State money transmitter licensing laws are among the most important rules that address the dangers posed by payments, especially in the non-bank payments area.
Most Americans have never heard of these laws, but 48 states have them. They are the mechanism that allows non-banks such as Western Union, PayPal or Google to hold or move money on consumers behalves.
Getting these licenses is difficult, expensive and exceedingly time-consuming. For example, obtaining all necessary licenses often costs between $1 and $2 million, and the process can take more than two years to complete. To further dampen the ability of any company to get to market quickly, its a federal crime to do money transmission business without these licenses. Moreover, a company needs to obtain a separate license in every state where it sells or markets its services.
Some have called for a single national license that could take the place of multiple state licenses. But given the difficulty the current Congress has passing legislation, as well as the country's increasing tendency to move away from federal preemption, those efforts are unlikely to succeed.
One of the few available options to ease the compliance burden is to partner with a company that is already fully licensed by becoming that licensed money transmitters authorized delegate," or agent. The authorized delegate process allows licensed entities to appoint appropriate third parties to do business under the money transmitters licenses.
But becoming an authorized delegate of a licensed money transmitter is not easy. The licensed money transmitter becomes responsible for its authorized delegates and must report its transactions and oversee and monitor its activities.
The fact that the authorized delegate is offering its services under the licensed money transmitters license must always be disclosed to consumers. In most arrangements, the licensed money transmitter will subject the potential authorized delegate to intense due diligence, including a review of its anti-money laundering compliance procedures, anti-fraud procedures and a review of the companys history, management and banking relationships.
Most importantly, establishing an authorized delegate relationship between an innovative new payments company and a licensed money transmitter can create a win-win-win-win situation that benefits everyone.
The consumers funds are fully protected. The startup company can safely pursue its product development efforts, furthering payments innovation. The licensed entity benefits from achieving higher transactions volumes, tapping into transactions from emerging markets and increasing the value of its licenses, which are expensive to acquire and maintain. The U.S. payment system is protected, as there is no incentive for the startup payments company to do business off the grid, substantially reducing the risk of money laundering. Another beneficiary would be the states themselves, whose role in overseeing non-bank payment providers would be further strengthened and enhanced.
But unfortunately, a few bad applesgenerally rogue agents of licensed money remittance companieshave led some states to view all authorized delegate relationships with suspicion, deeming many perfectly appropriate arrangements to be nefarious rent-a-license arrangements.
For example, the state of Washington decided to try to stop these arrangements by requiring authorized delegates to have a physical presence in-state. But physical location has nothing to do with whether one is renting a license.
And Texas recently issued a supervisory memorandum that appears to prohibit licensees from appointing any authorized delegate that is not in the same business as the licensed money transmitter. For example, a remittance company such as Western Union can appoint authorized delegates to sell Western Unions remittance products. But Western Union could not appoint an authorized delegate to offer Bitcoin exchanges, mobile payment applications or geo-location based loyalty programs.
I realize that states are worried about so-called rent-a-license activities, but I think they are missing the pointand a huge opportunity. Rather than try to stop licensed money transmitters from appointing unrelated yet innovative payments businesses from partnering as their authorized delegates, I urge states to consider encouraging such activitysubject, of course, to reasonable state guidelines that will ensure that both consumers and the payment system are protected.
Those guidelines might include: Requiring a written contract in which, among other things, the authorized delegate agrees to be subject to the supervision of and examination by the state regulator; displaying the licensed money transmitters name/contact information so consumers know which entity is licensed; requiring the licensed money transmitter to perform due diligence on the authorized delegate, review its ownership and its AML policies and procedures; requiring the licensed money transmitter to report to the states the names and addresses of all such authorized delegates, their business activities and their transaction volumes; requiring the licensed money transmitter to monitor, supervise, oversee and ultimately be responsible for the activities of the authorized delegates; and requiring the licensed money transmitter to hold sufficient bonds and permissible investments to cover both its own liability and those of its authorized delegates.
In recent years, many well-operated and innovative payments companies have successfully partnered with a licensed money transmitter and were thereby able to securely and lawfully launch their products. This legitimate use of money transmitter licenses and authorized delegates is truly wonderful and beneficial. It protects consumers and the payment system and provides a safety valve for entrepreneurs' growing demand for the ability to test and launch exciting and innovative new payments products and services. This practice should be encouraged as the best way to enhance U.S. creativity and innovation in the area of payments.
Judith Rinearson is a partner at Bryan Cave LLP and leader of the firms prepaid and emerging payments team.