Opt-in Requirements Under 1005.17(b)(1)

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Question:

The opt-in requirements under 1005.17(b)(1) state that a bank "shall not assess a fee or charge on a consumer's account for paying an ATM or one-time card transaction." Does the "one-time" term mean that we cannot charge a fee on the first transaction of two or more being paid and then we can charge a fee on the second when the consumer has not opted-in? For example, if a customer has not opted-in and an ATM causes an overdraft into the consumers account and then two EFTs are received and paid on the same day as the ATM for processing, can we charge or not an overdraft fee for any of the EFTs? On subsequent days, if the account is overdrawn by EFTs, can a fee for overdraft be charged?

Answer:

No. That's not at all what it means.

"One-time" refers to an individually-authorized debit card transaction, such as a single point of purchase transaction for which the cardholder provided an individual authorization. It is contrasted with recurring debit card transactions for which the cardholder provides an on-going authorization with or without an ending date.

Examples of recurring debit card transactions include a standing authorization for things like health-club memberships, mobile phone monthly payments, health or life insurance premiums, cable or satellite TV, internet service, etc.

Many merchants have the ability to "code" recurring card transactions, and you can use such a code to identify a debit card transaction that can result in an overdraft fee even if there's been no consumer opt-in for an account (or you can identify such transactions by reviewing transaction history for repeats that occur at the same time each month).

You cannot charge an OD fee if an overdraft in a consumer account results from an ATM or one-time debit card transaction unless you have obtained the consumer's opt-in as required by section 1005.17.