In Re MCI Telecommunications Corp. Complaint , 240 Mich. App. 292 ( 2000 )

612 N.W.2d 826 (2000) 240 Mich. App. 292

In the Matter of the application and the complaint of MCI TELECOMMUNICATIONS CORPORATION against Michigan Bell Telephone Company d/b/a Ameritech Michigan for purported improper intraLATA PIC rejections and improper practices during three-way calls for verification of PIC changes.
Ameritech Michigan, Appellant/Cross-Appellee,
v.
Michigan Public Service Commission, Appellee/Cross-Appellee, and
MCI Telecommunications, Appellee/Cross-Appellant.

Docket No. 211814.

Court of Appeals of Michigan.

Submitted October 5, 1999, at Lansing. Decided March 24, 2000, at 9:05 a.m. Released for Publication June 22, 2000.

Dickinson Wright PLLC (by Joseph A. Fink, John M. Dempsey, Jeffery V. Stuckey, and Jennifer L. Frye), Lansing, for Ameritech Michigan.

Dykema Gossett PLLC (by Robert J. Franzinger, Albert Ernst, Lori Silsbury, and Thomas S. Bishoff), Lansing (Thomas F. O'Neil, III and Adam H. Charnes, of Counsel), Washington, DC, for MCI Telecommunications Corporation.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and David A. Voges and Patricia Barone, Assistant Attorneys General, for the Public Service Commission.

Before: HOEKSTRA, P.J., and McDONALD and METER, JJ.

METER, J.

Ameritech Michigan appeals as of right from an order of the Michigan Public Service Commission (MPSC), in which the MPSC ruled that Ameritech had violated the terms of an earlier MPSC order. MCI Telecommunications Corporation cross appeals, challenging the MPSC's denial of MCI's request for compensatory damages allegedly resulting from Ameritech's violation of the earlier order. We affirm in part and vacate in part.

Factual Background

This case involves Ameritech's use of a voluntary "PIC protection" program. Such programs are designed to prevent the practice known as "slamming," whereby a customer's preexisting choice of a PIC,^[1] or telecommunications service provider, is changed without the customer's consent. In 1992, in order to protect against "slamming," the Federal Communications Commission (FCC) adopted four PIC change verification procedures for use in the interstate long distance market. Specifically, the FCC provided, in 47 CFR 64.1100 and 47 CFR 64.1150, that a PIC change could be verified by (1) a written letter of agency or authorization (LOA) from the customer granting a provider authority to request the PIC change on the customer's behalf; (2) third-party verification (TPV), in which a qualified and independent third party obtains the customer's oral authorization for the PIC change; (3) electronic confirmation from the customer through the use of a toll-free telephone number; or (4) the customer's return of a prepaid postcard that is sent to the customer in an information package regarding the PIC change.^[2]

Ameritech decided to offer a voluntary PIC protection program that had a more stringent verification requirement than those contained in the FCC procedures. The program allowed no change in the customer's PIC choice unless and until the customer authorized the change by contacting Ameritech directly. In December 1995, Ameritech sent a bill insert to its customers urging them to sign up for the voluntary PIC protection program. The bill insert was sent shortly before the conversion to a new dialing system for intraLATA calls that served to foster competition in the intraLATA market.

LATAs (Local Access Transport Areas) are geographic regions that roughly correspond to telephone area code regions. In the telecommunications industry, long distance telephone calls between LATAs are known as "interLATA" calls, and local long distance calls sent and received within a single LATA are known as "intraLATA" calls. For many years, local exchange carriers such as Ameritech exclusively serviced all intraLATA calls made by 1+ dialing (i.e., by simply dialing a 1 before the number to be called). In 1994, however, the MPSC ordered a conversion to 1+ dialing parity, meaning that whenever 1+ dialing is used for an intraLATA call, the call is now served by a provider presubscribed by the customer (i.e., the call is not immediately served by a local carrier such as Ameritech). Ameritech sent its PIC protection bill insert just before the implementation of 1+ dialing parity for intraLATA calls.

Sprint Communications Company filed a complaint against Ameritech with the MPSC, alleging that Ameritech's bill insert was misleading and anticompetitive in violation of the Michigan Telecommunications Act (MTA), M.C.L. § 484.2101 et seq.; MSA 22.1469(101) et seq. The proceedings on the complaint were docketed by the MPSC as Case No. U-11038.

On August 1, 1996, the MPSC issued an opinion and order in Case No. U-11038, finding that Ameritech's bill insert was misleading, deceptive, and timed to impede the transition to intraLATA presubscription competition. Accordingly, the MPSC concluded that the bill insert violated the MTA and the MPSC's previous orders requiring intraLATA dialing parity competition. The MPSC also reasoned that Ameritech's PIC protection program, as advertised to Ameritech's intraLATA customers through a misleading and deceptive bill insert, was anticompetitive in effect. The MPSC stressed, however, that aside from the effect of the deceptive promotion, the MPSC was not finding anything inappropriate about Ameritech's PIC protection program in and of itself.^[3]

As a result of Ameritech's misconduct, the MPSC ordered the following remedies:

A. Ameritech Michigan shall cease and desist from violations of the Michigan Telecommunications Act, 1991 PA 179, as amended by 1995 PA 216, M.C.L. § 484.2101 et seq.; MSA 22.1469(101) et seq.

B. Ameritech Michigan shall comply with the Commission's orders requiring the implementation of intraLATA dialing parity.

C. Ameritech Michigan shall mail to all of its customers a corrective bill insert no later than the September billing cycle in conformity with this order and shall provide notice to the Commission that it has done so.

D. Ameritech Michigan shall apply PIC protection requests received beginning December 1995 only to interLATA service. It shall not apply PIC protection requests to intraLATA and basic local exchange services until six months after mailing the corrective bill insert unless the customer has first affirmatively selected a provider for those services and then requests PIC protection.

E. When a customer with PIC protection calls to request that Ameritech Michigan change his or her service providers, it shall not use that contact to try to persuade the customer not to change providers.

F. Ameritech Michigan shall permit the verification of PIC changes by any [of the four procedures adopted by the FCC] and shall also permit three-way conference calls with the consent of the customer.

The instant case concerns Ameritech's compliance with paragraphs E and F above.^[4]

In October 1997, MCI filed a two-count complaint with the MPSC, alleging that (1) since April 1, 1997, when the six-month moratorium imposed by the MPSC on the application of Ameritech's PIC protection program to intraLATA customers ended, Ameritech refused to process over 20,000 intraLATA PIC change requests submitted by MCI, despite the fact that all these requests were properly verified by either TPV or a LOA; and (2) Ameritech's service representatives had been engaging in improper conduct during three-way PIC change conference calls, such as trying to persuade customers not to change intraLATA carriers, refusing to participate in three-way calls, and using confidential customer data to try to sell customers additional Ameritech services and features. In addition to other relief, MCI sought to recover compensatory damages and litigation expenses, including attorney fees.

Ameritech contended that its refusal to accept verifications by TPV or a LOA as sufficient for intraLATA PIC changes on its customers' accounts was not a violation of the MPSC's August 1, 1996, order in Case No. U-11038, because the MPSC had allowed Ameritech, after the six-month moratorium, to apply its own PIC protection plan and to refuse verifications by TPV or a LOA. Ameritech further contended that (1) it had not engaged in any misconduct during three-way conference calls and (2) the use of confidential customer information and attempts to sell other Ameritech products during the calls, even if these activities had occurred, would not have violated the order in Case No. U-11038.

In a May 11, 1998, opinion and order, the MPSC adopted the hearing officer's conclusion that Ameritech had violated the MPSC's order in Case No. U-11038. The MPSC found that Ameritech (1) improperly refused to implement intraLATA changes that were verified only by TPV or a LOA for customers with PIC protection, and (2) repeatedly engaged in improper conduct during three-way conference calls. The MPSC ordered Ameritech to cease and desist its various types of violations, but declined to fine Ameritech for the past violations. The MPSC stated that it was persuaded that Ameritech's misinterpretation of the order in Case No. U-11038 constituted a mitigating circumstance.

With regard to MCI's claim for compensatory damages for lost profits, the MPSC ruled that MCI's proofs were too speculative to support any award for lost profits. In particular, the MPSC noted defects in MCI's calculation of expenses, number of lost customers, and lost minutes of usage. The MPSC did, however, award attorney fees under § 601 of the MTA, which allows the MPSC to order "remedies and penalties" for those who have suffered "economic loss." See M.C.L. § 484.2601; MSA 22.1469(601).

The MPSC's Requirement that Ameritech Allow Verification by TPV or LOA for Customers in the PIC Protection Program

Ameritech first argues that the MPSC erred in concluding that Ameritech violated the order in Case No. U-11038 by failing to implement PIC change orders verified only by TPV or a LOA for customers enrolled in Ameritech's PIC protection program. Ameritech argues that because the earlier order did not cancel Ameritech's PIC protection program, but merely placed a six-month moratorium on it, Ameritech was free to implement the program after the six months had expired. Because the program specifically required direct notification from the customer in order for any PIC changes to occur, Ameritech believes that it properly denied the PIC change requests that were verified only by TPV or a LOA.

Our review of MPSC orders is relatively narrow in scope. See In re MCI Telecommunications Complaint, 460 Mich. 396, 426-427, 596 N.W.2d 164 (1999). A party challenging an order of the MPSC bears the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. In re Sprint Communications Co., L.P., Complaint, 234 Mich.App. 22, 34, 592 N.W.2d 825 (1999). "A decision of the MPSC is unlawful when it involves an erroneous interpretation or application of law, and unreasonable when it is unsupported by the evidence." Id. When an evidentiary hearing is required, the MPSC's factual determinations must be supported by competent, material, and substantial evidence on the whole record. Id.; Const. 1963, art. 6, § 28.

With regard to issues of interpretation of MPSC orders in particular, this Court accords substantial deference to the MPSC's interpretations of its own orders, and this Court ordinarily will uphold the MPSC's interpretations as long as they are supported by the record or otherwise reasonable. ABATE v. Public Service Comm., 219 Mich.App. 653, 661-662, 557 N.W.2d 918 (1996).

We conclude that the MPSC's interpretation of its order in Case No. U-11038, and its corresponding finding that Ameritech violated this order by refusing to accept verification by TPV or a LOA for PIC change requests received for customers enrolled in its PIC protection program, were supported by the record. Indeed, paragraph F of the prior opinion and order, quoted above, mandated that Ameritech permit the verification of PIC changes by TPV or a LOA. The MPSC did not indicate that verification by TPV or a LOA was to apply only to those customers not enrolled in Ameritech's voluntary PIC protection program. Indeed, restricting verification by TPV or a LOA only to those customers not enrolled in Ameritech's PIC protection program would have been superfluous, because these verification procedures already applied to such customers under the MPSC's opinion in Case No. U-10138 (in which the MPSC adopted the FCC's four PIC change verification procedures for use in Michigan's intraLATA market).

Moreover, the MPSC, in the body of its opinion, specifically indicated that Ameritech "is not free to invalidate PIC change procedures the FCC and this Commission have approved." Ameritech argues that this language, and any other language contained in the body of the MPSC's opinion, should have been disregarded, because courts and administrative tribunals speak through their judgments and orders rather than their opinions. We disagree. As the MPSC notes, a dispositive judgment or order may incorporate or otherwise include an opinion. See, e.g., MCR 7.215(D)(1) (opinions of the Court of Appeals are judgments) and Master Craft Engineering, Inc. v. Dep't of Treasury, 141 Mich.App. 56, 74, 366 N.W.2d 235 (1985) (findings and conclusions of hearing officer's fourteen-page proposed judgment incorporated into final agency order). The MPSC correctly notes that its "opinion" in case No. U-11038 was effectively incorporated into its dispositive "order" by virtue of the opinion and order being issued as a single, undivided "opinion and order" document. Moreover, even if the MPSC had issued an opinion separate from its order, it would still have been appropriate to use the MPSC's opinion as a guide for resolving any uncertainties about the MPSC's order. See 20 Am. Jur. 2d, Courts, § 39, p. 360. Accordingly, the MPSC did not err in looking to the body of its opinion in Case No. U-11038.

Nor, contrary to Ameritech's argument, did the MPSC err in failing to resolve any ambiguities in the order in Ameritech's favor. The authority cited by Ameritech in this regard involved the question whether contempt penalties should be imposed for violating the terms of an order. See Grace v. Center for Auto Safety, 72 F.3d 1236, 1241 (C.A.6, 1996). Here, the MPSC did not impose any penalties against Ameritech for violating either the letter or the spirit of the order in Case No. U-11038.^[5] To the contrary, the MPSC rejected the hearing officer's recommendation that Ameritech be fined for its violations. In doing so, the MPSC stated that there were "mitigating circumstances," specifically indicating that it was persuaded by Ameritech's argument that the violations arose from actions taken pursuant to Ameritech's reasonable interpretation of the prior order.

Because the MPSC did not sanction Ameritech for its past violations, Ameritech's vagueness and due process objections also lack merit. Any vagueness in the terms of the MPSC's order in Case No. U-11038 is now cured by the clarification provided by the MPSC's May 11, 1998, opinion and order in the present case. As MCI correctly notes, the MPSC's cease and desist order in the present case is prospective in application, and it is therefore unaffected by any defects that may have existed in the MPSC's previous opinion and order. That is, while Ameritech may be excused for violations that occurred in the past because of its misunderstanding of the MPSC's order in Case No. U-11038, this is no reason to excuse Ameritech from future compliance now that the MPSC has removed any basis for misunderstanding.^[6]

Ameritech contends that its due process rights would be violated if the MPSC were allowed to impose new, prospective prohibitions against conduct that was not previously prohibited by the MPSC's order in Case No. U-11038 without first conducting a new hearing to determine whether the conduct violates the MTA. This argument ignores the fact that the MPSC is not imposing any new prohibitions that the MPSC did not intend to impose before. Rather, the MPSC has simply clarified the scope of the prohibitions it intended to result from its previous order and the hearing that took place at that time. In other words, the "new" prohibitions address conduct that was also prohibited by the MPSC's previous order. While Ameritech may be excused for failing to abide by those prohibitions because of ambiguities in the previous order, the MPSC's removal of those ambiguities does not entitle Ameritech to a new hearing.

We agree with Ameritech that the MPSC's interpretation of its order in Case No. U-11038 rendered Ameritech's voluntary PIC protection program essentially void in the area of intraLATA service (because Ameritech must allow forms of PIC change verification other than that specified in Ameritech's PIC protection program). Indeed, the MPSC's interpretation essentially changed the six-month moratorium contained in paragraph D of the order in Case No. U-11038 into a permanent moratorium. This permanent moratorium arguably contradicted the MPSC's statement in the prior order that Ameritech's PIC protection program, if it had not been improperly marketed with misleading bill inserts, might have been appropriate. However, any ambiguities and internal inconsistencies in the prior order have now been resolved by the order in the instant case. Moreover, while the MPSC's interpretation of its order may have rendered Ameritech's PIC protection plan virtually meaningless in the area of intraLATA service, the MPSC was nonetheless entitled to render such an interpretation. Because the MPSC has awarded only prospective "cease and desist" relief, Ameritech's misunderstanding of the previous MPSC order provides no basis for reversal.

The Prohibition Against Using Confidential Customer Data and Attempting to Sell Ameritech Products During Three-Way Calls

Next, Ameritech argues that the MPSC erred in finding that Ameritech violated the order in Case No. U-11038 by using confidential customer data and attempting to sell customers additional Ameritech products during three-way PIC change verification calls. Ameritech contends that the MPSC's order in Case No. U-11038 did not prohibit such conduct. Ameritech argues that the order in Case No. U-11038 merely prohibited Ameritech from trying to dissuade customers from changing service providers during three-way calls and that there was no competent evidence that Ameritech ever attempted to influence customers in this manner.

Again, this Court accords substantial deference to the MPSC's interpretations of its own orders, and this Court ordinarily will uphold the MPSC's interpretations as long as they are supported by the record or otherwise reasonable. ABATE, supra at 661-662, 557 N.W.2d 918.

We disagree that the MPSC erred in concluding that the previous order prohibited the use of confidential information or the marketing of Ameritech products during three-way calls. The order in Case No. U-11038 specifically indicated that Ameritech was not to discuss confidential or proprietary information with customers during three-way calls. Moreover, while the earlier order did not specifically address the matter of Ameritech marketing other toll products and services to customers during three-way calls, the hearing officer reasoned that such conduct violated the order because of its tendency to dissuade customers from changing providers. The MPSC agreed with the hearing officer, stating that its earlier decision "authorized the use of three-way calls solely as a means of verifying a PIC change and not as a vehicle for Ameritech Michigan to market its services." We defer to the MPSC's interpretation of the intended scope of its previous order. See ABATE, supra at 661-662, 557 N.W.2d 918.

Moreover, because the MPSC awarded only prospective relief and did not penalize Ameritech for past violations of the order in Case No. U-11038, Ameritech cannot legitimately claim that its due process rights were violated because it was held liable for violating the "spirit," rather than the letter, of the MPSC's previous order. The decision in the instant case clarified the terms of the previous order by specifically prohibiting Ameritech from using customer data or marketing other Ameritech products during three-way PIC change conference calls. After the MPSC clarified the terms of its previous order in this manner, it appropriately ordered Ameritech to "cease and desist" from violating those terms in the future, while recognizing that Ameritech could be excused from any penalties for violations that occurred in the past because of its misunderstanding of the earlier order.

The MPSC's Factual Determination that Ameritech Engaged in Improper Activities During Three-Way Calls

Next, Ameritech argues that there was insufficient evidence to support the MPSC's finding that Ameritech engaged in improper activities during three-way calls, because the only person who arguably provided probative testimony about these allegedly improper activities, Todd Gerdes,^[7] actually provided minimally relevant, unreliable testimony. We disagree. As indicated earlier, the MPSC's finding in this regard had to be supported by competent, material, and substantial evidence on the whole record. Const. 1963, art. 6, § 28; see also Ansell v. Dep't of Commerce (On Remand), 222 Mich.App. 347, 354, 564 N.W.2d 519 (1997). Substantial evidence is any evidence that reasonable minds would accept as adequate to support the decision; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. See Korzowski v. Pollack Industries, 213 Mich.App. 223, 228, 539 N.W.2d 741 (1995). Black's Law Dictionary (6th ed.), p. 1345, defines "scintilla" as "the least particle." Random House Webster's College Dictionary (1997), p. 1159, defines "scintilla" as "a minute particle; spark; [or] trace." Here, there was more than "a minute particle" or "the least particle" of evidence supporting the MPSC's decision.

Indeed, Gerdes supplied substantial evidence that Ameritech engaged in improper activities during three-way calls, and the weight and credibility of Gerdes' testimony was for the MPSC to determine. See In re Sprint, supra at 39, 592 N.W.2d 825. Moreover, even without Gerdes' testimony, the deposition testimony of Keith Breidinger and Eulalia Miller supported the MPSC's finding of repeated violations. Although Ameritech asserts that those witnesses only described two isolated incidents that were not in accordance with Ameritech's three-way call procedures, their testimony nevertheless showed at least more than one violation of the MPSC's prior order as interpreted by the MPSC.

Admissibility of Todd Gerdes' Testimony

Next, Ameritech argues that the MPSC should have excluded Gerdes' testimony because (1) it constituted hearsay and (2) Gerdes did not preserve his notes regarding the substance of the testimony. We conclude that Ameritech failed to preserve this issue for appeal, because it failed to raise the issue of the admissibility of Gerdes' testimony in its exceptions to the hearing officer's proposal for decision. See Attorney General v. Public Service Comm., 174 Mich.App. 161, 164-167, 435 N.W.2d 752 (1988). Even if this issue had been preserved, we would find no basis for relief, because (1) the statements about which Gerdes testified were not offered to prove the truth of the matter asserted and therefore did not constitute hearsay, see MRE 801(c) and Hilliard v. Schmidt, 231 Mich.App. 316, 318, 586 N.W.2d 263 (1998); and (2) the absence of Gerdes' notes was relevant to the weight, not to the admissibility, of his testimony.

Right to a Jury Trial

Next, Ameritech argues that the MPSC erred in denying its motion for partial summary disposition based on Ameritech's alleged right to a jury trial under the Michigan Constitution. Ameritech believes that it had the right to a jury trial with respect to the issue of damages and that because the MPSC does not have the authority to conduct jury trials, the MPSC should have dismissed MCI's complaint. This issue presents a question of law. We review questions of law de novo. Miller v. Allied Signal, Inc., 235 Mich.App. 710, 715, 599 N.W.2d 110 (1999).

Const. 1963, art. 1, § 14 preserves the right to a jury trial "in causes of action which were part of the common law prior to its adoption or were similar in character to cases in which the right to a jury trial existed prior to its adoption." Tomlin v. Dep't of Social Services, 154 Mich.App. 675, 689, 398 N.W.2d 490 (1986). An exception to the right to a jury trial exists when the Legislature creates new public rights and remedies and delegates the enforcement of those rights and remedies to an administrative tribunal. Id.; see also 47 Am. Jur. 2d, Jury, § 31, p. 736. As noted in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 54, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the government need not be a party for a case to revolve around "public rights." Rather, the key question is whether the statutory right is so closely integrated into a public regulatory scheme as to be appropriate for resolution by an administrative agency. Id.

Here, MCI's allegations of anticompetitive conduct concerned violations of orders that the MPSC issued pursuant to its authority under the MTA to regulate the conditions for telecommunications services in the public interest. Thus, MCI's allegations involved matters integral to the administrative scheme established by the MTA. Moreover, the enactment of the MTA created "new public rights and remedies,"^[8] whose enforcement was delegated to an administrative tribunal— the MPSC. Accordingly, the instant case fell within the exception to the right to a jury trial, see Tomlin, supra at 689, 398 N.W.2d 490, and the hearing referee properly denied Ameritech's motion for partial summary disposition.

Award of Attorney Fees

Next, Ameritech argues that the MPSC erred in awarding attorney fees to MCI under § 601 of the MTA, which allows the MPSC to order "remedies and penalties" for those who have suffered "economic loss" as a result of the violation of the MTA. See M.C.L. § 484.2601; MSA 22.1469(601). Ameritech failed to properly preserve this issue, because it failed to raise it in its exceptions to the hearing officer's proposal for decision. See Attorney General, supra at 164-167, 435 N.W.2d 752. Nevertheless, because this issue is one of law, and no development of facts is necessary for its resolution, we will address it. See Westfield Cos. v. Grand Valley Health Plan, 224 Mich.App. 385, 387, 568 N.W.2d 854 (1997).

We review questions of statutory interpretation de novo. Benedict v. Dep't of Treasury, 236 Mich.App. 559, 563, 601 N.W.2d 151 (1999). However, "[a]lthough it remains our responsibility to determine the meaning of the statute, we give `appropriate deference' to the agency's interpretation." Faircloth v. Family Independence Agency, 232 Mich.App. 391, 406, 591 N.W.2d 314 (1998). We "ordinarily defer[ ] to the construction of a statute by the agency charged with applying it unless the interpretation is `clearly wrong.'" Id.

After the parties' briefs were filed in this appeal, this Court issued a published opinion holding that § 601 does not provide the MPSC with authority to award attorney fees, as Ameritech has argued here. In re Complaint of Southfield, 235 Mich.App. 523, 533-535, 599 N.W.2d 760 (1999). Accordingly, the MPSC's award of attorney fees is vacated.

Cumulative Error

Finally, Ameritech argues that the MPSC's order should be reversed because of cumulative error. Because we have identified only one error with the MPSC's decision (the award of attorney fees) and have rectified that error, Ameritech's argument regarding cumulative error is unavailing.

Denial of Compensatory Damages

Cross-appellant MCI argues that the MPSC erred in by denying its request for compensatory damages on the basis that MCI's claim for damages was too speculative. We disagree. As stated earlier, our review of MPSC orders is relatively narrow in scope. In re MCI, supra at 426-427, 596 N.W.2d 164. A party challenging an order of the MPSC bears the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. In re Sprint, supra at 34, 592 N.W.2d 825.

The MPSC identified a number of defects in MCI's proofs regarding lost profits. While some of those defects were relatively minor and could be corrected by making simple mathematical adjustments (such as reducing the number of lost customers), some of the defects concerned matters for which the MPSC lacked adequate information to make the necessary adjustments (such as information regarding incremental network and general and administrative costs attributable to intraLATA service). Moreover, the magnitude of the defects raised doubt concerning the reliability of the information provided by MCI. Indeed, there was a wide disparity between the average profit per minute testified to by MCI's main witness on lost profits and the average profit per minute shown for both interLATA and intraLATA profits in MCI's other internal reports.

MCI's argument is partly based on the assumption that the MPSC could deny MCI's claim for compensatory damages only if the MPSC actually found that MCI lost no profits. However, as the trier of fact, the MPSC was only required to determine whether MCI had met its burden of persuasion to prove reasonably certain economic loss. See Body Rustproofing, Inc. v. Michigan Bell Telephone Co., 149 Mich.App. 385, 390, 385 N.W.2d 797 (1986) ("Before lost profits are recoverable, they must be proven with a reasonable degree of certainty as opposed to being based on mere conjecture or speculation.") As indicated earlier, there were significant defects in MCI's proofs regarding lost profits. The MPSC's assessment of these defects was a determination of the weight and credibility of the evidence and is entitled to deference on appeal.^[9]In re Sprint, supra at 39, 592 N.W.2d 825.

The MPSC's award of attorney fees is vacated, but the decision is affirmed in all other respects.

NOTES

[1] "PIC" is an acronym for "Primary Interexchange Carrier," although the term is now used to refer to virtually any type of presubscribed telecommunications provider, not just to interexchange carriers.

[2] After the proceedings in the instant case, the FCC decided to eliminate PIC change verification using TPV in cases where a preferred carrier freeze exists. See Second Order and Further Notice of Proposed Rule Making, FCC 98-334 (released December 23, 1999); see also 64 CRF 1190.

[3] We note that after the MPSC issued its ruling in this case, Ameritech discontinued its PIC protection program. In July 1998, Public Acts 259 and 260 were enacted, effective October 1, 1998, amending §§ 505-506 of the MTA to direct the MPSC to adopt antislamming PIC change verification procedures. In light of the new legislation, the MPSC conducted a public hearing on PIC protection in Case No. U-11757. In an opinion and order issued September 23, 1998, the MPSC adopted rules requiring all telecommunications provider changes to be verified by one of four verification procedures similar to those adopted by the FCC or by three-way conference calling. The MPSC also ruled that local exchange carriers could adopt their own PIC protection programs, subject to certain requirements. The MPSC explained that customers with such enhanced PIC protection would still be allowed to use the same PIC change verification procedures as other customers (e.g., TPA and LOA), but proof of such verification would have to be actually received by the carrier before the PIC change could be implemented. The MPSC reasoned that this would give customers enhanced protection from slamming while maintaining their ability to change service providers without unnecessary hardship or delay. Subsequently, after the FCC determined that verification by TPV was insufficient for PIC change requests in cases where a preferred carrier freeze exists (see note 2, supra ), the MPSC revised its standards, in Case No. U-11900, to conform with the FCC's determination.

[4] The MPSC's decision in Case No. U-11038 was affirmed by this Court in In re Sprint Communications Co., L.P., Complaint, 234 Mich.App. 22, 592 N.W.2d 825 (1999).

[5] Although the MPSC did award attorney fees to MCI, our decision today, as will be explained, vacates this award.

[6] We note, however, that the MPSC should refrain from ordering Ameritech to allow verification by TPV for PIC change requests in cases where a preferred carrier freeze exists, now that verification by TPV in such cases has been rejected by both the FCC and the MPSC. See notes 2 and 3, supra.

[7] Todd Gerdes, MCI's Executive Director of Mass Market Sales, testified that he monitored approximately fifteen to twenty calls involving Ameritech Michigan PIC change requests from MCI's three-way calling center in Memphis, Tennessee. According to Gerdes, Ameritech service representatives engaged in improper conduct during each of the calls.

[8] We reject Ameritech's assertion that claims under the MTA involve nothing new and different from the common-law tort of unfair competition. Indeed, the common-law doctrine of unfair competition was ordinarily limited to acts of fraud, bad-faith misrepresentation, misappropriation, or product confusion. See generally 54A Am. Jur. 2d, Monopolies, Restraints of Trade and Unfair Trade Practices, § 1107 et seq., pp. 361-384. In contrast, the MTA is much broader in scope, allowing the MPSC to prohibit conduct that it finds to be "adverse to the public interest." See M.C.L. § 484.2205(2); MSA 22.1469(205)(2). Indeed, the orders and violations at issue in this case stem from the MPSC's decision to require conversion to intraLATA dialing parity in order to serve the public interest. See GTE North, Inc. v. Public Service Comm., 215 Mich.App. 137, 157, 544 N.W.2d 678 (1996). Cf. Richard/Allen/Winter, Ltd. v. Waldorf, 156 Ill.App.3d 717, 720-722, 109 Ill.Dec. 239, 509 N.E.2d 1078 (1987) (no right to jury trial exists under Illinois Consumer Fraud and Deceptive Business Practices Act where act affords broader protection than common-law action for fraud).

[9] Additionally, it is questionable whether any compensatory damages should have been awarded in this case even if MCI had proved them with reasonable certainty. When deciding not to impose any fines against Ameritech, the MPSC stated that it was persuaded by Ameritech's argument that it should not be penalized for reasonably misinterpreting the MPSC's order in Case No. U-11038. The same reasoning should also apply to Ameritech's liability for compensatory damages. Indeed, if Ameritech's interpretation of the earlier order was reasonable, albeit incorrect, the fault for MCI's losses rests as much with the MPSC as it does with Ameritech.