Households' right to privacy supersedes the right to free speech when it comes to telemarketing, according to an appeals court's ruling Tuesday in response to challenges to the federal Do Not Call Registry of 56 million phone numbers.

The 10th Circuit Court of Appeals in Denver said in a Feb. 17, 51-page order that the registry is "a valid commercial speech regulation ... because it directly advances substantial governmental interests and is narrowly tailored ... the registry fees telemarketers must pay to access the list are a permissible measure designed to defray the cost of legitimate government regulation ... it was not arbitrary and capricious for the FCC (Federal Communications Commission) to adopt the established business relationship exception ... and the FTC (Federal Trade Commission) has statutory authority to establish and implement the national Do-Not-Call registry."

But that's not about to stop the 4,700 member Direct Marketing Association, which is among the largest groups challenging the law, arguing, among other issues, that it unfairly violates their free speech rights because it does not block charitable, political and other calls that could be solicitous.

Despite the approval of owners of 56 million phones who signed up to have telemarketing calls blocked, the association said it wasn't finished reviewing its options, meaning registry challenges are likely to end up in the U.S. Supreme Court.

"Our industry will respect the wishes of consumers who have placed their household telephone numbers on the Do-Not-Call list," said H. Robert Wientzen, president and CEO of the DMA in a prepared statement.

"However, we urge the FTC and FCC to address the problems with the list's online registration process and privacy safeguards, as well as the need for the harmonization of inconsistent Do-Not-Call rules between the two agencies, and we pledge our full cooperation and support to that end," Wientzen added.

The appeals court also said the only calls banned are those to people who have said they do not want them and both the FTC and FCC praised the decision.

So likely did many of those polled in a new Harris Poll, "Do Not Call Registry Is Working Well," released Feb. 13, days before the court ruling. The poll reveals more than half of all adults -- 57 percent -- say they've signed up for the federal Do Not Call list and 53 percent of them say they've received far fewer telemarketing calls than before and 25 percent say they have received none.

"The National Do-Not-Call Registry is one of the most popular and successful consumer initiatives undertaken by the Federal government and, along with the vast majority of our citizens, I commend the court for removing the shadow of judicial uncertainty," said FCC chairman Michael Powell in a prepared statement.

The registry, expected to eventually hold 60 million phone numbers, allows households and others to include their telephone number on a list that's sold to telemarketers who must, in turn, not call those numbers for five years.

Telephone number owners can relist their numbers with the registry at the end of five years. Violators can be fined $11,000 for each illegal call.

"The Tenth Circuit’s ruling represents a major victory for American consumers. In upholding the constitutionality of the National Do Not Call Registry, the court has made it clear that the FTC and FCC can and will continue to protect consumers' privacy at home," said FTC chairman Timothy J. Muris.

Published: February 19, 2004

Use of this article without permission is a violation of federal copyright laws.

A journalist for 35-years, Broderick Perkins parlayed an old-school daily newspaper career into a digital news service offering editorial content and consulting services. Perkins' San Jose, CA-based DeadlineNews Group includes the flagship news site, DeadlineNews.Com, offering real estate, personal finance and consumer journalism, and a backshop, the Deadline Newsroom.