No, we do not believe that you could advertise such an account as “free.” Before using electronic statements, your institution must obtain each customer’s opt-in, as required by the federal Electronic Signatures in Global and National Commerce (E-SIGN) Act, 15 USC 7001(c)(1), and the Illinois Financial Institutions Electronic Documents and Digital Signature Act, 205 ILCS 705/10(a). Without a customer’s opt-in, you would have to send paper statements, meaning that the monthly paper statement fee would be charged by default until you received an opt-in from the customer.

Regulation DD prohibits an advertisement from referring to or describing an account as free if any “maintenance or activity fee” may be imposed on the account. 12 CFR 1030.8(a)(2). A monthly paper statement fee would likely fall into the definition of “maintenance and activity fees,” a term that includes “[t]ransaction and service fees that consumers reasonably expect to be imposed on a regular basis [and] … a monthly service fee.”  12 CFR 1030.8(a)(2)Official Interpretations, 12 CFR 1030, Paragraph 8(a)(2), Comment 3.

However, you may be able to advertise certain account features as free, provided that your advertisements do not state or imply that the account is free:

Institutions may advertise a specific account service or feature as free if no fee is imposed for that service or feature. For example, institutions offering an account that is free of deposit or withdrawal fees could advertise that fact, as long as the advertisement does not mislead consumers by implying that the account is free and that no other fee (a monthly service fee, for example) may be charged.

Official Interpretations, 12 CFR 1030, Paragraph 8(a)(2), Comment 6.