The Ecommerce Innovation Alliance (EIA) continues its efforts to keep the e-commerce industry informed about critical legislative developments that impact how businesses operate and engage with consumers. Yesterday, May 21st, 2025, the Oregon Senate Committee on Judiciary held a work session concerning House Bill 3865A, a measure seeking to regulate text messages and restrict their time, frequency, and manner. While the stated goal of protecting consumers from unwanted solicitations is one we support, the bill as initially passed by the House and even in its amended form, continues to raise significant concerns for legitimate businesses and consumers alike.

The work session focused on an A3 amendment to HB 3865A. This amendment was presented as an attempt to address many of the concerns raised by industry stakeholders, including those voiced by the EIA, during the public hearing held in the Senate Judiciary Committee on April 24th. Representative Nathan Sosa, who requested the proposed amendments and carried the bill in the House, detailed the changes introduced by the A3.

Key Changes in the A3 Amendment

The A3 amendment made several modifications to the bill:

• It expands the definition of “telephone solicitation” to explicitly include text messages, but does not to regulate other messaging protocols like RCS.
• It introduces a definition of “established business relationship”, which means a previous transaction or series of transactions between a caller and a party within the preceding 18 months.
• It changed the proposed “quiet hours” for telephone solicitations (including text messages) from the initially proposed 9:00 a.m. to 7:00 p.m. to 8:00 a.m. to 8:00 p.m.
• It makes it an unlawful practice to initiate a telephone solicitation outside these hours, or more than three separate times to a party within a 24-hour period, unless the person has an established business relationship with the party.
• It allows a person, for the purpose of complying with time restrictions, to rely on the area code of a mobile telephone number to determine if the party is located in Oregon.
• It exempts calls or text messages that respond directly to a message received from a party from the definition of “telephone solicitation”.
• It retains requirements for specific disclosures in text message solicitations, referencing ORS 646.611(1)(a), (b), (c), and (d).
• It sets the effective date to January 1st, 2026.

Representative Sosa represented that the A3 Amendment was his “good faith effort” to address stakeholder concerns while preserving the bill’s overall purpose of adding texting to existing laws and limiting solicitations.

EIA’s Continuing Concerns

Despite the amendments, EIA reiterated at the hearing that significant concerns remain unaddressed. Our primary focus continues to be on the practical impossibility of compliance and the potential for legitimate businesses to face frivolous lawsuits.

Crucially, the A3 amendment continues to disregard prior express written consent as a basis for communication that should be excluded from quiet hours and message limits. While the amendment exempts those with an “established business relationship”, this is distinct from “prior express written consent”. Prior express written consent is how many consumers voluntarily sign up to receive communications from businesses they are interested in, even before making a purchase. The bill, as amended, would prohibit communications with these voluntarily opted-in consumers after 8 PM or more than three times in 24 hours, overriding clear consumer intent. This is a significant departure from the federal TCPA standard, which primarily targets unsolicited messages and does not prohibit communications with prior express consent during specific hours.  Additionally, the bill does not address a critical conflict with federal law concerning prior express written consent and numbers on the national Do Not Call list.

Another major issue highlighted is the challenge of simply inserting “text message” into statutes originally written for voice calls. These are fundamentally different mediums. The most problematic example is the requirement to include outdated telephone solicitation disclosures in text messages. These disclosures, such as identifying the person and who they represent, stating the purpose of the call, and asking if the recipient wants to hear a sales pitch, are nonsensical in the context of concise text messaging and were described as creating a “terrible experience for merchants and consumers”. This requirement demonstrates a fundamental misunderstanding of text message communication and poses a significant compliance burden, especially since businesses often cannot definitively know if a text message recipient is in Oregon due to privacy constraints.

During the work session, concerns were also raised by committee members regarding the bill’s potential impact on political solicitation, campaign contributions, and whether it might run afoul of the Oregon Constitution’s free speech provisions. The definition of “initiate” in the context of the three-message limit was questioned, as was the practicality of the area code reliance for location determination, particularly with modern calling platforms. Senators echoed the EIA’s call for a work group, highlighting concerns about clarity and the potential for significant consequences under Oregon’s Unlawful Trade Practices Act (UTPA).

The Outcome

Despite these significant, unaddressed concerns articulated by the EIA and others, the Senate Committee on Judiciary adopted the A3 amendment. Subsequently, House Bill 3865A, as amended by the A3, was moved to the Senate floor with a “do pass” recommendation. This marks a disappointing step forward for a bill that, in our view, still contains technically unworkable provisions, disregards established federal guidelines and consumer consent preferences, and risks creating a highly litigious environment for legitimate businesses.

The EIA remains committed to working with the Oregon Senate to advocate for necessary refinements to the bill. We believe it is essential to find a balanced path forward that effectively targets bad actors without imposing impossible burdens on the ecommerce ecosystem. As industry stakeholders suggested at the hearing, taking this bill up as part of an interim work group could allow for a more comprehensive approach to updating Oregon’s statutes to accurately reflect modern communication methods and ensure clarity and compliance for all parties. We urge the Senate to reconsider the bill’s current form and work towards solutions that protect consumers while fostering innovation and legitimate business engagement.