North Dakota cannot ban prerecorded calls that politicians use to identify sympathetic voters, because federal telecommunications rules override a state law that prohibits such calls, an attorney told the state Supreme Court.

FreeEats.com, a Virginia telemarketing company, is challenging a $10,000 fine it was assessed after it made thousands of prerecorded "political polling" calls from Ashburn, Va., to North Dakota households in mid-August 2004.

During the calls, a prerecorded voice asked questions about several political issues, including abortion, gun rights, and tuition tax credits for attending private schools. Call recipients were invited to respond by pushing buttons on their touch-tone phones.

With a few exceptions, North Dakota law bars prerecorded calls, unless they are introduced by a live operator. They may be used by in emergencies, by school districts, by businesses to communicate with recent customers, and by employers to communicate with their own workers.

Patrick Ward, a Bismarck attorney for FreeEats.com, said during Supreme Court arguments on Tuesday that the calls were meant to survey opinions and were not intended to sell anything. They complied with Federal Communications Commission regulations, which supersede North Dakota law, Ward said.

James Patrick Thomas, an assistant attorney general, argued a federal telemarketing regulation law approved by Congress did not give the FCC authority to override state restrictions on prerecorded calls.

The Supreme Court will rule on the case later. It began when Attorney General Wayne Stenehjem sued FreeEats.com in September 2004, claiming the company had violated North Dakota's anti-telemarketing law.

Last March, South Central District Judge Gail Hagerty fined FreeEats.com $10,000, and ordered the company to pay $10,000 for attorneys' fees and costs.

Ward contended the federal law gave states authority to ban such calls only within their own borders. To interpret the law otherwise would allow for a patchwork of state laws regulating prerecorded calls, he said.