Really, these still? (Andrew Harrer/BLOOMBERG)

The credit card companies lost a round in the payment wars on Wednesday: A judge ruled that the Federal Reserve's 21-cent cap on swipe fees for debit card transactions was too high, and should be reconsidered. The retail industry cheered, since it either has to eat the cost of those fees or pass them on to consumers. But here's the question: If swipe fees are such a burden on merchants, why are they still paying them?

There are a bunch of different ways to evade the system, after all. With its cute iPhone-mounted card reader, Square has much lower start-up costs. Dwolla charges 25 cents for transactions over $10. Then there's Paypal's mobile system, Google's Wallet, Groupon's Breadcrumb, and a few smaller players. They all transfer money through the Automated Clearing House, which is also used for big transactions like direct deposit of paychecks, enabling relatively friction-free movement of money.

Electronic payments are growing fast--several percentage points per quarter, according to the Electronic Payments Association.  The highest-profile success has been Starbucks, which now takes in 10 percent of sales via a smartphone. But there are a few reasons why they haven't yet taken over the consumer market:

- Too many services: Choice and competition are good things, but in this case, merchants have so many options that it's hard for consumers to know which one to pick (plus "near field communication," which allows payments through just bumping your phone up against another). "The region has been impacted by low adoption of NFC payment services and many merchants launching mobile apps in a copycat fashion without a clear winning strategy," reads a Gartner analysis.

- America is too used to credit cards: In many African countries, making payments on your phone is normal, because bank accounts are much less widespread. The dominant service, known as M-Pesa, charges a small fee for each transaction. Now, banks are the ones scrambling to catch up with their own mobile payments programs to capture the cash they're missing out on.

- Retailers would rather keep your data: With traditional payment options, it's easier to track who buys what, and perhaps target customers with special promotions tailored to their past purchases. Some of the new mobile payment services pride themselves on safeguarding that information, which isn't a selling point for more data-conscious merchants. "All of them hate interchange fees, but the reality is that they're collecting 'invaluable' consumer data from these cards/transactions that they then use to market and advertise to the consumer," writes Dwolla spokesman Jordan Lampe. "We would just as soon NOT give them consumer data, and instead offer them a lower cost to do business. So you can see why there's some misunderstanding between us and retailers." Google, he notes, charges no fees at all for its Wallet service--the data itself are valuable enough.

- The legal landscape is still unsettled: For eight years now, large retailers and credit card companies have been embroiled in a lawsuit over requirements that merchants "honor all cards," while the fees went up and up. They're now fighting over a settlement, and mobile payments are at issue. "What they're trying to do with this settlement in New York is proposing to redefine cards as being any kind of technology, including a mobile phone," says Mallory Duncan, general counsel for the National Retail Federation. "If they then put their cards onto a phone, they could say, 'you have to accept all phones.' They're trying to do a lot of different things to try to capture the mobile phone market, so they can take their monopoly and shift it into phones." It seems unlikely that will be the case at this point, but either way, the credit card companies will be able to move forward more aggressively with their mobile payment programs once it's all over.

Meanwhile, big banks are getting worried about all the new non-bank payment options proliferating in the marketplace, and are urging the authorities to address regulatory gaps. "Failure to do so runs the risk of incentivizing the creation of a 'shadow payments system outside of existing consumer protection and system integrity schemes, with enormous implications for consumers and the overall economy," wrote the American Banking Association in a recent report. Light regulation might give the marketplace some certainty and security, but not if it forces decent services out of the running. "We're in a period with mobile right now where there are lots of green shoots of competition developing," says Duncan. "The goal here is for everyone to stand back and not stomp on them before they have a chance to grow."

- Big retailers are cooking up their own mobile payment system: If it's surprising that Starbucks is the only major retailer to make inroads in phone payments, that's because the nation's biggest retailers are working on a common Merchant Customer Exchange. Details have yet to be announced, but it's possible the MCX could blow everybody else out of the water when it finally lands, since it will have instant adoption across a wide range of the consumer landscape.

So it may be odd that we're still talking about high swipe fees. But it's still possible that within a few years, yesterday's big settlement won't matter much anyway.