74th OREGON LEGISLATIVE ASSEMBLY--2007 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 2397-1
A-Engrossed
Senate Bill 863
Ordered by the Senate May 11
Including Senate Amendments dated May 11
Sponsored by Senator METSGER, Representative SCHAUFLER
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.
Prohibits caller from using automatic dialing and announcing
device to call subscriber { + if by doing so caller causes
subscriber unwanted expense + } unless subscriber has requested,
authorized, permitted or consented to call. Exempts calls made in
certain circumstances.
Prohibits caller from using automatic dialing and announcing
device unless device disconnects within 10 seconds after
subscriber terminates call. Prohibits caller from using device to
dial telephone numbers randomly or sequentially unless device
excludes certain telephone numbers. { - Specifies hours during
which caller may use device. - }
{ - Requires caller to state certain information immediately
in prerecorded message disseminated to subscriber. - } Prohibits
caller from misrepresenting or falsifying required information.
Prohibits caller from altering, misrepresenting or falsifying
information provided to subscriber by means of caller
identification service.
{ - Permits Attorney General and subscriber subjected to
unwanted calls to bring action in circuit court for injunction,
for three times actual damages and for statutory damages of not
more than $2,000 for each violation. - } { + Makes violation of
Act unlawful trade practice subject to civil penalty of not more
than $5,000 per violation. + }
{ - Takes effect only if Senate Joint Resolution 33 (2007) is
approved by people at special election held on same date as next
primary election. - }
{ + Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to automatic dialing and announcing devices; creating
new provisions; amending ORS 646.608; repealing ORS 759.290;
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 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. '
Caller' does not include a person that, in collecting a debt, is
subject to regulation under the Fair Debt Collection Practices
Act, 15 U.S.C. 1692 et seq.
(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.
(7) 'Unwanted expense' means an expense a subscriber did not
incur voluntarily or an expense other than an expense the
subscriber would incur for the use of the subscriber's personal
property for the subscriber's own purposes. + }
SECTION 2. { + (1) A caller may not use or connect an
automatic dialing and announcing device to a telephone line in
order to call a subscriber if by doing so the caller causes the
subscriber unwanted expense, unless the subscriber has knowingly
requested, permitted, authorized or otherwise consented to the
call.
(2) Subsection (1) of this section does not apply to a caller
in the following circumstances:
(a) The caller has an established business relationship with
the subscriber;
(b) The subscriber owes a debt to the caller;
(c) The caller is a public safety or law enforcement agency; or
(d) The caller is a school district or school and the
subscriber is an employee of the school district, a student or a
student's parent, guardian or other family member. + }
SECTION 3. { + (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;
(c) Paging and answering services, if by calling a subscriber's
paging or answering service the caller causes the subscriber
unwanted expense;
(d) Cellular telephones, mobile radio services, other radio
common carrier services or other services, if by calling the
telephone or service the caller causes the subscriber unwanted
expense; and
(e) Subscribers who appear on a list compiled for the purpose
of informing potential callers that the subscriber does not want
to receive telephone solicitations. + }
SECTION 4. { + (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 5. { + Violation of section 2, 3 or 4 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, 3 or 4 of this 2007
Act may not exceed $5,000. + }
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) 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 7. { + ORS 759.290 is repealed. + }
SECTION 8. { + Sections 1 to 5 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. + }
SECTION 9. { + This 2007 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2007 Act takes effect on its
passage. + }
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