72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 915
Senate Bill 121
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Attorney General Hardy
Myers for Department of Justice)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Directs Attorney General to contract for services of
administrator who will create, maintain and make available list
of electronic mail addresses of parties who wish not to receive
electronic mail solicitations. Prohibits electronic mail
solicitation to electronic mail address on list. Creates
exceptions. Makes violation of prohibition unlawful trade
practice.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to electronic mail solicitations; creating new
provisions; amending ORS 646.608; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 5 of this 2003 Act,
unless the context requires otherwise:
(1) 'Electronic mail address' means a destination, commonly
expressed as a string of characters, to which a person may send
or deliver electronic mail to a party. 'Electronic mail address '
includes personal and commercial electronic mail addresses.
(2) 'Electronic mail solicitation' means an electronic mail
message sent for the purpose of promoting, directly or
indirectly, the sale, lease or rental of goods or services, or of
encouraging a party to make a donation. 'Electronic mail
solicitation' does not include a message:
(a) Sent at the express request of the party receiving the
message;
(b) That responds to a request or inquiry from the party
receiving the message; or
(c) That is exchanged between persons who have an existing
business or personal relationship.
(3) 'Information about a party' means information specific to a
party, including, but not limited to, the name, address and
telephone number of the party and the method by which the party
paid the fee required by section 5 of this 2003 Act.
(4) 'Internet' and 'Internet access' have the meanings given
those terms in ORS 305.822.
(5) 'Party' means:
(a) A person who is a resident of this state and who has an
electronic mail address; or
(b) A person with an electronic mail address on a computer in
this state. + }
SECTION 2. { + (1) A person may not engage in the electronic
mail solicitation of a party at an electronic mail address on the
then-current list published by the administrator of the
electronic mail solicitation program established under sections 3
and 4 of this 2003 Act.
(2) A person engages in an electronic mail solicitation if the
person:
(a) Requests, composes, initiates, sends or transmits an
electronic mail solicitation; or
(b) Provides substantial assistance to the person who requests,
composes, initiates, sends or transmits an electronic mail
solicitation.
(3) A person who provides Internet access does not engage in an
electronic mail solicitation unless the person knows or has
reason to know that a person is using the Internet access to
engage in an electronic mail solicitation. + }
SECTION 3. { + (1) The Attorney General shall advertise a
request for proposals and enter into a contract with a person to
act as the administrator of the electronic mail solicitation
program described in section 4 of this 2003 Act. The contract may
include any provision that the Attorney General determines is in
the public interest.
(2) In the manner provided by ORS 183.310 to 183.550, the
Attorney General may adopt rules relating to any aspect of the
establishment, operation or administration of the electronic mail
solicitation program. + }
SECTION 4. { + (1) The administrator of the electronic mail
solicitation program shall create and maintain a list of
electronic mail addresses of parties who wish not to receive any
electronic mail solicitation at the listed electronic mail
address. The administrator shall make the list available on a
searchable site accessible through the Internet or the World Wide
Web.
(2) At least once each month, the administrator shall update
the list by:
(a) Adding the electronic mail addresses of parties who have
registered and paid the fee as required in section 5 of this 2003
Act.
(b) Removing the electronic mail addresses of parties who have
requested that their electronic mail addresses be removed or
whose registrations have expired without renewal.
(3) The administrator may not furnish access to the list or
disclose any information about a party except as follows:
(a) Upon request of a person engaging or intending to engage in
electronic mail solicitations and after payment of the fee
prescribed by rule or specified in the contract between the
administrator and the Attorney General, the administrator shall
furnish access to the most recent copy of the list described in
subsection (1) of this section.
(b)(A) Upon request of the Attorney General for the purpose of
enforcing section 2 of this 2003 Act, the administrator shall
furnish the Attorney General with all requested information about
a party whose electronic mail address is on the list or a person
who the Attorney General believes has engaged in an electronic
mail solicitation prohibited by section 2 of this 2003 Act. The
administrator may not charge a fee for furnishing the information
to the Attorney General.
(B) Information about a party who has registered under section
5 of this 2003 Act is confidential. The Attorney General may not
disclose information about a party.
(c) Upon request of a party who has registered and paid the fee
as provided in section 5 of this 2003 Act, the administrator
shall furnish the party with all requested information about the
party or about any person who the party believes has engaged in
an electronic mail solicitation prohibited by section 2 of this
2003 Act. The administrator may not charge a fee for furnishing
the information to a party who has registered and paid the fee as
provided in section 5 of this 2003 Act.
(d) The administrator shall comply with any lawful subpoena or
court order directing disclosure of the list and of any other
information.
(e) The administrator shall provide all information that may be
requested by any successor administrator who may be selected by
the Attorney General. The administrator may not charge a fee for
furnishing the information to the successor administrator.
(4) The administrator shall promptly forward any complaints
concerning alleged violations of section 2 of this 2003 Act to
the Attorney General.
(5) Fees collected by the administrator under subsection (3)(a)
of this section shall be considered income to the administrator
as prescribed by rule or as specified in the contract between the
administrator and the Attorney General.
(6) When furnishing the list or other information under
subsection (3)(b) to (e) of this section, the administrator shall
make the list or other information available in printed and
electronic form. + }
SECTION 5. { + (1) A party may place the party's electronic
mail address on the list described in section 4 of this 2003 Act
by registering with the administrator of the electronic mail
solicitation program and paying the fee prescribed by the
Attorney General in the contract with the administrator. The
registration shall be filed in the form and manner specified in
the contract between the administrator and the Attorney General.
The fee may not exceed $5 per electronic mail address per year. A
party's registration is effective for one year from the date the
party files the registration. A party may renew the registration
for additional periods of one year by filing an additional
registration and paying an additional fee, as set forth in the
contract between the Attorney General and the administrator, on
or before the anniversary of the original submission date of the
registration.
(2) A registration submitted under this section constitutes a
declaration, prepared under penalty of perjury, that the party
making the submission is a resident of this state or has an
electronic mail address on a computer located in this state. + }
SECTION 6. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(aa) Violates ORS 646.850 (1).
(bb) Violates any requirement of ORS 646.661 to 646.686.
(cc) Violates the provisions of ORS 128.801 to 128.898.
(dd) Violates ORS 646.883 or 646.885.
(ee) Violates any provision of ORS 646.195.
(ff) Violates ORS 646.569.
(gg) Violates the provisions of ORS 646.859.
(hh) Violates ORS 759.290.
(ii) Violates ORS 646.872.
(jj) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(kk) Violates ORS 646.563.
(LL) Violates ORS 759.690 or any rule adopted pursuant thereto.
(mm) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(nn) Violates ORS 646.892 or 646.894.
(oo) Violates any provision of ORS 646.249 to 646.259.
(pp) Violates ORS 646.384.
(qq) Violates ORS 646.871.
(rr) Violates ORS 822.046.
(ss) Violates ORS 128.001.
(tt) Violates ORS 646.649 (2) to (4).
(uu) Violates ORS 646.877 (2) to (5).
(vv) Violates ORS 87.686.
(ww) Violates ORS 646.651.
(xx) Violates ORS 646.879.
(yy) Violates ORS 646.402 or any rule adopted under ORS 646.402
or 646.404.
{ + (zz) Violates section 2 of this 2003 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) No action or suit shall be brought under subsection (1)(u)
of this section unless the Attorney General has first established
a rule in accordance with the provisions of ORS 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
SECTION 7. ORS 646.608, as amended by section 13, chapter 924,
Oregon Laws 2001, is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646.850 (1).
(cc) Violates any requirement of ORS 646.661 to 646.686.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS 646.195.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS 646.859.
(ii) Violates ORS 759.290.
(jj) Violates ORS 646.872.
(kk) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(LL) Violates ORS 646.563.
(mm) Violates ORS 759.690 or any rule adopted pursuant thereto.
(nn) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(oo) Violates ORS 646.892 or 646.894.
(pp) Violates any provision of ORS 646.249 to 646.259.
(qq) Violates ORS 646.384.
(rr) Violates ORS 646.871.
(ss) Violates ORS 822.046.
(tt) Violates ORS 128.001.
(uu) Violates ORS 646.649 (2) to (4).
(vv) Violates ORS 646.877 (2) to (5).
(ww) Violates ORS 87.686.
(xx) Violates ORS 646.651.
(yy) Violates ORS 646.879.
(zz) Violates ORS 646.402 or any rule adopted under ORS 646.402
or 646.404.
{ + (aaa) Violates section 2 of this 2003 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) No action or suit shall be brought under subsection (1)(u)
of this section unless the Attorney General has first established
a rule in accordance with the provisions of ORS 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
SECTION 8. { + (1) Sections 1 to 5 of this 2003 Act become
operative on January 1, 2004.
(2) The amendments to ORS 646.608 by section 6 of this 2003 Act
apply to violations occurring on or after January 1, 2004. + }
SECTION 9. { + The Attorney General may take any action before
the operative date of sections 1 to 5 of this 2003 Act that is
necessary to enable the Attorney General to exercise, on and
after the operative date of sections 1 to 5 of this 2003 Act, all
the duties, functions and powers conferred upon the Attorney
General by sections 1 to 5 of this 2003 Act and the amendments to
ORS 646.608 by section 6 of this 2003 Act. + }
SECTION 10. { + The Attorney General shall award the first
contract described in section 3 of this 2003 Act not later than
January 1, 2004. + }
SECTION 11. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect on
its passage. + }
----------