H. B. 4638
(By Delegate Staton)
[Introduced February 27, 1998; referred to the
Committee on Banking and Insurance.]
A BILL to amend and reenact section twelve-b, article eight,
chapter thirty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to the
installation and operation of customer bank communication
terminals; requiring the notification of certain fees and the
opportunity to cancel a transaction before incurring those
fees; limiting certain fees; and prohibiting surcharges.
Be it enacted by the Legislature of West Virginia:
That section twelve-b, article eight, chapter thirty-one-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 8. HEARINGS; ADMINISTRATIVE PROCEDURES; JUDICIAL REVIEW; UNLAWFUL ACTS; PENALTIES.
§31A-8-12b. Installation and operation of customer bank
communication terminals permitted.
(a) Any banking institution as defined in section two, article
one of this chapter, individually or jointly with one or more other
banking institutions or other federally insured financial
institutions having their principal offices in this state, or any
combination thereof, may upon ten days prior written notice filed
with the commissioner, install, operate and engage in banking
business by means of one or more customer bank communication
terminals. Any banking institution which installs and operates a
customer bank communication terminal:
(1) Shall make such customer bank communication terminal
available for use by other banking institutions; and
(2) May make such customer bank communication terminal
available for use by other federally insured financial
institutions, all in accordance with regulations promulgated by the
commissioner. Such customer bank communication terminals shall not
be considered to be branch banks or branch offices, agencies or
places of business or off-premises walk-in or drive-in banking
facilities; nor shall the operation of such customer bank
communication terminals to communicate with and permit financial
transactions to be carried out through a nonexclusive access
interchange system be considered to make any banking institution
which is part of such a nonexclusive access interchange system to
have illegal branch banks or branch offices, agencies or places of
business or off-premises walk-in or drive-in banking facilities.
(b) Notwithstanding the provisions of subdivision (1),
subsection (a) of this section, a customer bank communication
terminal located on the premises of the principal office or branch
bank of a banking institution or on the premises of an authorized
off-premises facility need not be made available for use by any
other banking institution or its customers.
(c) For purposes of this section, "customer bank communication
terminal" means any electronic device or machine owned, leased, or
operated by a bank, together with all associated equipment,
structures and systems, including, without limitation, point of
sale terminals, through or by means of which a customer and a
banking institution may engage in any banking transactions, whether
transmitted to the banking institution instantaneously or
otherwise, including, without limitation, the receipt of deposits
of every kind, the receipt and dispensing of cash, requests to
withdraw money from an account or pursuant to a previously
authorized line of credit, receiving payments payable at the bank
or otherwise transmitting instructions to receive, transfer or pay
funds for a customer's benefit. Personal computers, telephones and
associated equipment which enable a bank customer to conduct
banking transactions at their home or office through links to their
bank's computer or telephone network, do not constitute a "customer
bank communication terminal" under this section. All transactions initiated through a customer bank communication terminal shall be
subject to verification by the banking institution.
(d) No person, other than: (1) A banking institution
authorized to engage in the banking business in this state; or (2)
a credit union authorized to conduct business in this state, may
operate any automatic teller machine ("ATM") or automatic loan
machine ("ALM") located in this state: Provided, That ATM
terminals of out-of-state banks not having branches in this state
shall be allowed to operate to the same extent as a West Virginia
bank if a national bank from that state not having branches in West
Virginia could do so through a federal preemption of state law.
(e) For the purposes of this section, "point of sale terminal"
means a customer bank communication terminal used for the primary
purpose of either transferring funds to or from one or more deposit
accounts in a banking institution or segregating funds in one or
more deposit accounts in a banking institution for future transfer,
or both, in order to execute transactions between a person and his
customers incident to sales, including, without limitation, devices
and machines which may be used to implement and facilitate check
guaranty and check authorization programs.
(f) Nothing in this section prevents point of sale terminals
and associated equipment from being owned, leased or operated by
nonbanking entities: Provided, That such persons may not engage in
the business of banking by using point of sale devices. The use of a point of sale terminal to enable a customer or other person to
withdraw and obtain cash of more than fifty dollars in excess of
the sales transaction purchase amount will be presumed to
constitute engaging in the business of banking.
(g) Except for customer bank communication terminals located
on the premises of the principal office or a branch bank of the
banking institution or on the premises of an authorized
off-premises walk-in or drive-in banking facility, a customer bank
communication terminal shall be unattended or attended by persons
not employed by any banking institution utilizing the terminal:
Provided, That:
(1) Employees of the banking institution may be present
at such terminal not located on the premises of an authorized
off-premises facility solely for the purposes of installing,
maintaining, repairing and servicing same; and
(2) A banking institution may provide an employee to instruct
and assist customers in the operation thereof: Provided, That such
employee shall not engage in any other banking activity.
(h) The commissioner shall prescribe by regulation the
procedures and standards regarding the installation and operation
of customer bank communication terminals, including, without
limitation, the procedure for the sharing thereof.
(i) A banking institution which installs, operates or engages
in banking business by means of one or more customer bank communication terminals may impose a transaction fee on a consumer
for the use of a customer bank communications terminal only as
provided in this subsection:
(1) A banking institution which installs or operates one or
more customer bank communications terminals may impose a
transaction fee on a consumer for the use of such terminals (A) if
the transaction fee relates to or affects an account held by the
consumer with the banking institution and (B) if the imposition and
the amount of the transaction fee are disclosed at a time and in a
manner that allows the consumer to terminate or cancel the
transaction without incurring the transaction fee.
(2) A banking institution which engages in banking business
through one or more customer bank communications terminals
installed and operated by another banking institution or a
federally insured financial institution which makes such terminals
available to the banking institution through an access interchange
system may impose a transaction fee on a consumer for the use of
such terminals if the transaction fee relates to or affects an
account held by the consumer with the banking institution.
(3) Any transaction fee imposed pursuant to this subsection
shall not exceed one dollar per transaction.
(j) No banking institution which installs and operates one
or more customer bank communications terminals and which makes such
terminals available to other banking institutions or federally insured financial institutions through an access interchange system
may impose a surcharge on a consumer which does not relate to or
affect an account held by the consumer with the banking
institution.
(k) The provisions of subsections (i) and (j) of this section
shall not be construed or interpreted to modify, limit or impair
any of the terms and conditions relating to interchange charges and
transaction fees or charges of any existing written agreements
governing access interchange systems.
NOTE: The purpose of this bill is to limit ATM transaction
fees charged by banking institutions to one dollar per transaction
and to prohibit banking institutions from imposing surcharges on
non-customers for the use of their ATMs. The bill would also
require banking institutions which impose transaction fees to warn
their customers using their ATMs that a fee will be imposed and to
permit them to cancel a transaction before they incur a transaction
fee.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.