Does your state have its own version of the TCPA?

Yes. The State of New Mexico has codified the “New Mexico Telemarketing Act” under New Mexico Stat Ann. §§ 57-12-22 through 30 which aims to protect consumers from unwanted or deceptive telemarketing practices. The act falls under Article 12 of the New Mexico Unfair Practices Act (NMUPA). It is the intent of the legislature that in construing […] the Unfair Practices Act the courts to the extent possible will be guided by the interpretations given by the federal trade commission and the federal courts. See NM Stat 57-12-3.

If so, please explain the distinction between the state’s iteration of the TCPA.

The New Mexico Telemarketing Act can be distinguished from the TCPA as it broadly encompasses rules and regulations for unfair or deceptive practices and unconscionable trade practices of any trade, rather than being limited to telephonic communication. NM Sat §57-12-22 is more akin to the TCPA as its purpose is to reduce unwanted telephone solicitation, however it can still be distinguished as it has more detailed provisions concerning automated dialing and prerecorded messages, the use of caller identification, and more restrictive exemptions than the TCPA. See Mohon v. Agentra LLC, 400 F. Supp. 3d 1189 (D.N.M. 2019).

Please address state specific consumer protection statutes that are often paired with TCPA or its state iterations and the additional element and penalties.

The New Mexico Unfair Practices Act (UPA)is often paired with the TCPA, as it is the state interation of the federal law.

Additional Elements

In addition to the similar provisions stated in the TCPA, as stated above, the UPA has more detailed provisions. Specifically concerning the following:

Automated Dialing and Pre-Recorded Messages

It is unlawful under the UPA to use automated dialing systems and prerecorded messages for solicitation purposes, unless there is an established business relationship and the person being called has consented to receive the prerecorded message. Additionally, the caller must disclose the name of the sponsor and, without misrepresentation, the primary purpose of the call within fifteen (15) seconds of the call being answered. See NM Sat §57-12-22(A), (B) (1-2).

Caller Identification

The UPA specifically prohibits the use of methods to block or otherwise intentionally circumvent a residential subscribers use of a caller identification service. See NM Sat §57-12-22(C)(2).

Exemptions

Under the UPA “telephonic solicitation” does not include 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. NM Sat §57-12-22(D)(4).

Penalties

Both acts give consumers a private right of action if they believe their right have been violated. Civil penalties under the NMUPA can exceed the statutory damages available under the TCPA. If the court finds that a person is willfully using or has willfully used a method, act or practice declared unlawful by the Unfair Practices Act, the attorney general, upon petition to the court, may recover on behalf of the state of New Mexico, a civil penalty not to exceed five thousand dollars ($5,000) per violation. NM Stat § 57-12-11.

What are the current best practices to comply with the State’s iteration of the TCPA?

To ensure compliance with the Act, best practices include, but are not limited to:

• Register with the New Mexico Taxation and Revenue Department.
• Avoid misleading claims about the nature of the call and disclose the purpose within fifteen seconds of the call being answered. 57-12-22(A), (B) (1-2).
• Maintain internal records for consumers who have consented to call and who have requested not to be contacted. New Mexico adopted National Do Not Call Registry to serve as the State do-not call registry.
• 57-12A-3. Under the Act, it is unlawful to 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. § 57-12-22(C)(1).
• The State of New Mexico, Department of Justice, Affirmative Litigation Section for Consumer Protection also provides information and education to businesses and the public on consumer matters and issues alerts and press releases to warn consumers and businesses about fraudulent or predatory activities.

Link: https://nmdoj.gov/about-the-office/affirmative-litigation/#consumer-protection.