As consumers increasingly turn to mobile devices to pay their bills, shop online, and order rides and other services, a number of legal and practical questions emerge. Who regulates mobile financial services offered by non-banks? How should virtual currency be treated? How do companies prevent children from making purchases without parental consent? What if a mobile financial service that a consumer relies upon is disrupted by a cyberattack or natural disaster? The Pew Center's recently released white paper, "The Legal Framework of Mobile Payments: Gaps, Ambiguities, and Overlap," presents a detailed analysis of the complex legal and regulatory framework that governs mobile payments, as well as some of the questions that companies must address in offering these services. 

The paper begins by presenting the underlying challenge—in the realm of mobile payments there exists a patchwork of laws characterized to a large extent by three features: gaps (where no law applies); ambiguities (where it is unclear whether a law applies); and overlap (where more than one law applies and one more than one agency has authority over the same situation). Depending on the mobile financial services a company offers, it may find itself subject to the Truth in Lending Act, Electronic Fund Transfer Act, Dodd-Frank, and/or the Federal Trade Commission Act. These acts are enforced by a number of federal agencies with sometimes overlapping jurisdiction and with each creating its own regulations and guidance. Companies face the difficulty of figuring out whether their services fit under existing statutory definitions and how to apply traditional contract principles such as acceptance of an offer or contract modification to mobile technology.

The white paper offers companies insight into important issues that they should be considering when offering mobile financial services. Ballard Spahr will offer its own analysis on February 18, 2016, in a webinar titled, “Keeping FinTech Compliant—Current Regulatory Landscape and Issues on the Horizon,” from 12:00 -1:00 p.m. ET. To register, please follow this link.

Ballard Spahr attorneys regularly advise companies on developing products in the mobile channel to ensure compliance with the full range of state and federal consumer financial services laws as well as structuring and documenting new consumer financial services products.


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