TITLE XXXI
TRADE AND COMMERCE

Chapter 359-E
TELEMARKETING

Use of Automatic Telephone Dialing Systems and Caller Identification Services

Section 359-E:1

    359-E:1 Definitions. –
In this chapter:
I. "Automatic telephone dialing system" means any automatic terminal equipment which stores or produces numbers to be called randomly or sequentially and which delivers a prerecorded message to the number called without assistance of a live operator.
I-a. "Caller identification information" means:
(a) The telephone listing number and/or name of the customer from whose telephone instrument a telephone number is dialed; or
(b) Other information that may be used to identify the specific originating number or originating location of a wire or electronic communication transmitted by a telephone instrument.
I-b. "Caller identification service" means a service offered by a telecommunications utility that provides caller identification information to a device capable of displaying the information.
I-c. "Per-call blocking" means a telecommunications service that prevents the transmission of caller identification information to a called party on an individual call if the calling party acts affirmatively to prevent the transmission of the caller identification information.
I-d. "Per-line blocking" means a telecommunications service that prevents the transmission of caller identification information to a called party on every call unless the calling party acts affirmatively to release the caller identification information.
II. "Solicitation" means the unrequested initiation of a telephone call to a residential telephone subscriber for the purposes of giving, selling, or leasing services or goods, whether real or personal, tangible or intangible; or to gain a pledge, promise or contribution in circumstances where there is no pre-existing relationship between the caller and the person called; or to obtain information, data or opinions.

Source. 1989, 165:1. 1998, 14:2, eff. Jan. 1, 1999.

Section 359-E:2

    359-E:2 Registration. –
I. Any person intending to use an automatic telephone dialing system for solicitation in this state shall, at least 10 business days prior to using the system, register with the consumer protection and antitrust bureau of the department of justice the information required by RSA 359-E:3, and, if the registrant is a solicitor, as that term is used in RSA 7:28-c, the information required by RSA 7:28-c. At the time of filing, the registrant shall also pay to the department an annual non-proratable administrative fee of $20 for the calendar year.
II. The registrant shall be responsible for providing timely identification and automatic disconnect in accordance with RSA 359-E:4 and 359-E:5. Calls pertaining to an interest in real estate shall comply with the disclosure requirements of RSA 356-A and 356-B.
III. All transmissions shall be randomly generated in unequal intervals, and shall not infiltrate any emergency lines, such as police, fire, or ambulance lines, which are either 911 circuits or 7-digit telephone numbers designated as emergency lines.

Source. 1989, 165:1, eff. Jan. 1, 1990.

Section 359-E:3

    359-E:3 Registration Information. –
Each registration pursuant to RSA 359-E:2 shall contain the following information:
I. The name and address of the registrant, including the name under which the registrant is doing or intends to do business.
II. The complete street addresses of all locations from which the registrant will be conducting business.

Source. 1989, 165:1, eff. Jan. 1, 1990.

Section 359-E:4

    359-E:4 Dialer Disconnect. – Any automatic telephone dialing system used in this state shall be operated so that the system will automatically disconnect or release within 30 seconds after the called party hangs up.

Source. 1989, 165:1, eff. Jan. 1, 1990.

Section 359-E:5

    359-E:5 Identification. –
Any solicitation message made through the use of an automatic telephone dialing system shall disclose immediately after telephone contact:
I. The name of the person, company, or organization making the call.
II. The purpose of the call and the goods or services being offered, if any.

Source. 1989, 165:1, eff. Jan. 1, 1990.

Section 359-E:5-a

    359-E:5-a Blocking Prohibited. – No person using an automated telephone dialing system or any other method for solicitation shall use any method, including per-call blocking or per-line blocking, to prevent caller identification information from being received by the called party station. The caller identification information shall contain a telephone number at which the telephone solicitor may receive telephone calls and shall not contain misleading, inaccurate, or deceptive information.

Source. 1998, 14:3, eff. Jan. 1, 1999. 2019, 176:1, eff. Jan. 1, 2020.

Section 359-E:6

    359-E:6 Violations. – Any violation of the provisions of this subdivision shall constitute an unfair or deceptive act or practice within the meaning of RSA 358-A:2. Any right, remedy, or power set forth in RSA 358-A, including those set forth in RSA 358-A:4, may be used to enforce the provisions of this chapter. Such remedies shall be in addition to any other remedies provided by law or equity.

Source. 1989, 165:1. 2003, 303:4, eff. Sept. 16, 2003.

Telemarketing Sales Calls

Section 359-E:7

    359-E:7 Definitions. –
In this subdivision:
I. " Bureau " means the consumer protection and antitrust bureau of the office of the attorney general.
II. " Customer " means any natural person who is a resident of this state and who is or may be required to pay for or to exchange consideration for goods and services offered through telemarketing.
III. " Do-not-call list " means a list of residential telephone subscribers who have notified the list administrator of their desire not to receive telemarketing sales calls.
IV. " Doing business in this state " means conducting telephonic sales calls from a location:
(a) In this state; or
(b) Outside of this state to consumers residing in this state.
V. " Established business relationship " means an established business relationship as defined by the Federal Trade Commission Telemarketing Sales Rule, 16 C.F.R. part 310, section 310.2(n), as amended.
VI. " Goods and services " means any goods and services, and shall include any real property or any tangible personal property as well as time share estates and licenses or services of any kind.
VII. " List administrator " means the Federal Trade Commission.
VIII. " Person " means any natural person, association, partnership, firm, corporation and its affiliates or subsidiaries, or other business entity.
IX. " Telemarketer " means any person who, for financial profit or commercial purposes in connection with telemarketing, makes telemarketing sales calls to a customer when the customer is in this state or any person who directly controls or supervises the conduct of a telemarketer or causes to be made a telemarketing call on such seller's own behalf or through a salesperson. For the purposes of this subdivision, " commercial purposes " shall mean the sale or offer for sale of goods or services.
X. " Telemarketing " means any plan, program, or campaign which is conducted to induce payment or the exchange of any other consideration for any goods or services by use of one or more telephones and which involves more than 5 telephone calls per month by a telemarketer in which the customer is located within the state at the time of the call. Telemarketing shall not include the solicitation of sales through media other than by telephone calls.
XI. " Telemarketing sales call " means a telephone call made by a telemarketer to a customer for the purpose of inducing payment or the exchange of any other consideration for any goods or services or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes. A telemarketing sales call shall not include a call made:
(a) In response to an express written or verbal request of the customer called.
(b) In connection with an established business relationship.
(c) On behalf of a nonprofit charity.
(d) [Repealed.]
(e) On behalf of a political campaign, except that a call made on behalf of a political campaign by a vendor using automatic dialing equipment shall be deemed a telemarketing sales call under this chapter.

Source. 2003, 303:3, eff. Sept. 16, 2003; 303:6, eff. Aug. 1, 2006.

Section 359-E:8

    359-E:8 Prohibited Telemarketing Sales Calls. –
I. Telemarketers are prohibited from conducting telemarketing sales calls to any customer who has registered his or her name or telephone number with the do-not-call registry maintained by the list administrator or Federal Trade Commission. In the case of telemarketers regulated by the Federal Communications Commission, this chapter shall apply in a manner consistent with rules concerning a national do-not-call list developed by that agency.
II. In addition, any person who is required to comply with the Federal Trade Commission Telemarketing Sales Rule, 16 C.F.R. part 310, as amended, shall also comply with the provisions of the Federal Trade Commission Telemarketing Sales Rule for telemarketing sales calls made within the state of New Hampshire. This section shall also apply to any person who would be required to comply with the Federal Trade Commission Telemarketing Sales Rule, if such person were making interstate telemarketing sales calls.

Source. 2003, 303:3, eff. Sept. 16, 2003.

Section 359-E:9

    359-E:9 Telemarketers' Obligation to Obtain Do-Not-Call List. – Telemarketers making telemarketing sales calls to customers in the state of New Hampshire shall obtain from the list administrator quarterly listings of customers in the state who have registered with the list administrator for inclusion in its do-not-call list.

Source. 2003, 303:3, eff. Sept. 16, 2003.

Section 359-E:10

    359-E:10 Duties of List Administrator. –
The list administrator:
I. Shall provide the bureau with a copy of each quarterly do-not-call list.
II. Shall provide the bureau with the names and addresses of each telemarketer who purchases the do-not-call list.
III. Except as directed by the bureau, shall be prohibited from disclosing or using in any way customer names, addresses, or telephone numbers obtained in the course of registering customers' telephone numbers on the do-not-call list.

Source. 2003, 303:3, eff. Sept. 16, 2003.

Section 359-E:11

    359-E:11 Violations; Penalties. –
I. The department of justice shall investigate any complaints received concerning violations of this subdivision or RSA 664:14-a. If, after investigating the complaint, the department finds that a person has violated any provision of this subdivision or RSA 664:14-a, the department shall impose a civil penalty of $5,000 for each violation.
II. Any person injured by another's violation of this subdivision may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper. If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the act or practice was a willful or knowing violation of this subdivision, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this subdivision without bond, subject to the discretion of the court. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
III. Notwithstanding paragraph I, a telemarketer shall not be held liable for violating this subdivision if the telemarketer can demonstrate by clear and convincing evidence that, as part of the telemarketer's routine business practice:
(a) The telemarketer established and implemented written procedures to comply with this subdivision.
(b) The telemarketer trained his or her personnel in the requirements of this subdivision.
(c) The telemarketer uses a process to prevent telemarketing to any telephone number on any do-not-call list or registry referenced in this subdivision; maintains the current, quarterly version of the list or registry; and maintains records documenting this process.
(d) The telemarketer monitors and enforces compliance with the procedures established under subparagraph (a).
(e) The telemarketer uses a version of the do-not-call list obtained no more than 3 months prior to the date that any call is made.
(f) Any subsequent call otherwise violating this subdivision is not part of a pattern of calls made in violation of this subdivision and is the result of a good faith error.

Source. 2003, 303:3, eff. Sept. 16, 2003.