Senate Bill No. 188
(By Senator Chafin and Bowman)
____________
[Introduced January 25, 2000; 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
placing a cap upon ATM charges.
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: Provided
however, That no bank or credit union customer shall be charged more
than a total of fifty cents for any single ATM transaction,
notwithstanding that more than one bank or credit union may be
involved in the transaction.
(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: Provided, however, That cash
withdrawals through a point of sale terminal in excess of fifty
dollars shall not constitute engaging in the business of banking if
the sales transaction is made with the use of a West Virginia check
card, as provided in article three-a, chapter twelve of this code,
or with an electronic benefits transfer or other card issued by state spending units to transmit payments of food benefits,
temporary assistance to needy families, or other assistance, benefit
or entitlement programs mandated or offered by federal or state
government: Provided further, That any retailer, agency or person
providing cash withdrawals with a West Virginia check card or an
electronic benefits transfer card through a POS terminal is limited
to charging a fee for the services in the amount of the higher of
one dollar or one percent of the amount of cash withdrawn.
(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.
NOTE: The purpose of this bill is to limit the cost to bank and
credit union customers for any single ATM transaction to $.50
regardless that there may be more than one bank involved.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.