MICHAEL F. CAVANAGH, J.
In these consolidated cases, we are called on to address whether Ameritech must provide intraLATA toll dialing parity regardless of whether it is afforded the opportunity to compete in the interLATA market, and to review the appropriateness of various Michigan Public Service Commission (PSC) orders that were entered to compel Ameritech to provide such parity. For the reasons discussed below, we reverse in part and affirm in part the
We begin our review of the convoluted undertakings that form the basis of these actions with reference to the facts of this case as they were ably presented by Judge Smolenski in his opinion for the Court of Appeals, which we quote below.
Before 1982, American Telephone and Telegraph Company, a provider of both local and long distance telephone service, dominated the telecommunications industry.
In 1982, AT & T agreed to the entry of a consent decree entitled "Modification of Final Judgment" in federal court (the AT & T consent decree). See, generally, United States v. American Telephone & Telegraph Co., 552 F.Supp. 131 (D.D.C., 1982). For the purpose of ending AT & T's monopoly over local telephone service, the AT & T consent decree provided that AT & T would divest itself of its Bell operating companies.
In the late 1980s, the PSC authorized AT & T of Michigan and MCI to begin
These dialing arrangements are the root of this case. MCI and AT & T of Michigan do not like these dialing arrangements for intraLATA toll calls because they believe "1 +" and "0 +" dialing gives Ameritech a substantial competitive advantage in the intraLATA toll market. MCI and AT & T of Michigan want "intraLATA toll dialing parity," i.e., "uniform 1 + dialing arrangements for all intraLATA service by all providers...." However, Ameritech's position has always been that it should not be required to provide intraLATA toll dialing parity until it has been accorded "interLATA relief," i.e., the authority to compete in the interLATA market.
In July 1992, MCI commenced this proceeding in the PSC, U-10138, by filing a complaint alleging, in part, that Ameritech was violating various provisions of the Michigan Telecommunications Act, 1991 P.A. 179, M.C.L. § 484.2101 et seq.; MSA 22.1469(101) et seq. (Act 179 or the MTA), by failing to make intraLATA toll dialing parity available to MCI. At some point, the Attorney General and AT & T of Michigan intervened in this proceeding. Although finding that Ameritech's failure to provide intraLATA toll dialing parity did not violate Act 179, the PSC ultimately determined that implementation of intraLATA toll dialing parity was in the public interest and, in a February 1994 decision, ordered Ameritech to implement intraLATA toll dialing parity in Michigan "no later than January 1, 1996." The decision also provided that a task force would be established to work out the procedures for implementing intraLATA toll dialing parity. Ameritech moved for a rehearing and reconsideration, which was denied by the PSC in a July 1994 decision.
After the task force submitted a report to the PSC containing certain recommendations and noting certain disputed issues, the PSC issued a March 1995 decision in which it ordered Ameritech to begin implementing intraLATA toll dialing parity on January 1, 1996, in those offices in which it was technically possible to do so and to adopt a firm schedule for converting to intraLATA toll dialing parity for those offices in which it was not technically possible to do so by January 1, 1996. The decision also provided that a fifty-five percent discount on access charges would be imposed on those offices that did not meet the schedule for converting to intraLATA toll dialing parity. Access charges apparently are paid by an interexchange carrier such as AT & T of Michigan and MCI to a local carrier such as Ameritech for the interexchange carrier's use of the local carrier's local network during the initial and final link of an intraLATA toll call serviced by the interexchange carrier. In imposing the discount, the PSC rejected the contention that the discount was a penalty. The PSC reasoned that the discount was warranted because nonconverted access services whereby customers would have to continue to dial five-digit access codes plus the number to be called in order for an interexchange carrier to service an intraLATA toll call were of lesser quality than converted access services
Effective November 30, 1995, the Legislature enacted 1995 P.A. 216, M.C.L. § 484.2101 et seq.; MSA 22.1469(101) et seq. (Act 216 or the MTA), which substantially amended and added several new sections to the MTA. In particular, Act 216 added § 312a and § 312b, both of which specifically addressed the implementation of intraLATA toll dialing parity in Michigan:
"Sec. 312a. Effective January 1, 1996, if a waiver to the inter-LATA prohibitions has been granted for a specific service area and the service area has 2 or more providers of local exchange service, the provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity within the service area that is subject to the waiver.
"Sec. 312b. (1) Except as otherwise provided in subsection (2) or (3), a provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity and shall provide inter-LATA toll service to an equal percentage of customers within the same service exchange on the following dates:
Section 312a was enacted with a repeal date of January 1, 2001, while § 312b was enacted with a repeal date of July 1, 1997. The Legislature defined the statutory phrase "inter-LATA prohibitions" in relevant part to mean "the prohibitions on the offering of ... inter-LATA service contained in the modification of final judgment entered pursuant to [the AT & T consent decree]."
In response to the enactment of § 312b, Ameritech provided intraLATA toll dialing parity to only ten percent of its customers after January 1, 1996.
On February 8, 1996, Congress enacted § 271 of the Federal Telecommunications Act of 1996 (the FTA), 47 U.S.C. 271, which addresses a Bell operating company's implementation of intraLATA toll dialing parity and entry into the interLATA market in the following relevant respects:
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"(B) Limitation. Except for single-LATA States and States that have issued an order by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity, a State may not require a Bell operating company to implement intraLATA toll dialing parity in that State before a Bell operating company has been granted authority under this section to provide interLATA services originating in that State or before 3 years after February 8, 1996, whichever is earlier. Nothing in this subparagraph precludes a State from issuing an order requiring intraLATA toll dialing parity in that State prior to either such date so long as such order does not take effect until after the earlier of either such dates.
"(f) Exception for previously authorized activities. Neither subsection (a) of this section nor section 273 of this title shall prohibit a Bell operating company or affiliate from engaging, at any time after February 8, 1996, in any activity to the extent authorized by, and subject to the terms and conditions contained in, an order entered by the United States District Court for the District of Columbia pursuant to section VII or VIII(C) of the AT & T consent decree if such order was entered on or before February 8, 1996, to the extent such order is not reversed or vacated on appeal. Nothing in this subsection shall be construed to limit, or to impose terms or conditions on, an activity in which a Bell operating company is otherwise authorized to engage under any other provision of this section."
The term "Bell operating company" is defined to include Michigan Bell Telephone Company. 47 U.S.C. 153(4). The term "AT & T consent decree" in § 271(f) is defined as an order entered pursuant to the decree entered in AT & T Co., supra. 47 U.S.C. 153(3). The phrase "[except for single-LATA States and States that have issued an order by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity" in § 271(e)(2)(B) is known as the "Breaux-Leahy Amendment." Bell Atlantic-New Jersey, Inc. v. Tate, 962 F.Supp. 608, 613 (D.N.J., 1997). The amendment was designed to avoid the generally preemptive effect of § 271(e)(2)(B) and allow states such as Michigan that had ordered intraLATA toll dialing parity by December 19, 1995, to proceed to effectuate that requirement after that date. Id.; see also 141 Cong. Rec., S. 8349 (daily ed., June 14, 1995) (statement of Sen. Leahy). The amendment has also been referred to as a "grandfather clause." Bell Atlantic-New Jersey, supra.
In May 1996, MCI and AT & T of Michigan moved in the PSC to compel Ameritech to comply with the PSC's previous orders concerning full implementation of intraLATA toll dialing parity. Relying on the language in § 312b(4) that "this section does not alter or void any orders of the commission regarding 1 + intra-LATA toll dialing parity issued on or before June 1, 1995," MCI and AT & T of Michigan reasoned that the expiration of the January 1 to May 1, 1996, statutory phase-in schedule contained in § 312b(1) meant that the PSC's 1994 and March 1995 orders were once again fully effective and that the time frames for implementing intraLATA toll dialing parity set forth in those orders must now be met.
In response, Ameritech contended that § 312b constituted a statutory plan linking intraLATA toll dialing parity with interLATA relief. Ameritech cited § 312b(3) for the proposition that "unless and until" it was allowed to provide interLATA service, it was statutorily obligated to provide intraLATA toll dialing
In a June 1996 decision, the PSC ordered Ameritech, within thirty days, to provide intraLATA toll dialing parity and implement the fifty-five percent discount on access charges pursuant to the PSC's 1994 and March 1995 orders. The PSC rejected Ameritech's contention that § 312b was intended to link intraLATA toll dialing parity with interLATA relief. The PSC accepted MCI's and AT & T of Michigan's contention that § 312b was intended to provide only a partial and temporary reprieve from the PSC's conversion schedule. In so ruling, the PSC reasoned that § 312b was ambiguous. The PSC resolved the perceived ambiguity by considering the language of § 312b, its legislative history, and its practical effect.
With respect to the language of § 312b, the PSC noted that, had the Legislature intended to link intraLATA toll dialing parity with interLATA relief, it could have done so in either of two ways. First, the PSC noted that the absence of the operative phrase relied on by Ameritech ("unless and until") casts serious doubt on Ameritech's claim that the Legislature intended to indefinitely suspend the toll dialing parity conversion schedule once conversion reached ten percent. Second, the PSC noted that
"the phrase `no more than' could have been inserted before each of the numerical percentages found in subsection (1)(a) through (1)(e) of Section 312b, thus clearly expressing that the maximum scope of dialing parity that Ameritech Michigan could be required to provide (at least until all federal prohibitions on providing interLATA toll service are lifted) was 50%. However, neither that nor any similar phrase was included in the Act. Therefore, the language in Section 312b(1), when given its plain meaning, appears to set a minimum, rather than a maximum, pace for Ameritech Michigan's conversion to dialing parity. This conflicts with Ameritech Michigan's interpretation of the Act."
The PSC also noted that the July 1, 1997, expiration of § 312b simply removed any doubt that one hundred percent intraLATA toll dialing parity was consistent with the Legislature's intent.
The PSC also found that the legislative history of § 312b did not support Ameritech's argument that the Legislature intended to link intraLATA toll dialing parity with interLATA relief. In so finding, the PSC quoted part of an early Senate version of § 312a:
"Until the inter-LATA prohibitions are removed for providers of basic local exchange service, a provider of basic local exchange service is not required to provide 1 + intra-LATA toll dialing parity. If the inter-LATA prohibitions are removed, then a provider of basic local exchange service shall offer to other providers 1 + intra-LATA toll dialing parity. [SB 722, as passed by the Senate on October 26, 1995.]"
The PSC found that the Legislature's failure to ultimately enact this language as part of § 312a and § 312b meant that the Legislature did not intend to absolutely link intraLATA toll dialing parity with interLATA relief. The PSC also noted:
"As initially written, Section 312b(4) retained the effectiveness of all Commission orders regarding dialing parity issued before June 30, 1995. See House Public Utility Committee substitute, H-1, to Senate Bill No. 722; 1995 Journal of the House 2651 (No. 82, November 7, 1995). However, that date was in conflict with the June 1, 1995 cut-off being considered by Congress in legislation that eventually became the federal Telecommunications Act of 1996. This created the possibility that the Commission's orders concerning dialing parity might not be considered `grandfathered' and that Michigan, like a majority of the
"To avoid that result, the language of Section 312b(4) was amended by replacing `June 30, 1995' with `June 1, 1995.' Id. at 2654. In making that change, the Legislature ensured (1) that the removal of interLATA prohibitions would not become a condition precedent to requiring Ameritech Michigan to provide intra-LATA dialing parity, and (2) that prior Commission orders requiring the comprehensive implementation of dialing parity would not be overturned by the new federal law. The legislative history of Section 312b(4) thus supports the construction advocated by MCI and AT & T...."
Finally, the PSC noted that implementation of intraLATA toll dialing parity was in the public interest and that Ameritech's construction of § 312b conflicted with the MTA's goals of encouraging competition and new providers.
Ameritech moved for a rehearing. In an October 1996 decision, the PSC denied rehearing and ordered Ameritech to immediately provide intraLATA toll dialing parity and implement the fifty-five percent discount on access charges in unconverted offices in accordance with the PSC's 1994, March 1995, and June 1996 orders.
In November 1996, Ameritech timely filed with [the] Court [of Appeals] a claim of appeal from the PSC's October 1996 order (Docket No. 198706). That same day, AT & T Communications of Michigan and MCI filed a complaint against Ameritech in the circuit court, seeking a writ of mandamus compelling Ameritech to comply with the PSC's toll dialing parity orders. Following oral argument, but without considering the statutory language of § 312b or otherwise making any findings of fact or conclusion of law, the circuit court issued an order directing that the requested writ of mandamus be issued. The order directed Ameritech to comply with the PSC's intraLATA toll dialing parity orders in "conformance with the implementation schedule ordered by the Commission." Ameritech then filed a timely claim of appeal in [the] Court [of Appeals] from the circuit court's order (Docket No. 199383). In December 1996, [the] Court [of Appeals] entered a stay of further proceedings in Docket No. 198706 (Ameritech's appeal of the PSC's October 1996 order) "pending resolution of this appeal or further order of th[e] Court [of Appeals]." In January 1997, [the] Court [of Appeals] consolidated Ameritech's appeals.
Following consideration of the aforementioned consolidated appeals, the Court of Appeals reversed. 229 Mich.App. 664, 583 N.W.2d 458 (1998). In doing so, the Court of Appeals found that the language of § 312a and § 312b unambiguously mandated the conclusion reached by that court. Additionally, the Court of Appeals reversed the Ingham Circuit Court's grant of an order of mandamus, and further taxed costs pursuant to MCR 7.219 in favor of Ameritech, it being the prevailing party.
AT & T Communications of Michigan, Inc., and MCI Telecommunications Corporation filed a joint application for leave to appeal to this Court. The Attorney General and the PSC also filed applications for leave to appeal to this Court. This Court subsequently granted leave to appeal
The various appellants frame a multitude of questions for presentation to this Court. Given that we find the answers to certain of these questions to be determinative with respect to the remaining matters encompassed in these cases, we will address such questions in their logical order, rather than their order of presentation.
We first address the statutory authority of the PSC to exercise jurisdiction over intraLATA toll dialing parity issues. In addressing this issue, three sections of the Michigan Telecommunications Act (MTA) are relevant. Sections 312a and 312b were quoted above, and the third relevant section is § 604(2) of that act, stated as follows:
Our first task is one of statutory construction. In essence, we must examine the statutory sections in question to determine whether the Legislature granted the PSC jurisdiction to issue orders regarding intraLATA toll dialing parity such as those contested here. The primary goal of statutory interpretation is to give effect to the intent of the Legislature. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993). The first step in that determination is to review the language of the statute itself. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). If the statute is unambiguous on its face, the Legislature will be presumed to have intended the meaning expressed, and judicial construction is neither required nor permissible. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992). Should a statute be ambiguous on its face, however, so that reasonable minds could differ with respect to its meaning, judicial construction is appropriate to determine the meaning. Sam v. Balardo, 411 Mich. 405, 418, 308 N.W.2d 142 (1981); Heinz v. Chicago Road Investment Co., 216 Mich.App. 289, 295, 549 N.W.2d 47 (1996).
While the Court of Appeals demonstrated that it was clearly cognizant of these rules of interpretation, it also noted an additional rule, the applicability of which will be addressed immediately below. In general, where statutes relate to the same subject matter, they should be read, construed, and applied together to distill the Legislature's intent. Empire Iron Mining Partnership v. Orhanen, 455 Mich. 410, 427, 565 N.W.2d 844 (1997). After citing this rule, the Court of Appeals set about the task of statutory interpretation regarding § 312a and § 312b. Recall the text of the statutes:
The Court of Appeals, when analyzing these sections, found:
When these sections are construed together, we do not find the plain language of § 312a and § 312b to be ambiguous. Specifically, under § 312a, a local carrier must provide intraLATA toll dialing parity for a particular area "if a waiver to the inter-LATA prohibitions [contained in the AT & T consent degree] has been granted for a specific service area and the service area has 2 or more providers of local exchange service...." [229 Mich.App. at 685, 583 N.W.2d 458.]
Questions of statutory interpretation are questions of law, which will be reviewed de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991). In analyzing the meaning of § 312a, we begin with the language of § 312a itself. House Speaker, supra. Without question, § 312a clearly states that the provider of basic local exchange service (Ameritech) is to offer intraLATA toll dialing parity within its service area if it is granted a waiver to provide interLATA service. However, on the face of § 312a's language, there is nothing that would indicate that the reverse is inherently true or required. Indeed, while the statute specifically requires that, should interLATA service be allowed to Ameritech, Ameritech must provide intraLATA toll dialing parity, there is no limitation in the statute that such intraLATA toll dialing parity could only be provided if interLATA service was permitted.
Reviewing the language of the statute, it is apparent that for § 312a to have the meaning imposed upon it by the Court of Appeals and advocated by Ameritech, the Court would need to infer additional language, not present on its face. Indeed, it would seem that, for the statute to require the effect advocated by Ameritech, it would have to contain additional language such as in the example below, where the unitalicized portion represents the statute, as written by the Legislature, and the italicized portion represents the addition that would apparently be necessary for the statute to hold, on its face, the meaning given to it by the Court of Appeals:
It is a maxim of statutory construction that every word of a statute should be read in such a way as to be
Moreover, it is apparent from the history of § 312a that the Legislature specifically considered adding the language that would be required to give the statute the meaning urged by Ameritech and granted by the Court of Appeals, and rejected doing so. In the course of consideration of the MTA, the Michigan Senate, on October 26, 1995, passed S.B. 722 (the Senate version of what would eventually become 1995 P.A. 216, MTA), which included a version of § 312a that concluded with the following language:
However, as can be seen from the current version of § 312a, which was ultimately signed into law on November 30, 1995, such language is not present in the version of the statute as enacted. Where the Legislature has considered certain language and rejected it in favor of other language, the resulting statutory language should not be held to explicitly authorize what the Legislature explicitly rejected. The express mention of one thing in a statute implies the exclusion of other similar things. Jennings v. Southwood, 446 Mich. 125, 142, 521 N.W.2d 230 (1994).
Accordingly, we find the meaning of § 312a, standing alone, to be unambiguous on its face. The statutory language clearly requires that, should interLATA prohibitions be removed, Ameritech must provide intraLATA toll dialing parity. There is, however, nothing on the face of this statute, or within the language enacted by the Legislature, that would hold the reverse to be true. Indeed, where the Legislature specifically considered language authorizing such a linkage, and rejected it, the Court of Appeals clearly erred in holding that the statute inextricably linked intraLATA and interLATA toll dialing parity. Rather, the statute requires intraLATA toll dialing parity, where interLATA service is permitted, but does not require the reverse.
The Court of Appeals, in reaching its construction of the statute, relied on a reading of § 312a in conjunction with § 312b. In general, we recognize the rule that statutes relating to the same subject matter should be read and construed together to determine the Legislature's intent. Empire Iron Mining Partnership, supra. In this case, however, the relationship of § 312a and § 312b is compounded by the existence of § 604(2), which repealed § 312b effective July 1, 1997. While the Court of Appeals was not unaware of this section, it appears from the face of its decision that the repeal of § 312b played no part in its analysis of the relationship between § 312a and § 312b. We disagree with such a view, and find that, given the expiration of § 312b, the Court of Appeals reliance on § 312b to determine the effect of § 312a, particularly as applied to occurrences after July 1, 1997, clearly was error.
The Court of Appeals held that, under § 312b, the local carrier (Ameritech) has an unconditional obligation to provide intraLATA toll dialing parity and interLATA service to ten percent of customers by January 1, 1996. The Court of Appeals further held that the plain language of the statute required that, except for the initial ten percent of customers, "the Legislature intended that Ameritech provide intraLATA toll dialing parity when the conditions
We find several problems with this analysis. In the first instance, while § 312a and § 312b clearly relate to similar subject matter, it would appear from their faces that they have different intents. Section 312a clearly mandates that Ameritech must provide intraLATA toll dialing parity if and when interLATA relief is granted. Section 312b, however, sets forth a schedule of implementation of intraLATA toll dialing parity that is paired with interLATA service, requiring both to be provided in a progressive fashion, subject to various limitations outlined in the section.
Second, and of even greater importance, is the fact that the Legislature included in its amendments of the MTA the repealing provision of § 604(2), which repeals § 312b as of July 1, 1997. The essence of the Court of Appeals holding is to find that, in view of the similar nature of the material to which they apply, §§ 312a and 312b must be read together. The effect of such a reading is to allow § 312b to continue in application today in direct contravention of the Legislature's clearly expressed intent that § 312b should expire effective July 1, 1997. We cannot endorse a construction that would render meaningless the Legislature's enactment of § 604(2), and thus must find the construction below to be in error. Altman, supra.
Appellee Ameritech argues that the effect of § 312b was in the nature of a repeal of the prior PSC orders and, further, that such orders are legislative in character. Ameritech then relies on the rule that repeal of a repealing act does not revive the previously repealed legislation to argue that the demise of § 312b should not result in the resuscitation of the PSC's prior orders. While we agree that fixing and regulating utility rates is a legislative function, Detroit v. Public Utilities Comm., 288 Mich. 267, 287, 286 N.W. 368 (1939), and that the repeal of a repealing act does not reinstate the legislation first repealed, see M.C.L. § 8.4; MSA 2.213; Jackson v. Corrections Comm., 313 Mich. 352, 21 N.W.2d 159 (1946), we are not persuaded that appellee's somewhat strained analogy is controlling when applied to PSC orders, which are an exercise of discretionary authority delegated by the Legislature, rather than being themselves enactments of the Legislature.
Even if we were so convinced, this argument fails to address the validity of § 312b(4), which, while it existed, on its face proclaimed that it left unaffected any PSC order regarding intraLATA dialing parity issued before June 1, 1995, except as otherwise provided by the statute. The statute, by operation of its language in § 312b(4), expressly left unaffected the PSC's prior orders, except as they conflicted with the implementation scheme outlined in the statute. There exists nothing within the text of § 312b that would act to prohibit the PSC from ordering dialing parity after July 1, 1997. On that date, § 312b expired, and there remained no statutory constraints whatsoever on the PSC. Thus, the PSC was free from that point forward to order intraLATA dialing parity.
It is apparent from the language of the statute that, rather than acting as a repeal of prior PSC orders, the statute specifically preserved those orders, except as they conflicted with the statutory implementation schedule. That implementation schedule, in existence only until July 1, 1997, while offering a temporary respite from the PSC's assertion of jurisdiction in such matters, shows no indications that the Legislature intended it to either adversely effect the prior PSC orders (except as necessitated by its own operation), given § 312b(4)'s preservation clause, or to prospectively affect intraLATA dialing parity regulation by the PSC, given its expiration date. Accordingly, we see no indication that the statute intended to repeal the prior PSC orders, and hence hold that,
While the language of § 312a is, on its face, unambiguous, and hence we need only apply it as written, Lorencz, supra, the effect of § 312b, and of its subsequent expiration, presents ambiguities regarding how the statute will apply to the situation before us, particularly when various possibilities contemplated on the face of the statute have not come to pass. Accordingly, we are required to construe the statute in an effort to give effect to the Legislature's intent. Heinz and Farrington, supra. Our efforts to construe the effect of these statutes must include consideration of their relationship to each other and the similar subject matter in a manner that is cognizant of the July 1, 1997, expiration of § 312b. In doing so, we are able to apply the language of the statute to the facts before us and reach the following conclusions regarding its effects.
The nature of § 312a is to require intraLATA dialing parity if interLATA prohibitions are removed. The nature of § 312b, by virtue of its prospectively limited life span, is to temporarily provide local exchange services (i.e., Ameritech) with some relief from the PSC's prior orders (the February 1994 and March 1995 orders in particular), that would otherwise have required the local carriers to implement dialing parity no later than January 1, 1996 (later modified by the March 1995 order to make allowances for those areas where implementation of dialing parity was not technologically possible on January 1, 1996).
Section 312b accomplished this by means of the implementation schedule of § 312b(1), whereby the Legislature replaced the PSC's deadline of January 1, 1996, with its own sliding scale of deadlines, requiring a progressive implementation of both intraLATA parity and interLATA service. Section 312b(2), reflecting adherence to the mandate of § 312a, explicitly required the PSC to order full dialing parity if the interLATA prohibitions on the local carrier(s) were removed, and hence the abandonment of § 312b(1)'s schedule should those prohibitions be removed. Section 312b(3) provided an exception for all but ten percent of a local carrier's customers if the local carrier was prohibited by law from providing either intraLATA parity or interLATA toll service. Lastly, § 312b(4) provided that, except as otherwise provided in § 312b, any PSC order issued before June 1, 1995 (i.e., the February 1994 and March 1995 orders) were not altered or voided.
Thus, the effect of the Legislature's enactment of § 312b was to provide local carriers such as Ameritech with some temporary relief from the most demanding provisions (i.e., the implementation timetable) of the prior PSC orders. The Legislature, by enacting § 604(2), evidenced a judgment that such relief should be only temporary in nature, expiring on July 1, 1997. By enacting § 312b(4), the Legislature evidenced its intent to leave intact those parts of the prior PSC orders not specifically altered by § 312b. The essence of the alterations to such orders occurs by way of § 312b(1)(a)-(e)'s schedule.
There is no requirement in § 312b(1) for the provision of dialing parity or interLATA service for any increased percentage of customers beyond May 1, 1996. Thus, it must appear that the Legislature may have envisioned that any one of three things would occur. First, the statute would permit the provision of an additional percentage of service and parity beyond fifty percent, but not require it. For reasons it need not justify, the Legislature may have determined that requiring only fifty percent parity was an appropriate policy. Second, the statute requires the immediate provision of dialing parity once interLATA prohibitions are lifted. It may be that the Legislature contemplated this would occur either by the time fifty percent of the customers were receiving such service, or by, or shortly after, May 1, 1996. There is, however, no need for us to speculate about the Legislature's intent, given the existence of a third possibility under the statute, the one which has come to pass.
In what actually occurred, not only did May 1, 1996, come and go without significant changes on the dialing parity front, but so did July 1, 1997. On that day, the effect of the Legislature's enactment of the repealing provision of § 604(2) was to withdraw from the field the Legislature's sliding scale of § 312b(1) and return the matter of dialing parity implementation to the PSC's jurisdiction.
During the life of § 312b, the interLATA restrictions on local carriers were not entirely removed. Thus, the mandate evidenced in § 312a, and its implementing directive in § 312b(2), requiring full dialing parity in the event of interLATA competition being permitted, never came to fruition.
Furthermore, the regulations on interLATA competition were not sufficiently relaxed to permit the matching sliding schedule of intraLATA parity and interLATA service envisioned by § 312b(1). Thus, by operation of § 312b(3), only the scheduling requirement of § 312b(1)(a) actually came to be mandated by the statute, that being the provision of intraLATA parity to ten percent of a local exchanges customers.
Thus, we reject the construction of the statute rendered by the Court of Appeals. We must also reject, however, appellants' contention that May 1, 1996, is a determinative date under § 312b(1)'s scheme. While that date evidenced the last deadline to be met under the Legislature's sliding scale, not until § 312b was repealed, on July 1, 1997, did the Legislature return to the PSC discretion over the setting of a dialing parity implementation schedule. Accordingly, the PSC orders of June 26, 1996, and October 7, 1996 ("the 1996 orders") that purported to regulate dialing parity implementation while that was controlled by § 312b were unlawful.
Section 312a clearly requires intraLATA parity if interLATA competition is allowed. The statute plainly does not, on its face, require the reverse. While § 312b evidenced a legislative intent to provide local exchange carriers (such as Ameritech) with some temporary relief from complying with the dialing parity implementation schedules set by orders of the PSC, and, until July 1, 1997, to replace such schedules with one of the Legislature's own design, § 312b was repealed effective July 1, 1997. The result of this repeal was to return to the PSC jurisdiction related to dialing parity implementation, and the PSC was, at that time, free to enforce the dialing parity schedule as it had enunciated in its previous (1994 and 1995) orders, the effect of which had been temporarily halted by the Legislature, but not specifically voided.
While the complexity of this case requires us to undertake a fairly exhaustive
We turn next to the question of the PSC's setting of a fifty-five percent discount on access charges by local exchange carriers (i.e., Ameritech) to interexchange carriers (i.e., AT & T and MCI) for access to those exchanges where intraLATA parity is not provided.
In reviewing the PSC's imposition of a fifty-five percent discount on access charges, the Court of Appeals relied entirely on its application of § 312b and § 312a. Indeed, the Court's analysis was sufficiently brief to allow us to quote it in its entirety:
As can be seen above, the Court of Appeals placed primary reliance on its prior analysis regarding the interrelation of § 312b and § 312a. As detailed above, we agree that, before its expiration on July 1, 1997, § 312b operated to provide local access carriers such as the appellee with relief from what would otherwise be their required compliance with the PSC's implementation schedule. The Court of Appeals decision, however, was issued in May 1998, and, while recognizing the repeal of § 312b, nonetheless speaks of the PSC's schedule as one that "conflicted and continues to conflict" with § 312b and § 312a. Id. at 701, 583 N.W.2d 458. As noted in part II, the plain language of § 312a holds no such conflict, and, as of July 1, 1997, and continuing on to the date of the Court of Appeals decision and even until today, there is no such conflict with § 312b for the simple reason that, as of July 1, 1997, § 312b was repealed and thus ceased to exist.
The PSC established this discount rate in its March 10, 1995, order. Subsequently, the order imposing the discount rate was affirmed by the Court of Appeals in an unpublished decision of that Court.
Our standard of review of a decision of the PSC is provided by statute:
In all appeals under this section the burden of proof shall be upon the appellant to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable. [MCL 462.26(8); MSA 22.45(8).]
Against this background, we have held:
The hurdle of unreasonableness is equally high. Within the confines of its jurisdiction, there is a broad range or "zone" of reasonableness within which the PSC may operate. Michigan Bell Telephone Co. v. Public Service Comm., 332 Mich. 7, 26-27, 50 N.W.2d 826 (1952). Cognizant of these confines, we proceed onward.
In its prior decision, the Court of Appeals addressed this matter in the following fashion:
We find no merit to Ameritech's objections to the 55% discount access rate that the PSC adopted for those end offices that do not meet the cutover date in the conversion schedule. Although the task force report characterizes the discount rate as a "penalty," the PSC's March 10, 1995 decision clarifies that the PSC adopted the measure as a rate-making provision rather than a penalty based upon a determination that the inferior quality of non-converted access services warranted the proposed lower access rate:
"The Commission finds that Ameritech Michigan's and MECA's [Michigan Exchange Carriers Association] arguments should be rejected for three reasons. First, in advancing their arguments, MECA and Ameritech Michigan mischaracterize the proposed discount as a penalty. To the contrary, the discount reflects the fact that there are different levels of service that warrant different pricing. Here, the access that will be provided in offices that do not convert to intraLATA dialing parity as scheduled requires the dialing of access codes, which is different from dialing a
Ameritech does not directly challenge the soundness of the PSC's conclusion that the lack of scheduled dialing parity access service offered by the offices that do not comply with the conversion schedule may justify a discounted rate. Rather, Ameritech challenges the discount rate solely on procedural grounds, essentially arguing that the PSC cannot use its ratemaking authority as a substitute for its penalty powers.... This simply is not so. The PSC can indeed use its ratemaking authority to compel or punish the conduct of regulated utilities by outlining the rate-making consequences of certain acts or omissions. See, e.g., Midland Cogeneration Venture Limited Partnership v. Public Service Comm., 199 Mich.App. 286, 324-326, 501 N.W.2d 573 (1993) (Taylor, J., dissenting in part) (PSC may control a utility's transactions with its corporate affiliates and compel disclosure of corporate affiliate information indirectly through use of the PSC's rate-making authority). This is essentially what the PSC has done here by adopting the 55% discount rate for offices that fail to switch the intra-LATA dialing parity according to the PSC's conversion schedule. Basically, the PSC is simply outlining the potential rate-making consequences of failing to comply with the PSC's dialing parity conversion schedule.
As noted above, Ameritech failed to seek leave to appeal from this decision, which dealt with its challenges to the 1994 and 1995 orders. Accordingly, the decision is final and binding with respect to those orders, and, thus, would be final regarding the period from the imposition of the fifty-five percent discount until the effective date of § 312b, which relieved Ameritech of its duty to comply with those orders, and, likewise, temporarily removed from the PSC its ability to require compliance with the conversion schedule that formed the basis for its evaluation of the service deficiency meriting the fifty-five percent discount.
A close review of the interaction of the 1994 and 1995 orders and § 312b reveals, however, that at no time before the effective date of § 312b did the fifty-five percent discount take effect. The 1995 order of the PSC required dialing parity to be in place, and the fifty-five percent discount to apply to those offices where it was not, by January 1, 1996. Section 312b became effective November 30, 1995. Thus, at no time from the entry of the 1995 order requiring the fifty-five percent discount to the effective date of § 312b did the discount come into effect.
As to those access charges occurring following the repeal of § 312b (July 1, 1997) and continuing onward through the 1996 order, at the time the PSC issued the 1996 orders, § 312b continued to operate to deprive the PSC of the ability to implement an intraLATA dialing parity schedule of its own choosing. The PSC's ability to determine the deficiency of access services that did not include a component (intraLATA dialing parity), which the PSC itself was then powerless to require the inclusion of, likewise would seem to be in peril given the existence of § 312b. As noted in part II, at the time the PSC issued the 1996 orders, they were unlawful in the face of § 312b in so far as they purported to require intraLATA dialing
This does not, however, conclude our review of the applicability of the fifty-five percent discount to those access charges that accrued following the repeal of § 312b. As noted in part II, § 312b(4) specifically included a saving clause preserving prior PSC orders, except to the extent otherwise provided in § 312b. Once § 312b was repealed, the effect was to return to the PSC authority over dialing parity issues and to allow it to enforce both its dialing parity schedule and prior orders, which until July 1, 1997, had been temporarily stayed, but not voided, by § 312b.
Accordingly, while the PSC was without authority to issue its 1996 orders, and thus could not rely on them following July 1, 1997, the prior 1995 order providing for the fifty-five percent discount remained valid and applicable to those dates following the Legislature's repeal of its intraLATA regulation (§ 312b). Given that this order has already been affirmed by the Court of Appeals, it has already been determined that it represents a lawful and reasonable rate-making function of the PSC, and thus is valid. Under our broad view of res judicata
Given, however, the unusual nature of this case, where the PSC has issued multiple and repetitive orders in the face of changing legislation and significant concurrent appellate activity, reliance solely on res judicata alone in affirming the applicability of the 1995 order, while technically proper, might lead to some confusion.
The Court of Appeals found that neither §§ 312a and 312b nor the PSC's
The Court of Appeals correctly outlined the scope of § 271 of the FTA as follows:
Following this review, and relying on Bell Atlantic-New Jersey, the Court of Appeals determined that "§ 312a and § 312b constitute state orders for the purpose of the grandfather clause." 229 Mich.App. at 697, 583 N.W.2d 458. Furthermore, the Court concluded that the "PSC's 1994 and March 1995 orders also constitute state orders within the grandfather clause," again relying on Bell Atlantic-New Jersey. 229 Mich.App. at 699, 583 N.W.2d 458. Because neither of these conclusions are challenged on appeal, we accept them as correct.
Despite these findings, the Court of Appeals proceeded to hold that, "[b]ecause we
All of this
In essence, Ameritech's argument appears to require a chain of reasoning that would require acceptance of the argument offered below regarding federal preemption.
Ameritech offers four submissions to this Court,
* * *
(2) IntraLATA toll dialing parity
A Bell operating company granted authority to provide interLATA services... shall provide intraLATA toll dialing parity throughout that State coincident with its exercise of that authority.
Section 271(e)(2)(B), by its clear and unambiguous language, does not apply to those states that had issued an order by December 19, 1995, requiring implementation of toll dialing parity. We agree with the Court of Appeals conclusion that Michigan is such a state. Thus the prohibition of § 271(e)(2)(B) does not apply to Michigan. Furthermore, the prohibition itself plainly expired three years after February 8, 1996, i.e., on February 8, 1999. Thus the preemptive rule of § 271(e)(2)(B) is no longer in place with regard to any state.
An alternative argument was presented by counsel for appellee during the course of oral argument. There, Ameritech suggested that Michigan was a grandfathered state, but only with respect to the first ten percent of customers, as required by § 312b(1)(a). We disagree. This argument is founded, once again, on the basis that § 312b, contrary to the express language of § 312b(4), voided the PSC's 1994 and 1995 orders. If one were to accept this as true, the 1994 and 1995 orders, which required full intraLATA dialing parity, would be null and void, and, thus, on the operative date of the grandfather clause, December 19, 1995, only § 312b would have been in effect.
The additional difficulty (besides its erroneous view of § 312b's effect) of
In the absence of a federal statutory bar to the PSC's jurisdiction, we turn to whether any federal regulatory action has preempted the PSC's jurisdiction. In the wake of the AT & T Corp. decision, the FCC promulgated an order on March 23, 1999, in CC Docket No. 96-98, which has been offered by Ameritech in support of its contention that dialing parity implementation is now controlled and mandated by the FCC. Paragraph one of this order states:
On January 25, 1999, the United States Supreme Court, in AT & T v. Iowa Utilities Board, reversed, in part, the rulings of the United States Court of Appeals for the Eighth Circuit that had vacated certain rules that this Commission had adopted pursuant to the Communications Act of 1934 (the Act), as amended by the Telecommunications Act of 1996 (1996 Act), and held,inter alia, that the FCC has general jurisdiction to implement the 1996 Act's local competition provisions.
We agree with this, and see no cause to dispute the findings of the Court or the commission regarding the FCC's jurisdiction.
We emphasize that the reinstatement of our jurisdiction over intraLATA toll dialing parity does not deprive state commissions of the authority to require LECs [local exchange carriers] to comply with an earlier deadline for the implementation of intraLATA dialing parity. We encourage state commissions to do so where they deem appropriate, particularly where a plan is close to approval.
Thus, we can conclude that the FCC possessed no intent to deprive the PSC of the authority to require intraLATA dialing parity by a deadline before any federally mandated deadline. The various PSC orders of 1994 and 1995 evidence both an intent to mandate a deadline before any federally required one for the implementation of dialing parity and contain sufficient requirements to make clear the required implementation plan.
After all this, the PSC approved a final implementation plan requiring Ameritech to implement dialing parity by May
Included within Ameritech's Third Supplemental Suggestion of Mootness is an affidavit from Ameritech's Director of Implementation, reciting inter alia:
Thus, it appears that appellee Ameritech has indeed complied with its own implementation plan and the PSC's order, and that intraLATA dialing parity has finally come to exist in Michigan before the issuance of today's opinion.
The assistant Attorney General appearing on behalf of the PSC advised this Court at oral argument that a bill was submitted by Ameritech to appellant AT & T, following the Court of Appeals decision that struck down the fifty-five percent discount, for $11 million, representing the difference in access charges with the discount removed. In its multitude of post-oral argument submissions, Ameritech has not disputed that it issued this bill and similar bills to other interexchange carriers.
While we have not been presented with complete documentation of all the pertinent figures, it is quite clear that our ruling herein will have a substantial effect on the access charges made by Ameritech to interexchange carriers. It has not been alleged that AT & T or other appellees have paid these bills resulting from the Court of Appeals disputed holding regarding the fifty-five percent discount, and, accordingly, this question would not appear moot under Ideal Furnace Co. v. Int'l Molders' Union of North America, 204 Mich. 311, 169 N.W. 946 (1918), and its progeny. Where "[w]e are convinced that upon this record the questions are purely academic; that no real and substantial controversy is before us; that the order of the court below having been satisfied and the fine paid no relief can be now granted appellant." Id. at 312, 169 N.W. 946. A determination of the appropriateness of the discount cannot be made without reaching the questions that underlie the PSC's authority in this matter. Thus, this cause is not moot, there having been questions remaining before us that we were required to resolve, and such questions not having been academic, but in fact determinative of significant amounts in controversy.
The Court of Appeals also reversed the Ingham Circuit Court's order issuing a writ of mandamus. The Court based this decision on its determination that "Ameritech was not, and is not, required to comply with the PSC's unlawful or unreasonable 1996 orders...." 229 Mich.App. at 702, 583 N.W.2d 458. As we have concluded above, the Court of Appeals reasoning behind this determination was largely in error. Nonetheless, we agree with that Court's conclusion in this regard.
A writ of mandamus will only be issued if the plaintiffs prove they have a "clear legal right to performance of the specific duty sought to be compelled" and that the defendant has a "clear legal duty to perform such act...." Toan v. McGinn, 271 Mich. 28, 34, 260 N.W. 108 (1935). We review a trial court's decision regarding a writ of mandamus for abuse of discretion. Spalding v. Spalding, 355 Mich. 382, 94 N.W.2d 810 (1959). Where a central issue in the appeal involves statutory interpretation, which is a question of law, that is reviewed de novo. Cardinal Mooney High School, supra; Smeets v. Genesee Co. Clerk, 193 Mich.App. 628, 633, 484 N.W.2d 770 (1992).
Here, the Ingham Circuit Court granted the writ of mandamus, ordering Ameritech to comply with the 1996 orders. At the time this order was issued, the PSC's 1996 orders had been entered, but, nonetheless, Ameritech had not complied with them. At the time the circuit court issued this order, November 20, 1996, § 312b had not yet been repealed. Accordingly, the Legislature had relieved Ameritech of its duty to comply with the 1996 orders, and, thus, entry of the writ was erroneous, Ameritech having no legal duty to comply with the unlawful 1996 orders of the PSC. Toan, supra. Accordingly, we affirm, but on very different grounds, the Court of Appeals reversal of the issuance of the writ of mandamus.
Accordingly, we hold that, excepting the time during which § 312b, before its repeal, operated to relieve Ameritech from compliance with the PSC's orders, the PSC properly had jurisdiction to order Ameritech to implement intraLATA dialing parity. We further hold that, pursuant to its lawful ratemaking authority, the PSC, in its 1995 order, properly enacted a fifty-five percent discount for access charges to interexchange carriers where intraLATA parity was not provided, applicable to that period when the PSC was able to require the implementation of intraLATA dialing parity, and thus find deficient any service that was hampered by its absence, that being the period beginning July 1, 1997 (the date of repeal of § 312b) and continuing until appellee complied with the applicable orders of the PSC. In view of the factual nature necessarily present in such inquires, we remand this dispute to the PSC, solely for the purposes of determining the calculation of what monies might be due to which parties by operation of our holding regarding the fiftyfive percent discount. We reverse the writ of mandamus, it being ill-grounded at the time it was issued, and find this cause to be in no way moot, given the substantial amount of access charges in controversy, the amounts of which are necessarily determined by this decision. No costs are taxed,
YOUNG, J., not participating.