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LON-MOW036PUIB-680 Payments Regulation Paper Ami Patel

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LON-MOW036PUIB-680 Payments Regulation Paper Ami Patel Financial Services THE REGULATION OF TRADITIONAL AND ALTERNATIVE ELECTRONIC PAYMENTS THE CASE FOR A LEVEL PLAYING FIELD AUTHORS Tony Hayes Ross Frisbie First published December 2011 Note: While this paper assesses a number of laws and regulations, it is not intended to constitute legal advice (even to lawyers, a number of regulations and provisions are subject to interpretation). As such, this paper reflects our perspectives and represents a diligent effort to draw attention to issues that are likely to increase in importance over time. CONTENTS 1. EXECUTIVE SUMMARY .............................................................................................1 2. WHY THE REGULATORY TREATMENT OF PAYMENTS MATTERS NOW .....................5 3. OVERVIEW OF ALTERNATIVE ELECTRONIC PAYMENTS ...............................................................................................................7 3.1. DEFINITIONS .................................................................................................7 3.2. MARKET SIZE .................................................................................................8 3.3. TAXONOMY..................................................................................................12 4. NOTABLE CHANGES TO PAYMENTS LAW AND REGULATION, 2008-2011 .......................................................................................19 4.1. OVERDRAFT CHANGES (REG E) ...................................................................19 4.2. THE CREDIT CARD ACT ................................................................................22 4.3. CHECK CLEARING ORDER ...........................................................................24 4.4. DODD-FRANK AND THE DURBIN AMENDMENT ..........................................25 5. OVERVIEW OF PAYMENTS AND PAYMENTS PROVIDER REGULATION ........................................................................................27 5.1. TIMELINE OF CONSUMER PROTECTION AND PAYMENTS PROVIDER REGULATION ...........................................................27 5.2. REGULATIONS THAT PROTECT CONSUMERS ..............................................29 5.3. OTHER REGULATIONS GOVERNING PAYMENTS ..........................................33 5.4. REGULATION OF DEPOSITORIES .................................................................34 6. DETAILED DISCUSSION: CONSUMER PROTECTIONS ............................................35 6.1. BANKRUPTCY PRIORITY AND DEPOSIT INSURANCE ...................................35 6.2. THE CONSUMER FINANCIAL PROTECTION BUREAU ...................................38 6.3. ELECTRONIC FUND TRANSFER ACT/REG E .................................................40 6.4. EQUAL CREDIT OPPORTUNITY ACT/REG B ..................................................43 6.5. FAIR CREDIT REPORTING ACT/REG V ..........................................................44 6.6. FINANCIAL PRIVACY (GLB/REG P) ...............................................................45 6.7. FUNDS AVAILABILITY/REG CC .....................................................................46 6.8. STATE LAWS AND FEDERAL PREEMPTION ...................................................47 6.9. TRUTH IN LENDING ACT AND FAIR CREDIT BILLING ACT/REG Z .................49 6.10. TRUTH IN SAVINGS ACT/REG DD .................................................................52 6.11. UNCLAIMED PROPERTY/ESCHEATMENT ....................................................54 6.12. UNFAIR OR DECEPTIVE ACTS OR PRACTICES/REG AA ................................57 6.13. UNIFORM COMMERCIAL CODE CHECK PROVISIONS .................................58 7. DETAILED DISCUSSION: OTHER REGULATIONS GOVERNING PAYMENTS ....................................................61 7.1. DURBIN AMENDMENT/REG II ......................................................................61 7.2. PAYMENT CARD IRS REPORTING (HERA §3091) ..........................................61 7.3. AML/KYC .....................................................................................................63 7.4. TYING ARRANGEMENTS/REG Y ..................................................................67 7.5. PAYMENT SYSTEM INTEGRITY .....................................................................69 7.6. FINANCIAL MARKET UTILITIES/REG HH ......................................................70 8. DETAILED DISCUSSION: REGULATION OF DEPOSITORIES ...........................................................................73 8.1. PRUDENTIAL SUPERVISION OF DEPOSITORIES ...........................................73 8.2. SYSTEMIC REGULATION (SIFIS AND G-SIFIS) ...............................................77 8.3. COMMUNITY REINVESTMENT ACT/REG BB ................................................79 8.4. OTHER LAWS ...............................................................................................81 9. GLOSSARY OF ALTERNATIVE PAYMENTS PROVIDERS ...........................................85 10. GLOSSARY OF ACRONYMS AND REGULATIONS ....................................................87 ABOUT OLIVER WYMAN ...............................................................................................93 1. EXECUTIVE SUMMARY The US payments industry has undergone a number of significant changes in recent years. No component of the ecosystem has stood still – new competitors, new technologies, significant growth, shifting customer behaviors, and changing economics have all contributed to today’s dynamic landscape. Practically every week brings announcements of new product offerings, alliances between established and startup companies, or new projections for the growth of emerging technologies. Yet one aspect of the payments ecosystem – the regulatory landscape – has remained relatively static. This paper provides a thorough and necessary examination of the gaps, differences, and ambiguities in the regulation of electronic payments. Because of the lens through which we view payments, some highly visible innovations that will likely prove significant – such as embedding payment card information in a mobile phone – have relatively few consequences here. Conversely, certain distinctions that may appear to be arbitrary or are invisible or irrelevant to consumers can be of considerable regulatory importance. The paper begins with an overview of alternative electronic payments, including the key participants and various measures of the size of these markets. Alternative electronic payments account for a relatively small share of the overall payment market today, but they are growing much more quickly than traditional payment types. PayPal has already grown to where it would be a top-10 card issuer. The paper then develops a regulatory-based taxonomy for more than 50 alternative payments providers. Many of them simply facilitate payments over the existing credit, debit, and ACH payment systems, by making transactions easier, faster, or less expensive for merchants and/or consumers. While these companies use sophisticated technology and will impact the payments industry in many ways, from a regulatory perspective their involvement does not change the nature of the underlying payment. Consumers enjoy all the protections that they would if the alternative company was not involved. A number of companies, though, have developed new business models that do not neatly fit into today’s regulatory structure. These companies fall into four categories • New Plastic: Until recently, “paying with plastic” generally meant using a credit card or a debit card linked to one’s checking account. Today, there are a half-dozen other types of cards that consumers can use: open-loop prepaid cards, closed-loop merchant gift cards, open-loop gift cards, decoupled debit cards, employer-arranged payroll cards, and electronic benefit cards. While these cards have some characteristics of debit cards – a consumer uses a piece of plastic to pay for a purchase using stored funds – key regulatory differences exist Copyright © 2011 Oliver Wyman 1 • Non-Plastic Asset Accounts: Other companies (with PayPal the largest by far) have developed products where consumers can load funds (often via a traditional electronic payment) into an account held by the alternative company and then use those funds to make P2P transactions or purchases with a merchant. These tend to be used primarily online • Mobile Carrier Billers: These companies allow consumers to charge purchases directly to their mobile phone statements, rather than use their mobile phones as the means to make traditional electronic payments. They do not house customer funds • Virtual Currencies: These providers allow consumers to exchange money for points or credits, usually to purchase non-physical goods or services. Consumers can fund an account with either a traditional or alternative electronic payment. This category is the “most alternative” of the lot. This category raises conceptual questions about where the boundary of financial regulation resides or ought to reside, and ambiguities extend to matters well beyond FS regulation. The bulk of the paper then examines each law and regulation applicable to traditional payments. For each law, there is a discussion of the law, whether and how it applies to alternative electronic payments, any key gaps or ambiguities in coverage, and the implications of those gaps or ambiguities. Our analysis indicates that traditional and alternative electronic payments, as well as their providers, receive different treatment under a variety of laws and regulations. We believe the US payment
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