46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO TELECOMMUNICATIONS; REGULATING TELEPHONE SOLICITATION ACTIVITIES; ENACTING THE CONSUMER NO-CALL ACT; PROVIDING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 7 of this act may be cited as the "Consumer No-Call Act".

Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Consumer No-Call Act:

A. "caller identification service" means a telephone service that permits telephone subscribers to see the telephone number of incoming telephone calls;

B. "established business relationship" means a relationship that:

(1) was formed, prior to a telephone solicitation, through a voluntary, two-way communication between a seller or telephone solicitor and a residential subscriber, with or without consideration, on the basis of an application, purchase, ongoing contractual agreement or commercial transaction between the parties regarding products or services offered by the seller or telephone solicitor;

(2) has not been previously terminated by either party; and

(3) currently exists or has existed within the immediately preceding six months;

C. "local exchange area" means a geographic area encompassing one or more local communities, as described in maps, tariffs or rate schedules filed with the public regulation commission, where local exchange rates apply;

D. "local exchange company" means a telecommunications company that provides the transmission of two-way interactive switched voice communications within a local exchange area;

E. "public telecommunications service" means the transmission of signs, signals, writings, images, sounds, messages, data or other information of any nature by wire, radio, lightwaves or other electromagnetic means originating and terminating in this state regardless of actual call routing, but "public telecommunications service" does not include the provision of terminal equipment used to originate or terminate the service; private telecommunications service; broadcast transmissions by radio, television and satellite broadcast stations regulated by the federal communications commission; radio common carrier services, including mobile telephone service and radio paging; or one-way cable television service;

F. "residential subscriber" means a person who has subscribed to residential telephone service from a local exchange company or the other persons living or residing with such person;

G. "telecommunications company" means a person that provides public telecommunications service; and

H. "telephone solicitation" means a voice or telefacsimile communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services and includes a communication described in this subsection through the use of automatic dialing and recorded message equipment or by other means, but "telephone solicitation" does not include a communication:

(1) to a residential subscriber with that subscriber's prior express invitation or permission;

(2) by or on behalf of a person with whom a residential subscriber has an established business relationship;

(3) by an unpaid volunteer for or unpaid member of an organization if the organization has been granted an exemption from the federal income tax by the United States commissioner of internal revenue as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986;

(4) made for the sole purpose of urging support for or opposition to a political candidate or ballot issue; or

(5) made for the sole purpose of conducting political polls or soliciting the expression of opinions, ideas or votes.

Section 3. [NEW MATERIAL] DO-NOT-CALL REGISTRY--FEDERAL TRADE COMMISSION REGISTRY ADOPTED AS STATE REGISTRY.--The national "do-not-call" registry established and maintained by the federal trade commission pursuant to 16 CFR Section 310.4(b)(1)(iii)(B) is adopted and shall serve as the New Mexico do-not-call registry for the purposes of the Consumer No-Call Act.

Section 4. [NEW MATERIAL] PROHIBITED ACT--CIVIL ACTION--CRIMINAL PENALTY.--

A. A person engaging in telephone solicitation shall not initiate an outbound telephone call consisting of telephone solicitation to a residential subscriber in New Mexico when that residential subscriber's telephone number has been on the national "do-not-call" registry, established by the federal trade commission, for at lease three months prior to the date the call is made.

B. A residential subscriber may bring a civil action against a person who violates the provisions of Subsection A of this section in respect to that subscriber. A residential subscriber who succeeds in obtaining a judgment of violation shall be awarded liquidated damages in the amount of five hundred dollars ($500) for each violation proved. Each call is a separate violation of the provisions of this section. A residential subscriber that succeeds in obtaining a judgment of violation shall be awarded reasonable attorney fees and costs by the court.

C. Violation of the provisions of Subsection A of this section is a misdemeanor, and the violator shall be sentenced pursuant to Section 31-19-1 NMSA 1978.

Section 5. [NEW MATERIAL] ATTORNEY GENERAL TO PROMULGATE RULES TO IMPLEMENT TELEPHONE SOLICITATION RESTRICTIONS.--No later than January 1, 2004, the attorney general shall promulgate rules that specify:

A. the methods by which a residential subscriber may give notice to the attorney general of his objection to receiving telephone solicitations or revocation of a notice previously given;

B. the length of time for which a notice of objection shall be effective and the effect of a change of telephone number on the notice;

C. the methods by which objections and revocations shall be collected and added to the New Mexico do-not-call registry;

D. the methods by which a person desiring to engage in telephone solicitation may obtain access to the New Mexico do-not-call registry to avoid calling the telephone numbers of residential subscribers in New Mexico; and

E. methods for keeping the New Mexico do-not-call registry current and other matters relating to the registry that the attorney general deems desirable.

Section 6. [NEW MATERIAL] RESTRICTIONS ON USE OF REGISTRY.--Information contained in the registry established pursuant to the Consumer No-Call Act shall be used only for the purpose of compliance with that act. The information is confidential and is not subject to public inspection or disclosure.

Section 7. [NEW MATERIAL] BLOCKING PROHIBITED.--A person engaging in telephone solicitation shall not use a method to block or otherwise circumvent a residential subscriber's use of a caller identification service.

Section 8. Section 57-12-1 NMSA 1978 (being Laws 1967, Chapter 268, Section 1) is amended to read:

"57-12-1. SHORT TITLE.--[This act] Chapter 57, Article 12 NMSA 1978 may be cited as the "Unfair Practices Act"."

Section 9. Section 57-12-22 NMSA 1978 (being Laws 1989, Chapter 309, Section 2) is amended to read:

"57-12-22. TELEPHONE SOLICITATION SALES--AUTOMATED TELEPHONE DIALING SYSTEMS FOR SALES RESTRICTED--DISCLOSURE AND OTHER REQUIREMENTS ESTABLISHED FOR AUTHORIZED TELEPHONE SOLICITATION SALES--PROHIBITED TELEPHONE SOLICITATION.--

A. It is unlawful for a person [shall not] to utilize an automated telephone dialing or push-button or tone-activated address signaling system with a prerecorded message to solicit persons to purchase goods or services unless there is an existing business relationship between [such] the persons and the person being called consents to hear the prerecorded message.

B. It is unlawful [under the Unfair Practices Act] for [any] a person to solicit by means of a seller-initiated telephone sale of goods or services:

(1) without [promptly] disclosing within fifteen seconds of the time the person being called answers, the name of the sponsor and the primary purpose [or purposes] of the contact;

(2) misrepresenting the primary purpose of a telemarketing call as a "courtesy call", "public service informational call" or some other euphemism;

[(2)] (3) in which offers or solicitations in the guise of research or a survey are made when the real intent is to sell goods or services;

[(3)] (4) without disclosing, prior to [commitments by customers] a commitment being made by the person called, the cost of the goods or services, all terms, conditions, payment plans and the amount or existence of any extra charges such as shipping and handling;

[(4) which] (5) that are received before 9:00 a.m. or after [9:00] 6:00 p.m.;

[(5)] (6) using automatic dialing equipment unless the telephone immediately releases the line when the called party disconnects; and

[(6)] (7) asking for credit card numbers until and unless the customer has committed to make the purchase and expressed a desire to use a credit card to pay for the purchase.

C. It is unlawful for a person to:

(1) make a seller-initiated telephone sale of goods or services to a residential subscriber who has given notice to the attorney general of the subscriber's objection to receiving telephone solicitations pursuant to the Consumer No-Call Act; or

(2) use a method to block or otherwise circumvent a residential subscriber's use of a caller identification service pursuant to the Consumer No-Call Act."

Section 10. CONTINGENT REPEAL.--Sections 1 through 7 of this act are repealed on the date that a federal do-not-call rule adopted by the federal communications commission is effective.

Section 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.