Despite a series of court victories upholding banks' rights to impose fees on automated teller machine use in the last two weeks, Bank of America Corp. and Wells Fargo & Co. are maintaining a lockout on noncustomers' access cards in Santa Monica, Calif., signaling that nothing short of surrender by opponents of the fees will suffice.
The banks both cut ATM services to noncustomers in Santa Monica after passage of an ordinance there banning certain transaction fees, and said those restrictions will remain in place until the city lifts the ordinance.
Bank of America has threatened similar action in San Francisco, where an identical ordinance exists but has not yet been implemented. Just before Thanksgiving, U.S. District Judge Vaughn R. Walker, the same judge who ruled for the banks in the Santa Monica case, blocked the city of San Francisco from even certifying the results of its local vote on the issue. At the same time, Judge Walker moved to block residents of Santa Monica from suing banks over surcharging, as the ordinance would have allowed.
Still, rather than declare victory and reopen their ATM doors, Bank of America, the No. 1 operator of ATMs in the United States, and Wells Fargo, the No. 3 operator, have stood pat.
Larry Haeg, a spokesman for Wells Fargo, said that until the Santa Monica city council suspends its ordinance, "we are not going to consider any plans to make our machines available to noncustomers. If and when we do, we would still charge the fee."
Similarly, Bank of America is waiting for Santa Monica to lift its ordinance before it resumes ATM services to noncustomers, a bank spokeswoman said.
Viewed one way, the posturing by the banks is a show of strength.
"It's a very aggressive position from a public relations standpoint," said Mark Walter, a banking technology consultant in Lake Michigan, Mich., who also noted that banks and credit unions with smaller ATM networks were far less likely to take such a step. But beneath the surface is a current of uncertainty.
It appears, at least for now, that some California banks are unclear as to what risks they may face in assessing ATM fees during the injunction period.
A deputy city attorney for Santa Monica, Adam Radinsky, said no banks have charged consumers ATM fees since the city ordinance went into effect.
"We wanted clarification" on whether consumers in Santa Monica may sue banks over ATM fees, said John Stafford, spokesman for the California Bankers Association. Mr. Stafford said the decisions by Wells Fargo and Bank of America to bar non-customers from using their ATMs were based on the threat of being sued in Santa Monica. Judge Walker's order "basically closed the loophole," Mr. Stafford said. "We will continue to feel optimistic about our legal situation here."
A report from U.S. Public Interest Research Group maintains that consumers in Santa Monica have saved more than $25,000 since the ordinance went into effect three weeks ago. The consumer group, which has taken a leading role in opposing ATM fees, said its report was derived from an analysis of bank documents released on Nov. 30.
San Francisco and Santa Monica have 30 days to appeal the temporary injunction, issued Nov. 15, to the Ninth U.S. Circuit Court of Appeals. The cities may also simply proceed to a trial, over which Judge Walker will preside.
Meanwhile, momentum for a potential national drive against ATM fees does not yet appear to be abating.
New York City Council Speaker Peter F. Vallone is considering trying to fashion a similar ATM fee ban in New York. Other regions mulling similar measures, according to U.S. PIRG, include Chicago, Cleveland, Louisville, New Orleans, Portland, Ore., Ann Arbor, Mich., Madison, Wis., San Diego, Albuquerque, N.M., and Dade County, Fla.
"This injunction is not going to derail the [consumer] movement," said Marc Slavin, a deputy city attorney for San Francisco.
U.S. Reps. Maxine Waters, D-Calif., and Bernard Sanders, I-Vt., in November each introduced bills aimed at eliminating ATM surcharges nationally.
Some consumer activists are optimistic about their prospects, and are looking past any hearing in Judge Walker's courtroom, considering his rulings so far.
"This is one judge in a big long battle," said Edmund Mierzwinski, consumer program director for U.S. PIRG.