Federal Appeals Court Strikes Down City's ATM Fee Ban
By Jorge Casuso
Oct. 25 -- A federal appeals court Friday struck down Santa Monica's
pioneering ban on ATM surcharges, upholding an earlier ruling that any
local ordinances restricting banks from charging non-customers an extra
fee violates federal law.
The ruling by the 9th U.S. Circuit Court of Appeals, which also overturns
a similar ban approved by San Francisco voters, found that federal banking
regulations adopted by Congress allow banks to charge fees for ATM usage.
The San Francisco-based appeals court noted that only the federal government
can create such regulations, not city councils or local voters. The Santa
Monica City Council and San Francisco voters both adopted similar laws
three years ago, helping spur a national movement to ban banks from charging
non-customers an additional fee, which averages about $1.50 per transaction.
``We find that the ordinances are pre-empted by federal law and regulations
and thus invalid,'' Judge Joseph T. Sneed wrote in his ruling.
Santa Monica and San Francisco officials said they would consider whether
to appeal to the U.S. Supreme Court or ask the court to reconsider its
decision.
Mayor Michael Feinstein said that based on a briefing by Deputy City
Attorney Adam Radinsky, who represented the city, the court failed to
address the defense's arguments.
"The court did not address the legal arguments we've raised,"
said Feinstein, who co-sponsored the ordinance, which was approved in
October 1999. "We've never been persuaded by them that just saying
that makes it so."
"Unless you like having big banks' hands in both your pockets at once,
coming and going, this court decision is a setback for consumers," said
Councilman Kevin McKeown, the measure's other co-sponsor.
Leland Chan, an attorney for the California Bankers Association, which
challenged the laws, applauded the decision, saying the measures countervailed
free-market capitalism.
``Can you imagine voters telling Intel how much to charge for its chips?''
Chan said.
Friday's 3 to 0 decision upholds U.S. District Judge Vaughn Walker's
ruling in July 2000 that any local laws restricting ATM surcharges violate
the National Banking Act, as well as the Home Owners Loan Act, which govern
both nationally chartered and federal savings banks.
Ruling in a restraining order shortly after the measures were passed,
Walker shot down Santa Monica's contention that the 1978 Electronic Funds
Transfer Act gives cities powers to protect consumers in the area of ATMs.
While the EFTA allows cities to regulate the safety, location, lighting
and disclosure of fees, it cannot set the amount of the fees, the San
Francisco federal judge ruled when he blocked the ordinances from being
enforced at the request of Bank of America, Wells Fargo Bank and others.
Radinsky -- who called the surcharge "an outrageous and duplicative
fee that is unfair to consumers" -- noted that Arkansas, Mississippi
and Wyoming have rules limiting the amount of ATM fees banks may charge.
The Santa Monica and San Francisco laws challenged the rights of banks
to charge non-customers an additional surcharge to use their ATM, but
did not challenge the fees a bank charges its own customers to use another
bank's ATM, which average around $2.
Friday's ruling came as no surprise, based on oral arguments in January,
when the judges didn't seem to buy the cities' arguments defending the
ordinances.
``What's the constitutional problem to charge what you want?'' Judge
Sneed asked.
``You're prohibiting what federal law allows,'' Judge Stephen Trott added.
Santa Monica's law fueled a nationwide movement, with local governments
as far flung as Miami, New York, San Diego and New Orleans exploring similar
bans.
It also triggered a counter attack by California's two biggest banks
-- Wells Fargo and Bank of America -- which stopped allowing non-customers
to use the 33 ATMs they operate in the city. CalFed later joined the suit,
which was filed in federal court on November 3, 1999, the day after San
Francisco voters overwhelmingly approved their measure.
Before casting his vote for the ordinance, which was approved 4 to 3,
Feinstein said: "If we do this in this city, I believe it will pass
in other cities and across the country. The whole mindset of the country
would change. Consumers, I believe, are being ripped off."
McKeown, a fellow Green Party member, said Friday that the biggest losers
were cunsumers. "Based on CALPIRG estimates, we figure there's well
over a million dollars at stake of ATM refunds in escrow for Santa Monica
residents alone," he said. |