2005 Illinois Code - Chapter 205 Financial Regulation 205 ILCS 616/ Electronic Fund Transfer Act.
(205 ILCS 616/1) Sec. 1. This Act may be cited as the Electronic Fund Transfer Act. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/5) Sec. 5. Findings and purpose. (a) The General Assembly finds: (1) that communications networks linking financial
institutions and their customers, through which transfers of funds are effected electronically, provide the people of this State with substantial benefits;
(2) that it is essential that the rights of the
people of this State be adequately protected by encouraging the establishment of communications networks that will be economically viable and technologically reliable;
(3) that the opportunity for competition among
suppliers of electronic fund transfer communications services must be preserved, thus assuring to customers of financial institutions and to financial institutions the benefits of a competitive environment;
(4) that it is essential that the benefits of
electronic fund transfers be readily available to all customers of financial institutions, all financial institutions, and all sellers of goods and services that choose to participate in such a system of electronic fund transfers; and
(5) that it is essential that the competitive
environment in the electronic payment systems industry in this State be preserved and enhanced.
(b) It is the purpose of this Act to enable electronic fund transfer
communications networks and financial institutions to meet the needs of
commerce in a competitive environment and to provide reliable communications
services to the people of this State. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/10) Sec. 10. Definitions. For purposes of this Act, the words and phrases
defined in
this Section shall have the meanings ascribed to them unless the context
requires otherwise. Whenever the terms "network" and "switch" are used, they
shall be deemed interchangeable unless, from the context and facts, the
intention
is plain to apply only to one type of entity. "Access device" means a card, code, or other means of access to an
account, or any combination thereof, that may be used by a customer to initiate
an electronic fund transfer at a terminal. "Account" means a demand deposit, savings deposit, share, member, or
other customer asset account held by a financial institution. An "affiliate" of, or a person "affiliated" with, a specified person,
means a person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the person
specified. "Commissioner" means the Commissioner of Banks and Real Estate or a person
authorized by the Commissioner, the Office of Banks and Real Estate Act, or
this Act to act in the Commissioner's stead. "Electronic fund transfer" means a transfer of funds, other
than a transaction originated by check, draft, or similar paper instrument,
that is initiated through a terminal for the purpose of ordering, instructing,
or authorizing a financial institution to debit or credit an account. "Financial institution" means a bank established under the
laws of this or any other state or established under the laws of the United
States, a savings and loan association or savings bank established under the
laws of this or any other state or established under the laws of the United
States, a credit union established under the laws of this or any other state or
established under the laws of the United States, or a licensee under the
Consumer Installment Loan Act or the Sales Finance Agency Act. "Interchange transaction" means an electronic fund transfer
that results in exchange of data and settlement of funds between 2 or more
unaffiliated financial institutions. "Network" means an electronic information communication and
processing system that processes interchange transactions. "Person" means a natural person, corporation, unit of government or
governmental subdivision or agency, trust, estate, partnership, cooperative, or
association. "Seller of goods and services" means a business entity other than a
financial institution. "Switch" means an electronic information and communication processing
facility that processes interchange transactions on behalf of a network. This
term does not include an electronic information and communication processing
company (1) that is owned by a
bank holding company or an affiliate of a bank holding company and used solely
for transmissions among affiliates of the bank holding company or (2) to the
extent that the facility, by virtue of a contractual relationship, is used
solely for transmissions among affiliates of a bank holding company, regardless
of whether the facility is an affiliate of the bank holding company or operates
as a switch with respect to one or more networks under an independent
contractual relationship. "Terminal" means an electronic device through which a consumer may
initiate an interchange transaction. This term does not include (1) a
telephone, (2) an electronic device located in a personal residence, (3) a
personal computer or other electronic device used primarily for personal,
family, or household purposes, (4) an electronic device owned or operated by a
seller of goods and services unless the device is connected either directly or
indirectly to a financial institution and is operated in a manner that provides
access to an account by means of a personal and confidential code or other
security mechanism (other than signature), (5) an electronic device that is not
accessible to persons other than employees of a financial institution or
affiliate of a financial institution, or (6) an electronic device that is
established by a financial institution on a proprietary basis that is
identified as such and that cannot be accessed by customers of other financial
institutions. The Commissioner may issue a written rule that excludes
additional electronic devices from the definition of the term "terminal". (Source: P.A. 89‑310, eff. 1‑1‑96; 89‑508, eff. 7‑3‑96.)
(205 ILCS 616/15) Sec. 15. Exemptions and limitations. (a) A seller of goods and services on
whose premises one
or more terminals are established is not, solely by virtue of such
establishment or solely by virtue of the
processing of interchange transactions in connection with the sale of goods and
services, a financial institution and is not subject to the laws governing, or
other requirements imposed on, financial institutions. (b) Nothing contained in this Act shall authorize the Commissioner to
regulate the conduct of business functions or to obtain access to any business
records, data, or information of a seller of goods and services that operates a
terminal, except as may otherwise be provided by law; nor shall this Act be
construed to prohibit or to authorize the Commissioner to prohibit a seller of
goods and services from using a terminal to perform internal proprietary
functions, including extensions of credit pursuant to an open end credit plan. (c) The provision of facilities or services by a public utility subject
to the Public Utilities Act
in connection with an electronic fund transfer system does not subject
the public utility to this Act. (d) A financial institution is not subject to the Public Utilities Act
solely by reason of acts
undertaken in connection with an electronic fund transfer system under this Act
unless the financial institution performs acts as a public utility or a common
carrier of communications services. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/20) Sec. 20. Powers and duties of Commissioner. The Commissioner shall have
the following powers and duties: (1) to promulgate reasonable rules in accordance with the
Illinois Administrative Procedure Act for the
administration of this Act; (2) to issue orders for the enforcement of this Act and any rule promulgated
under this Act; (3) to appoint hearing officers to exercise any delegated
powers; (4) to subpoena witnesses, compel their attendance, administer oaths,
examine any person under oath, and require the production of any relevant
books,
papers, accounts, and documents in the course of and pursuant to any
investigation conducted or action taken by the Commissioner; and (5) to conduct hearings. (Source: P.A. 92‑811, eff. 8‑21‑02.)
(205 ILCS 616/25) Sec. 25. Examination authority. The Commissioner or examiners appointed
by the
Commissioner have the authority to examine any network and any switch,
including leased equipment and services furnished by a subcontractor or other
party, as to any transaction by, with, or involving a financial institution
that has established a terminal in this State. Information obtained in the
course of an examination shall not be disclosed, except as provided by
law. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/30) Sec. 30. Acceptance of deposits. (A) No terminal that accepts deposits of
funds to an
account may be established or owned in this State except by (a) a bank
established under
the laws of this or any other state or established under the laws of the United
States that (1) is authorized by law to establish a
branch in this State or (2) is permitted by rule of the Commissioner to
establish deposit‑taking terminals in this State in order to maintain
parity between national banks and banks
established under the laws of this or any other state, (b) a savings and loan
association or savings bank established under the laws of this or any other
state or established under the laws of the United States, (c) a credit union
established under the laws of this or any other state or established under the
laws of the United States, or (d) a licensee under the Consumer Installment
Loan
Act or the Sales Finance Agency Act. (B) A person other than a financial institution or an affiliate of a
financial institution may establish or own, in whole or in part, a
cash‑dispensing terminal at
which an interchange transaction may be performed, provided that the terminal
does not accept deposits of funds to an account, and provided that the person
establishing or owning the terminal shall file a notice of establishment or
ownership of a terminal with the Commissioner, in the form prescribed by the
Commissioner, within 60 days after the later of (a) the effective day of this
amendatory Act of 1997 or (b) the establishment of or acquisition of an
ownership interest in the terminal. Persons who own a terminal pursuant to
this subsection (B) shall thereafter file with the Commissioner a full and
accurate statement of information of ownership, in the form prescribed by the
Commissioner, once per calendar year. A person who has established or owns a
terminal pursuant to this subsection (B) shall not be required to file
subsequent notices of establishment or ownership of a terminal when
establishing or acquiring an ownership interest in additional terminals
provided the person includes the information required by the Commissioner for
those terminals in the person's annual filing pursuant to this subsection (B).
The Commissioner or examiners appointed by the Commissioner shall have the
authority to examine any person that has established or owns a terminal in this
State pursuant to this subsection (B) if the Commissioner has received multiple
complaints regarding one or more terminals owned by the person, and in the
event of such an examination, the person shall pay the reasonable costs and
expenses of the examination as determined by the Commissioner. The
Commissioner may impose civil penalties of up to $1,000 against any person
subject to this subsection (B) for
the first failure to comply with this Act and up to $10,000 for the second and
each subsequent failure to comply with this Act. All moneys received by the
Commissioner under this subsection (B) shall be paid into, and all expenses
incurred by the Commissioner under this subsection (B) shall be paid from, the
Bank and Trust Company Fund. (C) A network operating in this
State shall maintain a directory of the locations of cash‑dispensing terminals
at which an interchange transaction may be performed that are established or
owned in
this State by its members and shall file the directory with the Commissioner
within 60 days after the effective date of this amendatory Act of 1997 and
thereafter once per calendar year. (Source: P.A. 89‑310, eff. 1‑1‑96; 90‑189, eff. 1‑1‑98.)
(205 ILCS 616/35) Sec. 35. Limit on switch connections. No main office or branch of a
financial institution shall at
the same time be
directly connected to more than one switch; provided, however, that (a) no
financial institution shall be deemed to be directly connected to a switch that
is, or is owned directly or indirectly by, that financial institution, and (b)
nothing
in this Act shall preclude (1) a terminal that does not accept deposits from
being
connected to more than one switch, (2) a network from utilizing more than one
switch, or (3) a network from utilizing a single switch. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/40) Sec. 40. Transmission through a network. All electronic fund transfers
that (i) are interchange
transactions and (ii) are
initiated at a terminal in connection with payment for goods and services shall
be transmitted to a financial institution through a network. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/45) Sec. 45. Nondiscriminatory access. (a) Subject to the provisions of Section 35 of this Act,
use of a terminal through access to a switch and use of
any switch shall be available on a nondiscriminatory basis to any switch or
financial institution that has its principal place of business within this
State. The terms and conditions of use shall be governed by a written
agreement between the network and the financial institution or other switch
obtaining the use. The written agreement shall specify all of the terms and
conditions under which the network may be utilized, including commercially
reasonable fees and charges. (b) The use and operation of each terminal served by a switch shall be
governed by a written agreement between the network and the person establishing
the terminal. The written agreement shall specify all the terms and conditions
under which the network provides service to the terminal, including
commercially reasonable fees and charges. (c) (Blank). (Source: P.A. 92‑811, eff. 8‑21‑02.)
(205 ILCS 616/50) Sec. 50. Terminal requirements. (a) To assure maximum safety and security against
malfunction, fraud, theft, and other accidents or abuses and to assure that all
access devices will have the capability of activating all terminals established
in this State, no terminal shall accept an access device
that does not conform to specifications that are generally accepted. In the
case of a dispute concerning the specifications, the Commissioner, in
accordance with the provisions of Section 20 of this Act, shall have the
authority to determine the specifications. (b) No terminal that does not accept an
access device that conforms with those specifications shall be established or
operated. (c) A terminal shall bear a logotype or other identification
symbol designed to advise customers which access devices may activate the
terminal. (d) When used to perform an interchange transaction, a terminal shall not
bear any form of proprietary advertising of products and services not offered
at the terminal; provided, however, that a terminal screen may bear proprietary
advertising of products or services offered by a financial institution when a
person uses an access device issued by that financial institution. (e) No person operating a terminal in this State shall impose any
surcharge on a consumer for the usage of that terminal, whether or not the
consumer is using an access device issued by that person, unless that surcharge
is clearly disclosed to the consumer both (i) by a sign that is clearly visible
to the consumer on or at the terminal being used and (ii) electronically on the
terminal screen. Following presentation of the electronic disclosure on the
terminal screen, the consumer shall be provided an opportunity to cancel that
transaction without incurring any surcharge or other obligation. If a
surcharge is imposed on a consumer using an access device not issued by the
person operating the terminal, that person shall disclose on the sign and on
the terminal screen that the surcharge is in addition to any fee that may
be assessed by the consumer's own institution. As used in this subsection,
"surcharge" means any charge imposed by the person operating the terminal
solely for the use of the terminal. (f) A receipt given at a terminal to a person who initiates an electronic
fund transfer shall include a number or code that identifies the consumer
initiating the transfer, the consumer's account or accounts, or the access
device used to initiate the transfer. If the number or code shown on the
receipt is a number that identifies the access device, the number must be
truncated as printed on the receipt so that fewer than all of the digits of the
number or code are printed on the receipt. The
Commissioner may, however, modify or waive the requirements imposed by this
subsection
(f) if the Commissioner determines that the modifications or waivers are
necessary to alleviate any undue compliance burden. (g) No terminal shall operate in this State unless, with respect to each
interchange transaction initiated at the terminal, the access code entered by
the consumer to authorize the transaction is encrypted by the device into
which the access code is manually entered by the consumer and is transmitted
from the terminal
only in encrypted form. Any terminal that cannot meet the foregoing encryption
requirements shall immediately cease forwarding information with respect to any
interchange transaction or attempted interchange transaction. (h) No person that directly or indirectly provides data processing support
to
any terminal in this State shall authorize or forward for authorization any
interchange transaction unless the access code intended to authorize the
interchange transaction is encrypted when received by that person and is
encrypted when forwarded to any other person. (i) A terminal operated in this State may be designed and programmed so
that when a consumer enters his or her personal identification number in
reverse order, the terminal automatically sends an alarm to the local law
enforcement agency having jurisdiction over the terminal location. The
Commissioner
shall promulgate rules necessary for the implementation of this subsection (i). The provisions of this subsection (i) shall not be construed to require an owner or operator of a terminal to design and program the terminal to accept a personal identification number in reverse order.
(j) A person operating a terminal in this State may not impose a
fee upon
a
consumer for usage of the terminal if the consumer is using a Link Card or
other access device issued by a government agency for use in obtaining
financial aid under the Illinois Public Aid Code. For the purpose of this subsection (j), the term "person
operating a
terminal" means the person who has control over and is responsible for a
terminal. The term "person operating a terminal" does not mean the person who
owns or controls the property or building in which a terminal is located,
unless he or she also has control over and is responsible for the terminal. (Source: P.A. 93‑136, eff. 1‑1‑04; 93‑273, eff. 1‑1‑04; 93‑583, eff. 1‑1‑04; 93‑898, eff. 8‑10‑04.)
(205 ILCS 616/55) Sec. 55. Applicability of federal law. (a) The provisions of the federal Electronic Fund Transfer Act
(15 U.S.C.
1693a et seq.), amendments to that Act, and any regulations issued
or that may be issued under that Act, except for those provisions, amendments,
or
regulations that establish crimes or provide for nonfinancial penalties, are
hereby adopted as part of this Act. Compliance with federal law shall be
deemed to be compliance with this Section. (b) A consumer may authorize an electronic fund transfer by arranging for
a debit to the consumer's account and specifying the designated payee. In that
case, the financial institution shall execute the transfer by the end of the
next business day after entry of the debit. For purposes of this subsection,
"consumer" means a natural person. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/60) Sec. 60. Judicial review. All final administrative decisions of the
Commissioner under this Act shall be subject to judicial review pursuant to the
provisions of the Administrative Review Law and the rules adopted pursuant to
that Law. For matters involving administrative review, venue shall be in
either Sangamon County or Cook County. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/65) Sec. 65. Inseverability and severability. If any provision of this Act
or its application to any person or circumstance is held invalid, this Act
shall be invalid in its
entirety, provided, however, that if any provision of this Act or its
application is held invalid under
the Home Owners Loan Act of 1933, as amended, the Federal Home Loan Bank Act,
as amended, or the Federal Credit Union Act, as amended, the invalidity of that
provision or application does not affect other provisions or applications that
can be given effect without the invalid provision or application. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/70) Sec. 70. Illinois Electronic Fund Transfer Advisory Committee. (a) The Illinois Electronic Fund
Transfer Advisory Committee shall consist of the Commissioner, who shall
be its Chairman, and 10 additional members who shall be appointed by the
Governor with the advice and consent of the Senate and
whose respective
qualifications shall be as follows: (i) one member shall be from a State bank,
(ii) one member shall be from a national bank, (iii) one member shall be from a
State savings and loan association or savings bank, (iv) one member shall be
from a federal savings and
loan association or savings bank, (v) one member shall be from a State credit
union, (vi) one member shall
be from a federal credit union, (vii) 2 members shall be sellers of goods and
services, (viii) 2 members shall be from networks or companies that
provide network‑related data processing services
who are executive officers within the electronic fund transfer field of their
respective businesses, and all of whom shall have had no less than 2 years
experience in the field of commercial electronic fund transfer activity.
The members of the Committee created under the Electronic Fund Transfer
Transmission Facility Act who hold office on the effective date of this Act
shall be the members of the Committee under this Act and shall continue to hold
office for the term for which they were appointed. (b) The terms of office of the members of the Committee shall be as follows: (i) The term of office of each member shall be 4
years, except that an appointment to fill a vacancy shall be for the unexpired term of the member whose vacancy is being filled.
(ii) No member shall serve more than 2 full 4‑year
terms of office.
(iii) The term of office of any member of the
Illinois Electronic Fund Transfer Advisory Committee shall terminate automatically when the member no longer meets the qualifications for that member's appointment to the Committee.
(c) The Electronic Fund Transfer Committee shall meet at least
once in each calendar year. Special meetings may be called by the Commissioner
or upon the request of any 4 members of the Committee. Each member shall serve
without compensation, but shall be reimbursed for any ordinary and necessary
expenses incurred in attending meetings of the Committee. (d) The Committee shall have the following powers: (i) to make recommendations to the Commissioner
concerning matters which he may refer to the Committee for consideration;
(ii) to make recommendations on its own initiative
concerning electronic fund transfer administration, examination and supervision policies and practices to the Commissioner, the Governor or the General Assembly;
(iii) to make recommendations to the Commissioner
for the purpose of preventing and minimizing unsafe and unsound practices in the field of electronic fund transfer; and
(iv) to foster and encourage the interest and
cooperation of members involved in the delivery of electronic fund transfer services to the public and in the improvement of electronic fund transfer services.
(205 ILCS 616/75) Sec. 75. Illinois Electronic Data Processing Advisory Committee. (a) The Illinois Electronic Data
Processing Advisory Committee shall consist of the Commissioner, who
shall be its Chairman, and 8 additional members. The 8 additional members
shall be appointed by the Governor with the advice and
consent of the Senate.
The members of the Committee created under the Electronic Fund Transfer
Transmission Facility Act who hold office on the effective date of this Act
shall be the members of the Committee under this Act and shall continue to hold
office for the term for which they were appointed.
The members shall be divided into 2 separate groups and shall have the
following qualifications: (i) Group 1 shall consist of 4 members who are
executive officers of State bank data processing service bureaus and who shall have had no less than 2 years experience in the field of electronic data processing.
(ii) Group 2 shall consist of 4 members who are
executive officers of independent data processing service bureaus located in the State of Illinois and who shall have no less than 2 years experience in the field of electronic data processing.
(b) The terms of office of all Group 1 and Group 2 members of
the Committee shall be as follows: (i) The term of office of each Group 1 member shall
be 4 years, except that an appointment to fill a vacancy shall be for the unexpired term of the member whose vacancy is being filled.
(ii) The term of office of each Group 2 member shall
be 4 years, except that an appointment to fill a vacancy shall be for the unexpired term of the member whose vacancy is being filled.
(iii) No Group 1 or Group 2 member shall serve more
than 2 full 4‑year terms of office.
(iv) The term of office of any member of the
Illinois Electronic Data Processing Advisory Committee shall terminate automatically when the member no longer meets the qualifications for that member's appointment to the Committee.
(c) The Electronic Data Processing Advisory Committee shall meet
at least once in each calendar year. Special meetings may be called by the
Commissioner or upon the request of any 3 members of the Committee. Each
member shall serve without compensation, but shall be reimbursed for any
ordinary and necessary expenses incurred in attending meetings of the
Committee. (d) The Committee shall have the following powers: (i) to make recommendations to the Commissioner
concerning matters which he may refer to the Committee for consideration;
(ii) to make recommendations on its own initiative
concerning electronic data processing administration, examination and supervision policies and practices to the Commissioner, the Governor or the General Assembly;
(iii) to make recommendations to the Commissioner
for the purpose of preventing and minimizing unsafe and unsound practices in the field of electronic data processing; and
(iv) to foster and encourage the interest and
cooperation of members involved in the delivery of electronic data processing services to the public and in the improvement of electronic data processing services.
(205 ILCS 616/80) Sec. 80. Continuity of regulation. This Act is a successor Act to and a
continuation of the regulation of electronic fund transfers pursuant to the
Electronic Fund Transfer Transmission Facility Act. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/85) Sec. 85. Reliance on Commissioner. No person shall be liable under this
Act
for any act done or omitted in good faith in conformity with any rule,
interpretation, or opinion issued by the Commissioner of Banks and Real Estate,
notwithstanding that after the act or omission has occurred, the rule,
interpretation, or opinion upon which reliance is placed is amended, rescinded,
or determined by judicial or other authority to be invalid for any reason. (Source: P.A. 90‑665, eff. 7‑30‑98.)
(205 ILCS 616/89) Sec. 89. The Electronic Fund Transfer Transmission Facility Act is
repealed. (Source: P.A. 89‑310, eff. 1‑1‑96.)
(205 ILCS 616/91) Sec. 91. (Amendatory provisions; text omitted). (Source: P.A. 89‑310, eff. 1‑1‑96; text omitted.)
(205 ILCS 616/93) Sec. 93. (Amendatory provisions; text omitted). (Source: P.A. 89‑310, eff. 1‑1‑96; text omitted.)
(205 ILCS 616/94) Sec. 94. (Amendatory provisions; text omitted). (Source: P.A. 89‑310, eff. 1‑1‑96; text omitted.)
(205 ILCS 616/95) Sec. 95. (Amendatory provisions; text omitted). (Source: P.A. 89‑310, eff. 1‑1‑96; text omitted.)
(205 ILCS 616/96) Sec. 96. (Amendatory provisions; text omitted). (Source: P.A. 89‑310, eff. 1‑1‑96; text omitted.)
(205 ILCS 616/97) Sec. 97. (Amendatory provisions; text omitted). (Source: P.A. 89‑310, eff. 1‑1‑96; text omitted.)
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