TCPA Demand Letter - New Mexico

NEW MEXICO TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City], New Mexico [ZIP]
Telephone: [____________]
Email: [____________]
NM Bar No.: [____________] (if attorney)
File No.: [____________]

Date and Recipient

Date: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED, No. [____________]
AND VIA EMAIL TO: [____________]

[RECIPIENT NAME / REGISTERED AGENT]
[BUSINESS NAME]
[Street Address]
[City, State ZIP]

Subject Line / Re: Block

RE: DEMAND TO CEASE UNLAWFUL TELEPHONE COMMUNICATIONS AND TO SETTLE CLAIMS — Telephone Consumer Protection Act, 47 U.S.C. § 227; New Mexico Unfair Practices Act, NMSA 1978, § 57-12-1 et seq.; § 57-12-22 (telephone solicitation / automated dialing)
Claimant: [CLAIMANT FULL NAME]
Claimant Telephone Number(s) Called: [____________]
Date Range of Violations: [__/__/____] through [__/__/____]
Number of Documented Communications (claim counting requires separate analysis): [____]

I. Parties

Claimant: [CLAIMANT FULL NAME], a New Mexico resident residing at [ADDRESS], County of [____________], State of New Mexico, who is the subscriber and/or customary user of the telephone number(s) [____________]. Claimant ☐ registered the number(s) on the National Do-Not-Call Registry on [__/__/____] / ☐ previously requested no further calls from Respondent on [__/__/____] / ☐ revoked any prior consent on [__/__/____].

Respondent: [BUSINESS NAME], a [STATE OF INCORPORATION] [entity type], whose principal place of business is at [ADDRESS] and whose registered agent is [AGENT NAME] at [AGENT ADDRESS]. At all relevant times Respondent was engaged in "trade or commerce" within the meaning of NMSA 1978, § 57-12-2(C). Respondent ☐ placed the communications directly / ☐ allegedly caused them to be placed by [AGENT / LEAD GENERATOR / DIALER]. Identify the facts supporting any direct or vicarious-liability theory, including authorization, control, ratification, and the entity on whose behalf each communication was made.

II. The Offending Communications (Call Log)

Respondent and/or its agents placed the following calls, text messages, and/or facsimile transmissions to Claimant's telephone number(s) without prior express consent (or after consent was revoked / after a do-not-call request / while the number was on a Do-Not-Call registry):

Total documented communications: [____]

III. Legal Framework — Overlapping Federal and New Mexico Liability

A. Federal TCPA — 47 U.S.C. § 227

The federal TCPA is the primary vehicle for individual statutory-damages claims arising from unlawful calls, texts, and faxes:

• ATDS / artificial- or prerecorded-voice calls to cell phones — § 227(b)(1)(A): subject to the statute and rule's stated exceptions, prohibits calls using an ATDS or an artificial or prerecorded voice to a cellular telephone number without prior express consent. For advertising or telemarketing calls covered by 47 C.F.R. § 64.1200(a)(2), prior express written consent generally is required, subject to the rule's stated nonprofit and health-care exceptions. Under Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), equipment is an ATDS only if it has the capacity either to store a telephone number using a random or sequential number generator or to produce a telephone number using such a generator.
• Artificial or prerecorded calls to residential lines — § 227(b)(1)(B): subject to current FCC exemptions, the statute prohibits these calls without prior express consent unless made for an emergency purpose. Current 47 C.F.R. § 64.1200(a)(3) contains consent rules, numerical limits, and opt-out conditions that must be applied to the call type.
• National Do-Not-Call Registry — § 227(c) and 47 C.F.R. § 64.1200(c): restricts telephone solicitations to numbers on the National Do-Not-Call Registry; a caller invoking the safe-harbor standards must use a Registry version obtained no more than 31 days before the call (47 C.F.R. § 64.1200(c)(2)). A consumer private action under § 227(c)(5) requires more than one call within a 12-month period by or on behalf of the same entity.
• Internal do-not-call / company-specific request — 47 C.F.R. § 64.1200(d)(3): requires the caller to record the request when made and honor it within a reasonable time not exceeding ten business days.
• Unsolicited fax advertisements — § 227(b)(1)(C): generally prohibits sending unsolicited advertisements to a telephone facsimile machine unless the statutory established-business-relationship, number-acquisition, and notice conditions are satisfied; a compliant opt-out request ends the exception.

Damages: Section 227(b)(3) permits actual loss or $500 per violation, with a discretionary increase to no more than three times that amount for a willful or knowing violation. Section 227(c)(5) is different: only after the more-than-one-call threshold is met, it permits actual loss or up to $500 per qualifying violation, with the same discretionary trebling ceiling. Do not count every call, text, or fax under both provisions without matching the conduct and threshold to the specific claim.
Statute of limitations: generally 4 years after accrual — 28 U.S.C. § 1658(a).
Private right of action: expressly provided — § 227(b)(3), (c)(5).

B. New Mexico Telephone-Solicitation Statute — NMSA 1978, § 57-12-22

Section 57-12-22 regulates telephone solicitations, defined in Subsection D(4) as voice or telefacsimile communications over a telephone line encouraging a purchase, rental, or investment, subject to listed exclusions. It does not supply a generic state-law SMS claim. Its operative provisions differ:

• Automated dialing / prerecorded messages — § 57-12-22(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."
• Disclosure within 15 seconds — § 57-12-22(B)(1): the solicitor must disclose the name of the sponsor and the primary purpose of the contact within fifteen seconds.
• Prohibited calling hours — § 57-12-22(B)(5): no solicitations received before 9:00 a.m. or after 9:00 p.m.
• Abandoned / predictive-dialer calls — § 57-12-22(B)(6)-(7): automatic dialing equipment must immediately release the line when the called party disconnects, and multi-number dialing cannot leave a called person unconnected beyond the federally established period. The current official compilation prints an anomalous first federal cross-reference as "16 C.F.R. Sections 310(b)(1)(iv)"; counsel should check the operative Telemarketing Sales Rule before pleading that theory.
• National Do-Not-Call Registry — § 57-12-22(C)(1): unlawful to solicit a residential subscriber whose number has been on the National Do-Not-Call Registry for at least three months before the call.

Subsection B expressly labels its listed conduct unlawful under the NMUPA. For any § 57-12-22 theory, identify the operative subsection and separately establish the requirements of the requested § 57-12-10 remedy; liability does not automatically establish private damages.

C. Unsolicited Faxes / Email — NMSA 1978, §§ 57-12-23, 57-12-24

Section 57-12-23 regulates unsolicited facsimile advertisements and commercial email. Section 57-12-24 provides a recipient's private damages remedy only if, before receiving the advertisement, the recipient notified the sender under § 57-12-23 not to send further unsolicited advertisements or the sender entered a written assurance of discontinuance under § 57-12-9. When that gate is met, the recipient may seek actual damages or statutory damages equal to the greater of $25 for each email or facsimile or $5,000 for each day of violation, plus reasonable attorney fees and costs. Any federal fax claim under 47 U.S.C. § 227(b)(1)(C) must be analyzed separately.

D. New Mexico Unfair Practices Act — NMSA 1978, § 57-12-1 et seq. (Private Remedy)

Where the alleged conduct is an unfair or deceptive trade practice under the NMUPA, § 57-12-10 provides different remedies with different gates:

• Injunctive relief for a person likely to be damaged, without proof of monetary damage — § 57-12-10(A).
• Actual damages or $100, whichever is greater, only for a person who suffers loss of money or property as a result of the unlawful practice — § 57-12-10(B).
• Up to 3× actual damages, or $300, whichever is greater, when the factfinder finds a willful unfair, deceptive, or unconscionable trade practice — § 57-12-10(B) (second sentence).
• Reasonable attorney fees and costs to the complaining party if that party prevails — § 57-12-10(C).
• Early-mediation option within 30 days of any summons, with the consumer contributing no more than $50 — § 57-12-10(F)-(G).

The NMUPA is remedial and is construed liberally to accomplish its purposes. State ex rel. Stratton v. Gurley Motor Co., 1987-NMCA-063, ¶ 27. Section 37-1-4 provides a four-year period for listed and otherwise-unspecified actions, but the proper claim classification, accrual date, and any tolling are fact-specific.

IV. Statement of Violations

Based on the call log in Section II, Claimant alleges the following violations where the checked claim's elements are supported by the documented facts:

☐ Calls/texts to a cellular number using an ATDS without prior express consent — 47 U.S.C. § 227(b)(1)(A)
☐ Calls/texts to a cellular number using an artificial or prerecorded voice without consent — 47 U.S.C. § 227(b)(1)(A)
☐ Prerecorded calls to a residential line without consent — 47 U.S.C. § 227(b)(1)(B)
☐ Telemarketing without prior express written consent — 47 C.F.R. § 64.1200(a)(2)
☐ More than one call within 12 months by/on behalf of the same entity to a number on the National Do-Not-Call Registry — 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)
☐ Calls continued more than 10 business days after an internal do-not-call request — 47 C.F.R. § 64.1200(d)(3)
☐ Unsolicited fax advertisement(s) — 47 U.S.C. § 227(b)(1)(C)
☐ Prerecorded-message solicitation using an automated dialing or push-button/tone-activated address-signaling system without both an established business relationship and consent to hear the message — NMSA 1978, § 57-12-22(A)
☐ Failure to disclose sponsor / purpose within 15 seconds — NMSA 1978, § 57-12-22(B)(1)
☐ Solicitation before 9:00 a.m. or after 9:00 p.m. — NMSA 1978, § 57-12-22(B)(5)
☐ Solicitation to a number on the National Do-Not-Call Registry (3+ months) — NMSA 1978, § 57-12-22(C)(1)
☐ Unsolicited fax/email violating § 57-12-23; § 57-12-24 private-remedy gate satisfied by prior opt-out notice or assurance of discontinuance
☐ Conduct declared or made unlawful under the NMUPA, with the applicable § 57-12-10 remedy gate separately satisfied — NMSA 1978, §§ 57-12-2(D), 57-12-3, 57-12-10
☐ Other — [_________________________________]

V. Damages and Remedies Calculation

VI. Demand

Pursuant to the authorities above, Claimant demands that Respondent, within [____] days (no later than [__/__/____]):

1. Immediately cease and desist all telephone calls, text messages, and facsimile transmissions to Claimant's number(s) and direct all further communications to the undersigned;
2. Place Claimant's number(s) on Respondent's internal do-not-call list and confirm the same in writing;
3. Preserve all evidence identified in Section VII below;
4. Tender settlement of Claimant's claims in the amount of $[__________] in full and final resolution; and
5. Identify every entity, lead generator, dialer vendor, and client on whose behalf the calls/texts were placed.

If Respondent relies on federal prior express consent or prior express written consent, Respondent must produce the consent record and its date, scope, and method of capture. If Respondent relies on a New Mexico established business relationship or prior express invitation or permission under § 57-12-22(D), Respondent must produce the transaction or communication records supporting that exclusion. Section 57-12-22(A)'s prerecorded-message exception requires both an established business relationship and consent to hear the prerecorded message.

VII. Litigation Hold / Evidence Preservation Notice

This letter gives Respondent notice of reasonably anticipated litigation and demands preservation of documents, electronically stored information (ESI), and tangible evidence relevant to the claims, including suspension of routine destruction or overwriting as applied to:

☐ Outbound and inbound call detail records (CDRs) and dialer logs for Claimant's number(s)
☐ Records identifying the dialing equipment used and its capacity (ATDS analysis)
☐ Prerecorded/artificial-voice audio files and text/SMS content and templates
☐ Consent records, established-business-relationship records, lead-source data, opt-in records, and signed consent writings
☐ National and internal Do-Not-Call scrubbing records and policies (31-day scrub logs)
☐ Compliance records under NMSA 1978, § 57-12-22 (disclosure scripts, calling-hour logs)
☐ Caller-ID configuration and any spoofing/blocking records
☐ Contracts, agency agreements, and indemnity terms with dialer vendors and lead generators
☐ Backup tapes, cloud-backed copies, audit logs, version histories, and metadata for the foregoing

Destruction or failure to preserve relevant evidence may support sanctions, including a permissible adverse inference, after the court considers fault, prejudice, and whether a lesser sanction would avoid substantial unfairness. Restaurant Mgmt. Co. v. Kidde-Fenwal, Inc., 1999-NMCA-101, ¶¶ 13–20.

VIII. Response Deadline and Method

Respondent's written response must be received no later than [__/__/____].

Silence, a boilerplate denial, or continued calling will be treated as a refusal to resolve this matter and may result in a civil action under the TCPA (47 U.S.C. § 227(b)(3), (c)(5)) and, where its elements and remedy gates are met, the New Mexico Unfair Practices Act (NMSA 1978, § 57-12-22 and § 57-12-10). The action may seek the damages, enhancement, and fees available on the proven facts and may be accompanied by complaints to the Federal Communications Commission, the Federal Trade Commission, and the New Mexico Department of Justice's Consumer and Environmental Protection Division.

This letter is sent without prejudice to all of Claimant's rights and remedies, which are expressly reserved.

Signature Block

Respectfully submitted,

[________________________________]
[ATTORNEY NAME] (or Claimant pro se)
New Mexico State Bar No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City], New Mexico [ZIP]
Telephone: [____________]
Email: [____________]
Counsel for Claimant [CLAIMANT NAME] (if represented)

cc: ☐ Claimant
  ☐ New Mexico Department of Justice — Consumer Affairs Division
  ☐ File

Pre-Send Checklist

☐ Verified Respondent's legal name and registered agent via NM Secretary of State (https://portal.sos.state.nm.us/BFS/online/)
☐ Confirmed each call/text/fax is documented with date, time, and calling number in the Section II log
☐ Confirmed whether Claimant's number was on the National Do-Not-Call Registry and the registration date (note § 57-12-22(C)(1) requires 3+ months)
☐ Confirmed the federal claim is within the generally applicable 4-year period in 28 U.S.C. § 1658(a), and analyzed claim classification, accrual, and tolling for any state claim under NMSA 1978, § 37-1-4
☐ Matched each New Mexico communication to the voice/telefacsimile definition and the exact operative subsection of § 57-12-22
☐ Documented resulting loss of money or property before claiming § 57-12-10(B) damages
☐ Documented facts supporting willfulness to unlock the up-to-3× / $300 NMUPA multiplier under § 57-12-10(B)
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all <!-- --> comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by New Mexico-licensed counsel before transmission

Sources and References

• Telephone Consumer Protection Act, 47 U.S.C. § 227 (official GPO text): https://www.govinfo.gov/content/pkg/USCODE-2024-title47/html/USCODE-2024-title47-chap5-subchapII-partI-sec227.htm
• FCC TCPA implementing rules, 47 C.F.R. § 64.1200: https://www.ecfr.gov/current/title-47/chapter-I/subchapter-B/part-64/subpart-L/section-64.1200
• 28 U.S.C. § 1658 (official GPO text): https://www.govinfo.gov/content/pkg/USCODE-2024-title28/html/USCODE-2024-title28-partV-chap111-sec1658.htm
• New Mexico Compilation Commission, current Chapter 57 NMSA 1978 (§§ 57-12-10 to -24): https://nmonesource.com/nmos/nmsa/en/item/4423/index.do
• New Mexico Compilation Commission, current Chapter 37 NMSA 1978 (§ 37-1-4): https://nmonesource.com/nmos/nmsa/en/item/4366/index.do
• New Mexico Department of Justice — Consumer Affairs: https://nmdoj.gov/about-the-office/consumer-affairs/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition)
• State ex rel. Stratton v. Gurley Motor Co., 1987-NMCA-063 (NMUPA is remedial and liberally construed)
• Restaurant Mgmt. Co. v. Kidde-Fenwal, Inc., 1999-NMCA-101 (prelitigation spoliation sanctions and factors)