INDIANAPOLIS (AP) — A state law that bans automated phone calls unless recipients have previously agreed to receive them has survived a federal court challenge — at least by default.

The 7th U.S. Circuit Court of Appeals in Chicago on Wednesday ordered a district judge in Indianapolis to dismiss a complaint involving the ban, saying the case doesn’t belong in federal court.

The case stemmed from automated calls made by FreeEats.com on behalf of a California group called the Economic Freedom Fund during the 2006 congressional campaign.

Virginia-based FreeEats.com was appealing an October ruling by U.S. District Judge Larry McKinney that found Indiana’s automated calls ban does not violate the First Amendment nor restrain interstate commerce as the company had contended.

Indiana Attorney General Steve Carter had sued the company in Brown County in September after receiving 12 consumer complaints regarding automated calls that attacked 9th District congressional candidate Baron Hill, who ultimately won, in his race against Republican then-Rep. Mike Sodrel.

FreeEats then filed its federal lawsuit, which the state sought to have dismissed on the grounds that it fell under case law by which federal courts generally abstain from hearing constitutional claims involving cases where state court action is pending.

The 7th Circuit ruled Wednesday that McKinney should have dismissed the case, because among other things FreeEats had not demonstrated a pressing need for immediate relief and had itself delayed court proceedings.

“We will not reward FreeEats with its desired federal forum merely because it decided to delay seeking injunctive and declaratory relief until the eve of the election, regardless of the harm it potentially could have suffered at that eleventh hour,” the three-judge panel ruled.

The judges also noted that FreeEats was used to states trying to enforce automated call bans.

The company in October lost a U.S. Supreme Court challenge to a North Dakota law that bars telemarketers from making prerecorded interstate calls to that state’s residents.

The high court refused to consider the appeal, leaving the North Dakota law intact.

The Associated Press left phone messages Wednesday night seeking comment from FreeEats and the Indiana attorney general’s office.

Posted 9/13/2007