Chapter 705 Oregon Laws 1999
Session Law
AN ACT
HB 2381
Relating to unlawful use of
cable television services; creating new provisions; amending ORS 30.875; and
prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. As
used in sections 1 to 4 of this 1999 Act:
(1) "Cable
operator" means a person who:
(a) Lawfully provides cable
service over a cable system in which the person, directly or through one or
more affiliates, owns a significant interest; or
(b) Lawfully controls or is
responsible for the management and operation of a cable system through an
arrangement.
(2) "Cable
service" means:
(a) One-way transmission to
subscribers of a video programming service;
(b) Two-way interactive
services delivered over a cable system; or
(c) Any communication with
subscribers necessary for the use of video programming or interactive service.
(3) "Cable system"
means a facility consisting of closed transmission paths and associated signal
operation, reception and control equipment that is designed to provide cable
service.
SECTION 2. A person shall not knowingly:
(1) Obtain cable service
from a cable operator by trick, artifice, deception, use of an unauthorized
device or decoder, or other means without authorization or with the intent to
deprive the cable operator of lawful compensation for services rendered;
(2) Make or maintain,
without authorization from or payment to a cable operator, a connection or
connections, whether physical, electrical, mechanical, acoustical or otherwise
with any cable, wire, component or other device used for the distribution of cable
services, except that nothing in this subsection is intended to make unlawful
circumstances in which the person has attached a wire or cable to extend
authorized or paid cable services to an additional outlet or in which the cable
operator has failed to disconnect previously authorized or paid cable service;
(3) Modify, alter or
maintain a modification or alteration to a device installed by a cable operator
if the modification or alteration is for the purpose of intercepting or
otherwise receiving cable service without authorization from or payment to the
cable operator;
(4) Possess, with intent to
receive cable services without authorization from or payment to a cable
operator, a printed circuit board or other device designed in whole or in part
to facilitate:
(a) Receiving cable services
offered for sale over a cable system; or
(b) Performing or
facilitating any act described in subsections (1) to (3) of this 1999 Act;
(5) Manufacture, import into
this state, distribute, sell, lease or offer for sale or lease, with intent to
promote the receipt of cable services without authorization from or payment to
a cable operator, any printed circuit board, plan or other device, or a kit for
such a device, designed in whole or in part to facilitate:
(a) Receiving cable services
offered for sale over a cable system; or
(b) Performing or
facilitating any act described in subsections (1) to (3) of this 1999 Act; or
(6) Fail to return or
surrender, upon demand and after service has been terminated, equipment
provided by a cable operator to receive cable service.
SECTION 3. (1) A
cable operator may bring a civil action for damages against any person who
violates any provision of section 2 of this 1999 Act.
(2) A cable operator who
alleges a violation of section 2 of this 1999 Act may file for injunctive
relief in the circuit court for the county where the alleged violation occurred
or is occurring.
(3) A cable operator who
files an action under this section is not required to plead damages with
particularity as a condition of filing or maintaining the action.
(4) In any action brought
under this section, there shall be a rebuttable presumption that a person has
violated section 2 (1) of this 1999 Act if the person is in actual possession
of a device that permits the reception of unauthorized cable services for which
payment has not been made and for which no legitimate purpose exists.
(5) In any action brought
under this section, there shall be a rebuttable presumption that a person has
violated section 2 (2) of this 1999 Act if cable service to the person's
business or residence was disconnected by a cable operator, notice of the disconnection
was provided to the person by certified mail, and a connection exists at the
person's business or residence after the date of the notice.
(6) In any action brought
under this section, there shall be a rebuttable presumption that a person has
violated section 2 (3) of this 1999 Act if the cable operator as standard
procedure:
(a) Places written warning
labels on its converters or decoders indicating that tampering with the devices
is a violation of law and a converter or decoder is found to have been tampered
with, altered or modified to allow the reception of cable services without
authorization from or payment to the cable operator; or
(b) Seals its converters or
decoders with a label or mechanical device and the label or device has been
removed or broken.
(7) In any action brought
under this section, there shall be a rebuttable presumption that a person has
violated section 2 (4) of this 1999 Act if a person possesses 10 or more
printed circuit boards or other devices designed to receive cable services. A
person who is found to have violated section 2 (4) of this 1999 Act shall be
subject to penalties described in section 4 (2) of this 1999 Act.
(8) In any action brought
under this section, there shall be a rebuttable presumption that a person has
violated section 2 (5) of this 1999 Act if the person made representations to a
buyer that the device offered for sale would allow the purchaser to obtain
cable service without authorization from or payment to a cable operator. A
person who is found to have violated section 2 (5) of this 1999 Act shall be
subject to penalties described in section 4 (2) of this 1999 Act.
(9) In any action brought
under this section, there shall be a rebuttable presumption that a person has
violated section 2 (6) of this 1999 Act if a cable operator sent to the person
by certified mail, at the most recent address for the person shown in the
records of the cable operator, a written demand for the return of converters,
decoders or other equipment owned by the cable operator. The demand shall allow
the person to make reasonable arrangements to return the equipment within 15
days of receiving the notice. Reasonable arrangements may include a request
that the cable operator pick up the equipment, subject to the cable operators
written policies.
(10) Statements from a
manufacturer or retailer regarding the intended use or uses of a product shall
not constitute a defense to an alleged violation of section 2 (5) of this 1999
Act.
SECTION 4. (1) In addition to any other penalty
provided by law, a cable operator who prevails on a claim under section 3 of
this 1999 Act may recover the amount of $3,000.
(2)(a) A court may increase
an award under subsection (1) of this section to an amount not to exceed
$50,000 if the court determines that the violation was committed for purposes
of commercial advantage.
(b) As used in this
subsection, "commercial advantage" does not include any monetary gain
realized by a person's private use of unauthorized cable services.
(3) The prevailing party in
an action brought under section 3 of this 1999 Act shall be awarded reasonable
court costs and attorney fees and all costs including but not limited to the
cost of investigation, disconnection or reconnection, service calls, labor,
equipment and expert testimony.
SECTION 5.
ORS 30.875 is amended to read:
30.875. (1)[(a)] An
adult or an emancipated minor who takes possession of any merchandise displayed
or offered for sale by any mercantile establishment, or who takes from any real
property any agricultural produce kept, grown or raised on the property for
purposes of sale, without the consent of the owner and with the intention of
converting such merchandise or produce to the individual's own use without
having paid the purchase price thereof, or who alters the price indicia of such
merchandise, shall be civilly liable to the owner for actual damages, for a
penalty to the owner in the amount of the retail value of the merchandise or
produce not to exceed $500, and for an additional penalty to the owner of not
less than $100 nor more than $250.
[(b) An adult or
emancipated minor who engages in conduct described under ORS 164.125, 164.132
or 164.373, shall be civilly liable to the owner of a franchised, or otherwise
duly licensed, cable television system injured thereby for actual damages, for
a penalty to the owner in the amount of any retail value of the service
received as a result of the conduct not to exceed $500, and for an additional
penalty to the owner of not less than $100 nor more than $250.]
(2) The parents having custody of an unemancipated minor who
takes possession of any merchandise displayed or offered for sale by any
mercantile establishment, or who takes from any real property any agricultural
produce kept, grown or raised on the property for purposes of sale, without the
consent of the owner, and with the intention of converting such merchandise or
produce to the minor's own use without having paid the purchase price thereof,
or who alters the price indicia of such merchandise or who engages in conduct
described in ORS 164.125, 164.132 or 164.373, shall be civilly liable to the
owner for actual damages, for a penalty to the owner in the amount of the
retail value of the merchandise or produce not to exceed $250, plus an
additional penalty to the owner of not less than $100 nor more than $250.
Persons operating a foster home certified under ORS 418.625 to 418.645 are not
liable under this subsection for the acts of children not related to them by
blood or marriage and under their care.
(3) A conviction for theft is not a condition precedent to the
maintenance of a civil action under this section. [A conviction for unlawful distribution of cable television equipment
under ORS 164.132, or for tampering with cable television equipment under ORS
164.373, is not a condition precedent to the maintenance of a civil action
under this section.]
(4) A civil liability under this section is not limited by any
other law that limits liability of parents of minor children.
(5) An action for recovery of damages under this section may be
brought in any court of competent jurisdiction, including the small claims
department of a circuit court if the total damages do not exceed the
jurisdictional limit of the small claims department.
(6) The fact that an owner or seller of merchandise or
agricultural produce [or the owner of a
cable television system,] may bring an action against an individual for
damages as provided in this section shall not limit the right of the owner or
seller to demand, in writing, that a person who is liable for damages under
this section remit said damages prior to the commencement of any legal action.
(7) Judgments, but not claims, arising under this section may
be assigned.
(8) An action under this section may not be brought based on a
dishonored check, draft or order for payment of money if an action can be
brought on the dishonored check, draft or order under ORS 30.701.
SECTION 6. Sections 1 to 4 of this 1999 Act and the
amendments to ORS 30.875 by section 5 of this 1999 Act take effect on January
1, 2000.
Approved by the Governor
July 14, 1999
Filed in the office of
Secretary of State July 15, 1999
Effective date January 1,
2000
__________