DIRECTV, LLC, et al. v. Department of Revenue (Lawyers Weekly No. 10-024-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11658 DIRECTV, LLC, & another[1] vs. DEPARTMENT OF REVENUE. Suffolk. November 4, 2014. – February 18, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Taxation, Excise, Broadcasting company. Interstate Commerce. Constitutional Law, Interstate commerce. Civil action commenced in the Superior Court Department on January 26, 2010. The case was heard by Thomas P. Billings, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. E. Joshua Rosenkranz, of New York (Jeremy N. Kudon & Nicholas G. Green, of New York, Eric A. Shumsky, of the District of Columbia, & Kelley A. Jordan-Price with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Kirk G. Hanson, Assistant Attorney General, with him) for the defendant. The following submitted briefs for amici curiae: Eric S. Tresh, Amelia Toy Rudolph, & Zachary T. Atkins, of Georgia, & Nicholas M. O’Donnell & David Nagle for New England Cable & Telecommunications Association. John Bergmayer, of the District of Columbia, & Karen A. Pickett for Public Knowledge. Kristen S. Scammon for Satellite Broadcasting & Communications Association. John A. Hinman, of California, & Allison M. O’Neil & Jamie C. Notman for National Association of Wine Retailers. Sheldon H. Laskin & Lila D. Disque, of the District of Columbia, for Multistate Tax Commission. David Parkhurst, of the District of Columbia, & David Hadas for National Governors Association. LENK, J. General Laws c. 64M, § 2, imposes a five per cent excise tax on video programming delivered by direct broadcast satellite (tax). The plaintiffs are two companies that provide services subject to the tax (satellite companies). They brought a complaint for declaratory and injunctive relief in the Superior Court, alleging that the tax violates the commerce clause of the United States Constitution.[2] The satellite companies contend that the tax discriminates against interstate commerce, both in its effect and in its purpose, by disfavoring them as compared with those companies that provide video programming via cable (cable companies). The satellite and cable companies that operate in Massachusetts are all incorporated and headquartered in other States; the satellite companies argue, however, that the cable companies represent in-State interests inasmuch as their in-State commercial operations are substantially greater than those of the satellite companies. A Superior Court judge granted summary judgment […]