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BELLSOUTH TELECOMMUNICATIONS, INC. v. FARRIS

Nos. 07-5397, 07-5424.

542 F.3d 499 (2008)

BELLSOUTH TELECOMMUNICATIONS, INC., et al., Plaintiffs-Appellees, v. John FARRIS, Secretary of the Finance and Administration Cabinet, Commonwealth of Kentucky, et al., Defendants-Appellants.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 9, 2008.

Attorney(s) appearing for the Case

ARGUED: Laura M. Ferguson, Finance and Administration Cabinet, Frankfort, Kentucky, for Appellants. Geoffrey M. Klineberg, Kellogg, Huber, Hansen, Todd, Evans & Figel, Washington, D.C., for Appellees. ON BRIEF: Laura M. Ferguson, Douglas M. Dowell, Finance and Administration Cabinet, Frankfort, Kentucky, for Appellants. Geoffrey M. Klineberg, Daniel G. Bird, Michael K. Kellogg, Kellogg, Huber, Hansen, Todd, Evans & Figel, Washington, D.C., for Appellees. Helgi C. Walker, Wiley Rein, Washington, D.C., Douglas R. Cole, Jones Day, Columbus, Ohio, Bruce V. Griffiths, Office of the Texas Attorney General, Austin, Texas, for Amici Curiae.

SUTTON, J., delivered the opinion of the court, in which POLSTER, D.J., joined. DAUGHTREY, J. (pp. 511-13), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SUTTON, Circuit Judge.

In 2005, Kentucky imposed a 1.3% tax on the gross revenues of telecommunications providers. Ky.Rev.Stat. Ann. § 136.616(1), (2)(b). In connection with the new tax, the legislature banned providers from "collect[ing] the tax directly" from consumers and from "separately stat[ing] the tax on the bill." Id. § 136.616(3). The providers filed this lawsuit because they want to identify the new tax as a line item...

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