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May 7, 2012
Regulating mobile: Distinguishing the payment from the channel
The handset is just a device, not a payment
Policymakers and regulators are just beginning to discuss the regulatory environment for mobile banking and payments in the United States. The added dialogue to existing industry conversations can lead to mixed messages about where regulatory and policy action may be needed. Recently we've heard from industry and regulatory agencies that the payments industry should carefully consider introducing new regulations and supervisory guidance.
The mobile handset is "just a device, not a payment," noted Mallory Duncan, senior vice president and general counsel at the National Retail Federation. Duncan, who spoke at the workshop "Paper, Plastic...or Mobile," hosted by the Federal Trade Commission, also said that regulation should be no more stringent than that of the underlying payment. In essence, the laws, regulations, and rule sets associated with a payment type—be it a credit card, debit card, or online payment—should follow that payment through the mobile channel for clearing and settlement. I offered similar conclusions in a previous Portals and Rails post on dispelling myths in mobile payments, adding that "while new networks...may emerge in the future, at present, the payment network systems remain the same."
Fragmented framework on an expanded landscape
One problem the payments industry faces as technology enables new intermediary payment methods (they all start off as something we already use: cash, checks, or cards) is that the legal and regulatory framework includes different consumer protections, disclosure requirements, and error resolution provisions depending on the payment type. While all these payments are used in an Internet environment—whether the Internet is accessed by phone or a traditional PC—the addition of the mobile channel and its telecom partners has seemingly created a tipping point for confusion and speculation. Many of the issues raised about consumer protection for prepaid cards, for example, exist now and have nothing to do with a consumer's ability to use a prepaid account with a mobile device.
Can existing regulatory infrastructure handle new mobile payment business models?
The United States has a more complicated banking system than most countries. National laws, for example, govern national banks, which are preempted from state law. State-chartered banks and nondepository money service businesses (like payday lenders and money transmitters), on the other hand, are responsible for complying with the laws of every state in which they do business. These laws are different from state to state, and sometimes even conflict.
Industry players in each of these separate chartering authorities are stepping into the mobile channel as a way to expand their footprint. While telecoms and technology firms are entering into partnerships with banks to establish new business models in the delivery of mobile payments, so far they're sticking to their knitting and leaving the clearing and settlement, and the extension of credit, to the financial services industry. As long as banks remain the payment issuers in these still nascent business models, caution in rethinking the regulatory infrastructure is probably a good idea as well.
By Cynthia Merritt, assistant director of the Retail Payments Risk Forum
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