PEP Episode 003 — What are the Card Brand Rules?
- May 11, 2023
We all use credit cards on a daily basis, but do we know the rules behind these transactions? Is the average cardholder aware of the limitations on their card? Are these rules evolving with technological rapid growth? Are they governed by federal law? In this episode, Senior Associate Attorney, Jarvis Lagman, talks with Operations Director, Jeremy Stock, about the ins and outs of card brand rules and what you need to know.
Jeremy Stock (00:00):
Welcome to the Payments Experts Podcast, a podcast of global legal law firm ISOs, FinTech, pay fax agents, merchants, processors, acquiring banks and card brands. If these terms mean something to you, this podcast is for you. If these terms aren’t so familiar, this podcast is even more for you. We hope you enjoy this episode of pep, the Payments Experts podcast.
Jeremy Stock (00:37):
Welcome to this episode of Payment Experts Podcast. Today we’ve got a very special guest, uh, Senior Associate at Global Legal Law Firm, Jarvis Lagman. Um, Jarvis, tell us a little bit about what you do with this firm.
So, I am specializing in transactional law for the firm. Um, I review contracts, I do mergers and acquisitions transactions. Um, I do a little bit of securities loan, anything that has to do with setting up a commercial relationship between merchants and processors and, uh, different, um, different entities operating the electronic payment space. Excellent. So, um, I’m pretty flexible. We’re pretty flexible in terms of the kinds of deals we do because we know that, you know, every, every business and every deal is unique and we pro try to provide really in-depth analysis to really fit our transactional documents, to meet the specific needs of each business and each client that we service. So, absolutely, you know, we put a lot of thought and a lot of pride into what we do here. And, um, and, and, and a lot of these transactions really come from our expertise in understanding the nature of these relationships. Cuz this industry is really specific and really unique. Uh, but it’s also very ubiquitous because everybody runs a credit card or debit card, and every, every business, you know, accepts payments from customers. And, and believe it or not, all of those transactions are governed by a really complex set of rules that we happen to be very expert in.
Jeremy Stock (02:07):
And that’s what we’re gonna talk about today, right? We’re gonna talk about the card brand rules as they’re often referred to, uh, in this firm. Why don’t you start off Jarvis, if you don’t mind telling us, and especially, you know, thinking about your average listener. Maybe they’re a shop owner, they own a, you know, a markets on the street corner or all the way up to high level, you know, multi chain franchises where they’re using processing. What are the card brand rules and why do they matter?
So essentially the card brand rules or the, the card brands are Visa, MasterCard, um, discover American Express, um, and some others. And, and now we’re actually getting into a really exciting space with some digital payments. So you have Stripe and, and Venmo and, and, and things like that. But for, you know, for the most part, the, the card brand rules are those rules set forth by Visa, MasterCard, and, and the large companies that really govern the issuance of dividend credit cards and how those transactions are processed. And ultimately how those funds are transmitted to a merchant who receives payment in exchange for accepting those cards. Right. So, um, when you actually think about the card brand rules, a lot of them are governed by contracts between Visa, MasterCard, and member and sponsor banks, who then also enter into either agreements with the customer, who is essentially the card holder and, and, and banks who issue cards are known as issuers in this industry.
And they have separate agreements with specific customers, but then they’re also acquiring banks who are on the business side where they enter into agreements with specific merchants. But all of these agreements and all of these relationships are governed by these card brand rules. So as much as an acquiring bank or an issuing bank has certain terms in their contracts with specific merchants or specific customers, all of those contracts must comply with the payment, with the rules established by Visa, MasterCard. Excellent. And, and, and even to the extent where Visa MasterCard rules requires compliance with their rules in order to, uh, either issue a Visa, MasterCard, uh, card or, uh, or to accept card, accept those branded cards as in lieu of payment mm-hmm. <affirmative> in lieu of cash payment.
Jeremy Stock (04:33):
Now, I’m sure we could spend an entire episode, we won’t, but we could spend an entire episode talking about the history of why Visa and MasterCard became the, uh, you know, almost monopolies that they are to this day. We won’t get into that now mm-hmm. <affirmative>. Um, but you talk, you know, acquiring banks, cardholders, you know, the, um, the processors, you got the everywhere from the merchant all the way up through the iso, through the processor, the banks, et cetera. All these relationships, the contracts. Why does it matter?
Well, well, it matters because ultimately, if you are paying money for a good in service or you’re receiving money in exchange for good in service, there are a lot of mechanics for either A, how that money actually hits your account, and b, what happens when things go wrong. So a lot of what we do as a law firm is, you know, handling problems in terms of when things don’t go according to plan. Right. So, which
Jeremy Stock (05:33):
Happens more than you might think, right? Isn’t it <laugh>? Oh
Yeah. You know, um, especially being a lawyer, right? You know, so, so much of our job is to be able to think of problems before the problems arise. You know, so a lot of it’s predictive. Um, and, and especially, you know, with the car brand rules, they, they’re very complex and they also, uh, they, they change every year. And especially now with new emergent technologies, for example, cryptocurrency, you know, these rules actually need to be flexible and be modified to adapt to changing paradigm, right? So, um, as, as a law firm specializing in this space, it’s, it’s, it’s not just about under memorizing the rules, it’s, it’s understanding what function those rules play in how we actually organize our commercial transactions. Cuz especially as the world gets more complex, I’ll, I’ll give you examples. So, uh, you know, in a typical transaction, uh, a customer will go to a business and they’re there, you know, and, and the, the, the operative term here is this is a card present transaction, right?
So you go to a business, they have a point, they have a point of sale terminal, you show you present your card, they accept the card, they swipe it, you get your, you know, your cheeseburger, whatever you’re buying at the business. And then there’s a, there’s a process governed by the rules and governed by all these relationships by which the money leaves the cardholder’s account gets funneled through the payment networks and the card brands and the processors and the ISOs mm-hmm. <affirmative> and eventually hits the account of the merchant, right? So a, the, the, the, the card rules really define how that process actually works. But now we’re actually heading into an environment where if you look at something like e-commerce, where what do you do when you have card not present transactions where, you know, where people are actually ordering goods and services, but you don’t have the same interaction in order to verify identity, right?
So now the card brands had to evolve their rules to account for electronic commerce transactions and things like that. So, uh, so, so a lot of even keeping a prize with the rules and understanding what the rules are is also being able to predict where the rules are gonna go as technology evolves and develops. And, and, and that’s a lot of what we do here we are, we advise clients who are operating at the cutting edge of these technologies and really helping them to navigate not only the regulatory landscape, cuz if you’re familiar with, um, for instance a cryptocurrency mm-hmm. <affirmative>, now the SCC is stepping in, but they’re also, there’ve also been changes to, um, regulations governing, uh, people who are considered, quote unquote money transmitters mm-hmm. <affirmative> and, and and obligations to report suspicious activity, file sar SARS reports or, um, or report transactions over the $10,000 threshold. Um, so be able to issue spot a lot of these potential, uh, problems that could come up in a transaction or, or even just organizing your business, especially as money becomes less fiat and less what you think it is. And more something that evolves alongside with our merging technological capability. Okay.
Jeremy Stock (09:00):
Yeah. So Jarvis, I really appreciate, you know, it’s uh, uh, you can see you’ve got a lot of information on these topics, which is why we have you on this podcast right now. It’s, um, awesome information. I want to kind of boil it down a little bit on a certain level, cuz you’ve talked on a high level, um, in terms of how, like you said, even multinational companies, large companies that are dealing with this on a pretty high level, even down to the person who’s just taken, you know, you mentioned buying a hamburger, buying your Gatorade at the local market, it affects them as well. How can global legal law firm assist a small business owner? Or let’s just maybe say a medium business size owner who’s dealing with some of these issues?
Well, if you actually think about, uh, how a medium to small size business operates, a a lot of it they’re operating on trust, right? So you enter, you know, if you’re a small business and you know, you acquire a point of sale terminal, um, you know, it, it obviously you enter into a contract usually with either some something known as independent sales organization, um, they may lease the equipment in conjunction with giving you access to the network. So, so much of what we could do for those, those kinds of enterprises, we understand what the standard terms are for what those contracts are, we can point out to you where you’re getting ripped off or where you’re getting a good deal. Cuz a lot of these contracts are all predicated on, you know, no one reads the terms and conditions. No one actually understands what’s standard in this industry. So we are able to really, you know, look at an agreement pretty quickly and really boil down whether or not this agreement was done in good faith or whether or not this agreement was engineered to, you know, to provide terms that are outside of the norm that are essentially designed to rip you off.
Jeremy Stock (10:56):
Very interesting. Um, and not surprisingly today to this very day that we’re recording this podcast, I had a call from a potential client who was with their processor since 2018. Everything seemed fine and dandy. They were processing, normally everything seemed fine. And right around, uh, 2020, 2021, what this potential client was describing is the rates going up as much as 400% to as much as what she was able to document over a thousand percent increase in rates, which of course she was a little irate about, I would argue rightly so. Can you talk about that just on face value? Does it seem like there’s some foul play there? What, how would you assess that as an attorney?
What’s actually really interesting is, uh, there’s something known as the Durban Amendment that, uh, recently passed that actually governs interchange fees. So, so what’s actually alarming about this specific industry is that federal regulation has really focused on bigger players in this market, visa, MasterCard specifically, and how they charge rates. And, you know, you mentioned monopoly power. I, I don’t necessarily wanna use that legally operative term, but they obviously have a lot of market share and a lot of power in the industry and regulation has focused to, has focused upon their practices. However, they’re not the only ones operating in this industry. So if you actually think about some of the problems that you know, that that potential client or that client had, a lot of that is actually not governed by federal law a lot. You know, I’ll give you specifically, um, under the, uh, electronic Funds Transfer Act network fees are not considered interchanged fees that are governed by the act.
So the act actually creates limitations in, in connection with debit card transactions on the amount of interchange fees that a major car brand can charge an exchange for, you know, using a debit card in, in this kind of transaction. However, network fees are specifically exempt from the calculate from the limitations imposed by that act. Right? So to the, so to the extent that the, the rate setting is exorbitant and, and somewhat unconscionable, I mean, there, there are different ways to attack that problem. So I would, you know, obviously as a lawyer, you, you need to full, you know, do full diligence on the facts and circumstances governing super contract, how, how exactly or, or even the, the course of practice and what the consumer expectations were and things like that. Um, but surprisingly, a lot of these things are governed by contract. So it’s, it’s the, the focus is less on regulation and more on what was agreed to by all of the parties. And, and that’s something that we could really step in here as a law firm to help everyone out on. Cuz you know, like I said, because these things are governed by contracts. You know, being able to foresee these problems before you enter, turn contract and not afterwards, after you get charged the fees. It’s, you know, it, it behooves you to do that because it really is the best way to protect yourself in case there is price gouging.
Jeremy Stock (14:08):
Absolutely. Thank you so much for that insight, Jarvis. Let’s talk now. Uh, if you don’t mind a little bit about the processors of themselves at Globally Law Firm. We represent a number of processors, both large and small. How are these card brand rules affecting them? What, what, what should the processors be concerned about or what are they mindful of, or how can global help inform their, uh, business practice?
Well, processors are, are an interesting situation, you know, more so than, for instance, like sales organizations because they handle money, right? So if you are a processor and you’re handling money, you need to abide by certain security standards known as pci, uh, where you need to be careful with how, uh, card holder data, merchant data, bank data, uh, gets handled. Um, and ultimately as a processor, you’re responsible for, you know, keeping track of authorizations received from a merchant and making sure that everything runs according to plan. Uh, a lot, a lot of times, you know, you know, on both sides there could be instances of fraud, right? So something known as a chargeback where, uh, there’s an authorization for the sale of a good or service, then ultimately the card holder disputes it, and then there’s a process through which the dispute gets handled. And then depending on the contracts, the the losses associated with that dispute are either passed through to the merchant, held by the processor, held by the independent sales organization.
So a lot of actually how losses are managed really is also governed by these contracts. Uh, but you know, but ultimately as a processor, a lot of what you’re worried about is, you know, making sure that all of the information that you are processing is secure. Um, because if you actually think about, uh, data hacking and, and all the different, uh, ways that people are trying to gain the system to, you know, to make, you know, to, to make a profit, uh, fraudulently, uh, you know, processors because they are the custodians of such valuable information mm-hmm. <affirmative>, they have a higher duty to make sure that all of their practices are up to date. And, you know, essentially best practices trying to protect the little guy <laugh>. Well, you know, well, it’s not just protecting the little guy, it’s also just understanding that financial information in a world where data is king is the most important information.
Mm-hmm. Right? Because ultimately, uh, you know, and we’re talking about card not present transactions, right? And e-commerce transactions, because everything now is done at such a distance, the whole system is actually predicated on trust. And processors are actually at the center of that nexus of trust because they’re the ones who are, who are essentially receiving all the, in all this financial information and then disseminating it to the banks, right? So, you know, if, if there’s a fraudulent processor or there is a problem with security standards, you know, we could have a whole breakdown of this system because this whole system is actually predicated on everybody keeping everyone’s information secure, but also transmitting large quantities of data in a reliable way. And if there’s any breach of consumer trust in the a, the accuracy of the data be the security of the data and see the, the way that the data is managed is managed in a way that conforms with our expectations for, um, you know, for speed and, and things like that.
Uh, all of these things are all, and going back to why these rules are important, like a lot of the things that we take for granted are because the rules are operating in a way that we don’t, we don’t, we take for granted. Hmm. Because as soon as the rules break down mm-hmm. <affirmative>, right? You go to, you know, let’s say you’re a card holder, you go to the store, you swipe your card, all of a sudden doesn’t work, and you’re wondering why, right? Right. It’s like, you know, sometimes there’s a problem with a processor or there’s a problem with the network and you know, these, these are the kinds of things you take for granted until something bad happens. And when something bad happens, you, you know, you could be essentially left and alert.
Jeremy Stock (18:33):
Sure. So if I could, if you’d allow me to summarize a little bit about what we’ve talked about so far, if I’m hearing you correctly, global legal law firm, whether your business is large or small or medium sized, there is a function, a very important function of a payments attorney to come in there. Really in the sense, what I’m hearing you say is look under the hood, if you will, kind of see the contracts that they’re operating with, see what agreements they’re in, what their business practice is like, their mode of operation, et cetera, and providing advisement, some guidance to maneuver those, uh, card brand rules, et cetera. Is that accurate?
Oh, yeah. And a lot, and a lot of what we do, like I said, a lot of what we do is founded on having a base of very experienced and smart attorneys. Right. Uh, and, and so much of this industry is actually predicated on, you know, people taking for granted these rules. So the function that as a law firm that we play is that our alliance could trust us, we understand the industry, and we can put businesses in the most advantageous position to be able to evaluate their relationships and make an educated decision as to whether or not they want to continue those relationships. Because, because I, I think at the end of the day, the, the one thing that maybe anybody listening to this podcast could take out of this is, uh, you have a lot more power over the relationships in your business than you think you have.
Hmm. Right? So to the extent that someone gives you an agreement, you know, this is even more basic. Someone gives you an agreement, even if it’s a pdf, you know, and you feel like you don’t have leverage to change any of the terms in that agreement, you do, you do. Right. So, you know, e even if ultimately those changes don’t get accepted through a negotiation process, if there’s ever a dispute or a claim, you know, and the fact that he even lodged a suggestion as to why a specific term and agreement should be changed, you know, in a li in a litigation proceeding, that’s something that could be used as evidence and support of why you would claim that either an agreement’s unfair or something like that. Right? Absolutely. So, so like I said, a lot of, I think what we do is to actually empower our clients, right. Big and small be because, because a lot of our understanding of how this process works and how the legal system works, it really is about, you know, understanding what your rights are mm-hmm. <affirmative> and using those rights to empower yourself in an environment where maybe other parties have more leverage over you because they’re either bigger or, or they provide some kind of service that you know that it’s scarce, right? Yeah. So, you know, so, but, but you do definitely do have a lot more power than you probably think you do.
Jeremy Stock (21:35):
I get this sense, uh, Jarvis I’m hearing you say at least what I, the way I was taking this is peace of mind, right? You can, you can offer some peace of mind to global clients saying, Hey, this has been reviewed by a expert payment attorney who understand this in this industry, inside and out, who reads every page, reads every word like you said, is able to empower that client with what they’re able to maybe negotiate, maybe, you know, get some protection, some insulation in some certain areas, and then tell them otherwise where, hey, these, you know, you might not like this part of it, but it’s per industry standard and you know, you’re gonna get this anywhere you go. So at least that client knows, Hey, I’m not being completely ripped off here. You know, this is industry standard and my attorney has provided me some benefits that I would not have gotten otherwise.
E Exactly. And because, you know, going back to what you were saying now, peace of mind. I think about as much as lawyers get a certain reputation, uh, we do care about our clients and, you know, and I’ve had many sleepless nights thinking about how to structure, you know, structure deals, you know, for the benefit of my clients or, or getting my clients, you know, achieving their objectives in a way that, uh, you know, at first glance seems difficult. But, you know, you, you kind of, you chip away at it and, and you solve the problem and you come up with either a deal structure or, you know, in a litigation standpoint, an argument to kind of win the day. Um, so I, I think especially because, you know, we’re a firm that specializes in this space, I think we’re actually very nimble in how, you know, we’re not gonna give you cookie cutter legal advice, you know, just to kind of get you in the door. We’re gonna pull out a thought into what we do, and we’re gonna give you some innovative and cutting edge, uh, under, you know, perspective on, on these issues. Cuz you know, you know, we, we are a firm that specializes in payments, understandings, and understands the industry toand since 2008. And we ha and we have relationships with the players mm-hmm. <affirmative>, right? So if you’re not happy with your current arrangement, we could probably, you know, someone who would really fit your business model better.
Jeremy Stock (23:47):
Absolutely. Absolutely. We do it all the time. Jarvis, it’s been wonderful speaking with you today. Um, as we maybe come to the close, are there some closing thoughts or anything that was kind of top of mind, uh, for you as you were thinking about this topic and, and approaching this podcast today?
Oh, sure. Um, I, I, I think what’s interesting about, uh, like I said earlier, how so much of technology has touched our lives, and especially in the payment space, uh, where now there’s a lot of opportunity and a lot of innovation in terms of, um, you know, and a lot of the term of arts like FinTech, right? Yeah. Yeah. Um, you actually just think about like a lot of the, like a lot of the FinTech solutions and tech technologies we’re
Jeremy Stock (24:33):
Cool now. We’re cool now, Travis <laugh>.
Yeah. A lot of the FinTech solutions, uh, and you know, the blockchain stuff that’s come out and it, and, and I’ve seen so many, uh, I’ve met with so many different entrepreneurs and so many different innovators in this space who are really trying to come up with new ways to revolutionize how we actually do payments, how we manage data, how we actually, and how we secure data. Um, so, so in terms of, you know, not just even the payment rules and, and, and, uh, and, and the way that these relationships have traditionally been organized, I think there’s also a lot of room for growth and there, and the, the FinTech space in this specific area, I think there’s a lot of opportunity for, you know, for, you know, for our listeners out there who really want to go out there and, you know, create their own, you know, payments processing platform and, and really kind of, you know, reimagine how we actually do payments.
Because so much of, you know, even what’s going on now, everything’s done on a peer-to-peer basis. So even, you know, we’re talking about the car brain rules, but you know, that that’s a centralized structure mm-hmm. <affirmative> that, you know, may evolve because the nature of peer-to-peer technologies have been evolving. Mm-hmm. <affirmative>. So, uh, so whenever I look at these issues, I always look at them with the frame of mind that as much as these things are have traditionally been organized this way, we also are gonna need to be able to evolve how we think about these issues as new technologies and new players Yep. Come to the market and, and, you know, and innovate and, and really kind of try to make either transactions more efficient, you know, customers more secure or prob or usually a combination about mm-hmm.
Jeremy Stock (26:31):
<affirmative>, one thing I love about working for global legal law firm, Jarvis, is really what you just said, there absolutely is an onus on us to continually be nimble, to learn to evolve because this industry, I was talking to the managing partner of the firm, Chris Dryden the other day, and he was saying that payments is almost becoming tech. It’s a, it’s almost a tech industry completely, which is very cutting edge and forward thinking, very along the lines of what you were saying. And I love that constantly learning on the job, and I know that’s a big part of what you do, Jarvis.
Yeah. Oh, oh, no, definitely. Um, and you know, and, and even if you think, you know, I was, um, reading about, um, a new company that, uh, redid how they actually do the underwriting on some of these deals. So, right. So for customers out there, underwriting is essentially assessing the level of risk associated with entering into a deal or issuing a card or, or, um, you know, depends on the transaction. Um, you know, so, so there’s actually even a lot of room for not even the traditional tech aspects of this or, or the actual mechanics of doing the transaction processing, but even how we evaluate risk and how we actually manage these, like, I’ll, I’ll give you a specific example, right? So please do, if you, if you think about, um, credit cards, right? So credit card decisions or underwriting decisions, how much money should I lend you on a short term basis is gonna depend on some kind of valuation of your fa financial history, your a, you know, your asset portfolio, um, that kind of thing, right?
Uh, but, you know, but what you’ve actually seen is now with te you know, with the, even like if you think about something like ai, right? It’s like, oh, like there may be a situation where, and if you actually think about like the function of actuarials where, you know, there could be real time underwriting of your transac, of your, of your credit limits based on your payments transactions Wow. Like on a daily basis, right. You know, so you think about it, it’s like, you know, oh, if I see that you’re getting more volume, and then I’m gonna, you know, if I’m an artificial AI and I’m gonna take in market data, and I’m also gonna take in your specialized, um, transaction data as a specific merchant mm-hmm. <affirmative>, I may adjust your credit limit up and down based on, you know, on an AI’s prediction of how well your business is gonna do well. So that could be a frontier if you actually think about, you know, chat GBT and all the different things are coming up and how that could actually influence this industry. Yeah. It’s
Jeremy Stock (29:08):
Interesting because right, like underwriting decisions are made, you know, like, right. Like, uh, I did a deal where, you know, they did the underwriting based on four to six months, um, you know, uh, uh, analysis of, you know, of, uh, merchant’s processing activity mm-hmm. <affirmative> mm-hmm. <affirmative>, right. But if you could kind of cut that down and b, accurate, right. And, and, and cut the, either a the cost of underwriting down Yeah. And being able to adjust it on the fly using AI capabilities, that’s actually something that could be in the future of this industry. It’s
Jeremy Stock (29:41):
Very, it’s fascinating. I couldn’t tell my, you know, radars go off a little bit. You, you wonder about issues of privacy and, you know, some of those elements that might come into play there. You know, I know we’re talking about commercial transactions primarily, but it is That’s fascinating. Jarvis. I think that’ll be a podcast episode for a future episode. Oh, yeah. And,
And what’s actually really interesting about all the stuff now that we kind of, it’s like kind of brought in something that’s a little bit more on my radar is that, you know, there are, you know, I’ve just been so impressed by how many different people are really working their butts off trying to come up with the next big thing. Yeah. Right. And, you know, and a lot
Jeremy Stock (30:20):
Of our clients are exactly right
There. And, and, and just in all the different ways that people have been creative in this industry and all the different solutions, um, and, you know, and even just in, even just the way that people have been applying technologies that you wouldn’t necessarily think are applicable to this space, but all of a sudden some, you know, genius entrepreneur out there thinks like, oh, like connects the dots and, and put these, puts these ideas together, and then all of a sudden, you know, they have, they have a solution that could really threaten them, that could really threaten the major marketplace,
Jeremy Stock (30:52):
Be a game changer. Right?
Yeah. Um, and, and going back to Visa, MasterCard, you know, some of the, some of the beauty of their specific model, you know, is that, you know, because they’re open networks, you know, they’re able to absorb a lot of these players. Mm-hmm. <affirmative>, you know, so if you actually compare, like for instance, like Visa, MasterCard versus American Express, American Express has a closed network. So the way to actually, you know, enter into their association of network providers is a, it has, there’s a higher threshold than Visa MasterCard, right? Mm-hmm. <affirmative>. So, but having that open network, if you, if you kind of think about like Google Play Store, like, you know, just even just developers like that, right? You’re, you’re, you’re actually able to, you know, absorb a lot of different ideas of how we can actually run this industry. Absolutely. And, and, and, and I think that’s actually been the story of the last 5, 10, 20 years that we’ve seen this acceleration in not just, uh, the, the capability of the industry, but how, how it’s actually segregated in all the different ideas of how we could actually run it.
Jeremy Stock (31:58):
Jarvis really, really appreciate you coming in today.
Jeremy Stock (32:01):
Thank you for listening to this episode of The Payments Experts podcast. New episodes first and third Thursdays. If you’re interested in learning more about PEP and how Global Legal Law Firm may be able to assist you, please visit us at global legal law firm.com. To schedule a free consultation, give us a call at (888) 846-8901 or email firstname.lastname@example.org. And once again, thank you for listening. 1, 2, 3, come.
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