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No. 134493, 134500
| SBC Michigan, |
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Jeffery V. Stuckey |
Plaintiff-Appellant, |
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Phillip J. DeRosier |
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(Appeal from Ct of Appeals) |
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(Michigan Public Service Commission) |
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| Michigan Public Service Commission, |
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Thomas L. Casey |
| Defendant-Appellee. |
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Michael A. Nickerson |
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| SBC Michigan, |
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Plaintiff-Appellee, |
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| Michigan Public Service Commission, |
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Defendant-Appellant. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
134493 - Plaintiff-Appellant's Brief on Appeal>>
134500 - Plaintiff-Appellee's Brief on Appeal>>
134493 - Defendant-Appellee's Brief on Appeal>>
134500 - Defendant-Appellant's Brief on Appeal>>
Mackinac Center for Public Policy's Amicus Curiae Brief>>
State Bar of Michigan, Administrative Law Section's Amicus Curiae Brief>>
The Telecommunications Association of Michigan's Amicus Curiae Brief>>
Background
An SBC Michigan customer reported a loss in telephone service at his home. The customer was told that, if the problem was found to be in the home’s wiring, he would be charged a $71 service fee. A service technician went to the customer’s home and determined, without entering the house, that the problem rested with the inside wiring. The technician informed the customer that the $71 fee would be charged. But after further investigation, it was determined that the problem was actually in the carrier’s outside lines. The problem was fixed and the $71 fee was removed from the customer’s bill. The customer was given five days’ credit for lost service. The customer filed a complaint with the Michigan Public Service Commission. An administrative law judge recommended that the complaint be dismissed, but the Commission concluded that SBC violated MCL 484.2502(1)(a) of the Michigan Telecommunications Act, which prohibits a telecommunications carrier from making “a statement or representation, including the omission of material information, regarding the rates, terms, or conditions of providing a telecommunication service that is false, misleading, or deceptive.” The Commission fined SBC $30,000 and ordered restitution of $1,782. In addition, the Commission directed SBC to not assess the $71 fee against any customer, unless SBC could identify the source of a service problem, had entered the customer’s premises, and confirmed that the problem was located within the residence. In an unpublished per curiamopinion, the Court of Appeals indicated that, had they been members of the Commission, they would have concluded that the carrier did not violate § 502(1)(a). The statute’s plain language would indicate that “this provision is not intended to proscribe a statement that is simply not true or correct, but is only intended to proscribe those statements tending to deceive or mislead,” the Court of Appeals said. The evidence did not show that the carrier intended to mislead, the appellate panel stated; rather, the technician’s initial opinion was nothing “more than a mistake” caused by a service problem that “was intermittent, and difficult to diagnose.” Nevertheless, the Court of Appeals found “no error” in the Commission’s contrary ruling, saying that the court could not substitute its judgment for the Commission’s. The Court of Appeals remanded the case to the Commission for further proceedings, instructing the Commission to determine whether there was a systemic problem with SBC’s charges for service visits. On remand, the Commission clarified the circumstances under which SBC could charge a service fee, stating that “SBC need not enter a customer’s premises every time that SBC is called upon to make a service trip. . . . [But] SBC may not charge its customers for the cost of services it provides to inspect, diagnose, and repair malfunctions covered by its tariff obligation, including routine physical checks of its own facilities, in response to complaints or inquiries, when reasonably necessary to diagnose and pinpoint problems attributable to its own network or exclude its facilities as a possible cause of disruptions to customer service.” SBC again appealed, contending that the Commission’s order inappropriately precluded it from charging customers for non-regulated services pertaining to problems with the customers’ own inside wiring. In a published opinion, the Court of Appeals affirmed the Commission’s order in part, upholding the provision restricting SBC from imposing charges on customers for services “to diagnose problems attributable to its own facilities.” But the panel also ruled that the Commission could not restrict SBC’s ability to charge for investigation of its own services, to the extent that the investigation confirms that the source of a service problem rests with the customer. In addition, competent, material and substantial evidence supported the Commission’s determination that there was a systemic problem with SBC’s practices regarding service visit charges, the appellate panel said. The Court of Appeals remanded the case to the Commission for entry of a modified order removing any regulation of costs and services “attributable to a correct determination by SBC that a problem with telephone service is attributable to a customer’s nonregulated inside wiring.” Both parties appeal to the Supreme Court.
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