The National Do-Not-Call Registry, which is similar to the UK's Telephone Preference Service, gives consumers the right to opt-out of receiving telemarketing calls at home. It began operating in October last year and already contains over 60 million phone numbers.
Under the Registry rules, telemarketers are required to clean their lists every three months of those numbers that have opted-out. Telemarketers that call a number on the list are liable for a fine of up to $11,000 per call. Political and charitable organisations are permitted to call consumers, but they must follow consumer requests not to be called again.
Last October, just before the official launch of the Registry, Judge Edward Nottingham from Denver ruled that the list violated free-speech protections and was therefore unconstitutional.
His argument was that the Registry rules do not apply equally to all kinds of speech, blocking commercial telemarketing calls but not calls from charities. He wrote: "The FTC has chosen to entangle itself too much in the consumer's decision by manipulating consumer choice."
The Registry was allowed to begin operations pending an appeal by the Federal Trade Commission, which runs the list. The US Tenth Circuit Court of Appeals then overturned the lower court ruling in February this year, upholding the constitutionality of the Registry.
This, said the Appeals Court, was because it was an opt-in service, restricts only commercial sales calls, and targets "speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status" under the constitution.
"We hold that the do-not-call registry is a valid commercial speech regulation," it said, "because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech."
The telemarketers behind the original claim then sought leave to appeal that decision to the US Supreme Court – an application that has now been rejected. The case for telemarketers, therefore, appears to be finished.