Dish, Florida Clash Over Taking Commerce Clause Fight to Supreme Court

The Florida Supreme Court analyzed discriminatory effects of the state's communications services tax (CST) based purely on the basis of domicile, an approach conflicting with rulings by most courts and with U.S. Supreme Court precedent, said EchoStar Satellite/Dish Network in a U.S. Supreme Court docket 17-379 reply brief Monday. The company is appealing the Florida court's April opinion tossing out a 2005 lawsuit arguing the CST violates the Commerce Clause by charging a higher rate on direct broadcast satellite than on cable TV; the court said neither cable nor DBS qualified as an in-state interest, negating the satellite companies' discriminatory effect argument, and there's no evidence state lawmakers adopted the CST with discriminatory purpose. EchoStar said the morass of Commerce Clause doctrine makes it "vital for the Court to step in" to give certainty over divided courts looking at the constitutionality of state laws differentiating between interstate competitors. The Florida Department of Revenue, in a brief filed earlier this month in opposition to the DBS petition for writ of certiorari, said it overlooks that Florida taxes satellite differently because Congress prohibited local taxation of satellite services in the Telecom Act, so the state shares such tax receipts with localities. It ignores that satellite's overall CST burden is less than cable TV's, the state said.