Section 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.