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By Chris Marr
DISH Network’s challenge to a Florida telecom tax won’t get a hearing before the U.S. Supreme Court after justices denied review to the case Jan. 8.
The satellite TV company aimed to overturn a Florida Supreme Court decision that upheld the state’s communications services tax, which according to the company discriminated against satellite TV providers. Satellite companies—including EchoStar, a predecessor to the current DISH Network business—initially sued Florida in 2005.
The lawsuit, like several similar cases from other states, claimed discrimination against interstate business interests in violation of the commerce clause of the U.S. Constitution. DISH Network argued Florida’s tax charges satellite TV companies a higher rate than cable TV companies, but the state argued the rate difference is justified because cable companies pay additional local taxes and fees. Federal law bars local taxes on satellite TV providers.
The U.S. Supreme Court had declined to review four previous satellite TV tax cases, and attorneys for Florida argued this latest petition failed to break any new legal ground to merit the high court’s review.
The Florida Supreme Court ruling from April 2017 marked the seventh case in which a state prevailed over DISH and/or DirecTV in nearly identical tax disputes, according to Florida’s brief opposing Supreme Court review.
Courts have taken slightly different approaches to the claims of discrimination under the commerce clause, with some finding cable and satellite TV providers aren’t similarly situated companies. Florida’s Supreme Court found they are similarly situated but that there’s no discrimination in favor of in-state business interests, partly because there’s no obvious in-state or out-of-state party in the case. The court found both cable and satellite TV providers to be interstate businesses.
Attorneys from the office of Florida Attorney General Pam Bondi represented the state, including the state’s solicitor general, Amit Agarwal.
Attorneys from Orrick, Herrington & Sutcliffe LLP—led by Josh Rosenkranz in New York—represented DISH Network.
The case is EchoStar Satellite, LLC v. Fla. Dep’t of Revenue , U.S., No. 17-379, petition for review denied 1/8/18 .
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