45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO TELECOMMUNICATIONS; REGULATING TELEPHONE SOLICITATION ACTIVITIES; ENACTING THE TELEPHONE CONSUMER PRIVACY ACT.

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

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 8 of this act may be cited as the "Telephone Consumer Privacy Act".

Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Telephone Consumer Privacy Act:

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

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

C. "local exchange service" means the transmission of two-way interactive switched voice communications furnished by a telecommunications company within a local exchange area;

D. "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;

E. "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;

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

G. "telephone solicitation" means any voice communication by a live operator or other means over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, but does not include communications:

(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 had a business relationship within the twelve months immediately preceding the communication on behalf of the organization; or

(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 United States Internal Revenue Code of 1986.

Section 3. [NEW MATERIAL] PROHIBITION OF TELEPHONE SOLICITATION IN CERTAIN CASES.--

A. Telephone solicitation on the telephone line of a residential subscriber in this state who has given notice to the attorney general, in accordance with rules promulgated pursuant to the Telephone Consumer Privacy Act, of the subscriber's objection to receiving telephone solicitations is prohibited.

B. Telephone solicitation on the telephone line of a residential subscriber in this state is prohibited between the hours of 5:00 p.m. and 7:00 p.m.

Section 4. [NEW MATERIAL] ATTORNEY GENERAL TO ESTABLISH DATABASE OF SUBSCRIBERS WHO OBJECT TO TELEPHONE SOLICITATION.--

A. The attorney general shall establish and provide for the operation of a database to compile a list of telephone numbers of residential subscribers who object to telephone solicitation. The attorney general shall have the database in operation no later than January 1, 2002.

B. The database may be operated by the attorney general or by a person that contracts with the attorney general. If the attorney general decides to enter into a contract, he may provide in the contract that all or a specific part of the fees payable pursuant to Section 6 of the Telephone Consumer Privacy Act shall be the remuneration for the services of the contractor.

Section 5. [NEW MATERIAL] ATTORNEY GENERAL TO PROMULGATE RULES TO IMPLEMENT TELEPHONE SOLICITATION RESTRICTIONS.--No later than January 1, 2002, the attorney general shall promulgate rules that specify:

A. the methods by which a residential subscriber may give notice to the attorney general or the attorney general's contractor 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 database;

D. the methods by which a person desiring to engage in telephone solicitation may obtain access to the database to avoid calling the telephone numbers of residential subscribers included in the database;

E. a fee schedule and time and method of payment of fees authorized pursuant to Section 6 of the Telephone Consumer Privacy Act; and

F. methods for keeping the database current and other matters relating to the database that the attorney general deems desirable.

Section 6. [NEW MATERIAL] FEES FOR INCLUDING NOTICE IN, GAINING ACCESS TO OR OBTAINING COPY OF DATABASE.--A residential subscriber shall be charged a fee of up to ten dollars ($10.00) by the attorney general for each notice for inclusion in the database established under the Telephone Consumer Privacy Act. A person desiring to engage in telephone solicitation shall be charged a fee of up to two hundred dollars ($200) annually by the attorney general for access to the database or for furnishing a paper or electronic copy of the database.

Section 7. [NEW MATERIAL] RESTRICTIONS ON USE OF DATABASE.--Information contained in the database established pursuant to the Telephone Consumer Privacy 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 8. [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 9. 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 10. 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 the name of the sponsor and the primary purpose [or purposes] of the contact;

(2) 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) without disclosing, prior to commitments by customers, 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] that are received before 9:00 a.m. or after 9:00 p.m. or between 5:00 p.m. and 7:00 p.m.;

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

(6) 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 telephone subscriber who has given notice to the attorney general of the subscriber's objection to receiving telephone solicitations pursuant to the Telephone Consumer Privacy Act; or

(2) use a method to block or otherwise circumvent a residential subscriber's use of a caller identification service pursuant to the Telephone Consumer Privacy Act."