Perlongo v. Iron River Cooperative TV Antenna Corp. , 122 Mich. App. 433 ( 1983 )

122 Mich. App. 433 (1983) 332 N.W.2d 502

PERLONGO
v.
IRON RIVER COOPERATIVE TV ANTENNA CORPORATION

Docket No. 61135.

Michigan Court of Appeals.

Decided January 10, 1983.

Fisher, Omdahl & Tousignant (by Torger G. Omdahl), for plaintiff.

Petrucelli & Petrucelli (by Vincent R. Petrucelli), for defendants.

Before: D.F. WALSH, P.J., and ALLEN and M.F. CAVANAGH, JJ.

PER CURIAM.

Plaintiff brought this action to compel Iron River Cooperative TV Antenna Corporation and its officers to comply with the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., and the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq. Plaintiff sought equitable relief, exemplary damages, costs, and attorney's fees. Following the grant of accelerated judgment for defendants, plaintiff appeals by right.

The Freedom of Information Act defines "public body" as:

"(b) `Public body' means:

"(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

"(ii) An agency, board, commission, or council in the legislative branch of the state government.

"(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.

"(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.

"(v) The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body." MCL 15.232(b); MSA 4.1801(2)(b).

The Open Meetings Act defines "public body" as:

"(a) `Public body' means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement." MCL 15.262(a); MSA 4.1800(12)(a).

We conclude, as did the trial court, that these acts do not apply to these defendants. Iron River Cooperative TV Antenna Corporation is not a municipal corporation as alleged in the plaintiff's brief and as named in the suit. The articles of incorporation, contained in the record, show that the corporation is a nonstock, nonprofit corporation and was not "created" by state or local authority as alleged. The articles of incorporation indicate that the corporation was originally formed in 1957 by four individual incorporators. These four individuals were also the first four officers of the corporation. The first board of directors had 15 members. While some of these individuals were also members of the city commission, this does not establish that the corporation was either created by the city or that the organizations were one and the same. The fact that the corporation was given a nonexclusive franchise to operate within the city and was governed by a duly adopted city ordinance does not alone make it a public body empowered by the city. Cities have the power to regulate private companies through their ordinances. The granting of a license or a franchise does not make defendant corporation a public body. Finally, the corporation is funded by membership subscriptions and not by public funds.

In White v City of Ann Arbor, 406 Mich. 554; 281 NW2d 283 (1979), the Michigan Supreme Court held that cable television systems are public utilities for the purposes of the Subdivision Control Act, MCL 560.101 et seq.; MSA 26.430(101) et seq. However, the Michigan Public Service Commission has in the past declined to assume jurisdiction over the cable television industry. White, p 578. In any event,

"[t]he fact that a utility is regulated by a state body does not convert that utility from a private utility company to a public body." Dowden v Central Louisiana Electric Co, Inc, 368 So 2d 465, 467 (La App, 1979).

Defendant corporation is substantially similar to other cable television companies and airwave television stations. These are private companies, albeit heavily regulated by the FCC, and are not subject to the Freedom of Information Act or the Open Meetings Act.

We are persuaded that summary judgment, not accelerated judgment, should have been granted pursuant to GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted, and we uphold the trial court's judgment. Gilbert v Grand Trunk W R Co, 95 Mich. App. 308, 315; 290 NW2d 426 (1980); American Fidelity Fire Ins Co v Barry, 80 Mich. App. 670, 679; 264 NW2d 92 (1978).

Affirmed. No costs, a public question.