Quality of Service Standards for Regulated Telecommunication Services, In re

• Decision Date: 19 April 1994
• Docket Number: Docket No. 160258
• Citation: 516 N.W.2d 142,204 Mich.App. 607
• Parties: In re, on the Michigan Public Service Commission's Own Motion, To Establish QUALITY OF SERVICE STANDARDS FOR REGULATED TELECOMMUNICATION SERVICES Under the Michigan Telecommunications Act. MICHIGAN BELL TELEPHONE COMPANY, Appellant, v. MICHIGAN PUBLIC SERVICE COMMISSION, Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 142

516 N.W.2d 142

204 Mich.App. 607

In re, on the Michigan Public Service Commission's Own Motion, To Establish QUALITY OF SERVICE STANDARDS FOR REGULATED TELECOMMUNICATION SERVICES Under the Michigan Telecommunications Act MICHIGAN BELL TELEPHONE COMPANY, Appellant, v. MICHIGAN PUBLIC SERVICE COMMISSION, Appellee.

Docket No. 160258.

Court of Appeals of Michigan.

Submitted Feb. 2, 1994, at Detroit.

Decided April 19, 1994, at 9:10 a.m.

Released for Publication June 10, 1994.

Honigman Miller Schwartz & Cohn by James A. Ault, Lansing, and Michael A. Holmes, Detroit, for Michigan Bell Telephone Co.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Don L. Keskey and Henry J. Boynton, Asst. Attys. Gen., for Public Service Com'n.

Before SHEPHERD, P.J., and MARILYN J. KELLY and GILLIS, ^* JJ.

PER CURIAM.

Michigan Bell Telephone Company filed a claim of appeal from a December 8, 1992, opinion and order of the Michigan Public Service Commission granting in part and denying in part petitions for rehearing filed by the Telephone Association of Michigan and AT & T Communications of Michigan, Inc., modifying the PSC's September 11, 1992, standards of quality of service for regulated telecommunications services, and giving those standards immediate effect.

On February 12, 1992, the PSC issued notice that it would accept comments regarding proposed quality of service standards for regulated telecommunication services offered under the Michigan Telecommunications Act, 1991 P.A. 179, M.C.L. § 484.2101 et seq.; M.S.A. § 22.1469(101) et seq. Those standards were patterned after the service guidelines adopted by the PSC in an October 1, 1990, order in Case No. U-9316, although the prior quality of service standards were established under the telephone act of 1913, 1913 P.A. 206.

Among the newly established standards of quality of service is § 305, which requires each local exchange company (LEC) providing basic telephone service to provide a printed telephone directory, revised annually, at no additional charge. The directories are required to list the name, address, and telephone number of all customers, except those requesting otherwise, and to include an indication of the area served, the month and year of issue, information conspicuously appearing in the front portion of the directory pertaining to emergency calls and dual party service, instructions concerning the placing of local and long distance calls and the securing of repair and directory assistance services, and locations and telephone numbers of telephone company business offices appropriate to the area served by each directory. Section 305 further provides that, in the event of an error in the listed number for any customer, the LEC shall intercept all calls to the listed number for the remaining life of the currently published directory, if office equipment permits and the number is not otherwise in service.

Michigan Bell contends that such regulations are beyond the authority of the PSC. Procedurally, Michigan Bell never entered an appearance or made any comments, either to the original proposal or on rehearing, in proceedings before the PSC. However, Michigan Bell is a member of the Telephone Association of Michigan, which did make comments and did seek rehearing, specifically objecting to the standards set forth in § 305.

The Attorney General makes the threshold contention that Michigan Bell lacks standing to appeal because it has failed to exhaust readily available administrative or legislative remedies and because it did not file any comments before the PSC at any stage of the proceedings. Additionally, it is asserted that Michigan Bell is not an aggrieved party because it has failed to establish anything more than a mere possibility of injury arising from some unknown future contingency. Grace Petroleum Corp. v. Public Service Comm., 178 Mich.App. 309, 443 N.W.2d 790 (1989).

The Attorney General misreads Grace Petroleum; Michigan Bell has standing to appeal because § 305 of the standards affects Michigan Bell's provision of printed directory service. Midland Cogeneration Venture Limited Partnership v. Public Service Comm., 199 Mich.App. 286, 304, 501 N.W.2d 573 (1993).

The other aspects of standing (other than exhaustion of legislative remedies, a doctrine unknown to our jurisprudence), exhaustion of administrative remedies and appearance below, are satisfied by Michigan Bell's membership in the Telephone Association of Michigan, which did appear and challenge the propriety of § 305 of the standards before the PSC. An interested party may allow a surrogate to represent its interests and choose to intervene and formally become a party only at the appellate level in these circumstances, provided that its intervention after final decision is prompt, it accepts the dispute in the posture in which it exists, and it does not assert new arguments or raise new issues. United Airlines, Inc. v. McDonald, 432 U.S. 385, 394-396, 97 S.Ct. 2464, 2469-2471, 53 L.Ed.2d 423 (1977).

M.C.L. § 462.26(1); M.S.A. § 22.45(1) provides for appeal of right to this Court, within thirty days of any PSC order "fixing any regulations, practices or services." Michigan Bell's claim of appeal was filed within the time allowed, and this appeal is therefore properly before this Court.

Turning to the substantive issue, Michigan Bell argues that the PSC is a creature of the Legislature and all of its authority must be found in statutory enactments. Union Carbide Corp. v. Public Service Comm., 431 Mich. 135, 146, 428 N.W.2d 322 (1988); Huron Portland Cement Co. v. Public Service Comm., 351 Mich. 255, 262, 88 N.W.2d 492 (1958). Generally, a statute that grants power to an administrative agency is strictly construed. Mason Co. Civic Research Council v. Mason Co., 343 Mich. 313, 326, 72 N.W.2d 292 (1955). Administrative authority must be granted affirmatively or plainly, because doubtful power does not exist. Id. at 326-327, 72 N.W.2d 292; Taylor v. Michigan Public Utilities Comm., 217 Mich. 400, 402-403, 186 N.W. 485 (1922).

The Attorney General counters by asserting that appellate review of PSC orders is narrow in scope and its decisions concerning regulations and practices are deemed lawful and reasonable prima facie, placing the burden on the party attacking such order to prove by clear and satisfactory evidence that the order of which complaint is made is unlawful or unreasonable. Antrim Resources v. Public Service Comm., 179 Mich.App. 603, 619-620, 446 N.W.2d 515 (1989). The Court is also required to give due deference to the PSC's administrative expertise and is not to substitute its judgment for that of the PSC. Id.

These principles have particular force where, as here, the agency has taken action pursuant to experimental legislation--by its terms, the Telecommunications Act expires on January 1, 1996, M.C.L. § 484.2604; M.S.A. § 22.1469(604)--to which the courts will give particular deference. Consumers Power Co. v. Public Service Comm., 189 Mich.App. 151, 182-183, 472 N.W.2d 77 (1991), quoting Ass'n of Businesses Advocating Tariff Equity v. Public Service Comm., 173 Mich.App. 647, 667-668, 434 N.W.2d 648 (1988). Courts give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that enactment. Clarke v. Securities Industry Ass'n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). However, that judicial deference is given only to longstanding administrative interpretations, which...