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

RELATING TO TELECOMMUNICATIONS; ENACTING THE CONSUMER NO-CALL ACT; REGULATING TELEPHONE SOLICITATION ACTIVITIES; 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 twelve 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 or on behalf of an organization that 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) 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;

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

(6) by a person who is a duly licensed real estate broker pursuant to Section 61-29-11 NMSA 1978, who is a resident of the state and whose telephone call to the consumer is for the sole purpose of selling, exchanging, purchasing, renting, listing for sale or rent or leasing real estate in accordance with the provisions for which he or she is licensed and not in conjunction with any other offer.

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 least 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 57-12-2 NMSA 1978 (being Laws 1967, Chapter 268, Section 2, as amended) is amended to read:

"57-12-2. DEFINITIONS.--As used in the Unfair Practices Act:

A. "person" [includes] means, where applicable, natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates;

B. "seller-initiated telephone sale" means a sale, lease or rental of goods or services in which the seller or his representative solicits the sale by telephoning the prospective purchaser and in which the sale is consummated entirely by telephone or mail, but does not include a transaction:

(1) in which a person solicits a sale from a prospective purchaser who has previously made an authorized purchase from the seller's business; or

(2) in which the purchaser is accorded the right of rescission by the provisions of the federal Consumer Credit Protection Act, 15 U.S.C. 1635 or regulations issued pursuant thereto;

C. "trade" or "commerce" includes the advertising, offering for sale or distribution of any services and any property and any other article, commodity or thing of value, including any trade or commerce directly or indirectly affecting the people of this state;

D. "unfair or deceptive trade practice" means [any] an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by [any] a person in the regular course of his trade or commerce, which may, tends to or does deceive or mislead any person and includes [but is not limited to]:

(1) representing goods or services as those of another when the goods or services are not the goods or services of another;

(2) causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;

(3) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another;

(4) using deceptive representations or designations of geographic origin in connection with goods or services;

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;

(6) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;

(7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another;

(8) disparaging the goods, services or business of another by false or misleading representations;

(9) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;

(10) offering goods or services with intent not to supply reasonable expectable public demand;

(11) making false or misleading statements of fact concerning the price of goods or services, the prices of competitors or one's own price at a past or future time or the reasons for, existence of or amounts of price reduction;

(12) making false or misleading statements of fact for the purpose of obtaining appointments for the demonstration, exhibition or other sales presentation of goods or services;

(13) packaging goods for sale in a container that bears a trademark or trade name identified with goods formerly packaged in the container, without authorization, unless the container is labeled or marked to disclaim a connection between the contents and the trademark or trade name;

(14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;

(15) stating that a transaction involves rights, remedies or obligations that it does not involve;

(16) stating that services, replacements or repairs are needed if they are not needed; or

(17) failure to deliver the quality or quantity of goods or services contracted for; and

E. "unconscionable trade practice" means [any] an act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or services, including services provided by licensed professionals, or in the extension of credit or in the collection of debts which to a person's detriment:

(1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or

(2) results in a gross disparity between the

value received by a person and the price paid."

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. A person shall not 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] established 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] make a telephone solicitation for a purchase 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) that misrepresents the primary purpose of a telephone solicitation of a residential subscriber as a "courtesy call", a "public service information call" or some other euphemism;

[(2) in which offers or solicitations in]

(3) under 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, 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 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 telephone solicitation of a residential subscriber whose telephone number has been on the national do-not-call registry, established by the federal trade commission, for at least three months prior to the date the call is made; 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.

D. As used in this section:

(1) "established business relationship" means a relationship that:

(a) 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;

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

(c) currently exists or has existed within the immediately preceding twelve months;

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

(3) "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; and

(4) "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:

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

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

(c) by or on behalf of an organization that 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) of the Internal Revenue Code of 1986 and that is in compliance with the Charitable Solicitations Act;

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

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

Section 11. 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 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.