H. B. 2180
(By Delegate Staton)
[Introduced January 13, 1999; referred to the
Committee on Banking and Insurance then the Judiciary.]
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 or her 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 communication terminal
only as provided in this subsection:
(1) A banking institution which installs or operates one or
more customer bank communication 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 communication 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 communication 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 noncustomers 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.