MichiganMI
- Cooperative poles
- Outside Commission rate regulation and inside a real state statute, and getting that backwards is the Michigan error. Every Michigan based distribution cooperative is member regulated under the Electric Cooperative Member-Regulation Act, MCL 460.31 to 460.39, so no cooperative is under Public Service Commission rate regulation. MCL 460.38a, added by 2020 PA 61, then imposes a nondiscriminatory access duty on member regulated cooperatives for video, broadband, wireless and telecommunications providers, incorporates the federal make ready process by reference, requires make ready charges to be based on actual costs not recovered through the annual recurring rate with detailed documentation, and carries the federal cost causation rule with a Michigan carve out where the cooperative needs the modification for electric service including smart grid. MCL 460.38b gives a rebuttable presumption that a rate is just and reasonable where it does not exceed the federal cable formula rate. A cooperative attacher still on a pre 2020-03-10 agreement that has never been amended, renewed or replaced has no damages remedy under that section, which is the first Michigan intake question
- Municipal poles
- No, and municipal poles are the largest unregulated class in the state. Roughly forty municipal electric systems are outside the Public Service Commission, outside 47 U.S.C. 224 by the State exclusion in 224(a)(1), and outside MCL 460.6g by both of its operative definitions at once, because 460.6g(1)(a) excludes a municipality from attaching party and 460.6g(1)(d) confines utility to a public utility subject to the regulation and control of the commission. MCL 460.38a reaches only member regulated cooperatives. Contract and ordinance only, with no rate ceiling from any source. The only instrument that reaches a Michigan municipal pole is the BEAD condition, so whether the owner took a BEAD subgrant is the highest value intake question on a municipal pole
- Rate standard
- No Michigan rate formula exists for any owner class, and three different non formulas apply. On investor owned electric and telephone poles MCL 460.6g(2) supplies a bare just and reasonable standard applied to a filed tariff, with no formula, no ceiling, no space allocation and no cross reference to any FCC formula anywhere in the section, which has never been amended since 1981. On member regulated cooperative poles MCL 460.38b(5) gives a rebuttable presumption keyed to the federal cable formula rate, a presumption rather than a ceiling, so a rate above it is not unlawful but gets no presumption. On municipal poles there is no standard. No current Michigan tariffed per pole rate was established and none is stated here. Michigan has no state make ready, survey, self help or transfer clock of its own for any owner class; on cooperative poles the federal clocks apply because MCL 460.38a(2) and (5) incorporate them by reference, and on investor owned poles there is no clock at all
- Where a dispute goes
- Splits three ways, and the investor owned limb carries a trap no other certified state on file produces. Investor owned poles go to the Michigan Public Service Commission under MCL 460.6g, but only if the attacher is not itself a Commission regulated utility that owns poles: in GTE North v Indiana Michigan Power, Case No. U-10374 (1994), and McLeodUSA v Detroit Edison, Case No. U-14038 (2004), the Commission held that such an attacher is a utility, cannot be an attaching party, and that the Commission lacks subject matter jurisdiction over its complaint, adding that the complainant may be in a position to pursue a remedy under federal law. Whether a federal forum exists for that class is unresolved and FCC DA 26-579 now asks the general form of the question. A cable operator, a pure broadband provider holding no Michigan telecommunications licence, or any attacher that owns no poles is not caught. Member regulated cooperative poles go to circuit court in Marquette County, Ingham County or the county of the cooperative's headquarters under MCL 460.38b(2), where the complainant carries only a prima facie burden and any refund is capped at two years of the differential under MCL 460.38b(6)(e), a recovery cap and not a limitation period. Municipal poles have no forum but the contract. No attacher limitation period was located for any Michigan owner class and none is stated here. There is no federal pole owner in Michigan
- Confidence
- High confidence on MCL 460.6g, 460.38a and 460.38b read in full, on the Case No. U-14038 order read in full from the Commission's own server, and on the U-10374 holding as recited at length in that order; Good confidence on the Michigan Administrative Code procedural rules read on a professional reproduction; Provisional on the certification listing in DA 22-630 and on DA 26-579, on every BEAD figure and date, on the utility class counts, on the federal entity negative, on MCL 460.36(2) and 460.39(1), on each cooperative's member regulation status and on the whole engineering practice act line; Indicative only on the reported 90 day permit direction in Case No. U-13767, which was not retrieved and is not stated here. The only rate figure in the record is a 2004 party allegation the Commission never adopted and it is not published
AuthoritiesMCL 460.6gMCL 460.31MCL 460.36MCL 460.38aMCL 460.38bMCL 460.39MCL 462.2647 U.S.C. 224FCC DA 22-630FCC DA 26-579MPSC Case No. U-10374MPSC Case No. U-14038