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US Federal Reserve: r1060

US Federal Reserve: r1060

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Published by: The Fed on Jan 23, 2008
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06/14/2009

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<PRE>[Federal Register: February 11, 2000 (Volume 65, Number 29)][Proposed Rules][Page 6924-6925]From the Federal Register Online via GPO Access [wais.access.gpo.gov][DOCID:<strong>fr11fe00</strong>-<strong>22</strong>]=======================================================================-----------------------------------------------------------------------FEDERAL RESERVE SYSTEM12 CFR Part 225[Regulation Y; Docket No. R-1060] Revisions Regarding Tying RestrictionsAGENCY: Board of Governors of the Federal Reserve System.ACTION: Notice of proposed rulemaking.-----------------------------------------------------------------------SUMMARY: The Board of Governors of the Federal Reserve System isseeking public comment on a proposed exception to the anti-tyingrestrictions of section 106 of the Bank Holding Company Act Amendmentsof 1970 and the Board's Regulation Y. The proposed amendment wouldestablish a ``safe harbor'' permitting a bank to offer a credit cardthat can be used to make purchases from a retailer affiliated with thebank.DATES: Comments must be received by March 13, 2000.ADDRESSES: Comments should refer to Docket No. R-1060, and may bemailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of theFederal Reserve System, 20th Street and Constitution Avenue, NW,Washington, DC 20551. Comments also may be delivered to Room B-2222 ofthe Eccles Building between 8:45 a.m. and 5:15 p.m. weekdays ordelivered to the guard station in the Eccles Building Courtyard on 20thStreet, NW (between Constitution Avenue and C Street, NW) at any time.All comments received at the above address will be available forinspection and copying by any member of the public in the Freedom ofInformation Office, Room MP-500 of the Martin Building, between 9:00a.m. and 5:00 p.m. weekdays, except as provided in Sec. 261.14 of theBoard's Rules Regarding the Availability of Information (12 CFR261.14).FOR FURTHER INFORMATION CONTACT: Scott G. Alvarez, Associate GeneralCounsel (202/452-3583), or Andrew S. Baer, Attorney (202/452-2246),Legal Division. Users of Telecommunication Device for Deaf (TTD) only,contact Diane Jenkins at (202) 452-3544.SUPPLEMENTARY INFORMATION:Background
 
Section 106(b) of the Bank Holding Company Act Amendments of 1970(12 U.S.C. 1972) generally prohibits a bank from tying the availabilityor price of a product or service to the purchase by a customer ofanother product or service offered by the bank or any of itsaffiliates. A bank engages in a tie for purposes of section 106 byconditioning the availability of, or offering a discount on, oneproduct or service (the ``tying product'') on the condition that thecustomer obtain some additional product or service (the ``tiedproduct'') from the bank or from any of its affiliates. Violations ofsection 106 can be addressed by the Board through an enforcementaction, by the Department of Justice through a request for aninjunction, or by a customer or other party through an action fordamages. 12 U.S.C. 1972, 1973, and 1975.Section 106 contains an explicit exception (the ``statutorytraditional bank product exception'') that permits a bank to tie aproduct or service to a loan, discount, deposit, or trust service (``atraditional bank product'') offered by that bank. The Board hasextended this exception by providing that a bank may condition theavailability of, or vary the consideration for, any product or serviceon the condition that the customer obtain a traditional bank productfrom an affiliate of the bank (the ``regulatory traditional bankproduct exception'').\1\ The Board adopted the regulatory traditionalbank product exception in its present form because inter-affiliatetransactions do not appear to pose any greater risk of anti-competitivebehavior than intra-bank transactions, and because Congress hadextended the statutory traditional bank product exception to coverinter-affiliate transactions for savings associations and theiraffiliates.\2\---------------------------------------------------------------------------\1\ See 12 CFR 225.7(b)(1).\2\ See 62 FR 9289, 9314 (February 18, 1997), and 12 U.S.C.1464(q)(1)(A).---------------------------------------------------------------------------Section 106 authorizes the Board to grant exceptions to itsrestrictions by regulation or order. On December 7, 1999, the GeneralCounsel of the Board issued a legal interpretation indicating theBoard's view that section 106 does not prohibit a credit card bank fromissuing a credit card that may be used to make purchases from aretailer affiliated with the credit card bank (``private-label creditcard'').\3\ The Interpretation did not address the situation where abank or its retailer affiliate offer discounts on their respectiveproducts in connection with a private-label credit card arrangement, asthat situation was not presented by the request for an interpretation.The proposed exception also does not cover that situation.---------------------------------------------------------------------------\3\ See Letter from J. Virgil Mattingly, Jr., to William S.Eckland, Esq., dated December 7, 1999 (the ``Interpretation'').---------------------------------------------------------------------------Proposed RuleThe Board is proposing to use its statutory authority to grant aregulatory exemption to section 106 for private-label credit cards thatmay be used at a retailer affiliated with the issuing bank. The Boardis proposing the exception in order to disseminate the Board's view, as
 
reflected in the Interpretation, that such arrangements are not as ageneral matter anticompetitive, and to create a rule of more generalapplicability not limited to the facts on which the Interpretation wasbased.[[Page 6925]]Applicability of Section 106Because section 106 prohibits a bank from offering or discounting aproduct or service on the condition that the customer obtain someadditional product or service from the bank or from any of itsaffiliates, the question arose as to whether a private-label creditcard arrangement violates that restriction when credit is extended onlywhen a customer makes a purchase from a retailer affiliated with theissuing bank. Although the extension of credit through the private-label credit card is not conditioned on any particular product beingpurchased, or on purchases being made from any particular retailer, thelack of a network with other retailers limits the ability of thecustomer to access that credit other than by purchasing a product orservice from the affiliated retailer. In the private-label credit cardarrangement described in the Interpretation, there is no contractuallimitation on where the card can be used to make purchases. The reasonwhy the private-label credit card can only be used at the affiliatedretailer is that the retailer is the only merchant able to communicatewith the issuing bank regarding whether credit should be extended onthe card.ExceptionThe Interpretation reflects the Board's belief that private-labelcredit cards issued by a bank affiliated with the relevant retailer donot generally involve the type of anticompetitive activity that section106 was intended to address. Section 106 was intended to prevent banksfrom using their market power in banking products to gain an unfaircompetitive advantage in markets for non-banking products and services.The type of private-label credit card arrangements described in theInterpretation do not raise such concerns, however, because they do notinvolve a banking organization's attempt to expand into retailing, butrather a retailer's attempt to provide an additional convenience forits customers. Additionally, because the same products and services canbe purchased from the retailer for the same price using payment methodsother than the private-label credit card, customers wishing to purchasethose products and services are not coerced into using the private-label credit card. The Interpretation also noted that such transactionsare driven by the customer's desire to purchase the product or service,not by the availability or nonavailability of credit from theaffiliated bank.For these reasons, the Board is proposing to establish, through aregulatory exception, a safe harbor for private-label credit cardarrangements where such cards may only be used to make purchases from aretailer affiliate of the issuing bank. The proposed safe harbor isconsistent with the concerns of section 106 about anticompetitivebehavior. The proposal requires that the products or services beavailable for purchase at the same price by means other than theprivate-label credit card, such as cash or credit cards issued by athird party. Furthermore, the issuing bank may not discount the creditit offers through the private-label credit card to customers who use

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