S-2201

AN ACT Relating to automated teller machines; amending RCW 19.174.010 and 19.174.020; adding new sections to chapter 19.174 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 19.174.010 and 1993 c 324 s 2 are each amended to read as follows:

(1) The intent of the legislature in enacting this chapter is to enhance the safety of consumers using automated teller machines and night deposit facilities in Washington without discouraging the siting of automated teller machines and night deposit facilities in locations convenient to consumers' homes and workplaces. Because decisions concerning safety at automated teller machines and night deposit facilities are inherently subjective, the legislature establishes as the standard of care applicable to operators of automated teller machines and night deposit facilities, in connection with user safety, compliance with the objective standards and information requirements of this chapter. It is not the intent of the legislature in enacting this chapter to impose a duty to relocate or modify automated teller machines or night deposit facilities upon the occurrence of a particular event or circumstance, but rather to establish a means for the evaluation of all automated teller machines and night deposit facilities as provided in this chapter. The legislature further recognizes the need for uniformity as to the establishment of safety standards for automated teller machines and night deposit facilities and intends with this chapter to supersede and preempt a rule, regulation, code, or ordinance of a city, county, municipality, or local agency regarding customer safety at automated teller machines and night deposit facilities in Washington.

(2) The legislature finds that the fees charged for using automated teller machines by many banking institutions could have a negative impact on the financial institutions industry and consumers. The legislature intends to ensure there is an efficient and competitive automated teller machine market.

Sec. 2. RCW 19.174.020 and 1993 c 324 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Access area" means a paved walkway or sidewalk that is within fifty feet of an automated teller machine or night deposit facility. "Access area" does not include publicly maintained sidewalks or roads.

(2) "Access device" means:

(a) "Access device" as defined in federal reserve board Regulation E, 12 C.F.R. Part 205, promulgated under the Electronic Fund Transfer Act, 15 U.S.C. Sec. 1601, et seq.; or

(b) A key or other mechanism issued by a banking institution to its customer to give the customer access to the banking institution's night deposit facility.

(3) "Automated teller machine" means an electronic information processing device located in this state that accepts or dispenses cash in connection with a credit, deposit, or convenience account. "((~~Automatic [automated]~~)) Automated teller machine" does not include a device used primarily to facilitate check guarantees or check authorizations, used in connection with the acceptance or dispensing of cash on a person-to-person basis such as by a store cashier, or used for payment of goods and services.

(4) "Banking institution" means a state or federally chartered bank, trust company, savings bank, savings and loan association, and credit union.

(5) "Candle-foot power" means a light intensity of candles on a horizontal plane at thirty-six inches above ground level and five feet in front of the area to be measured.

(6) "Control of an access area or defined parking area" means to have the present authority to determine how, when, and by whom it is to be used, and how it is to be maintained, lighted, and landscaped.

(7) "Defined parking area" means that portion of a parking area open for customer parking that is:

(a) Contiguous to an access area with respect to an automated teller machine or night deposit facility;

(b) Regularly, principally, and lawfully used for parking by users of the automated teller machine or night deposit facility while conducting transactions during hours of darkness; and

(c) Owned or leased by the operator of the automated teller machine or night deposit facility or owned or controlled by the party leasing the automated teller machine or night deposit facility site to the operator. "Defined parking area" does not include a parking area that is not open or regularly used for parking by users of the automated teller machine or night deposit facility who are conducting transactions during hours of darkness. A parking area is not open if it is physically closed to access or if conspicuous signs indicate that it is closed. If a multiple level parking area satisfies the conditions of this subsection (7)(c) and would therefore otherwise be a defined parking area, only the single parking level deemed by the operator of the automated teller machine and night deposit facility to be the most directly accessible to the users of the automated teller machine and night deposit facility is a defined parking area.

(8) "Hours of darkness" means the period that commences thirty minutes after sunset and ends thirty minutes before sunrise.

(9) "Night deposit facility" means a receptacle that is provided by a banking institution for the use of its customers in delivering cash, checks, and other items to the banking institution.

(10) "Operator" means a banking institution or other business entity or a person who operates an automated teller machine or night deposit facility.

(11) "Dominant banking institution" means a banking institution with total assets in Washington exceeding one billion dollars whose market share of banking institution-owned automated teller machines in Washington exceeds the banking institution's deposit market share in Washington.

(12) "Surcharge" is a fee directly imposed on a consumer by the owner of the automated teller machine when such a fee does not relate to or affect an account held by the consumer with the owner of the automated teller machine.

NEW SECTION. Sec. 3. A new section is added to chapter 19.174 RCW to read as follows:

(1) A dominant banking institution or its affiliates owning or operating an automated teller machine in this state may not impose a surcharge upon a customer for the use of that machine unless the automated teller machine is located in or attached to a branch office. For the purposes of this section "branch office" means an established staffed place of business with facilities for in-person transactions between employees of the banking institution and its customers. This subsection applies until March 31, 1998.

(2) If a surcharge is imposed on a consumer at an automated teller machine, the operator of that automated teller machine shall disclose to the consumer electronically on the automated teller machine the total amount of the surcharge. Such disclosure shall be provided prior to the consumer's entry of the amount and provide the consumer with an opportunity to cancel the transaction without incurring any obligation.

NEW SECTION. Sec. 4. A new section is added to chapter 19.174 RCW to read as follows:

The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION. Sec. 5. A new section is added to chapter 19.174 RCW to read as follows:

In the event the responsible federal chartering authority, pursuant to applicable federal law, or in the event a court of competent jurisdiction declares that chapter . . ., Laws of 1997 (this act) is invalid with respect to a federally chartered bank, trust company, savings bank, savings and loan association, or credit union, chapter . . ., Laws of 1997 (this act) is also invalid with respect to any other banking institution located in the state of Washington to that same extent.

NEW SECTION. Sec. 6. The chairs of the house of representatives and senate committees with jurisdiction over financial institutions shall appoint a task force composed of banking institution representatives to study issues relating to the imposition of surcharges at automated teller machines. The study shall include but is not limited to: (1) The extent to which the automated teller machine market is a competitive market; (2) the potential anticompetitive effect imposing surcharges has on the deposit base of small banking institutions; (3) ways in which the automated teller machine market may become more competitive; and (4) the identification of potential barriers to promoting an efficient and competitive automated teller machine market, and any proposed legislation to promote an efficient and competitive automated teller machine market.

The task force shall report their findings by December 1, 1997.