There may be some confusion on a different point.
The FDIC has softened its stance on "requiring" reimbursement of overdraft fees when banks ran Reg E opt-ins, but did not actually offer an overdraft service. They still ask for reimbursement, but do not demand it.
That has no effect on the regulators' somewhat uniform opinion that manipulating the order of payment to maximize fee income is an unfair and deceptive practice on its face. If the bank gets what it deserves it would be ordered to do an extensive "look back" calculation, required to reimburse its customers, and the agency would feed the story to the local media. A financial penalty imposed under state or federal law might also be in the offing.
Banks that continue to do this are simply asking for it...
In this world you must be oh so smart or oh so pleasant. Well, for years I was smart. I recommend pleasant.