New Mexico Telemarketing and Robocall Laws: Statutes, Rules, and How They Differ from the TCPA

Overview

New Mexico regulates telemarketing through a single section of its Unfair Practices Act (UPA), NMSA 1978, § 57-12-22. It restricts prerecorded-message sales calls made by automated dialing systems, requires sponsor and purpose disclosures within fifteen seconds, limits calls to 9:00 a.m. through 9:00 p.m., and bars calls to numbers that have been on the National Do Not Call Registry for at least three months. It also prohibits caller ID blocking and several deceptive sales practices. New Mexico has no telemarketer registration or bonding requirement and keeps no state do-not-call list. The state's former Consumer No-Call Act was repealed effective July 25, 2003. A separate criminal statute, the Fraudulent Telemarketing Act (NMSA 1978, §§ 30-50-1 to 30-50-4), punishes telemarketing fraud by the value obtained.

The Attorney General enforces the UPA and may recover a civil penalty of up to $5,000 per willful violation. Consumers have a private remedy under NMSA 1978, § 57-12-10: actual damages or $100, whichever is greater, and up to three times actual damages or $300, whichever is greater, for willful violations, plus mandatory attorney fees for a prevailing plaintiff. In a class action, statutory damages are available only to the named plaintiffs, and class members recover actual damages.

Federal courts in New Mexico have read § 57-12-22 to protect cell phone users even though the statute defines "residential subscriber" by reference to a "local exchange company." Compared with federal law, New Mexico has a later morning start time (9:00 a.m. instead of 8:00 a.m.), a fifteen-second disclosure deadline, a stricter rule for prerecorded sales calls (an established business relationship and consent to hear the message are both required), and a modest per-violation private remedy. It is looser in giving a three-month grace period after a number is registered.

Key statutes and regulations

Detailed provisions

Prerecorded-message sales calls (§ 57-12-22(A))

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.

The two conditions are conjunctive. There must be an established business relationship, and the called person must consent to hear the message. Under federal law, prior express written consent alone is enough for a prerecorded telemarketing call, and an established business relationship alone is not. New Mexico requires both a relationship and consent, but the consent need not be in writing.

"Established business relationship" means a relationship that "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 that "currently exists or has existed within the immediately preceding twelve months" (§ 57-12-22(D)(1)). The federal definition uses an 18-month window after a purchase and a three-month window after an inquiry.

Disclosure and conduct rules (§ 57-12-22(B))

Section 57-12-22(B) makes it "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.

Several points stand out:

• Fifteen seconds. The sponsor's name and the primary purpose of the call must be disclosed within fifteen seconds of answer. The Federal Trade Commission (FTC) Telemarketing Sales Rule (TSR) requires "prompt" disclosure, and the Federal Communications Commission (FCC) rules require identification at the beginning of a prerecorded message, but neither sets a numeric deadline for live calls.
• Calling hours. Calls "received before 9:00 a.m. or after 9:00 p.m." are unlawful. The text keys on when the call is received, which in practice means the called party's local time. The morning limit is one hour later than the federal 8:00 a.m. limit.
• Survey and euphemism pretexts. Calls described as a "courtesy call," a "public service information call" or research, when the real purpose is to sell, are separately prohibited.
• Abandonment. Paragraph (7) ties abandonment to the TSR's limits. Its citation to "16 C.F.R. Sections 310(b)(1)(iv)" appears to refer to § 310.4(b)(1)(iv), the TSR call-abandonment provision.
• Credit card numbers. A caller may not request a credit card number before the prospect says they want to pay by card.

Do-not-call and caller ID (§ 57-12-22(C))

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].

New Mexico adopts the national registry and keeps no separate list. The state violation arises once a number "has been on the national do-not-call registry ... for at least three months." Federal rules require registry data no more than 31 days old, so the federal obligation attaches sooner. The caller ID clause still refers to the repealed Consumer No-Call Act. The prohibition on blocking or intentionally circumventing caller ID nonetheless stands in the current text.

Definitions and exemptions (§ 57-12-22(D))

"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," including communications "through the use of automatic dialing and recorded message equipment or by other means." It excludes 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.

The resident real estate broker exemption has no federal counterpart. The definition reaches fax ("telefacsimile") solicitations. Charitable solicitations are not expressly exempt, but the definition covers only communications encouraging "the purchase or rental of or investment in property, goods or services."

"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" (§ 57-12-22(D)(3)), and "local exchange company" means "a telecommunications company that provides the transmission of two-way interactive switched voice communications within a local exchange area" (§ 57-12-22(D)(2)). As discussed below, federal courts in New Mexico have held that these definitions do not exclude cell phone users.

Text messages

Section 57-12-22 covers "voice or telefacsimile" communications and does not mention text messages. No New Mexico decision applying the section to text messages was located.

Remedies and enforcement

Private actions. Section 57-12-10(B) provides:

B. Any person who suffers any loss of money or property, real or personal, as a result of any employment by another person of a method, act or practice declared unlawful by the Unfair Practices Act may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. Where the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice.

"The court shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails," and it must award fees to the defendant if the action "was groundless" (§ 57-12-10(C)). Injunctive relief is available to "A person likely to be damaged," and "Proof of monetary damage, loss of profits or intent to deceive or take unfair advantage of any person is not required" (§ 57-12-10(A)). Either party may request early mediation within thirty days after service, and a plaintiff who mediates within the statutory window pays "no more than fifty dollars ($50.00) toward the cost of the mediation" (§ 57-12-10(F), (G)).

The subsection (B) remedy is written for a person who "suffers any loss of money or property." The New Mexico Court of Appeals has held that a plaintiff without actual losses may still recover the $100 statutory amount, Jones v. General Motors Corp., 1998-NMCA-020, 124 N.M. 606, 953 P.2d 1104, and the compiler's annotations summarize Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, 142 N.M. 437, 166 P.3d 1091, as holding that a viable claim "need not allege actual monetary or property loss." Neither case involved telephone solicitation, and no New Mexico appellate court has applied the loss language of subsection (B) to unwanted calls.

Class actions. Section 57-12-10(E) limits class recovery:

E. In any class action filed under this section, the court may award damages to the named plaintiffs as provided in Subsection B of this section and may award members of the class such actual damages as were suffered by each member of the class as a result of the unlawful method, act or practice.

Absent class members therefore cannot recover the $100 or $300 statutory amounts. This sharply limits classwide exposure under state law compared with the TCPA.

Attorney General. Under § 57-12-11, "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 of not exceeding five thousand dollars ($5,000) per violation."

Criminal fraud. The Fraudulent Telemarketing Act defines "telemarketing" by reference to a business "that uses the telephone on a regular basis as a primary instrument to obtain money from the people to whom information is transmitted by telephone communication" (§ 30-50-3(A)(1)). Under § 30-50-4, a person who "knowingly and willfully engages in telemarketing to or from a telephone located in New Mexico with the intent to embezzle or to obtain money, property or any thing of value by fraudulent pretenses, representations or promises in the course of a telephone communication" commits an offense ranging from a petty misdemeanor ($250 or less) to a second degree felony (more than $20,000). "Telephone communication" includes transmission "by words, fax, computer modem, video or other type of transmission that is carried in whole or in part through the local, long distance or cellular telephone network" (§ 30-50-3(B)).

How New Mexico differs from federal law

New Mexico is stricter than federal law in its calling-hour window, its fifteen-second disclosure deadline, its express bans on survey and courtesy-call pretexts and on early requests for credit card numbers, and its requirement of both a relationship and consent for prerecorded sales calls. It is looser in its three-month do-not-call grace period, its exemption for resident real estate brokers, its silence on text messages, and its remedy structure. A $100 private floor and the bar on classwide statutory damages make the TCPA the principal source of litigation exposure for calls into New Mexico.

Notable case law

Mohon v. Agentra LLC, 400 F. Supp. 3d 1189 (D.N.M. 2019), No. CIV 18-0915 (June 24, 2019) Mohon v. Agentra LLC (D.N.M. 2019) opinion. A consumer alleged prerecorded telemarketing calls to her cell phone, which was listed on the National Do Not Call Registry. The defendant argued that § 57-12-22 protects only landline subscribers. The court acknowledged that, read literally, "wireless telephone users do not subscribe to local exchange companies" and that "the NMUPA's literal language does not protect wireless telephones." It nevertheless predicted that the Supreme Court of New Mexico "would permit wireless telephone users to bring claims under the NMUPA's § 57-12-22(C)(1)," and that it "would conclude that the NMUPA should prohibit calls to all telephone numbers on the National Do Not Call Registry regardless whether the telephone number belongs to a wireless telephone." The court reasoned that the UPA "should work in harmony with the TCPA."

Mestas v. CHW Group Inc., 508 F. Supp. 3d 1011 (D.N.M. 2020), No. 19-CV-792 (Dec. 16, 2020) Mestas v. CHW Group Inc. (D.N.M. 2020) opinion. Following Mohon, the court held that a cell phone user who alleged a call lasting longer than fifteen seconds in which the telemarketer gave only a fictitious sponsor name stated a claim under § 57-12-22(B)(1), and that his registry listing supported a claim under § 57-12-22(C)(1). The court rejected the argument that a plaintiff must also plead a knowing misrepresentation. Because the plaintiff alleged "an act specifically declared unlawful" under § 57-12-22, "he need not allege the elements necessary to establish an unfair or deceptive trade practice" of the misrepresentation type. It also rejected the argument that a prerecorded message is an element of every § 57-12-22 claim, stating that it "declines to read such a requirement into the statute."

Recent amendments

No amendment to NMSA 1978, § 57-12-22, § 57-12-10 or § 57-12-11 enacted from 2023 through 2026 was identified. The section history lists Laws 1989, ch. 309, § 2 and Laws 2003, ch. 167, § 10 as the operative enactments. House Bill 78 (2020), which would have expanded the telephone solicitation restrictions to wireless and Voice over Internet Protocol services, does not appear in the section history in the official compilation, which indicates it was not enacted. The Fraudulent Telemarketing Act was last amended by Laws 2006, ch. 29, § 26.

Practical compliance checklist

• Restrict calls to New Mexico numbers to 9:00 a.m. through 9:00 p.m. at the called party's location, which is narrower than the federal window (§ 57-12-22(B)(5)).
• Script every sales call to state the sponsor's name and the primary purpose of the call within fifteen seconds of answer, and never describe a sales call as a courtesy, public service, research, or survey call (§ 57-12-22(B)(1)-(3)).
• Treat cell phone numbers as covered by all § 57-12-22 protections, following Mohon and Mestas.
• Scrub against the National Do Not Call Registry on the federal 31-day cycle, which also satisfies New Mexico's three-month rule (§ 57-12-22(C)(1)).
• Before using a prerecorded sales message, confirm both an established business relationship within the past twelve months and the called person's consent to hear the message, in addition to federal prior express written consent (§ 57-12-22(A)).
• Disclose total cost, terms, payment plans, and extra charges before the customer commits, and do not request a credit card number until the customer chooses to pay by card (§ 57-12-22(B)(4), (8)).
• Configure dialers to release the line immediately when the called party disconnects and to keep abandonment within TSR limits. Do not block or alter caller ID (§ 57-12-22(B)(6), (7), (C)(2)).
• Document consent and relationship evidence for each campaign. Private plaintiffs who prevail recover mandatory attorney fees (§ 57-12-10(C)).

References

• NMSA 1978, Chapter 57 (including §§ 57-12-10, 57-12-11, 57-12-22 and annotations), New Mexico Compilation Commission, NMOneSource (official): https://nmonesource.com/nmos/nmsa/en/item/4423/index.do
• NMSA 1978, Chapter 30 (including §§ 30-50-1 to 30-50-4), NMOneSource (official): https://nmonesource.com/nmos/nmsa/en/item/4371/index.do
• NMSA 1978, § 57-12-22 (unofficial, Justia): https://law.justia.com/codes/new-mexico/chapter-57/article-12/section-57-12-22/
• House Bill 78 (2020), New Mexico Legislature: https://www.nmlegis.gov/Sessions/20%20Regular/bills/house/HB0078.HTML
• 47 C.F.R. § 64.1200, eCFR: https://www.ecfr.gov/current/title-47/chapter-I/subchapter-B/part-64/subpart-L/section-64.1200
• 16 C.F.R. Part 310 (Telemarketing Sales Rule), eCFR: https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-310
• 47 U.S.C. § 227, govinfo: https://www.govinfo.gov/app/details/USCODE-2023-title47/USCODE-2023-title47-chap5-subchapII-partI-sec227
• Mohon v. Agentra LLC, No. 18-cv-00915 (D.N.M. June 24, 2019), govinfo: https://www.govinfo.gov/content/pkg/USCOURTS-nmd-1_18-cv-00915/pdf/USCOURTS-nmd-1_18-cv-00915-0.pdf
• Mestas v. CHW Group Inc., No. 19-cv-00792 (D.N.M. Dec. 16, 2020), govinfo: https://www.govinfo.gov/content/pkg/USCOURTS-nmd-1_19-cv-00792/pdf/USCOURTS-nmd-1_19-cv-00792-5.pdf

This page summarizes state law for general informational purposes and is not legal advice. Statutes change; confirm current text with the official source before relying on it.