BILL ANALYSIS                                                                                                                                                                                                    �



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          Date of Hearing:   April 28, 2014

                      ASSEMBLY COMMITTEE ON BANKING AND FINANCE
                               Roger Dickinson, Chair
                   AB 1927 (Frazier) - As Amended:  April 10, 2014
                              AS PROPOSED TO BE AMENDED
           
          SUBJECT  :   Student financial aid: debit cards.

           SUMMARY  :   Specifies the creation of policies concerning the  
          issuance of financial aid via debit cards.  Specifically,  this  
          bill  :  

          1)Requires the Board of Governors of the California Community  
            Colleges and the Trustees of the California State University  
            and requests the Regents of the University of California as  
            well as the governing bodies of private institutions  
            (henceforth be referred to as "educational institutions") to  
            adopt policies relating to the disbursement of financial aid  
            via debit cards, prepaid, or preloaded card (All further  
            references will be to "debit cards").  

          2)Specifies that the aforementioned policies should be used for  
            negotiating contracts between educational institutions and  
            financial institutions.

          3)Provides that the policies adopted shall be consistent with  
            federal law, and ensure that contracts between  educational  
            institutions and banks or other financial institutions to  
            disburse financial aid onto debit cards shall meet the  
            following standards:

             a)   Prohibit revenue sharing between educational  
               institutions and banks or other financial institutions;

             b)   Prohibit the sale or sharing of private information that  
               the student or the educational institution provides the  
               bank or other financial institution;

             c)   Prohibit the bank or other financial institution from  
               imposing unreasonable fees, including a point of sale  
               transaction fee on a student for the use of the debit card;

             d)   Provide that if the card is cobranded the student shall  
               receive a disclosure that the card is not endorsed by the  








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               educational institution;

             e)   Require a disclosure of all fees associated with the  
               debit card;

             f)   Ensure that the student does not incur any cost in  
               opening the account or initially receiving the debit card;

             g)   Ensure that the student has convenient access to a  
               branch office of the bank or an automated teller machine  
               (ATM) of the bank in which the account was opened or of  
               another bank, so that the student does not incur any cost  
               in making withdrawals from that office or those ATMs;

             h)   The branch office or ATMs must be located on the  
               educational institution's campus, in an institutionally  
               owned or operated facility, or immediately adjacent to and  
               accessible from the campus;

             i)   Ensure that the debit card can be widely used; 

             j)   Not market or portray the account or debit card, prepaid  
               card, or preloaded card as a credit card or credit  
               instrument, or subsequently convert the account or debit  
               card to a credit card or credit instrument; and,

             aa)  Disclose to students the benefits and responsibilities  
               of all options of financial aid disbursement that are  
               offered by the educational institution. 

           EXISTING FEDERAL LAW  

          1)Pursuant to 30 C.F.R., Section 668.164, provides that an  
            educational institution may establish a policy requiring its  
            students to provide bank account information or open an  
            account at a bank of their choosing, as long as this policy  
            does not delay the disbursement of specified federal loan  
            funds to students.  Requires institutions that open bank  
            accounts on students' or parents' behalfs, establish a process  
            that students or parents can follow to open a bank account, or  
            assist students or parents in opening accounts to do all of  
            the following:

             a)   Obtain written consent from the student or parent to  
               open the account;








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             b)   Inform the student or parent of the terms and conditions  
               associated with accepting and using the account, before  
               opening it;

             c)   Refrain from making any claims against the funds in the  
               account without the written permission of the student or  
               parent, except to correct an error in transferring the  
               funds;

             d)   Ensure that the student or parent does not incur any  
               cost to open the account or initially receive any type of  
               debit card, stored-value card, or other type of ATM card,  
               or similar transaction device used to access the funds in  
               that account;

             e)   Ensure that the student has convenient access to a  
               branch office of the bank or an ATM of the bank in which  
               the account was opened (or an ATM of another bank), so that  
               the student does not incur any cost to make cash  
               withdrawals from that office or those ATMs.  This branch  
               office or these ATMs must be located on the institution's  
               campus, in institutionally-owned or operated facilities, or  
               immediately adjacent to and accessible from the campus;

             f)      Ensure that the debit card, or other device, can be  
               widely used (e.g., the institution may not limit the use of  
               the card or device to particular vendors); and

             g)   Not market or portray the account, card, or device as a  
               credit card or credit instrument, or subsequently convert  
               the account, card, or device to a credit card or credit  
               instrument;

          2)Allows schools to contract with servicers for the  
            administration of any aspect of the school's participation in  
            Title IV programs and specifies that a school may accept the  
            standard contract terms and conditions in a servicer's  
            proposal for delivering credit balances or negotiate the terms  
            and conditions to meet the specific needs of the school or its  
            students (34 CFR � 668.25).

           EXISTING STATE LAW  

          1)Defines the term "debit card" as an accepted card or other  








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            means of access to a debit cardholder's account that may be  
            used to initiate electronic funds transfers and may be used  
            without unique identifying information such as a personal  
            identification number to initiate access to the debit  
            cardholder's account (Civil Code [CIV] � 1748.30).

          2)Limits a debit cardholder's liability for unauthorized use of  
            a debit card (CIV � 1748.31).

          3)Provides for a variety of student financial aid programs  
            including the Cal Grant programs and the CCC Board of  
            Governors fee waiver program.  Current law requires that  
            eligibility for a Cal Grant and the determination of financial  
            need be accomplished using the Free Application for Federal  
            Student Aid (FAFSA), and that this application be used for all  
            programs funded by the state or a public institution of  
            post-secondary education, as well as all federal programs  
            administered by an educational institution.  Current law makes  
            an exception to this requirement for the Board of Governors  
            fee waiver program which is authorized to use a simplified  
            application designed for that sole purpose (Education Code �  
            69432.9 and � 69433).

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

          In citing the need for the bill, the author's office provides  
          the following:

               According to a 2012 report by the U.S. Public Interest  
               Research Group, Campus Debit Card Trap, banks and financial  
               firms are forming partnerships with colleges and  
               universities to produce campus ID cards and to offer  
               student aid disbursements on debit or prepaid cards. The  
               federal government requires that schools disburse financial  
               aid refunds to students free of charge; however, these  
               debit cards can come with fees for other services that can  
               take away from students' aid. As a result students end up  
               bearing some costs directly, including per-swipe fees,  
               inactivity fees, overdraft fees, ATM fees and more.  

               The report contends that debit cards for disbursing funds  
               may be good for colleges, but argue that cash-strapped  
               students absorb the costs.  The U.S. Public Interest  








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               Research Group study finds that some debit cards come with  
               fees as high as 50 cents per swipe in transaction fees,  
               $38.00 per overdraft and $10.00 for inactivity after six  
               months without use.  The PIRG study also finds that  
               students do not fully realize what they are signing up for  
               when they elect to receive their financial aid award via  
               debit card.

               A February 2014 report by the United States Government  
               Accountability Office (GAO) identified the nonbank  
               financial firm Higher One as the dominant provider with 57  
               percent of the market share. Higher One has contracts with  
               a number of the California Community Colleges and  
               Districts, as well as a partnership with California State  
               University Fresno to distribute financial aid, including  
               CalGrants.

               In August 2012, the Federal Deposit Insurance Corporation  
               (FDIC) ordered Higher One to pay restitution of nearly $11  
               million to approximately 60,000 students for unfair and  
               deceptive practices, and was obligated to pay $110,000 in  
               civil penalties. Most recently in November 2013, Higher One  
               entered an agreement to settle a class action lawsuit for  
               $15 million. The lawsuit was initiated by students who  
               claimed they were being charged excessive fees and were  
               misled by marketing that inferred Higher One's product was  
               the schools' preferred method of receiving financial aid.

               The GAO also reports that many concerns have been raised  
               over revenue sharing agreements that may exist between  
               colleges and contracted third-parties. Federal officials  
               and consumer advocates question whether the payments or  
               benefits that a college receives may encourage schools to  
               choose a contract that provides the school the most  
               revenue, as opposed to a contract that best serves the  
               needs of the students.

          AB 1927 arises out of concern that college students in  
          California that receive some form of financial aid via debit  
          card may not be aware of the actual costs of using this method  
          of receiving aid, and that the relationship between educational  
          institutions and financial institutions has created pressure to  
          over promise and under deliver the benefits of a debit card use  
          for financial aid delivery.  The GAO released a report in  
          February 2014, College Debit Cards, Actions Needed to Address  








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          ATM Access, Student Choice, and Transparency that raised several  
          concerns that are the subject of this legislation.  The GAO  
          report found that the use of debit cards can be beneficial for  
          students and schools.  The use of cards for aid disbursement can  
          lower the costs of issuing paper checks, decrease chances of  
          fraud, expand functionality and defray costs of student ID  
          cards.  These cards also provide revenue generation  
          opportunities for campuses as some campuses and card providers  
          have payment arrangements based on card activity that can bring  
          in extra money to the campus.  Additionally, financial aid  
          offices can outsource their disbursement activities and the  
          accompanying overhead costs to the card providers.  These cards  
          can benefit students by providing a way to enter the mainstream  
          as some college students are unbanked.  When such cards are  
          linked to the student's ID card it can provide multipurpose  
          convenience as a single card can perform banking functions and  
          facilitate access to campus buildings and library services.   
          Funds can be available the same day that they are released to  
          the provider, versus 2-3 business days of direct deposit, or 5-7  
          days for paper check.

          The GAO report examined the common complaints arising from the  
          use of debit cards for financial aid disbursement.  The  
          following are some of the GAO findings:

          Fees: Generally the fees charged for the use of college debit  
          cards were similar to those fees charged for basic checking  
          accounts offered by national banks.  Fees were also lower for  
          college debit cards than for alternative financial services like  
          check cashing stores.  The GAO found that fees for transactions  
          involving personal identification numbers (PIN) exceeded those  
          of traditional bank accounts as Higher One and Citibank,  
          representing 60% of the market charge $0.50 for transactions  
          that use PIN rather than signature.  No other basic or student  
          checking account reviewed by GAO charged this fee.   The fee can  
          be avoided by authorizing a purchase with signature, but the  
          signature option involves choosing the "credit" option on the  
          point of sale device which be confusing for students as the card  
          is a debit card, not a credit card.  The use of student debit  
          cards can also lead to the imposition of ATM charges if the  
          student uses an out of network ATM.  Typically, these fees range  
          from $2.00-$3.00 per transaction plus the operator of the out of  
          network ATM may also impose a surcharge of around $2.00.    
          However, these out of network ATM fees are very common across  
          all types of traditional banking accounts.








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          ATM access:  Out of network ATM charges may be common among all  
          types of bank accounts, but the access to ATMs for college debit  
          cards may create situations where students face surcharges that  
          could otherwise be avoided.  ATM coverage varies from school to  
          school.  Also, at some schools, students may face lengthy lines  
          to access free ATMs, or that ATMs are in locations that are not  
          available outside of normal business hours.  Federal Department  
          of Education (Education) regulations require that students have  
          "convenient access" to ATMs or a branch office where students  
          will not incur any costs making cash withdrawals from the bank  
          in which the account was opened.  The definition of "convenient"  
          is that the branch office or ATM must be located on the  
          institution's campus, in institutionally owned or operated  
          facilities, or a location immediately adjacent to and accessible  
          from the campus.
          
          Neutrality:  Concerns have arisen that school and industry  
          practices may influence student's choice of the debit card  
          option even when it may not be the best choice.  Schools can  
          appear to implicitly or explicitly endorse college cards via  
          their relationship with the card provider and co-branding of the  
          card.  Many students believe that the co-branding is an  
          endorsement and indication that the school has negotiated the  
          best terms.  Four of eight card providers interviewed by the GAO  
          said that at least some of their agreements with schools include  
          exclusivity clauses that bar other financial institutions from  
          locating ATMs or an office on campus.  Signing up for a college  
          debit card is the option of the student, yet in some cases  
          schools do not provide payment options in a clear or neutral  
          fashion which appear to encourage the students to pick the  
          college card over other options.

          The GAO is not the only entity to report on this subject.  On  
          March 10, 2014 the United States Department of Education, Office  
          of Inspector General (DOEOIG) released a report, "Third-Party  
          Servicer Use of Debit Cards to Deliver Title IV Funds."  DOE OIG  
          performed work at schools that outsourced credit balance  
          delivery gave servicers significant control over the Title IV  
          funds delivery process and relied on them to meet Title IV  
          regulations. However, the schools did not appear to routinely  
          monitor all servicer activities related to this contracted  
          function, including compliance with all Title IV regulations and  
          student complaints. 









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          1)Schools did not prevent their servicers from using marketing  
            and other strategies to persuade students to select their  
            debit card over other available options.  

          2)The schools' servicers appeared to deliver Title IV funds to  
            students without charging fees.  However, students who chose a  
            servicer's debit card option could incur fees after the  
            servicer deposited the funds into the student accounts. In  
            some cases, those fees appeared to be unique or higher than  
            those of the alternative financial service providers.  

          3)Schools had financial incentives in their contracts with  
            servicers that created the potential for conflicts of interest  
            that could influence school officials' decisions and actions  
            at the expense of student interests.  

          4)Schools that contracted with Higher One had fee-free ATMs on  
            campus, but one school that contracted with Sallie Mae did  
            not.  

          5)Schools provided, or servicers collected, student information  
            that was not needed to deliver credit balances. In addition,  
            the schools did not monitor servicer activities for compliance  
            with Federal requirements for handling personally identifiable  
            information. 

           Pending federal rules.
           
          In response to a series of public hearings and outreach efforts,  
          Education began a negotiated rule making process to expand the  
          rules governing disbursement of financial aid via debit cards.   
          The proposed rules are as follows:

          1)The school must disclose conspicuously on its website, or  
            otherwise make public, the contract arrangement in its  
            entirety.

          2)Prior to the student or parent activating a debit card for the  
            disbursement of funds the school must do the following:

             a)   Inform the student or parent of the terms and conditions  
               of the account, and obtain in writing affirmative consent  
               from the student or parent to open the account; 

             b)   Review any information that is provided to the student  








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               or parent about the account, and the debit card associated  
               with the account, to ensure that the information is  
               presented to the student in an objective and neutral  
               manner;  

             c)   Acquire consent from the student or parent prior to  
               sending a debit card, prepaid car, or access device  
               associated with the account;

             d)   The school may not offer a debit card associated with  
               the account that bears the institution's logo or mascot, or  
               that otherwise implies an affiliation with the institution;

             e)   The school may not make any claims against the funds in  
               the account without the written permission of the student  
               or parent, except for correcting an error in transferring  
               the funds in accordance with banking protocols;

             f)   The school shall ensure that the student does not incur  
               any cost in-

               i)     Opening the financial account or initially receiving  
                 the debit card, prepaid card, or access device associated  
                 with the account;

               ii)    Maintaining the account; or

               iii)   Using the debit card to conduct any transaction at  
                 any ATM located in any State as defined in 600.2;

             g)   Must ensure that the debit card associated with the  
               account can be used nationally; 

             h)   May not market or portray the financial account, debit  
               card as a credit card or credit instrument, or subsequently  
               convert the account, card, or device to a credit card or  
               credit instrument; 

             i)   May not charge the student or parent any overdraft fees  
               if the financial account is overdrawn; 

             j)   Must ensure that:

               i)     The provider of the card or device provides the  
                 student or parent with pass-through deposit or share  








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                 insurance; and,

               ii)    The card or device does not have an attached line of  
                 credit or loan feature under which repayment from the  
                 account is triggered upon the delivery of a Federal  
                 payment, including a deposit or transfer of title IV, HEA  
                 program funds into the account; and

             aa)  The account provides the student or parent with all the  
               consumer protections that apply to a payroll card account  
               under the Electronic Fund Transfers Act; and,

             bb)  Ensure that the financial account is in the student's or  
               parent's name, or for a financial account that is a pooled  
               custodial account, the subaccount (or card or device) is in  
               the student's or parent's name.  The custodial bank account  
               must be established in the name of the institution or the  
               institution's third party servicer, and must be set up to  
               ensure that any title IV, HEA program funds that become the  
               pooled funds of the custodial account are credited  
               immediately to the student's or parent's subaccount (or  
               card or device).

          These proposed rules are subject to ongoing negotiations as  
          Education has recently announced the addition of a fourth round  
          of meetings to occur in mid-May 2014.  The background documents  
          and comments submitted concerning these proposed rules and the  
          rule making process are available at  
           http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/program 
          integrity.html  .

           Discussion.

           The April 10, 2014 version of this bill was heard in Assembly  
          Banking & Finance Committee on April 21st.  The bill was not  
          taken up for a vote at that time as the committee and author  
          wanted to provide more time for various parties to address some  
          of the issues brought up during the hearing.  

           Fees.
           
          The proposed mock-up under consideration would require that the  
          contracts between educational institutions and card issuers  
          avoid unreasonable fees, including any fees charged by the  
                                                       financial institution for point of sale transactions.   It is  








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          next to impossible to avoid all fees relating to financial  
          account transactions and maintenance.  Even debit cards issued  
          for unemployed insurance benefits, or public assistance have the  
          potential for user fees.  As the GAO report compared financial  
          aid debit cards with typical financial institution checking  
          accounts they found that even with the most basic starter  
          checking account not all fees can be avoided.  This  
          unfortunately has become part of life for consumers.   However,  
          the mock-up of AB 1927 attempts to address the one specific fee  
          that is rarely, if ever, included with traditional checking  
          accounts.  That is the imposition of a PIN fee by the financial  
          institution.  It is possible to be charged a fee by a retailer  
          when using a debit card, but typically the issuer of the card  
          does not charge such fees.  The GAO report found that some  
          financial aid debit card issuers have charged this fee to  
          students and that this type of fee is not  in the conventional  
          checking account marketplace.  This bill would prohibit  
          unreasonable fees, including a point of sale fee charged by the  
          card issuer.  This would place the potential fees that could be  
          charged to a student debit card more in align with the fees that  
          they would face if they established a checking account with a  
          bank or credit union.
           
          Pending federal regulations.

           As referenced earlier, the issues around student debit cards  
          have raised a number of questions and concerns.  The concerns  
          have led to a rulemaking process that is currently underway with  
          Education and various stakeholders in order to finalize proposed  
          rules (Outlined on page 6 of this analysis) that in many ways  
          significantly overlap with the proposed policies of AB 1927.   
          Typically, when these cases arise in which a legislative remedy  
          is proposed to an issue that is subject to pending federal  
          regulatory action the committee is advised to act with caution.   
          Often, this caution is reflected via a recommendation that the  
          proposed legislative solution should be held in committee until  
          such time as the federal regulatory landscape becomes clear.   
          Nevertheless, delayed action is not always recommended, as each  
          case must be evaluated subject to the specific facts relating to  
          the policy issues. 

          This committee, has on some occasions, allowed measures to move  
          forward even with pending federal action.  Several reasons may  
          justify further action.  First, that the issue is of such  
          importance to the state of California that the Legislature has a  








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          duty to react to federal action to potentially enhance and  
          exceed federal regulations.  Second, that the proposed federal  
          rules, subsequent to the rule making process, may not provide  
          the protections that the Legislature deems necessary for the  
          issue at hand.  Finally, that potential state action does not  
          create conflict, or the potential for different sets of federal  
          and state rules that could actually weaken the regulation of a  
          specific issue, rather than strengthen it.  In weighing these  
          issues staff identifies that the issues contained in AB 1927  
          meet the tests as outlined previously.  Is this issue of such  
          importance to California that specific state action may be  
          needed?  Yes, According to the National Center for Education  
          Statistics, California is number one in the nation with 2.6  
          million students attending post-secondary institutions meaning  
          that the issue of student debit cards potentially harms  
          California more than other states.  Will the proposed rules  
          provide the protection necessary?  While the proposed draft  
          rules are strong, it is difficult to determine how they will  
          look after completion of the federal rulemaking process.   
          Finally, would AB 1927 create a conflict?  The proposed  
          Education rules and AB 1927 may overlap but staff does not  
          believe that the federal rules and AB 1927 create conflict in  
          California.  

          In spite of the reasons outlining why pending federal regulation  
          should not delay this proposal, the committee may want to  
          consider that once the regulations are finalized that the this  
          bill should be called back to committee for further action in  
          order to resolve any conflict that could occur.
           
          Preemption

           Opposition to AB 1927 has argued that the ban on fees in the  
          bill is prohibited under the National Bank Act (NBA) and  
          therefore should AB 1927 become law it would be preempted in  
          relation to its enforcement pertaining to national banks.  The  
          issue as to whether a state law is preempted is best left to the  
          courts to decide.  Conversely, at times some issues are clearer  
          as to whether they may be potentially preempted.  In the present  
          case, the preemption argument is very tenuous.  The NBA and  
          subsequent court decisions that preempt state law typical  
          preempt direct state action or enforcement against national  
          banks.  AB 1927 requires educational institutions to meet the  
          standards in the bill when negotiating contracts for student  
          debit cards.  National banks are not required to do anything  








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          specified in AB 1927.  Frankly, in the post Dodd-Frank era  
          federal preemption doctrine is not a broad battle axe swinging  
          its way through state laws allowing national banks to abandon  
          compliance with state laws.   National banks, may in some way,  
          be indirectly affected by the outcome of AB 1927, but that does  
          not equate to federal preemption.  AB 1162 (Frazier) of 2013 is  
          telling in this regard.  The provisions of AB 1162 were  
          substantially similar to the provisions of AB 1927.  This is  
          important because the author requested an opinion from  
          Legislative Counsel on the preemption question as it related to  
          AB 1162.  Staff believes these two bills are so similar that the  
          Legislative Counsel Opinion on AB 1162 is analogous to AB 1927.   
          The following are some highlights of that opinion:

               In our view, merely encouraging a  educational institution  
               to consider certain issues when adopting contract  
               negotiation policies, even if those issues relate to  
               banking account fees, does not amount to regulation of the  
               manner, content, or terms and conditions of a financial  
               transaction or related account. AB 1162 would not prohibit,  
               or set any condition on, the exercise of a power granted to  
               a national bank. Further, if a national bank agreed to a  
               contract with a postsecondary educational institution that  
               included contract provisions relating to those specified  
               issues then the contract would not be preempted because  
               contractual obligations voluntarily agreed to by a national  
               bank that are more restrictive than federal law are not  
               preempted-See Smith v. Wells Fargo Bank, N.A. (2005) 135  
               Cal.App.4th 1463, 1483; Gibson v. World Savings & Loan  
               Assn. (2002) 103 Cal.App.4th 1291, 1299-1300.

               Even if a court were to interpret the provisions of AB 1162  
               to require postsecondary  educational institutions to  
               include a specific contractual provision relating to fees  
               in certain contacts with a national bank, we think that the  
               marketplace participant doctrine exception to federal  
               preemption?would apply in this context.

               We believe the provisions of AB 1162, if enacted, would  
               reflect only the state's desire to ensure that certain  
               postsecondary educational institutions of the state deliver  
               goods and services efficiently, and are not intended to  
               impose a particular policy on a national bank. Moreover,  
               since AB 1162 is narrowly drawn to apply only to specific  
               types of contracts and to provisions that best serve the  








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               needs of students, we think that the marketplace  
               participation doctrine would apply. 

               When supplying financial aid to a student, the state has an  
               interest, just as any private party that provides financial  
               aid would have, to ensure that the financial aid is  
               delivered to the student in a form that is efficient and  
               cost effective, and in a readily accessible manner."  
               Indeed, federal regulations require an institution that  
               provides federal financial aid to a student by creating an  
               account for that student at a bank, to ensure that "the  
               student or parent does not incur any cost in opening the  
               account or initially receiving any type of debit card,  
               stored-value card, or other type of automated teller  
               machine (ATM) card, or similar transaction device that is  
               used to access the funds in that account." (34 C.F.R. �  
               668.164.)  Thus, the state requiring, in a capacity,  
               specified protections for students would appear to be  
               consistent with the goals federal regulatory law that also  
               relate to the protection of students.  In short we think  
               that AB 1162 would not be enforcing a particular policy on  
               a national bank, but, instead, would only be rationally  
               exercising the authority of the state to narrowly use its  
               proprietary powers to ensure an effective delivery of goods  
               and services for contracts in which it is directly  
               involved. -See South Coast Air Quality Management, supra,  
               498 F.3d at p. 1041; Mayor of City of New York, supra, 4  
               Misc.3d at pp. 155-156.
           
           Furthermore, opponents have pointed to an overly broad legal  
          opinion that claims that AB 1162 would be preempted and by  
          extension so would AB 1927.  Much of the justification for this  
          belief relies on previous court cases such as:

               Municipal ordinances that prohibited national banks from  
               charging ATM fees to nondepositors. Bank of America, N.A.  
               v. City and County of San Francisco, 309 F.3d
               551, 564 (9th Cir. 2002), cert denied, 538 U.S. 1069  
          (2003).

               $800 underwriting fee imposed by a national bank for the  
          refinancing of mortgage
               loans. Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d  
               549, 556 (9th Cir.
               2010).








                                                                  AB 1927
                                                                  Page  15


               State law claims alleging that bank's practice of ordering  
          customer checks and debit
               card instructions using a protocol of "high-to-low" posting  
          is an "unfair" business
               practice. Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712  
          (9th Cir. 2012).

               State law claims alleging that federal savings and loan  
          association's policy not to
               refund lock-in fees after applicants cancelled transaction.  
          Silvas v. E*Trade Mortg.
               Corp. 514 F3d 1001, 1006 (9th Cir. 2008).

               Claim by judgment creditors seeking to compel national bank  
          to turn over garnished
               funds without deducting a garnishment fee. Monroe Retail,  
          Inc. v. RBS Citizens,
               N.A., 589 F.3d 274, 284 (6th Cir. 2010.) State law claims  
               by mortgagor that attacked lender's allegedly hidden fees.  
               Newsom v. Countrywide Home Loans, Inc., 714 F.Supp.2d 1000,  
               1010-1011 (N.D. Cal. 2010). 

               State law claims that mortgage lender failed to adequately  
          disclose that the "teaser"
               rate would only apply for one month and that the scheduled  
          monthly payments would
               be insufficient to repay interest and principal. Conder v.  
          Home Sav. of America, 680
               F.Supp.2d 1168, 1176 (C.D. Cal. 2010).

          While these cases establish the core case law of federal  
          preemption of state laws regarding national banks, not one of  
          these cases is analogous to AB 1927.  Each case involved a state  
          law that directly regulated the actions of a national bank  
          whereas AB 1927 specifies the minimum contract standards between  
          an educational institution and a student debit card issuer.  The  
          responsibilities and burden of compliance is placed on the  
          educational institutions.  Furthermore, the Office of  
          Comptroller of Currency (OCC) regulations contained in 12 C.F.R  
          �704007(b)(2) specify:  

               State laws on the following subjects are not inconsistent  
               with the deposit-taking powers of national banks and apply  
               to national banks to the extent consistent with the  








                                                                  AB 1927
                                                                  Page  16

               decision of the Supreme Court in Barnett Bank of Marion  
               County, N.A. v. Nelson, Florida Insurance Commissioner, et  
               al. 517 U.S. 25 (1996):

               (1) Contracts;

               (2) Torts;

               (3) Criminal law;
           
           AB 1927 is clearly a case concerning the state's authority to  
          regulate contracts.
           
          Amendments.

           This bill is being heard in mock-up form.  This analysis  
          reflects the changes in the mock-up.  

          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Communities United Institute
          CALPIRG
          Faculty Association of California Community Colleges (FACCC)
          The Student Senate for California Community Colleges
          University of California Student Association (UCSA)
          9 individuals

           Opposition 
           
          California Bankers Association (CBA)
          Higher One
           
          Analysis Prepared by  :    Mark Farouk / B. & F. / (916) 319-3081