It just got easier for Amazon, Facebook and Walmart to become lenders

Amazon.com Inc., Facebook Inc., Walmart Inc. and other corporate giants may soon give Wall Street a run for its money as a key U.S. regulator smooths the path for nonbanks to get into lending.

The Federal Deposit Insurance Corp. on Tuesday approved a final rule governing “industrial loan companies” that will allow major businesses to seek banking charters while escaping capital and liquidity demands faced by dedicated financial firms.

The measure will “provide transparency to market participants regarding the FDIC’s minimum expectations for parent companies of industrial banks,” Chairman Jelena McWilliams said. The new rule formalizes years of agency practice with the industrial loan company charters, which were created to let commercial firms make small loans to workers but have become a back door into big-time banking.

The proposal released earlier this year sparked alarm in the banking industry over the prospect of competition against giant companies that could leverage their huge customer bases and guaranteed consumer traffic to gain meaningful toeholds in banking. And they could offer customers financial services backed by the government — including FDIC deposit protections — with fewer regulatory demands.

Bankers, in an unusual alliance with Democratic lawmakers and consumer groups, have called for a halt in approving new charters until Congress closes a loophole that allows what they see as an unfair advantage.

The FDIC cleared two industrial loan companies this year when it granted conditional deposit-insurance approval for mobile payment firm Square Inc. and student lender Nelnet Inc. But an effort by Japanese online retailer Rakuten Inc. to set up its own bank is seen as a major test case for a nonfinancial firm to break down the traditional barrier between banking and commerce.

“If the FDIC approves Rakuten’s application, it will set a precedent for every other Big Tech company (Amazon, Facebook, Google, etc.) to enter banking through an [industrial loan company] charter without consolidated supervision,” the Bank Policy Institute, a Washington-based industry lobbying group, wrote in a blog post last month.

Facebook declined to comment, and Amazon and Google didn’t respond to emails seeking comment.

The FDIC said in a rule notice Tuesday that the agency is obliged to implement federal law as it exists today, citing an increased urgency to clarify the application process as more companies express interest in seeking charters.

“Whether commercial firms should continue to be able to own industrial banks is a policy decision for Congress to make,” the agency said in its notice.

Industrial loan companies have existed since the early part of the 20th century, and they were initially used to provide credit for workers underserved by commercial banks. They grew into wider use as financing arms of industrial giants such as General Motors Corp. and General Electric Co., as well as retailers such as Target Corp.

Their growth exploded after Congress in 1987 exempted them from the definition of “bank” under the Bank Holding Company Act, freeing the companies from business restrictions faced by traditional lenders and supervision by the Federal Reserve. That growth has reversed since 2007, after the FDIC imposed a moratorium on considering new applications in response to bankers’ opposition to a previous bid by Walmart that was scrapped because of the furor it raised.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 then shut the window on industrial loan company applications for three years until 2013. Since 2017, banking regulators appointed by President Trump have often been more receptive to breaking down the wall between banking and commerce. GM, which sold its industrial loan company in 2006, is among firms interested in getting a new banking charter, the Wall Street Journal reported last month.

After Square and Nelnet were cleared for industrial loan company banking this year, Sen. Sherrod Brown (D-Ohio) warned about the potential threat, invoking the 2008 financial meltdown that gave rise to the Dodd-Frank act.

“Just before the last crisis, regulators gutted financial rules and even considered letting mega-corporations like Walmart own banks — and here we go again,” said Brown, the Senate Banking Committee’s top Democrat.

Each bank holding company must have enough capital across the entire firm to guard against losses and ensure its balance sheet is sufficiently liquid, and Fed oversight brings stress tests and other supervisory requirements. Although industrial loan companies also face capital demands, their parent companies are required only to pledge that they’ll provide support if the lender gets into trouble. Bankers say these differences, coupled with restrictions on their ability to engage in nonfinancial businesses, leave them at a competitive disadvantage under the new FDIC rule.

The FDIC said it will be able to consider the potential effect of each applicant on the goal to keep banking services competitive, safe and sound. It also said applicants will have to agree to examinations and annual reports and ensure that they’ll financially support the lender when needed.

The approvals from the FDIC and Utah’s banking regulator leave Square Financial Services “uniquely positioned to build a bridge between the financial system and the underserved,” a company official said in March. That argument for greater accessibility is a central point for those who favor the new industrial loan companies.

“Proponents contend that opening up the banking system to tech and retail companies will enhance financial inclusion in underserved communities, but the evidence for that claim is pretty limited,” said Jeremy Kress, a former Fed lawyer who is now teaching at the University of Michigan’s Ross School of Business. “A Bank of Walmart or Amazon Bank could easily attract trillions of dollars in deposits, thereby increasing concentration and systemic risks in the financial sector.”

Opponents recognize that their best bet could be getting Congress to intervene again and shut down the industrial loan company process.

The FDIC is “violating the cardinal rule established almost 70 years ago that banking and commerce should remain separate,” said Steve Hall, legal director for Better Markets, a Washington-based group advocating for tougher financial rules. “Those combinations cannot be adequately supervised, they pose instability risks, and they can even foster unfair competition.”