CONSUMER UNION
Mr. Robert E. Feldman
Executive Secretary
Attention: Comment/Legal ESS
Federal Deposit Insurance Corporation
550 17th St. N. W.
Washington DC 20429
By electronic filing
Re:
RIN 3064-AC80, Comments in general support of notice of proposed
rule to clarify the meaning of “deposit” as it relates
to funds underlying stored value cards (such as payroll cards, child
support
cards, prepaid debit cards, and tax refund loan proceeds cards)
Dear FDIC:
These comments are submitted by Consumers Union, Arizona
Consumers Council, California Reinvestment Committee, Capital Area
Asset Building
Corp.,
Center for Economic Progress, Coalition of Religious Communities, Community
Legal Services, Inc. of Philadelphia, Community Reinvestment Association
of North Carolina, Consumer Action, Consumer Federation of America,
Democratic Processes Center, Just Harvest, Legal Aid Society of Milwaukee,
Massachusetts
Consumers’ Coalition, Michigan Consumer Federation, National
Association of Consumer Advocates, National Community Reinvestment
Coalition, National
Consumer Law Center, National Consumers League, Neighborhood Economic
Development Advocacy Project, San Diego Housing Federation, Sargent
Shriver National Center on Poverty Law, Texas Legal Services Center,
UAW, U.S.
PIRG, and Virginia Citizens Consumer Council.
Nature of commenters’ interest:
As consumer groups and other groups who work with individuals who are
being asked to accept stored value cards to receive payments of essential
funds, we are deeply interested in the legal treatment of stored value
cards. These cards are increasingly targeted to those not well-served
by traditional deposit accounts. This includes payroll cards, prepaid
cards sold to individuals for Internet and in-person card use, and cards
used to deliver income tax refund monies or income tax refund loan proceeds,
child-support funds and unemployment payments.
Stored value cards are increasingly offered to low-
and moderate-wage workers as a way to receive wages. These products
are being marketed
to workers as “safe” even though the law is at best unclear
about whether these cards carry the same federal consumer protections
which apply to bank debit cards linked to a deposit account. Payroll
cards also may be offered under structures which involve nonbanks,
which pose risks for cardholders and require special care by employers
who
are selecting a payroll card program. Other types of stored value cards,
including cards marketed directly to individuals raise many of the
same issues.
Deposit insurance is just one of several issues that must be addressed
to make the stored value card, including the payroll card, a valuable
stepping stone into the banking system, rather than a high-cost, inferior
product. We call upon the Federal Reserve Board to clarify the full application
of federal Regulation E to all stored value cards, including payroll
cards, regardless of whether the funds are held in individual or a pooled
account, and regardless of how the accounting is performed for these
cards. Consumers Union has prepared materials discussing the issues and
risks of payroll cards for employees and employers, as well as the ways
in which these products could be enhanced to build a stronger bridge
to financial security and fuller access to the banking system for unbanked
workers. That information is found at http://www.consumersunion.org/pub/core_financial_services/000920.html,
March 16, 2004 and http://www.consumersunion.org/pub/core_financial_services/000922.html,
March 16, 2004.
Although the FDIC’s jurisdiction is narrower than the full scope
of the issues related to stored value cards, the FDIC’s proposal
is a welcome initial response to the fact that stored value cards are
increasingly being marketed to and used by consumers as a substitute
for a deposit account or as a substitute for a payment mechanism linked
to an individual deposit account.
The rule should be modified to reach all stored value cards offered as
account substitutes:
The FDIC's proposal is highly technical. If the problems
described below with the definition of stored value cards and with
the exemptions
to
that definition are resolved, then the FDIC’s proposal should cover
most kinds of stored value cards that are now being marketed to consumers
as alternatives to a deposit-account-linked bank debit card. However,
it may be difficult for individual consumers, and indeed even for bankers,
to easily determine whether the funds underlying some categories of stored
value products are or are not “deposits” under the proposed
rule. For this reason, we respectfully suggest that the proposed rule
be augmented to add a general section stating in substance:
303.16(g)
Notwithstanding any other provision of this rule, funds also
are “deposits” which
are received or held by an insured depository institution from,
on behalf of, or
for payment to, cardholders
of stored
value cards which are offered or marketed as similar in form or
function to those debit cards which are linked to a deposit account,
regardless
of how the funds related to the stored value card are held.
This type of a catch-all rule would help to ensure
that the proposed rule is not rendered out of date by continuing
technological progress.
It would also help to ensure that the nuances of the rule do not create
loopholes and gaps in the deposit insurance coverage which would be
highly inconsistent with the ordinary and reasonable expectations of
employees
and employers who use a payroll card, and of individuals who use other
types of stored value cards, including individual-purchase “internet
shopping” cards.
The definition of stored value card should be expanded:
The definition of a stored value card is too narrow.
Proposed section 303.16(f) defines “stored value card” to mean a device that
enables the cardholder to transfer the underlying funds (i.e., the funds
received by the issuer of the card in exchange for the issuance or reloading
of the card) to a merchant at the merchant’s point-of-sale terminal.
This definition is overly narrow. The definition should not be restricted
to stored value cards which enable a transfer of funds to a merchant
at a POS terminal. Stored value cards which bear a VISA or MasterCard
mark, which many of them do, can also be used in all of the additional
ways in which a debit card can be used. This includes Internet payments,
ATM withdrawals, and even off-line signature debit using a manual card
processing machine rather than a merchant POS terminal.
A further reason to broaden the definition is that
new types of stored value cards are coming into the marketplace which
are designed to pay
persons who may not be merchants. For example, recent IRS rulings allow
the use of employer-sponsored Health Reimbursement Accounts (HRAs).
HRA funds can be placed on a stored value card which the consumer presents
to a health provider as a method of payment. Is a physician a “merchant?” If
not, the definition will exclude the funds backing these cards from deposit
insurance protection. A similar problem will arise with cards which draw
from flexible spending account funds (FSAs), which hold employee pre-tax
funds for designated purposes such as health care costs or child care
costs. Is a nonprofit child card provider who accepts debit card payments,
including an FSA card payment, a merchant? Even if so, the use of a manual
card-charging plate rather than a POS terminal would appear to exclude
the funds on those cards from the protection of the FDIC’s updated
rule.
For these reasons, the definition in section 306.16(f) should be revised
to read:
(f) For the purposes of
this section, the term “stored value card” means
a device that enables the cardholder to transfer or withdraw the
underlying funds (i.e., the funds received by the issuer of the
card in exchange
for the issuance or reloading of the card) in one or more of the
ways in which funds may be transferred or withdrawn using a type
of debit
card which is linked to an individual consumer deposit account.
This change in the definition is needed to ensure that the definition
does not exclude future products, such as a payroll card which can be
used only for cash ATM withdrawals, an HRA card usable only at service
providers and not with traditional merchants, and an FSA card used only
at the local child care provider which is not equipped with POS capability.
This change will also ensure that the definition covers prepaid cards
marketed to individuals for the purpose of online shopping, rather than
for merchant POS processing.
Subsection 303.16(b) is valuable, but the exemptions in (b)(1) and (2)
should be eliminated. An exemption for cards without individual subaccounting
could drive the market toward less consumer-friendly products
We strongly support the basic rule described in section 303.16(b) that
funds are deposits when they are held in individual accounts or when
they are held in a pooled account with supplemental records or subaccounts
reflecting the amount due to each cardholder. However, we are troubled
by the implication in (b)(2) that a financial institution holding funds
backing a payroll card or other stored value card could avoid treatment
of those funds as insured deposits by avoiding maintaining, or having
an agent maintain, subaccounts showing the amounts due each cardholder.
While it is hard to see how these cards could be processed
today without such subaccounting, it might be possible for the subaccounting
to be
handled by a person who is not an agent of the financial institution,
thus defeating the protection. Further, future technologies may well
support a card where “remaining amount owed” information
is maintained on a chip on the card but not by the financial institution,
its contractor, its third-party depositor, or the card processor. This
would be a major loophole, and might even drive the market toward a model
of “chip card only” accounting rather than financial institution
subaccounting. That would be a bad development for consumers because
the use of subaccounting records strengthens the argument that Regulation
E applies to these cards, since, in our view, the subaccounting creates
a consumer asset account. A move toward card-chip-based tracking of
fund balances would also increase the practical risks to consumers,
since
damage to or destruction of the card would lead to loss of proof about
how much is due to the cardholding consumer.
For
these reasons, we strongly suggest removing the “unless” clause
at the end of (b) and both (1) and (2) under (b), while retaining
the general coverage rule of (b).
Subsection 303.16(c) is troubling because it suggests a method for financial
institutions to sell stored value cards without deposit insurance protection
Subsection 303.16(c)(1) seems to state the noncontroversial proposition
that the funds are not insured after the bank pays them out to a third
party. Subsection 303.16(c)(2), however, extends this principle to create
a significant loophole to deposit insurance coverage. Under this loophole,
a consumer could purchase a stored value card directly from an insured
depository institution and yet receive a product for which the underlying
funds are not insured. This result seems highly inconsistent with consumer
expectations, particularly when funds backing other types of stored value
cards issued by the same financial institution will be covered by deposit
insurance. The behind-the-scenes arrangement between the bank and the
third party processor should not change the protections available to
the consumer. The consumer could reasonably expect that the funds he
or she paid to the bank are the funds that back the card, even if, due
to a contractual arrangement between the bank and the third party card
processor, the bank has prepaid the processor for the card which the
bank then sells to the consumer.
Responses to the questions posed in the notice of proposed rulemaking:
1. Should the FDIC promulgate a new section to part
303 to clarify the meaning of “deposit” as that term
relates to funds at insured depository institutions underlying stored
value cards?
Yes. As discussed above, stored value cards are increasingly
being offered or marketed to individuals and to groups of individuals,
such
as employees
or child-support recipients, as a product which serves a function previously
served within the banking system only by an insured deposit account—the
function of receiving funds and providing a payment conduit to withdraw
or spend those funds. While stored value cards raise many consumer
issues in addition to the issue of deposit insurance, the FDIC rule
is a useful
initial step.
2. If so, should the FDIC adopt the proposed rule? Why?
Yes, with a few changes to clarify and broaden its application. As discussed
above, the four key changes we seek are to:
1) Add a catch-all provision so that funds are treated as deposits which
back up any card that is offered or marketed as similar in form or function
to the type of debit card which is linked to a deposit account;
2) Broaden the definition in section 303.16(f) beyond cards usable at
merchant POS terminals.
3) Eliminate the “unless” exemptions in
sections 303.16 (b)(1) and (b)(2), to prevent creating perverse incentives
for products
which are more risky for cardholders; and
4) Eliminate the loophole in section 303.16(c)(2) for cards sold by
a financial institution which has prepaid a third party for the card.
These changes will make the rule less likely to be outstripped by changes
in the evolving technology of these products.
3. In the alternative, should the FDIC adopt some other rule? Under
what circumstances should funds received by an insured depository
institution
not be insurable as “deposits”?
No, except as noted above. Funds belonging to a consumer,
or paid by a consumer to facilitate future payments made through
a financial
institution
or through a third party via an arrangement with a financial institution,
should always be treated as “deposits.”
4. What should be the treatment of funds underlying “payroll cards”?
(This section includes comments on the related issue of pass through
insurance coverage for household funds held on stored value cards.)
Payroll cards are the most striking example of why the rules for deposit
insurance coverage and for other consumer protections should be clarified.
Payroll cards represent wages, often for consumers who have too little
household float to make a traditional bank account with high overdraft
fees a sensible financial choice. Payroll cards reflect funds that consumers
simply cannot afford to lose or to place at risk. Because of the special
importance of payroll funds, the rule would be far more useful to consumers
if it specifically identified payroll card funds as insured deposits
in all cases. However, the rule should not be restricted to payroll cards.
Stored value cards in the form of prepaid debit cards are also increasingly
being marketed to individuals as a way to participate in some aspects
of the economic mainstream, such as Internet shopping. Similarly, prepaid
debit card providers offering a stored value card product are approaching
state child support agencies and encouraging them to use these cards
to deliver state collected, privately-paid, child support payments. There
are certain benefits for the cardholder such as quicker receipt of funds.
However, these benefits could be outweighed if the consumer has to worry
about whether the funds are at risk in the event of a financial institution
insolvency.
We are also concerned about the application of the
restrictions on “pass
through” insurance coverage to benefit the actual cardholder,
both for payroll cards and for other types of stored value cards which
may
represent important household funds (for example, a card used to access
state-collected private child support payments). The explanatory material
in the proposed rule notes three conditions for pass through of insurance
coverage. The FDIC should clarify certain aspects of each of those
conditions for pass through insurance to holders of stored value cards.
The first condition described in the notice pf proposed
rulemaking for pass through of insurance coverage to the cardholder
is disclosure
(to
the financial institution) in the deposit account records of the fiduciary
status of the nominal account holder. The FDIC should, by rule, interpret
this condition to be satisfied when the nature of the relationship
between the financial institution and the third party card issuer or
card funder
gives reasonable notice to the financial institution that these funds
relate to stored value cards. When the financial institution is marketing
payroll cards to private employers; has a contract with a third party
which is in that business; or is marketing child support cards to governmental
entities, it is on notice of the fiduciary nature of the third party’s
role.
The second condition is that the interests of the principals must be
ascertainable from the records of the financial institution or of the
third party. This condition seems likely to be met in most cases, at
least until card technology begins to store key information on a card
chip rather than with the financial institution or with the third party.
The FDIC should determine now that storage on the card itself qualifies
as storage in the records of the third party (or of the financial institution,
if it issues the chip card).
The third condition for pass through of insurance coverage is that the
deposit must actually belong to the alleged owners, not to the nominal
agent. The FDIC should determine now that the possibility of an interest
in the funds by the third party (or by an issuing financial institution)
which consists of an interest in future dormancy fees does not defeat
fulfillment of this condition for pass through coverage.
5. Will the proposed rule affect the operation of the deposit limitations
in section 3(d) of the Bank Holding Company Act or section 44(b) of the
FDI Act?
We offer no comments on this question.
6. Should the FDIC adopt the proposed definition of “stored value
card”? Can this definition be improved? What are the differences
(if any) between “stored value cards” and other types of
bank cards such as “prepaid cards,” “debit cards,” “check
cards” and “payroll cards”?
As discussed above, the definition must be broadened
to reach cards that may be later offered without a merchant POS feature.
The definition
of stored value cards must be broad enough to include all cards not
linked to a consumer deposit account which serve as either an account
substitute
or as a substitute for a payment card linked to an individual account.
The types of cards the definition should cover include, but are not
limited to: payroll cards; loan proceeds cards, which are already in
use for
distributing the proceeds of tax refund anticipation loans; state payments
distribution cards (such as for state-collected, privately paid, child
support payments and for state-paid unemployment benefits); health
account cards such as the HRA or FSA cards described above; and prepaid
cards
sold to individuals, such as for cash withdrawals, Internet shopping,
deposits where a credit card is usually required (i.e., to rent a car),
or in-person shopping. A “check card” which is linked to
an individual deposit account such as a checking account is not a stored
value card.
7. Should the FDIC adopt specific disclosure requirements? If so, do
the disclosures provided as examples in the preamble adequately address
consumer confusion about the insurability of funds underlying stored
value products? Are there ways to reduce the costs or burdens associated
with providing disclosures about the insurability of such funds?
There is a strong need for mandated minimum federal
disclosures about stored value cards, including a “Schumer Box” disclosing
and describing all fees associated with holding and using the card.
This consumer need extends to issues well beyond the scope of this
rulemaking.
If the consumer’s funds are covered by deposit insurance, this
disclosure should be treated the same way as the disclosures for other
consumer funds. However, it will be very important that any “FDIC
insured” disclosure not be misleading. Such a disclosure could
be misleading in two ways. First, if the funds are held first by an uninsured
entity, then moved to an insured financial institution, the disclosure
could easily mislead consumers into thinking that the funds are insured
throughout the transaction, rather than only after a third-party card
provider transfers the consumer’s funds to an insured entity. Second,
the use of the phrase “FDIC insured” in card marketing
materials could lead consumers to believe that the cards are insured,
misleading
consumers into thinking that the funds are safe not only from financial
institution insolvency, but also from theft or unauthorized use. Until
the Federal Reserve Board clarifies the application of Regulation E
to stored value cards, including payroll cards, child support cards,
and
prepaid debit cards, it is essential to ensure that any disclosure
about deposit insurance does not suggest the same level of overall
fund security,
including from theft or unauthorized use, that accompanies other kinds
of debit cards.
8. Should the FDIC adopt any special rules governing
the insurance coverage of any “deposits” underlying stored
value cards?
As discussed above, the special importance of payroll funds in a household
economy means that it would be very useful for the rule to explicitly
recognize all funds backing payroll cards which funds are held in an
insured depository institution as FDIC insured funds.
9. Are insured depository institutions offering stored value products
or systems that are not addressed in this notice of proposed rulemaking?
Please explain.
Yes. Health funds cards such as HRA and FSA cards are
not addressed. These cards appear to be unintentionally omitted by
the choice to tie
the definition to use or usability at a merchant’s POS terminal.
In addition, card technology allows choices in how products are configured
both now and in the future. Any rule that is narrowly tailored to existing
product features carries a strong risk that the rule can be evaded
in the future by changes in those product features. For this reason,
we
have suggested broadening the rule in several respects.
10. In the case of a stored value card system in which
the cards are issued by an insured depository institution, and the
depository institution
maintains a pooled “reserve account” reflecting its liabilities
for all cards but does not maintain individual accounts or subaccounts
reflecting its liabilities to individual cardholders, how does the
institution keep track of its liabilities?
We do not know how this is done today, but we are concerned that the
rule would apparently exempt the funds from treatment as insured deposits
if subaccounting is performed by someone who is not an agent of the financial
institution. We are also concerned that future technological choices
could transfer the accounting function away from the financial institution
or its agent. One example of this would be a chip based form of accounting.
It is important that the rule not favor a chip card product over cards
which provide for individual accounts or individual subaccounting by
the financial institution, particularly because products with individual
accounts or individual subaccounting may be more beneficial to the cardholder
in other respects. For example, chip-based accounting would seem to expose
the consumer to greater risk of loss of funds if the card is destroyed.
Additional information on the marketing of stored value cards, including
payroll cards and prepaid debit cards, as account substitutes
Stored value card marketing emphasizes account-style
features. At an October 2003 presentation on non-EBT government benefits
payment
cards
such as cards to distribution state-collected private child support,
one provider told the NACHA Electronic Benefits Services Council that
custodial parents often use these cards as savings devices, carrying
portions of their child support payments over from month to month,
perhaps in anticipation of larger than usual periodic expenses such
as holiday
gifts or back-to-school spending. Payroll cards also are touted as
a way not to spend the whole paycheck at once. This is an account-substitute
feature. Indeed, web descriptions by payroll card issues frequently
use
terms such as “your account” and “your money” in
addressing the cardholders. Here are a few examples: (emphasis added).
Paychex:
“The AccessCard only lets you get money you already
earned and is in your account.”
“The money is already in their account!” referring
to the individual employees.
www.paychex.com/products/accesscard.html (as of September 26, 2003,
still posted May 26, 2004).
PayMaxx:
“Direct to cash features include…” “Account
cannot be overdrawn.”
www.paymaxx.com/paying.cfm
Subsubpages =2058 subpage=1508 master = 1 (as posted January 6, 2004,
still posted May 26, 2004).
Money Network:
“You can initiate your own money transfer; use free TransChecks,
which work like a traditional cashier’s check or request information
about your balance and deposits via ATM or telephone.”
and
“Access your Moneynetwork payroll card account
by phone.”
www.moneynetwork.com (as posted January 6, 2004, still posted May 26,
2004).
Advantage Financial Systems:
“Paychecks and/or Federal Benefits are electronically
deposited into your account.”
and
“Your account is FDIC insured up to $100,000
for your piece [sic] of mind.”
www.advantagefinancialsystems.com/electronicpayrollcard.html (as posted
May 26, 2004).
Conclusion
The FDIC proposed rule is a useful initial step. It should be adopted
with the expanded definition and other changes suggested. However, this
rule is just a first step. The next step is for the Federal Reserve Board
to interpret Regulation E to apply the basic consumer protections of
the federal Electronic Fund Transfer Act to the expanding market of non-traditional
cards, particularly payroll cards, child support cards, prepaid debit
cards, and cards used to distribute unemployment benefits or employee
benefits. These cards promise an opportunity to bring persons not using
traditional banking products into the electronic payments mainstream,
but they cannot fulfill that promise if the cards have absent, ambiguous
or inferior consumer rights and protections.
Very truly yours,
Gail Hillebrand
Consumers Union
San Francisco, California
Diane Bacon
Arizona Consumers Council
Phoenix, Arizona
Alan Fisher
California Reinvestment Committee
San Francisco, California Richard M. Hall
Capital Area Asset Building Corp.
District of Columbia
Mary Ruth Herbers
Center for Economic Progress
Chicago, Illinois
Linda Hilton
Coalition of Religious Communities
Salt Lake City, Utah
Irv Ackelsberg
Community Legal Services, Inc. of Philadelphia
Philadelphia, Pennsylvania
Peter Skillern
Community Reinvestment Association of North Carolina
Durham, North Carolina
Ken McEldowney
Consumer Action
San Francisco, California
Jean Ann Fox
Consumer Federation of America
District of Columbia
Al Sterman
Democratic Processes Center
Tucson, Arizona
Kristie Weiland
Just Harvest
Pittsburgh, Pennsylvania
Jim Walrath
Legal Aid Society of Milwaukee
Milwaukee, Wisconsin
Paul J. Schlaver
Massachusetts Consumers’ Coalition
Cambridge, Massachusetts
Rick Gamber
Michigan Consumer Federation
East Lansing, Michigan
Ira Rheingold
National Association of Consumer Advocates
District of Columbia
David Berenbaum
National Community Reinvestment Coalition
District of Columbia
Margot Saunders
National Consumer Law Center
District of Columbia
Susan Grant
National Consumers League
District of Columbia
Deyanira Del Rio
Neighborhood Economic Development Advocacy Project
New York City, New York
Tom Scott
San Diego Housing Federation
San Diego, California
Dory Rand
Sargent Shriver National Center on Poverty Law
Chicago, Illinois
Randy Chapman
Texas Legal Services Center
Austin, Texas
Alan Reuther
UAW
District of Columbia
Ed Mierzwinski
U.S.PIRG
District of Columbia
Irene E. Leech
Virginia Citizens Consumer Council
Richmond, Virginia
|