A three-judge panel of the Fifth Circuit has ruled that a 2012 amendment to the federal Electronic Funds Transfer Act ("EFTA"), which abolished the requirement that operators of automatic teller machines ("ATM") maintain exterior notices of fees, was not retroactive. Prior to the amendment, the EFTA required fee notices to be located both externally, "in a prominent and conspicuous location on or at the automated teller machine" and also before the close of the customer's ATM transaction, either "on the screen of the automated teller machine, or on a paper notice issued . . . before the consumer is irrevocably committed to completing the transaction." 15 U.S.C. § 1693b(d)(3) (2011).
The Federal Consumer Financial Protection Bureau ("CFPB") recently amended Regulation E, 12 CFR 1005.16 ("Reg. E"), to eliminate duplicative fee notice requirements on ATM machines. As a result of the March 26, 2013 amendment, banks will no longer be liable for failing to post notice on the ATM machine of a user fee for non-customers of the bank, even though a more specific warning is provided on the screen before an ATM transaction can be completed.
Banks and other financial institutions that maintain ATMs got good news from Congress to close out the year. On December 11, 2012, the Senate passed H.R. 4367 by unanimous consent, following passage by the House of Representatives in July. The bill now moves to the President's desk for his signature. H.R. 4367, as passed, amends the Electronic Funds Transfer Act to remove the placard fee disclosure requirement for ATMs operated by a financial institution other than the institution at which a consumer has an account.