In May, three marketing groups, The American Teleservices Association, Mainstream Marketing Services, and TMG Marketing, appealed the lower court's ruling. They argued that the Do Not Call Registry infringed upon their right to free speech, that it unfairly exempted political and charitable calls, that consumers already had less restrictive means to block unwanted calls, and that the imposition of fees on telemarketers represented an unfair tax on protected speech.
In their Petition to the Supreme Court, the marketing organizations argued that "this case arises from a recent trend among governmental entities to restrict commercial speech discriminatorily in the name of privacy."
In February, the 10th Circuit Court of Appeals ruled that the Do Not Call Registry represented a valid commercial speech regulation because it advanced substantial government interests while being narrowly tailored and that the fees telemarketers must pay to access the list are allowable because they defray the cost of lawful government regulation.
The Do Not Call Registry opened in June 2003, for the purpose of making it "easier and more efficient for consumers to stop getting telemarketing calls they do not want." By June 2004, consumers had registered 62 million phone numbers and had reported 428,000 possible violations. Some 200 companies have had more than 100 consumer complaints filed against them. The program remains popular with the majority of consumers.