictions. Indeed, from a geopolitical perspective, the provision simply appears to be a retaliation against “certain emerging economies” that are taking a “much more aggressive approach in promoting home-grown standards and providing their industries with a competitive edge in terms of market access and technology roll-out.”[85]
All these elements call into question the added value provided by the European initiative and its effective capacity to pursue the identified objectives—namely, to achieve more transparency, predictability, and efficiency in SEPs licensing. Because of these illustrated uncertainties, the SEP proposal appears likely to add confusion and to induce licensing disputes, rather than supporting balanced and successful SEP-licensing negotiations.
The Huawei bargaining framework represents the EU’s distinctive approach in SEP-licensing negotiations. It revolves around the principles that the relevant parties are best-positioned to determine the terms most appropriate to their specific situation, and that the exercise of remedies to protect intellectual-property rights may be considered abusive only in exceptional circumstances. Against this background, the willing-licensee test aims to ensure a balance among the differing interests of licensors and license seekers.
Despite some points of criticism and unresolved issues, the economic literature supports the European way. By promoting cooperative solutions and thus moving the parties away from the courtroom and toward the negotiating table, the Huawei framework is more likely to result in economically efficient royalty rates than alternative approaches.
The European Commission apparently does not share this view. By imposing a mandatory conciliation procedure that would impede SEP holders from seeking injunctive reliefs and would allow implementers to further delay the attainment of a license, the SEP proposal seeks to discard Huawei. The intervention seems essentially motivated by dissatisfaction with the German courts’ interpretation and implementation of Huawei, namely with their supposed patent-owner-friendly and pro-injunction approach.
The proposed FRAND-determination procedure, however, represents a solution to a problem that does not exist. The empirical evidence informing the Commission’s initiative shows that there isn’t an SEP-litigation problem in Europe. Moreover, the proposal would just add confusion and uncertainties to the current landscape, both because of its troublesome relationship with Huawei and because some provisions—such as those granting extraterritorial effects to FRAND determinations—would favor litigation and a race to the courthouse.
If the expected added value of the SEP proposal is questionable, at best, it appears far from the Commission’s purported goal of providing “a uniform, open and predictable information and outcome on SEPs for the benefit of SEP holders, implementers and end users, at Union level.”[86]
[1] European Commission, Proposal for a Regulation of the European Parliament and of the Council on Standard Essential Patents and Amending Regulation (EU) 2017/1001, COM(2023)232.
[2] Id., Recital 2.
[3] See Group of Experts on Licensing and Valuation of Standard Essential Patents, Contribution to the Debate on SEPs, (2021) https://ec.europa.eu/docsroom/documents/45217 (all websites last visited 28 Sep. 2023); European Commission, Making the Most of the EU’s Innovative Potential. An Intellectual Property Action Plan to Support the EU’s Recovery and Resilience, COM(2020) 760 final; European Commission, Setting Out the EU approach to Standard Essential Patents, COM(2017) 712 final; European Commission, ICT Standardisation Priorities for the Digital Single Market, COM(2016) 176 final.
[4] European Commission, Intellectual Property – New Framework For Standard-Essential Patents, Call for Evidence for an Impact Assessment (2022). https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents_en.
[5] Id.
[6] See, e.g., Centre for a Digital Society of the European University Institute, Feedback to EU Commission’s Public Consultation (2023), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents/F3432699_en; Christine A. Varney, Makan Delrahim, David J. Kappos, Andrei Iancu, Walter G. Copan, & Noah Joshua Phillips, Comments on European Commission’s Draft “Proposal for Regulation of the European Parliament and of the Council Establishing a Framework for Transparent Licensing of Standard Essential Patents,” (2023), available at https://ipwatchdog.com/wp-content/uploads/2023/04/Comments-on-European-Commission-Draft-SEP-Regulation-by-Former-US-Officials-1.pdf; Robin Jacob & Igor Nikolic, ICLE Feedback to EU Commission’s Public Consultation, International Center for Law & Economics (2023). https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents/F3433917_en.
[7] European Commission, Impact Assessment Report Accompanying the Document Proposal for a Regulation of the European Parliament and of the Council on Standard Essential Patents and Amending Regulation (EU) 2017/1001, SWD(2023) 124 final.
[8] Justus Baron, Pere Arque-Castells, Amandine Leonard, Tim Pohlmann, & Eric Sergheraert, Empirical Assessment of Potential Challenges in SEP Licensing, Study for the European Commission (2023), available at https://www.iplytics.com/wp-content/uploads/2023/04/Empirical-Assessment-of-Potential-Challenges-in-SEP-Licensing.pdf.
[9] Impact Assessment, supra note 7, 11-17 and 25.
[10] Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 108.
[11] Id., 109-110.
[12] Id., 185.
[13] Id., 164.
[14] SEP Proposal, supra note 1, Article 3.
[15] Varney, Delrahim, Kappos, Iancu, Copan, & Phillips, supra note 6.
[16] SEP Proposal, supra note 1, Title VI.
[17] CJEU, 16 July 2015, Case C-170/13, Huawei Technologies Co Ltd v. ZTE Corp, ECLI:EU:C:2015:477.
[18] Impact Assessment, supra note 7, 43 and 58.
[19] European Commission, 29 April 2014, Cases AT.39985 and AT.39939.
[20] Bundesgerichtshof (BGH), 6 May 2009, Case KZR 39/06.
[21] SEP Proposal, Explanatory Memorandum, supra note 1, 4; European Commission, supra note 4, 3.
[22] Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 71-73.
[23] Impact Assessment, supra note 7, 154 and 158. See also BMW Group, Feedback to EU Commission’s Public Consultation (2023), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents/F3434362_en; Mercedes-Benz Group, Feedback to EU Commission’s Public Consultation (2023), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents/F3430251_en; and Volkswagen, Feedback to EU Commission’s Public Consultation (2023), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents/F3430555_en (welcoming the SEP Proposal for ensuring that, parallel to FRAND determination, any filed proceedings are suspended and that no injunction request may be brought before national courts, “particularly in Germany”); Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 96 (arguing that German courts are relatively strict on the interpretation of the Huawei step regarding the assessment of whether the response has been expressed diligently and without engaging in delaying tactics).
[24] SEP Proposal, supra note 1, Recital 8 and Article 38(6).
[25] Impact Assessment, supra note 7, 15 and 51-52.
[26] SEP Proposal, supra note 1, Recital 32; See Impact Assessment, supra note 7, 43-44 (estimating that the total cost of a conciliation will be eight times lower than the average SEP court cost and that up to 24 court cases could be avoided).
[27] SEP Proposal, supra note 1, Article 39.
[28] Id., Article 34.
[29] Id., Article 56(4).
[30] Id., Article 1(3-4).
[31] Id., Article 34(4).
[32] Id., Recital 34.
[33] Id., Article 38.
[34] Id., Article 46.
[35] Id., Article 47.
[36] Id., Article 37.
[37] Id., Articles 50-58.
[38] Huawei, supra note 17.
[39] European Commission, Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Cooperation Agreements, C/2023/4752, (2023) OJ C 259/1, Chapter 7.
[40] Huawei, supra note 17, para. 55
[41] Id., para. 42.
[42] Id., para. 47.
[43] CJEU, 6 April 1995, Joined Cases C-241/91 P and 242/91 P, RTE and ITP v. Commission, ECLI:EU:C:1995:98; CJEU, 26 November 1998, Case C-7/97, Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG, ECLI:EU:C:1998:569; CJEU, 29 April 2004, Case C-418/01, IMS Health v. NDC Health, ECLI:EU:C:2004:257; General Court, 17 September 2007, Case T-201/04, Microsoft v. Commission ECLI:EU:T:2007:289.
[44] Huawei, supra note 17, paras. 49 and 51.
[45] See, e.g., UK Court of Appeal, Unwired Planet [2018] EWCA Civ 2344 (overturning the single FRAND rate definition endorsed by Justice Colin Birss in Unwired Planet [2017] EWHC 1304 (Pat) and stating that the economic evidence does not support such an inflexible approach and that it is unrealistic to suggest that two parties, acting fairly and reasonably, will necessarily arrive at precisely the same set of license terms as two other parties, also acting fairly and reasonably and faced with the same set of circumstances).
[46] See Chryssoula Pentheroudakis & Justus A. Baron, Licensing Terms of Standard Essential Patents: A Comprehensive Analysis of Cases, JRC Science for Policy Report (2017), 123-124, https://publications.jrc.ec.europa.eu/repository/handle/JRC104068 (arguing that, in order to determine a single royalty rate within a hypothetical negotiation framework, U.S. courts are methodologically sophisticated when they approach FRAND, while European courts are more reluctant to define a single royalty rate and instead focus on the conduct of the parties during the bilateral negotiations to assess whether they complied with the specific FRAND commitments made prior to awarding injunctions).
[47] Id., 13 and 165 (arguing that the theoretical concepts behind FRAND and the empirical data available to determine FRAND rates for specific patents and products merely allow for the determination of a potentially broad FRAND range, rather than a unique FRAND rate, thus suggesting that implementation of the FRAND range should not seek to calculate a single royalty).
[48] European Commission, supra note 3, 6.
[49] See SEP Proposal, supra note 1, Recital 31 (stating that the regulation’s primary objective is to facilitate negotiations and out-of-court dispute resolution).
[50] European Commission, supra note 4, 3.
[51] SEP Proposal, Explanatory Memorandum, supra note 1, 4-5; European Commission, supra note 4, 3.
[52] Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 58-59 and 96.
[53] European Commission, supra note 4, 3.
[54] For analysis of the German case law, see Andrea Aguggia & Giuseppe Colangelo, SEPs Infringement and Competition Law Defence in German Case Law, Queen Mary Journal of Intellectual Property (forthcoming); Giuseppe Colangelo & Valerio Torti, Filling Huawei’s Gaps: The Recent German Case Law on Standard Essential Patents, 38 European Competition Law Review 538 (2017).
[55] See Jacob & Nikolic, supra note 6 (referring, e.g., to the guidance provided regarding what the FRAND rate between the parties ought to be, the scope of a FRAND license, the meaning of a FRAND commitment’s non-discrimination requirements, and whether FRAND commitments require SEP owners to offer licenses at different levels of the production chain); see also Adam Mossoff, Feedback to EU Commission’s Public Consultation (2023), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Intellectual-property-new-framework-for-standard-essential-patents/F3434471_en.
[56] Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 108 and 164.
[57] Id., 71-73.
[58] Impact Assessment, supra note 7, 8.
[59] SEP Proposal, Explanatory Memorandum, supra note 1, 5.
[60] Impact Assessment, supra note 7, 58.
[61] SEP Proposal, Explanatory Memorandum, supra note 1, 5.
[62] Impact Assessment, supra note 7, 32.
[63] Id., 42.
[64] Id.
[65] SEP Proposal, Explanatory Memorandum, supra note 1, 3.
[66] Impact Assessment, supra note 7, 42; see also Apple, Feedback to EU Commission’s Public Consultation, (2023) 3, https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13109-Proprieta-intellettuale-nuovo-quadro-per-i-brevetti-essenziali/F3434446_it (arguing that, if properly developed and implemented, the conciliation would limit SEP holders’ ability to use injunction threats to hold up licensees and coerce above-FRAND royalties).
[67] SEP Proposal, supra note 1, Recital 35 and Article 34(4).
[68] Id., Recital 35.
[69] Impact Assessment, supra note 7, 12.
[70] Id. (reporting the findings of the study conducted by Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 145, according to which negotiations amount, on average, to three years and that litigation may add another 2.5 years).
[71] Igor Nikolic, Some Practical and Competition Concerns with the Proposed Regulation on Standard Essential Patents, 4iP Council EU AISBL (2023) 5, https://www.4ipcouncil.com/research/some-practical-and-competition-concerns-proposed-regulation-standard-essential-patents.
[72] Impact Assessment, supra note 7, 58.
[73] See, e.g., European Commission, supra note 4, 3; Impact Assessment, supra note 7, 154 and 158; SEP Proposal, Explanatory Memorandum, supra note 1, 4. See also Baron, Arque-Castells, Leonard, Pohlmann, & Sergheraert, supra note 8, 59 (arguing that, in many member states, there currently are only a limited number of decisions under Huawei and that, in light of the controversies and diverging court approaches observed in Germany, it may be difficult for parties to SEP-licensing negotiations to predict how the courts of these EU member states would decide).
[74] Impact Assessment, supra note 7, 154, 155, and 158. The reference is to BGH, 5 May 2020, Case KZR 36/17, Sisvel v. Haier (Einwand I) and BGH, 24 November 2020, Case KZR 35/17, Sisvel v. Haier (Einwand II).
[75] Impact Assessment, supra note 7, 158.
[76] Supra note 20.
[77] Supra note 19.
[78] See Aguggia & Colangelo, supra note 54.
[79] Id.
[80] SEP Proposal, supra note 1, Article 1(4).
[81] Id., Recital 4.
[82] Id., Article 38(6).
[83] For a comparative analysis, see Giuseppe Colangelo & Valerio Torti, Anti-suit Injunctions and Geopolitics in Transnational SEPs Litigation, 14 European Journal of Legal Studies 45 (2022).
[84] European Commission, EU Challenges China at the WTO to Defend its High-Tech Sector, (2022) https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1103.
[85] SEP Proposal, Explanatory Memorandum, supra note 1, 2.
[86] Id., 10.
TOTM Ayear ago, we cautioned that the EU Cybersecurity Certification Scheme for Cloud Services (EUCS) threatened to embed ill-conceived economic protectionism into the EU’s cybersecurity rules. And, indeed, . . .
Ayear ago, we cautioned that the EU Cybersecurity Certification Scheme for Cloud Services (EUCS) threatened to embed ill-conceived economic protectionism into the EU’s cybersecurity rules. And, indeed, the European Commission, which has made clear its commitment to pursue “digital sovereignty” for the European Union, can claim some preliminary successes on that front.
A recent draft of EUCS shows that the European Union Agency for Cybersecurity (ENISA) heeded the Commission’s call, contrary to ENISA’s own prior recommendations. Most notably, the draft would preclude entities outside the EU and those under foreign ownership or control from receiving the highest level of cybersecurity certification.
