73rd OREGON LEGISLATIVE ASSEMBLY--2005 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 1033
House Bill 2412
Sponsored by Representative P SMITH, Senator METSGER
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.
Requires consumer reporting agency at request of consumer to
stop furnishing consumer report about consumer. Requires consumer
reporting agency to inform consumer of right to stop furnishing
of consumer report. Creates exceptions to requirements.
Authorizes Director of Department of Consumer and Business
Services to investigate and punish violations of Act.
Makes violation of Act unlawful trade practice.
A BILL FOR AN ACT
Relating to consumer reporting agencies; creating new provisions;
and amending ORS 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in this section and sections 2, 3 and 4
of this 2005 Act:
(1) 'Adverse action' means:
(a) The cancellation of, denial of, increase in a charge for or
reduction in the amount of insurance for personal, family or
household purposes;
(b) The denial of employment or any other decision that
negatively affects the employment, promotion, reassignment or
retention of a consumer; or
(c) An action or determination relating to a consumer's
application for credit, or the terms and conditions of existing
credit, that has a negative consequence for the consumer.
(2) 'Consumer' means an individual who is a resident of this
state and on whom a consumer reporting agency maintains a
consumer report.
(3)(a) 'Consumer report' means the communication of information
by a consumer reporting agency that:
(A) Bears on a consumer's creditworthiness, credit standing,
credit capacity, debts, character, general reputation, personal
characteristics or mode of living; and
(B) Is used, expected to be used or collected to be used as a
factor to establish the consumer's eligibility for credit or
insurance that the consumer will use for personal, family or
household purposes, employment purposes or for any other purpose
authorized pursuant to the federal Fair Credit Reporting Act, 15
U.S.C. 1681a and 1681b.
(b) 'Consumer report' does not mean a communication of
information that:
(A) Solely relates to a transaction between the consumer and
the person making the report;
(B) Authorizes or approves a specific extension of credit by
the issuer of a credit card or similar device; or
(C) Conveys a decision about a request by a third party to make
a specific extension of credit to a consumer and:
(i) The third party advises the consumer of the name and
address of the person to whom the request is made; and
(ii) In the event of an adverse action on the request, the
person makes the disclosures that must be made to the consumer
pursuant to the federal Fair Credit Reporting Act, 15
U.S.C. 1681m.
(4) 'Consumer reporting agency' means a person that, for
monetary fees, dues or on a cooperative nonprofit basis,
regularly:
(a) Verifies or guarantees checks; or
(b) Assembles or evaluates consumer credit information or other
information about consumers for the purpose of furnishing
consumer reports to third parties.
(5) 'Creditworthiness' means an entry in a consumer's file that
affects the ability of the consumer to obtain and retain credit,
employment, business or professional licenses, investment
opportunities or insurance. Entries contained in a consumer's
file or in a consumer report pertaining to the consumer that
affect creditworthiness include, but are not limited to, debts,
payment information, defaults, judgments, liens, bankruptcies,
collections, records of arrest or indictments and multiple credit
inquiries.
(6) 'Identifying information' means any of the following
information about a consumer:
(a) Name;
(b) Address;
(c) Date of birth;
(d) Social Security number;
(e) Driver license or identification card number;
(f) Telephone number;
(g) Electronic mail address;
(h) Credit card or debit card, both as defined in ORS 646.886;
and
(i) A number identifying the consumer to a financial
institution, as defined in ORS 706.008. + }
SECTION 2. { + (1) If a consumer reporting agency receives a
request from a consumer to discontinue furnishing a consumer
report about the consumer, the consumer reporting agency shall:
(a) Not later than five business days after receiving the
request, furnish the consumer report only to persons or during
periods of time designated by the consumer.
(b) Not later than 10 business days after receiving the
request, provide to the consumer a unique number or password for
the consumer to use to:
(A) Designate the persons to whom, or the periods of time
during which, the consumer reporting agency may furnish the
consumer report; or
(B) Cancel the request.
(2)(a) If a consumer designates a person to whom, or a period
of time during which, the consumer reporting agency may furnish
the consumer report, the consumer reporting agency shall honor
the designation not later than three business days after
receiving the designation.
(b) If a consumer cancels a request to discontinue furnishing a
consumer report about the consumer, the consumer reporting agency
shall resume furnishing the consumer report not later than three
business days after receiving the cancellation.
(3)(a) A consumer reporting agency shall make a reasonable
effort to verify the identity of a consumer making or canceling a
request or a designation under this section.
(b) If a consumer cancels a request or makes a designation, the
consumer reporting agency shall confirm the consumer's identity
through the unique number or password described in subsection
(1)(b) of this section.
(4) Subsection (1)(a) of this section does not apply when:
(a) The person requesting the consumer report is:
(A) A public body as defined in ORS 174.109; or
(B) A collection agency, as defined in ORS 697.005, that is
collecting an obligation for a public body, including but not
limited to collecting child support payments under ORS 25.020; or
(b) A court orders the furnishing of the consumer report.
(5) A consumer reporting agency shall maintain a toll-free
telephone number through which a consumer may provide the
requests, designations and cancellations described in this
section 24 hours a day, seven days a week.
(6) When a consumer requests a consumer reporting agency to
discontinue furnishing a consumer report about the consumer:
(a) Because a person may make unauthorized use of the
consumer's identifying information, the consumer reporting agency
may not charge the consumer a fee for making or canceling a
request or a designation under this section.
(b) For any reason other than that a person may make
unauthorized use of the consumer's identifying information, the
consumer reporting agency may charge the consumer a fee of not
more than $10 for making or canceling a request or a designation
under this section.
(7) A person that obtains a consumer report about a consumer
who has requested that the consumer reporting agency that
furnished the report not furnish the report may not extend credit
to, or change the terms of credit extended to, an individual who
purports to be the consumer without making a reasonable effort to
identify the individual as the consumer, including, but not
limited to, calling the consumer at a telephone number provided
with the request submitted under subsection (1) of this section.
(8) A person may not take an adverse action against a consumer
as a result of the consumer's submitting a request described in
this section. + }
SECTION 3. { + A consumer reporting agency that creates a
consumer report about the consumer shall, not later than 10
business days after creating the consumer report, provide to the
consumer in writing in plain and simple language:
(1) The consumer's rights and the consumer reporting agency's
obligations under this section and ORS 646.608 (1)(ddd) and
sections 1, 2, 4, 5, 6 and 7 of this 2005 Act;
(2) The process for the consumer to receive a consumer report;
(3) The process, including the toll-free telephone number, for
the consumer to request the consumer reporting agency to
discontinue furnishing the consumer report;
(4) The fees that the consumer reporting agency will charge for
processing the consumer's requests, designations and
cancellations;
(5) A statement that discontinuing the furnishing of a consumer
report may delay, interfere with or prohibit the timely approval
of a request or application for a loan, credit, mortgage,
insurance, government service or payment, rental housing,
employment, investment, license, cellular telephone, utilities,
digital signature, Internet credit card transaction or other
service, including an extension of credit at a point of sale;
(6) The process for resolving disputes with the consumer
reporting agency over rights and obligations created by this
section and ORS 646.608 (1)(ddd) and sections 1, 2, 4, 5, 6 and 7
of this 2005 Act;
(7) The process for correcting a consumer report and
information about the consumer in the files of the consumer
reporting agency; and
(8) A statement that the consumer may remedy a violation of
this section or ORS 646.608 (1)(ddd) or section 2 or 4 of this
2005 Act or a rule adopted under section 5 of this 2005 Act by:
(a) Filing a complaint with the Attorney General;
(b) Filing a complaint with the Director of the Department of
Consumer and Business Services; or
(c) Bringing an action under ORS 646.638. + }
SECTION 4. { + (1) Sections 2 and 3 of this 2005 Act do not
apply to:
(a) A person whose principal business is investigating fraud
and reporting the results of investigations for use in deciding
whether to approve or process a negotiable instrument, electronic
funds transfer or similar method of payment or to approve a
deposit account; or
(b) A consumer reporting agency that:
(A) Furnishes only consumer reports created and maintained by
other consumer reporting agencies; and
(B) Does not maintain records from which new consumer reports
are produced.
(2) Notwithstanding subsection (1)(b) of this section, if a
consumer has requested that a consumer reporting agency
discontinue furnishing a consumer report about the consumer, a
consumer reporting agency that furnishes only consumer reports
created and maintained by other consumer reporting agencies shall
furnish the consumer report only to persons or during periods of
time designated by the consumer. + }
SECTION 5. { + The Director of the Department of Consumer and
Business Services may adopt rules to implement sections 1, 2, 3,
4, 6 and 7 of this 2005 Act. + }
SECTION 6. { + The Director of the Department of Consumer and
Business Services may:
(1) Undertake investigations, including investigations outside
this state, that the director considers necessary to determine
whether a person has violated, is violating or is about to
violate section 2, 3 or 4 of this 2005 Act, a rule of the
director adopted under section 5 of this 2005 Act or an order of
the director issued to enforce section 2, 3 or 4 of this 2005
Act;
(2) Require a person to file a statement in writing, under oath
or otherwise, concerning any matter being investigated;
(3) Take evidence from witnesses and compel the attendance of
witnesses and the production of books, papers, correspondence,
memoranda, agreements or other documents or records that the
director considers relevant or material to an investigation or
proceeding;
(4) When the director has reason to believe that a person has
violated, is violating or is about to violate section 2, 3 or 4
of this 2005 Act, a rule of the director adopted under section 5
of this 2005 Act or an order of the director issued to enforce
section 2, 3 or 4 of this 2005 Act, issue an order to cease and
desist from the violation; and
(5) Impose a civil penalty in an amount not to exceed $1,000
per violation for each violation of section 2, 3 or 4 of this
2005 Act, of a rule of the director adopted under section 5 of
this 2005 Act or of an order of the director issued to enforce
section 2, 3 or 4 of this 2005 Act. The civil penalties shall be
imposed as provided in ORS 183.745. + }
SECTION 7. { + (1) If the Director of the Department of
Consumer and Business Services serves an order under section 6 of
this 2005 Act, the director shall serve the order on the person
named in the order.
(2) An order issued under section 6 of this 2005 Act becomes
effective upon service on the person named in the order.
(3) ORS 183.413 to 183.470 apply to an order issued under
section 6 of this 2005 Act.
(4) Notwithstanding subsection (3) of this section, a person
may not obtain a hearing on the order unless the person requests
the hearing in writing not later than 20 days after service of
the order.
(5) A person that does not request a contested case hearing may
not obtain judicial review of the order.
(6) The director may vacate or modify an order issued under
section 6 of this 2005 Act at any time. A modified order is
effective upon service on the person named in the order. + }
SECTION 8. 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 (4).
(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 ORS 180.440 (1).
(aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(bbb) Violates ORS 87.007 (2) or (3).
{ + (ccc) Violates section 2, 3 or 4 of this 2005 Act or a
rule adopted under section 5 of this 2005 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 chapter 183
declaring the conduct to be unfair or deceptive in trade or
commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(zz)
of this section by a person other than a prosecuting attorney,
relief shall be limited to an injunction and the prevailing party
may be awarded reasonable attorney fees.
SECTION 9. ORS 646.608, as amended by section 13, chapter 924,
Oregon Laws 2001, section 2, chapter 133, Oregon Laws 2003,
section 3, chapter 486, Oregon Laws 2003, section 5, chapter 778,
Oregon Laws 2003, and section 19, chapter 801, Oregon Laws 2003,
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 (4).
(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 ORS 180.440 (1).
(bbb) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(ccc) Violates ORS 87.007 (2) or (3).
{ + (ddd) Violates section 2, 3 or 4 of this 2005 Act or a
rule adopted under section 5 of this 2005 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 chapter 183
declaring the conduct to be unfair or deceptive in trade or
commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection
(1)(aaa) of this section by a person other than a prosecuting
attorney, relief shall be limited to an injunction and the
prevailing party may be awarded reasonable attorney fees.
SECTION 10. { + (1) Sections 2 and 4 of this 2005 Act apply
to:
(a) Consumer reports created before, on or after the effective
date of this 2005 Act; and
(b) Requests, designations and cancellations submitted on or
after the effective date of this 2005 Act.
(2) Section 3 of this 2005 Act applies to consumer reports
created or revised after the effective date of this 2005 Act. + }
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