Chapter 823
AN ACT
SB 863
Relating to automatic dialing and announcing devices; creating new
provisions; amending ORS 646.608; and repealing ORS 759.290.
Be It Enacted by the People of
the State of
SECTION 1. As used in sections 1 to 3 of this 2007 Act:
(1) “Automatic dialing
and announcing device” means an automated device that selects and dials
telephone numbers and that, working alone or in conjunction with another
device, disseminates a prerecorded or synthesized voice message to the
telephone number called.
(2) “Call” means an
attempt made to contact or a contact made with a subscriber by means of a
telephone or telephone line.
(3) “Caller” means a
person that attempts to contact or that contacts a subscriber by using a
telephone or telephone line.
(4) “Caller
identification service” means a telephone service that permits subscribers to
see a caller’s telephone number before answering the telephone.
(5) “Established
business relationship” means a previous transaction or series of transactions
between a caller and a subscriber that occurred within the 18 months preceding
a call.
(6) “Subscriber” means
an individual who has obtained residential or wireless telephone services from
a telecommunications provider, or a person who resides with the individual.
SECTION 2. (1) A caller may not use an automatic
dialing and announcing device in order to call a subscriber unless the device
is designed and operated so as to disconnect within 10 seconds after the
subscriber terminates the call.
(2) A caller may not use
an automatic dialing and announcing device that dials telephone numbers
randomly or sequentially unless the range of telephone numbers from which the
device chooses the number to dial does not include numbers for:
(a) Fire protection, law
enforcement or other emergency agencies;
(b) Hospital and health
care facilities, physician’s offices, poison control centers or suicide
prevention or domestic violence counseling services; and
(c) Subscribers who
appear on a list compiled for the purpose of informing potential callers that
the subscriber does not want to receive telephone solicitations.
(3) Subsection (2)(c) of this section does not apply to a caller who:
(a)
Has an established business relationship with the subscriber;
(b) Is subject to
regulation under the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et
seq.;
(c) Is a representative
of a public safety or law enforcement agency; or
(d) Is a representative
of a school district or school if the subscriber is an employee of the school
district, a student or the student’s parent, guardian or other family member.
(4) A caller who uses an
automatic dialing and announcing device may use the device to call a subscriber
only between the hours of 9 a.m. and 9 p.m.
SECTION 3. (1) A caller who uses an automatic dialing
and announcing device in order to call a subscriber may not misrepresent or
falsify, either in speaking with the subscriber or in the prerecorded or
synthesized voice message disseminated during the call:
(a) The caller’s
identity and the identity of any person on behalf of whom the caller is making
the call;
(b) The telephone number
from which the caller is making the call;
(c) The location from
which the caller is making the call; or
(d) The purpose for
which the caller is making the call.
(2) A caller may not
intentionally alter, misrepresent or falsify the information that a caller
identification service would ordinarily provide to a subscriber who uses such a
service.
(3) A person who provides
a caller identification service is not subject to civil liability for a caller’s
violation of this section.
SECTION 4. Violation of section 2 or 3 of this 2007 Act
is an unlawful trade practice subject to enforcement under ORS 646.632.
Notwithstanding the provisions of ORS 646.642, a civil penalty imposed for a
violation of section 2 or 3 of this 2007 Act may not exceed $5,000.
SECTION 5. 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) 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)] (ii) Violates ORS 646.872.
[(kk)] (jj)
Violates ORS 646.553 or 646.557 or any rule adopted pursuant
thereto.
[(LL)] (kk) Violates ORS 646.563.
[(mm)] (LL) Violates ORS 759.690 or
any rule adopted pursuant thereto.
[(nn)] (mm)
Violates the provisions of ORS 759.705, 759.710 and 759.720 or any rule adopted
pursuant thereto.
[(oo)] (nn)
Violates ORS 646.892 or 646.894.
[(pp)] (oo) Violates
any provision of ORS 646.249 to 646.259.
[(qq)] (pp) Violates
ORS 646.384.
[(rr)] (qq)
Violates ORS 646.871.
[(ss)] (rr) Violates
ORS 822.046.
[(tt)] (ss) Violates
ORS 128.001.
[(uu)] (tt)
Violates ORS 646.649 (2) to (4).
[(vv)] (uu) Violates ORS 646.877 (2)
to (4).
[(ww)] (vv)
Violates ORS 87.686.
[(xx)] (ww) Violates ORS 646.651.
[(yy)] (xx) Violates ORS 646.879.
[(zz)] (yy)
Violates ORS 646.402 or any rule adopted under ORS 646.402 or
646.404.
[(aaa)] (zz)
Violates ORS 180.440 (1).
[(bbb)] (aaa)
Commits the offense of acting as a vehicle dealer without a
certificate under ORS 822.005.
[(ccc)] (bbb) Violates ORS 87.007
(2) or (3).
[(ddd)] (ccc) Violates ORS 92.405
(1), (2) or (3).
[(eee)] (ddd)
Engages in an unlawful practice under ORS 646.648.
(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) An action or suit
may not 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)] (1)(zz)
of this section by a person other than a prosecuting attorney, relief is
limited to an injunction and the prevailing party may be awarded reasonable
attorney fees.
SECTION 6. ORS 759.290 is repealed.
SECTION 7. Sections 1 to 4 of this 2007 Act apply to
any calls made to a subscriber by means of an automatic dialing and announcing
device on or after the effective date of this 2007 Act.
Approved by the Governor July 17, 2007
Filed in the office of Secretary of State July 19, 2007
Effective date January 1, 2008
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