Telephone Ass'n of Michigan v. Public Service Com'n

• Decision Date: 19 May 1995
• Docket Number: Docket No. 163407
• Citation: 534 N.W.2d 223,210 Mich.App. 662
• Parties: TELEPHONE ASSOCIATION OF MICHIGAN, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 223

534 N.W.2d 223

210 Mich.App. 662

TELEPHONE ASSOCIATION OF MICHIGAN, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee.

Docket No. 163407.

Court of Appeals of Michigan.

Submitted Jan. 11, 1995, at Lansing.

Decided May 19, 1995, at 9:20 a.m.

Released For Publication July 12, 1995.

Timothy A. Hoffman and Loomis, Ewert, Ederer, Parsley, Davis & Gotting, P.C. by William D. Parsley, Harvey J. Messing, and Gary L. Field), Lansing, for Telephone Ass'n of Michigan.

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

Before McDONALD, P.J., and TAYLOR and HOEKSTRA, JJ.

PER CURIAM.

The Telephone Association of Michigan (TAM) appeals as of right the December 22, 1992, and March 31, 1993, orders of the Public Service Commission, requiring TAM's members to report certain disputed information annually.

I

The Michigan Telecommunications Act, 1991 PA 179, M.C.L. § 484.2101 et seq.; M.S.A. § 22.1469(101) et seq., repealed and replaced public acts of 1883 and 1913 regulating telephone service. The present act replaces regulation of entities with regulation of telecommunication services. According to a conference committee report on the Senate bill, which eventually became the act, this was done in an effort to provide an environment of structured competition for the provision of telecommunication services.

Section 201 of the act, M.C.L. § 484.2201; M.S.A. § 22.1469(201), provides:

(1) The Michigan public service commission shall have the jurisdiction and authority to administer this act.

(2) In administering this act, the commission shall be limited to the powers and duties prescribed by this act.

Section 202, M.C.L. § 484.2202; M.S.A. § 22.1469(202), provides in part:

In addition to the other powers and duties prescribed by this act, the commission shall do all of the following:

(a) Establish a program to monitor the level of telecommunications subscriber connection within each exchange in the state, and report to the legislature the results of its monitoring and any actions it has taken or recommends be taken to maintain and increase subscriber connections. The report made pursuant to this subdivision shall be included in the commission's report required under subdivision (f).

Subdivision f, M.C.L. § 484.2202(f); M.S.A. § 22.1469(202)(f), requires the PSC to issue a report to the Legislature and Governor on or before January 1, 1994, recommending legislation, providing information regarding the data it has collected, and otherwise advising the Legislature and Governor regarding certain enumerated aspects of the telecommunication industry.

On September 11, 1992, the PSC issued an order and notice of opportunity to comment, requesting interested parties to file comments to a proposal of the PSC staff that would require providers of telecommunication services to file with the PSC some 151 items of data. The staff proposed that providers be required to compile and report the requested information twice a year in both electronic and paper form for each "NNX group," which includes all local telephone numbers having the same first three digits.

On October 2, 1992, TAM filed comments to the staff's proposed requirements. TAM is an association of thirty-seven telephone companies providing basic local exchange service in Michigan. TAM objected to most of the 151 separate data requests in the proposed survey. TAM argued that the information sought was not relevant to the PSC's duty under § 202(a) "to monitor the level of telecommunications subscriber connection within each exchange." TAM contended that the proposed reporting requirement unreasonably mandated the filing of data concerning virtually every aspect of the telecommunication services that TAM members provided, that the proposed report was burdensome to produce, and that it went beyond the statutory mandate by requiring data to be compiled by NNX group and not within each exchange. TAM noted that its largest member, Michigan Bell, has 1007 NNX groups. If Michigan Bell were required to supply 151 items of data for each of these groups, it would be required to answer 16,157 individual data requests every six months under the staff's proposal. TAM suggested in the alternative that its members would voluntarily file on an annual basis twenty-nine items of data on an exchange basis, as opposed to an NNX group basis. TAM argued that the term "subscriber connection" is commonly used in the industry to describe basic residential and business loop connections. TAM argued that the statute should be interpreted in conformity with this usage and that reporting requirements be limited to information relevant to the number of individuals, and perhaps businesses, who have access to basic local exchange service.

On December 22, 1992, the PSC issued its order establishing the monitoring program required by the statute. Although the PSC agreed with TAM that annual reports would be sufficient, the PSC agreed with its staff that the statute authorizes the collection of data on a variety of telecommunication services and issues, and that the PSC is not limited to monitoring the level of individual access to basic local service. The PSC found that much of the information described by TAM as being burdensome and unnecessary already was compiled by TAM members for purposes of billing customers or to satisfy other reporting requirements, such as those imposed by the Federal Communications Commission. However, to the extent that a company did not collect or use the requested information for any other purpose, the PSC created a procedure by which a company can claim exemption from the reporting requirement. The PSC cautioned that if the requested data is collected or used by the company for any purpose, it must be reported. The PSC held that data should be reported if available on an NNX group basis because exchange data may be too broad and distort the actual availability of various services or features.

TAM filed a petition for rehearing, which was denied on March 31, 1993. The PSC rejected TAM's argument that the monitoring survey was unduly burdensome, and also rejected TAM's arguments regarding the scope of the PSC's authority under § 202(a) as follows:

The Commission finds that TAM's petition for rehearing should be rejected. Contrary to TAM's allegations, Section 202(a) provides ample authority for the Commission to institute a broad monitoring program that reviews all aspects of telecommunications subscriber connection in the state. In passing Act 179, the Legislature was careful to distinguish between regulated and unregulated telecommunications services.... [M.C.L. § 484.2102(t); M.S.A. § 22.1469(102)(t).] While the Legislature did not specifically define "telecommunications subscriber connection" in Section 202(a), nothing in that section restricts the monitoring program to regulated telecommunications services. Indeed, because the Legislature restricted the Commission's authority in Sections 202(b), 202(c) and 202(d) [M.C.L. § 484.2202(b), (c), (d); M.S.A. § 22.1469(202)(b), (c), (d) ] to matters related to regulated telecommunications services, it is entirely reasonable to conclude that the Legislature specifically decided not to limit the Commission's monitoring program to regulated telecommunications services. As further support, the Commission notes that the report required by Section 202(a) is to be included in the Commission's 1994 report to the Legislature required by Section 202(f), which covers a multitude of issues involving both regulated and unregulated telecommunications services.

Regarding TAM's argument that Section 202(a) precludes the Commission from seeking responses to data requests on an NNX basis, the Commission observes that the monitoring program should examine the level of telecommunications subscriber connection "within" each exchange in the state. By using the word "within" in Section 202(a), the Commission finds that the Legislature did not preclude a monitoring program that requires providers to report data on an NNX basis. Rather, the Legislature directed the Commission to carefully examine the level of telecommunications subscriber connection "within" each exchange, not to simply accumulate and report data on an exchange by exchange basis as TAM insists. Moreover, the Commission remains convinced that data accumulated on an exchange basis may be too broad and may misrepresent the status of infrastructure investment in some areas of the state.

II

The PSC argues that there is no need for this Court to reach the merits, because TAM does not have standing to bring this appeal. The PSC contends that TAM itself has not been affected adversely by any of its decisions and notes that no individual telecommunication provider has filed an appeal. We disagree. If TAM's claims of error are correct, then its members have been burdened or harmed in a manner different from the citizenry at large and TAM should therefore have standing to contest the PSC's orders. Speaker v. State Administrative Bd., 441 Mich. 547, 554, 495 N.W.2d 539 (1993).

TAM contends that we need not reach the merits, because we should hold that the monitoring required by § 202(a) is tied to the report the PSC was required to submit pursuant to § 202(f). Because TAM members supplied the data necessary for the PSC to finish that report, which has already been presented to the Legislature and Governor, questions regarding data before January 1, 1994, are moot. If the PSC has no authority to demand future data now that the report has been submitted, then there is no need for this Court to proceed further. However, TAM has pointed to nothing in the text of § 202(a) or legislative history indicating that the monitoring program is limited to the gathering of data necessary to create and submit...