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

RELATING TO TELECOMMUNICATIONS; REGULATING TELEMARKETING ACTIVITIES; ENACTING THE TELEMARKETING REGULATION ACT; PROVIDING CIVIL REMEDIES AND PENALTIES.

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

Section 1. SHORT TITLE.--This act may be cited as the "Telemarketing Regulation Act".

Section 2. FINDINGS AND PURPOSE.--

A. The legislature finds that:

(1) the use of the telephone to market goods and services to the home is pervasive now due to the increased use of cost-effective telemarketing techniques;

(2) over thirty thousand businesses actively telemarket goods and services to business and residential customers;

(3) every day, over three hundred thousand solicitors place calls to more than eighteen million Americans, including citizens of this state;

(4) telemarketing can be an intrusive and relentless invasion of the privacy and peacefulness of the home;

(5) many citizens of this state are outraged over the proliferation of nuisance calls to their homes from telemarketers;

(6) individuals' privacy rights and commercial freedom of speech can be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices; and

(7) it is in the public interest to establish a mechanism under which the individual citizens of this state can decide whether or not to receive telemarketing calls in their homes.

B. The purpose of the Telemarketing Regulation Act is to regulate the practice of telemarketing in a manner that balances individuals' expectations of privacy with business interests' exercise of commercial free speech.

Section 3. DEFINITIONS.--As used in the Telemarketing Regulation Act:

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

B. "commission" means the public regulation commission;

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 commission, where local exchange rates apply;

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

H. "telemarketing" 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 a prior or current business or personal relationship; or

(3) by or on behalf of an organization that has been granted 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 4. PROHIBITION OF TELEMARKETING IN CERTAIN CASES.--Telemarketing on the telephone line of a residential subscriber in this state who has given notice to the commission, in accordance with rules promulgated pursuant to the Telemarketing Regulation Act, of the subscriber's objection to receiving telephone solicitations is prohibited.

Section 5. COMMISSION TO ESTABLISH DATABASE OF SUBSCRIBERS WHO OBJECT TO TELEMARKETING.--The commission shall establish and provide for the operation of a database to compile a list of telephone numbers of residential subscribers who object to telemarketing. The commission shall have the database in operation no later than January 1, 2002. The database may be operated by the commission or by a person that contracts with the commission.

Section 6. COMMISSION TO PROMULGATE RULES TO IMPLEMENT TELEMARKETING RESTRICTIONS.--No later than January 1, 2002, the commission shall promulgate rules that:

A. require a telecommunications company that provides local exchange service to inform its residential subscribers of the opportunity to provide notification to the commission or its contractor that the subscriber objects to telemarketing on his line;

B. specify the methods by which a residential subscriber may give notice to the commission or its contractor of his objection to receiving telemarketing or revocation of a notice previously given;

C. specify 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;

D. specify the methods by which objections and revocations shall be collected and added to the database;

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

F. specify other matters relating to the database that the commission deems desirable.

Section 7. ADDITION OF NATIONAL DATABASE INFORMATION.--If, pursuant to 47 USCA Section 227(c)(3), the federal communications commission establishes a single national database of telephone numbers of residential subscribers who object to receiving telemarketing, the commission shall include the part of the single national database that relates to New Mexico in the database established under the Telemarketing Regulation Act.

Section 8. FEES FOR INCLUDING NOTICE IN, GAINING ACCESS TO OR OBTAINING COPY OF DATABASE.--A residential subscriber shall be charged a fee of five dollars ($5.00) by the commission for each notice for inclusion in the database established under the Telemarketing Regulation Act. A person desiring to engage in telemarketing shall be charged a fee of ten dollars ($10.00) by the commission in each instance in which access to the database is granted or in which a paper or electronic copy of the database is furnished.

Section 9. RESTRICTIONS ON USE OF DATABASE.--Information contained in the database established pursuant to the Telemarketing Regulation 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 10. BLOCKING PROHIBITED.--A person engaging in telemarketing shall not use a method to block or otherwise circumvent a residential subscriber's use of a caller identification service.

Section 11. CIVIL REMEDIES--PENALTIES.--

A. The commission shall enforce the provisions of the Telemarketing Regulation Act.

B. The commission may bring an action to enjoin a violation or threatened violation of Section 4 or Section 10 of the Telemarketing Regulation Act. It may impose a civil penalty up to a maximum of two thousand dollars ($2,000) for each violation. It may seek additional and appropriate relief in the district court for Santa Fe county.

C. A person who has received more than one act of telemarketing within any twelve-month period by or on behalf of the same person in violation of Section 4 or Section 10 of the Telemarketing Regulation Act may:

(1) bring an action to enjoin the violation;

(2) bring an action to recover for actual monetary loss from the violation or receive up to two thousand dollars ($2,000) in damages for each violation, whichever is greater; or

(3) seek relief pursuant to both Paragraphs (1) and (2) of this subsection.

Section 12. DEFENSES TO ENFORCEMENT ACTIONS.--It is a defense to an action brought pursuant to Section 11 of the Telemarketing Regulation Act that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telemarketing in violation of that act.

Section 13. LIMITATION OF ACTIONS.--No action may be brought pursuant to Section 11 of the Telemarketing Regulation Act after the occurrence of the later of:

A. two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or

B. two years after the termination of an action by the commission.

Section 14. REMEDIES CUMULATIVE.--The remedies of the Telemarketing Regulation Act are not exclusive and are in addition to all other causes of action, remedies and penalties provided by law.