Payments Industry Adapts to 'Choke Point' Crackdown

Stepped-up scrutiny of Internet payday lenders, online pharmacies and other merchants that regulators and law enforcement view warily is forcing the payments industry to adapt.

This week, two trade groups representing payment processing firms are unveiling new guidelines on how to stay out of trouble. A 114-page document from the Electronic Transactions Association aims to prevent fraudulent credit-card transactions, while guidelines from the Third Party Payment Processors Association target the improper use of the automated clearing house network.

The groups say their suggestions will also prove helpful for banks that wish to avoid unwanted scrutiny from regulators and prosecutors that are trying to block high-risk businesses from accessing the banking system.

"It really is about distinguishing those who want to be responsible processors from those who don't," said Marsha Jones, president of the Third Party Payment Processors Association.

The new guidelines come as the Department of Justice is conducting an investigation of fraudulent merchants' access to the payments system. As part of the probe, known as Operation Choke Point, the DOJ has sent subpoenas to more than 50 banks and payment processing firms.

At the same time, federal banking regulators and various state authorities have also stepped up their scrutiny of banks' relationships with online payday lenders and other categories of merchants whose business practices they deem to be questionable.

Merchants that might be unable to open accounts with a bank may rely on third-party payment processors to serve as intermediaries between themselves and a depository institution. Access to customers' bank accounts is critical to many of these merchants. For example, online payday lenders often rely on their ability to make automatic withdrawals from their customers' bank accounts.

Payment industry trade groups have been complaining loudly about the regulatory crackdown, arguing that it is hurting law-abiding merchants, not just the sketchy ones.

But the groups' latest moves suggest that the industry is coming to terms with a new regulatory reality. "We knew that there were gaps," Jones said.

The Electronic Transactions Association is rolling out its guide of best practices this week at its annual conference in Las Vegas. In a reflection of how eager payments firms are to protect themselves, the conference will feature a series of panels that are dubbed "Operation Choke Point Boot Camp."

Deana Rich, a risk-management consultant who helped the Electronic Transactions Association formulate its guidelines, said she got input from roughly 40 companies that are members of the trade group. She believes the guidelines will be particularly useful to smaller payments firms.

"I do believe it will help and enhance some companies' policies and procedures," Rich said. "Many of the smaller companies might not have full-fledged compliance departments."

The Electronic Transactions Association's guidance identifies payday lenders, gambling sites, tobacco sellers and pharmaceutical merchants as examples of companies that may merit additional scrutiny. It also flags certain marketing practices — such as treating a customer's silence as acceptance of a sales offer — as higher-risk.

The Third Party Payment Processors Association's guidelines are divided into two parts — one aimed at helping processors, and the other meant to assist banks. The bank guidelines are designed to incorporate existing policies into a cohesive program for third party payment processing, according to the trade group.

Both industry groups say they plan to seek feedback on their guidelines from banking regulators. Over time, they expect their guidelines to evolve.

"As we get feedback, we'll update it, and then we'll push it down to the members," Jones said.