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

RELATING TO UNFAIR TRADE PRACTICES; PROHIBITING CERTAIN UNSOLICITED EMAIL OR FACSIMILE TRANSMITTED ADVERTISING MATERIAL; PROVIDING A PRIVATE CAUSE OF ACTION.

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

Section 1. 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 2. A new section of the Unfair Practices Act, Section 57-12-23 NMSA 1978, is enacted to read:

"57-12-23. [NEW MATERIAL] UNSOLICITED FACSIMILES OR EMAIL--PROHIBITION.--

A. No person conducting business in this state shall transmit by facsimile or cause to be transmitted by facsimile unsolicited information advertising for the lease, sale, rental, gift offer or other disposition of realty, goods, services or the extension of credit unless:

(1) the person establishes a toll-free telephone number that a recipient of the unsolicited information may call to notify the person not to send the recipient any additional unsolicited information; and

(2) the unsolicited information includes a statement, in at least nine-point type, informing the recipient of the toll-free telephone number that the recipient may call to notify the sender not to send the recipient any additional unsolicited information.

B. No person conducting business in this state shall email or cause to be emailed unsolicited information advertising for the lease, sale, rental, gift offer or other disposition of realty, goods, services or the extension of credit unless:

(1) the person establishes a toll-free telephone number or a valid sender-operated return email address that a recipient of the unsolicited information may call or email to notify the person not to send the recipient any additional unsolicited information;

(2) the unsolicited information includes a statement, in the first text of the body of the message and in the same size as the majority of the text of the message, informing the recipient of the toll-free telephone number or the email address that the recipient may call or email to notify the sender not to send the recipient any additional unsolicited information;

(3) the subject line of the email includes "ADV:" as the first four characters; and

(4) if the information advertises realty, goods, services or the extension of credit that may only be viewed, purchased, rented, leased or held in the possession by an individual eighteen years of age or older, the subject line of the email includes "ADV:ADLT" as the first eight characters.

C. After notification by a recipient of the recipient's request not to receive any further unsolicited information, no person conducting business in this state shall transmit by facsimile, cause to be transmitted by facsimile, email or cause to be emailed any unsolicited information to that recipient.

D. In the case of an employer who is the registered owner of more than one email address, the notification required by Subsection C of this section may be given on behalf of all of the employees who may use email addresses provided and controlled by the employer.

E. No person shall knowingly or intentionally assist in the transmission of unsolicited information by facsimile or email if the person knows, or consciously avoids knowing, that the initiator of the information is engaged, or intends to engage, in any act or practice that violates a provision of the Unfair Practices Act.

F. A violation of a provision of this section constitutes an unfair or deceptive trade practice.

G. As used in this section and Section 57-12-24 NMSA 1978:

(1) "transmit by facsimile", "cause to be transmitted by facsimile", "email", "cause to be emailed" or "assist in the transmission" does not include the transmission of unsolicited information by a telecommunications utility or an internet service provider that merely carries the transmission over its network; and

(2) "unsolicited information" means information transmitted by facsimile or email that:

(a) advertises the lease, sale, rental, gift offer or other disposition of any realty, goods, services or the extension of credit;

(b) is addressed to a recipient with whom the sender does not have an existing business or personal relationship; and

(c) is not sent at the request of, or with the express consent of, the recipient."

Section 3. A new section of the Unfair Practices Act, Section 57-12-24 NMSA 1978, is enacted to read:

"57-12-24. [NEW MATERIAL] UNSOLICITED FACSIMILES OR EMAIL--PRIVATE REMEDY.--

A. Any person who receives unsolicited information by facsimile or email may bring an action against the sender of the unsolicited information to recover actual damages, including loss of profits, or statutory damages equal to the greater of twenty-five dollars ($25.00) for each email or facsimile received or five thousand dollars ($5,000) for each day of violation, plus reasonable attorney fees and costs if, prior to receiving the unsolicited information:

(1) the person who received the information has notified the sender, pursuant to the provisions of Section 57-12-23 NMSA 1978, of the person's request not to receive unsolicited information; or

(2) the sender of the information has entered into a written assurance of discontinuance pursuant to Section 57-12-9 NMSA 1978.

B. A telecommunications utility or internet service provider, injured by a violation of a provision of Section 57-12-23 NMSA 1978, may recover actual damages, including loss of profits, or statutory damages equal to the greater of ten dollars ($10.00) for each facsimile or email transmitted or five thousand dollars ($5,000) for each day of violation.

C. The remedies provided in this section are in addition to any available remedies otherwise provided by law."