I just don't see the overall harm being any different.
Like I said earlier, this is a fuzzy issue involving several considerations. It's easier to see "harm" if you look at it from the affected customer's point of view.
Typical checking account holders will have one or more recurring EFT credits--including payroll, retirement benefits, annuities, interest and dividend payments from other deposits and investments within the bank and elsewhere. Customers who are retired could have numerous recurring credits from several sources. If the depositor balks at both the e-statements and the fees, the third choice means the customer will have to direct all those payors to transfer the funds elsewhere.
It's the same type of inconvenience on the payment side--just a larger number of autodebits the customer will have to undo and redo. That will include the rent or mortgage, other debt payments, utility bills, memberships, etc. The former depositor will also have to forfeit the cost of whatever checks s/he paid to print.
The loss of any linked pricing benefits (like loan interest rate reductions for checking account holders) would add to the harm.
Turning to the law, there's no clear guidance, but what we do know includes:
- ESIGN consent must be optional. Existing customers don't really have much of an option if they're cornered between an unwanted fee and the hassle of uprooting a relationship and moving it elsewhere.
- Reg. E requires the bank to "send a periodic statement" disclosing e-transaction information, fees, and other items. These disclosures must be delivered "in writing and in a form the consumer may keep." The regulation is silent on the question of charging a fee relating to the (legally required) delivery of these disclosures. As Randy mentioned above, RESPA has a clear prohibition of fees relating to the production or delivery of required disclosures. Even though Congress didn't write similar prohibitions into all the other consumer protection laws, it would be a mistake to view that as permissive. If such a prohibition were ever proposed, I doubt there would be many dissenting votes.
So...if the general spirit of consumer protection leans away from allowing fees related to the production or delivery of legally required disclosures, it's smarter to bundle the cost differential for e vs. paper statements in a product level service charge. That way you can present the idea of e-delivery as a carrot, not a stick. Depositors who want to reduce or eliminate the standard service charge can do so by maintaining qualifying balances, consenting to e-statements, and doing other things that add to the bank's bottom line.