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SBC Michigan v. Public Service Commission11/3/2005
UNPUBLISHED
Before: Kelly, P.J. and Meter and Davis, JJ.
Plaintiff SBC Michigan (SBC) appeals as of right a May 18, 2004 order of defendant Public Service Commission (PSC) establishing procedures for certain telecommunications-related arbitration and mediation proceedings. SBC argues that these procedures were improperly adopted because the PSC did not follow the rulemaking requirements of the Administrative Procedures Act (APA) MCL 24.271 et seq. The PSC claims that SBC lacks standing and this Court does not have jurisdiction over this appeal because it does not involve an actual case or controversy. We agree with the PSC and dismiss this appeal for lack of jurisdiction.
I. Basic Facts and Procedural Background
On July 16, 1996, the PSC entered an order (1996 order) in Case No. U-11134 that provided a general framework for the PSC to handle arbitration requests under the Federal Telecommunications Act of 1996, specifically 47 USC 252, regarding certain disputes between telecommunications carriers, including interconnection disputes.
On May 2, 2003, the PSC entered an opinion and order (2003 order), in which it proposed modified arbitration procedures for disputes under the federal Telecommunications Act set out in the 1996 order and also established mediation procedures related to the PSC's mediation responsibility under the Michigan Telecommunications Act (MTA), MCL 484.2101 et seq., and the Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (METRO Act), MCL 484.3101 et seq. The 2003 order also provided that interested parties had twenty days from the date of that order to file written comments on the proposed procedures. This was not a contested case with adversarial parties.
On May 22, 2003, SBC filed comments with the PSC regarding the 2003 order's proposed arbitration and mediation procedures. SBC asserted that the PSC should adhere to the APA's rulemaking procedures in articulating its arbitration procedures and that the PSC "should commence a rulemaking applicable to [the telecommunications industry] and these types of cases." SBC also submitted proposed rules for the PSC's consideration.
On May 18, 2004, the PSC issued the order being appealed (2004 Order) regarding arbitration and mediation procedures. In the 2004 order, the PSC noted, but rejected, SBC's concerns.
II. Analysis
"Whether a party has legal standing to assert a claim a question of law that we review de novo." Heltzel v Heltzel, 248 Mich App 1, 28; 638 NW2d 123 (2001). "The question of jurisdiction is always within the scope of this Court's review." Walsh v Taylor, 263 Mich App 618, 622; 689 NW2d 506 (2004).
A. Standing
The PSC's argues that SBC lacks standing to appeal the 2004 Order. We agree. Our Supreme Court has endorsed the test for standing articulated by the United States Supreme Court in Lujan v Defenders of Wildlife, 504 US 555, 560; 112 S Ct 2130; 119 L Ed 351 (1992). Accordingly, a plaintiff must meet the following constitutional minimum standingcriteria:
"First, the plaintiff must have suffered an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural" or "hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be 'fairly . . . trace[able] to the challenged action of the defendant, and not . . . t result the independent action of some third party not before the court.' Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable
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