National Law Journal, Satellite TV Takes Aim at Subscriber Taxes:  Suing Over State Schemes that Favor Cable Rivals, Satellite Providers Win Some Big-Name Scholarly Support, by Teresa Baldas:

Fists are flying again in the battle between satellite and cable TV providers. But this time, top constitutional scholars are gloving up as well.

The scholars contend that several states’ preferential treatment of cable customers violates the U.S. Constitution. Sixteen constitutional experts — including former U.S. Solicitor General Kenneth Starr, now dean of Pepperdine University School of Law, and Erwin Chemerinsky, dean of the University of California, Irvine School of Law, and author of a leading constitutional treatise — have intervened in a legal fight over whether satellite customers can be taxed while cable consumers go tax-free or are taxed at lower levels. The practice has triggered lawsuits in Florida, Kentucky, North Carolina, Ohio and Tennessee.

The satellite TV industry argues that states are giving cable companies an unfair competitive edge. The legal scholars — who have filed an amicus brief in the Ohio litigation — agree.

“It’s discriminatory taxation,” Chemer­insky said of Ohio’s 6% tax on satellite customers. The state is levying different tax burdens in a way that helps in-state business activity at the expense of out-of-state activity, he contends. And that, he said, violates the commerce clause, which prohibits states from passing protectionist measures that interfere with the free flow of interstate commerce. In the Ohio case, he said, the state is favoring the cable industry, whose equipment gives it a physical presence in the state, over the satellite industry, which simply beams signals into Ohio. “This really is about the ability of states to discriminate against out-of-staters and burden interstate commerce,” Chemerinsky said.