Regulation of Trade Practices (Part 2)

The Regulation of Unfair, Deceptive, and Unconscionable Trade Practices

C. Specific Applications of the Unfair Practices Act

In addition to its general prohibitions, the Act also applies to some specific types of transactions, such as automobile sales and telephone solicitations, and specific types of advertising, such as unsolicited facsimile and email advertising.

1. Telephone Solicitations

Telephone solicitation is governed by the Consumer "No-Call Act."  57-12A-1--7.  This Act prohibits telephone solicitation of any residential subscriber who's telephone number has been placed on the national do-not-call registry.  Penalties are provided for violation of this act.  Exceptions are made in the following circumstances.

• The subscriber has given permission.
• The subscriber has a business relationship with the caller.
• The call is made supporting a political candidate or ballot issue.
• The call is made to conduct a political or other poll.
• The caller is a licensed real estate agent and the call is for the sole purpose of selling, exchanging, purchasing, renting listing for sale or rent or leasing real estate.

Section 57-12A-2H(1)-(5)

2. Unsolicited Facsimiles (Faxes) and Email

It is an unfair or deceptive practice for a seller conducting business in New Mexico to send an unsolicited advertisement by facsimile (fax) or email to a recipient with whom the sender does not have an existing business relationship unless the sender satisfies certain requirements. §57-12-23. In addition, it is an unfair or deceptive trade practice to continue sending unsolicited advertisements by facsimile or email when the recipient has notified the business it does not want to receive any further unsolicited advertisements.

a. Requirements for Unsolicited Facsimiles
A person conducting business in New Mexico may send an unsolicited advertisement by facsimile if:

(i)   The person establishes a toll-free number that a fax recipient may utilize to notify the sender not to send any additional unsolicited advertisements;

(ii) The unsolicited advertisement includes a statement, in at least nine-point type, informing the recipient of the toll-free number and the right to request no further unsolicited fax advertisements; and

(iii) The recipient has not notified the business that it does not want to receive any additional unsolicited advertisements.  §57-12-23(A)

b. Requirements for Unsolicited Email
A person conducting business in New Mexico may send an unsolicited advertisement by email if:

(i) The person establishes a toll-free number or a valid sender-operated return email address that an email recipient may call or email to notify the sender not to send any additional unsolicited advertisements;

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

(iii) The subject line of the email includes “ADV:” as the first four characters;

(iv) The subject line of the email includes “ADV:ADLT” as the first eight characters if the unsolicited advertisement concerns realty, goods, services, intangibles or the extension of credit that may only be viewed, purchase, licensed, rented, leased or held in the possession of an adult; and

(v) The email recipient has not notified the business that it does not want to receive any additional unsolicited advertisements.  §57-12-23(B).

c. Remedies
Anyone who has received an unsolicited advertisement by facsimile or email after requesting that no additional advertisements be sent may sue the sender and recover actual damages (including loss of profits) or statutory damages equal to the greater of $25.00 for each email or facsimile received or $5,000.00 for each day of violation, plus reasonable attorney’s fees and costs.  §57-12-24(A).

A telecommunications utility or internet service provider that is injured by a violation of Section 57-12-23 or -24 may recover actual damages (including loss of profits) or statutory damages equal to the greater of $10.00 for each transmitted facsimile or email or $5,000.00 for each day of violation, plus reasonable attorney’s fees and costs.  §57-12-24(B).

These remedies are in addition to any other remedies available by law.

D. Penalties/Remedies Under the Unfair Practices Act

The attorney general may bring an action on behalf of the state against any person believed to be acting in violation of the Unfair Practices Act. A buyer who loses money or property because the seller allegedly violated the Unfair Practices Act may sue to recover actual damages or the sum of $100, whichever is greater. If it is determined the seller willfully engaged in the unfair, deceptive, or unconscionable trade practice, the court may award the buyer up to three times actual damages or $300, whichever is greater. §57-12-10(B). Note, however, that a party awarded treble damages for willfulness is not entitled to recover punitive damages. See Hale v. Basin Motor Co., 110 N.M. 314, 320 (1990) (a party is not entitled to multiple awards of damages arising out of the same conduct). If the party complaining of an unfair or deceptive trade practice succeeds in his or her suit, then the court should also award attorneys’ fees and costs to that party.