2023 New Mexico Statutes › Chapter 57 - Trade Practices and Regulations › Article 12 - Unfair Trade Practices › Section 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 established business relationship between the persons and the person being called consents to hear the prerecorded message.
B. It is unlawful under the Unfair Practices Act for a person to make a telephone solicitation for a purchase of goods or services:
(1) without disclosing within fifteen seconds of the time the person being called answers the name of the sponsor and the primary purpose 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;
(3) under the guise of research or a survey when the real intent is to sell goods or services;
(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;
(5) that are received before 9:00 a.m. or after 9:00 p.m.;
(6) using automatic dialing equipment unless the telephone immediately releases the line when the called party disconnects;
(7) using automatic dialing equipment that dials and engages the telephone numbers of more than one person at a time but allows the possibility of a called person not being connected to the calling person for some period not exceeding that established by the federal trade commission at 16 C.F.R. Sections 310(b)(1)(iv) and 310.4(b)(4); and
(8) in which credit card numbers are requested before the prospective purchaser expresses 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 intentionally circumvent a residential subscriber's use of a caller identification service pursuant to the Consumer No-Call Act [repealed].
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; and
(b) 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) made for the sole purpose of urging support for or opposition to a political candidate or ballot issue;
(d) made for the sole purpose of conducting political polls or soliciting the expression of opinions, ideas or votes; or
(e) 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.
History:
Laws 1989, ch. 309, § 2; 2003, ch. 167, § 10.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law. The Consumer No-Call Act, 57-12A-1 to 57-12A-7 NMSA 1978, was repealed on July 25, 2003, the date the federal communications commission adopted the delivery restrictions rules, 47 C.F.R. § 64.1200 (2004).
The 2003 amendment,
effective July 1, 2003, added "prohibited telephone solicitation" in the section heading; in Subsection A, substituted "established" for "existing" following "there is an"; rewrote Subsection B; and added Subsections C and D.
Section applies to cellular telephone users as well as landline telephone users.
— Where plaintiff, a consumer who received robo-calls designed to sell a type of discounted medical benefit plan, brought an action against a telemarketer and its purported agent, alleging that defendants violated the New Mexico Unfair Practices Act, §§ 57-12-1 through 57-12-26 NMSA 1978 (NMUPA), by repeatedly calling her cellular telephone and refusing to identify themselves, and where defendants moved to dismiss, arguing that § 57-12-22(C)(1) only prohibits calls to landline telephones and not to cellular telephones, defendant's motion to dismiss was denied because the plain meaning of this section prohibits calls to all telephone numbers on the national do-not-call registry regardless of whether the telephone number belongs to a wireless telephone or a landline telephone. The purpose of this section of the NMUPA is to reduce unwanted telephone solicitation.
Mohon v. Agentra LLC
, 400 F. Supp. 3d 1189 (D. N.M. 2019).
Phone owner stated a claim under the Unfair Practices Act.
— Where plaintiff alleged that defendants, or defendants' agents on defendants' behalf, made telephone solicitations to plaintiff at his cellular number more than once within twelve months despite the fact his phone number had been continuously listed on the federal Do Not Call Registry at all relevant times, and that during one call, plaintiff had a conversation with a telemarketer for over fifteen seconds, but at no time during the call did the telemarketer identify the seller or sponsor of the call, but instead used a fake name, and where defendants argued that plaintiff's allegations were insufficient to establish a violation of the Unfair Practices Act (UPA), claiming that the relevant provisions of the UPA apply only to solicitations made to residential land lines and that the UPA intended to exclude cell phone users, the district court denied defendants' motion to dismiss, because plaintiff's allegations were sufficient to state a claim under § 57-12-22(B)(1) NMSA 1978, and there is nothing in the UPA that would indicate the legislature intended to exclude wireless telephone users from provisions related to unwanted telephone solicitations.
Mestas v. CHW Group, Inc.
, 508 F. Supp. 3d 1011 (D. N.M. 2020).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Validity, construction, and application of state statute or law pertaining to telephone solicitation, 44 A.L.R.5th 619.