Great Wolf Lodge of Traverse City, LLC v. Public Service Commission
Great Wolf Lodge of Traverse City, LLC v. Public Service Commission
Opinion of the Court
This case requires us to resolve three issues. First, whether a utility’s right of first entitlement to provide electrical service to “the entire electric load on the premises” of a “customer” ceases when the “customer” on the property changes.
We conclude that a utility’s right of first entitlement set forth in Rule 460.3411 (Rule 411) of the Michigan Administrative Code extends to the entire premises initially served. And the right is not extinguished when a customer is no longer present on the premises. We also conclude that the PSC is not required to impose interest on a refund it awards to an overcharged utility consumer. Finally, we hold that the PSC is required to impose a fine pursuant to MCL 460.558 only when a utility “wilfully or knowingly” neglects to comply with a PSC order. Therefore, we reverse the judgment of the Court of Appeals and reinstate the decision of the PSC.
Plaintiff, Great Wolf Lodge of Traverse City, LLC, owns a water-park resort on 48 acres near Traverse City. The resort sits on part of a 120-acre parcel once farmed by the Oleson family. On July 14, 2000, plaintiff entered into an option agreement to buy a portion of the property from GDO Investments (GDO), which acquired it after Mr. Oleson’s death.
Defendant Cherryland Electric Cooperative claims that it provided electricity to the Oleson property beginning in the 1940s. Cherryland ran an electric line, known as a “service drop,” to the property. At one time or another over the years, Cherryland, Consumers Energy Company, and Traverse City Light & Power (TCLP) serviced farm buildings on the property.
After the last farming tenant vacated the premises in September 2001, the electricity was turned off. However, according to a GDO employee, GDO continued to pay a minimum monthly bill from Cherryland so that it had the option to have the electricity turned back on.
Later, when plaintiff was planning new construction on the property, it solicited bids for electric service from Cherryland, Consumers Energy, and TCLP At that time, Cherryland did not claim that it had the sole right to provide electric service to the property. TCLP was the winning bidder, and in December 2001, plaintiff contracted with TCLP to provide electricity to its planned resort.
By January 2002, the farm buildings were scheduled to be demolished. GDO asked Cherryland to remove its service line so that the building it was attached to could be taken down. But Cherryland made it a condition for removing the service drop that it would be the electricity provider. Plaintiff claims that it agreed in order to
In May 2002, plaintiff entered into a three-year contract for electrical service with Cherryland. Under the contract’s terms, Cherryland charged plaintiff $0.0496 a kilowatt-hour. This was the large resort service (LRS) rate set by the PSC. In February 2003, Cherryland applied to the PSC for formal approval to charge plaintiff the LRS rate.
This rate is available to consumers with a load factor greater than 50 percent and at least a 1500-kilowatt load. The application Cherryland signed recited these conditions. It also stated that, if plaintiff did not meet them, a different rate would apply. Shortly thereafter, in March 2003, plaintiff and Cherryland replaced their May 2002 contract with another that expressly provided for service at the LRS rate.
In July 2004, the PSC rejected Cherryland’s application. It expressed concern that plaintiff was the only customer that Cherryland charged the LRS rate and questioned whether plaintiffs electrical needs were typical for a large resort. The PSC directed Cherryland to apply instead for a “special contract” to serve plaintiff. It also concluded that Cherryland had violated MCL 460.552 by implementing the LRS rate without PSC approval and fined Cherryland $10,000 pursuant to MCL 460.558. However, the PSC approved the LRS rate “for up to one year or until a special contract is approved.”
In November 2004, Cherryland began unilaterally charging plaintiff for electricity at the large commercial and industrial (LCI) rate. Cherryland claimed that it made the change because plaintiff almost never used enough electricity to satisfy the minimum requirements of the LRS rate. Therefore, Cherryland feared that the PSC would again fine it for charging an improper rate.
In July 2005, plaintiff filed a two-count complaint against Cherryland in the PSC. Count I alleged that Cherryland had violated MCL 460.552 and the PSC’s 2004 order by charging plaintiff the LCI rate rather than the LRS rate. Plaintiff sought a refund of the amounts that it had paid in excess of the LRS rate. Finally, plaintiff asked that the PSC fine Cherryland for violating its order and require Cherryland to stop charging plaintiff the LCI rate and return to the LRS rate. In count II, plaintiff asked the PSC to declare that plaintiff could receive all components of its electrical service from any provider of its choosing. Plaintiff also
Cherryland moved for summary disposition. A hearing referee ruled for plaintiff on count I and for Cherryland on count II. The referee concluded that Cherry-land’s conduct was a “purposeful and flagrant violation” of the PSC’s 2004 order. He determined that plaintiff was entitled to a refund of $72,550.16 plus interest and recommended that Cherryland be fined $44,250. Regarding count II, he agreed that plaintiff could choose its electric supplier, but added that no authority permitted plaintiff a full choice of providers for all components of its electric service.
The PSC agreed that plaintiff was entitled to summary disposition on count I and with the amount of the refund to which it was entitled. However, the PSC declined to impose a fine or interest on Cherryland. Although the PSC concluded that Cherryland “should have sought clarification” of its 2004 order, it stated that “Cherryland’s interpretation of the July 22 order was not so clearly unreasonable as to justify the imposition of a fine or interest on the refund to [plaintiff].”
The circuit court affirmed the PSC’s order in large part. It concluded that plaintiff was an existing customer of Cherryland under Rule 411 because the property (the Oleson farm) was the customer, not the entity that owned the property. Therefore, Cherryland had the right to continue providing electric service to the prop
Plaintiff and the PSC both appealed. The Court of Appeals consolidated the appeals and, in a published opinion, affirmed in part, reversed in part, and remanded to the PSC for further proceedings.
If the changes in buildings and facilities and interruption of service came about in reasonable proximity to and for the purpose of a change in ownership and plan for the site,... those changes and that interruption did not create a new customer. If, however, the previous owner held on to the site for a significant period after all land uses requiring electricity had been abandoned, requested that electric service be terminated, and demolished buildings or removed facilities, or at least allowed them to stand without electricity, for reasons other than anticipation of an immediate change of ownership or land use, then those actions should be deemed to have extinguished the previously existing customer or customers on the site, thus severing the utility-customer relationship.[7 ]
Cherryland and the PSC appealed in this Court. We granted the parties’ applications for leave to appeal.
STANDARD OF REVIEW
A court reviewing an administrative agency’s interpretation of a statute should give the agency’s interpretation “respectful consideration” and, if it is persuasive, should not overrule it without “cogent reasons.”
CHERRYLAND’S RIGHT OF FIRST ENTITLEMENT UNDER RULE 411(11)
The PSC adopted Rule 411 in 1982 as part of a comprehensive regulatory scheme for electric utilities. At that time, it stated that the purpose of Rule 411 was “to avoid unnecessary and costly duplication of facilities and to provide objective standards for extension of electric service . . . .”
The PSC argues that its decisions interpreting Rule 411 clearly establish that “once a first utility entitlement is established, a subsequent change in ownership does not create a new prospective customer on the old premises.”
Rule 411(11) provides that “[t]he first utility serving a customer pursuant to these rules is entitled to serve the entire electric load on the premises of that customer
When those definitions are incorporated into Rule 411(11), it reads as follows:
The first utility serving [buildings and facilities] pursuant to these rules is entitled to serve the entire electric load on the [undivided piece of land which is not separated by public roads, streets, or alleys] of [those buildings and facilities] even if another utility is closer to a portion of the [buildings and facilities’] load.
Thus, Rule 411(11) grants the utility first serving buildings or facilities on an undivided piece of real property the right to serve the entire electric load on that property. The right attaches at the moment the first utility serves “a customer” and applies to the entire “premises” on which those buildings and facilities sit. The later destruction of all buildings on the property or division of the property by a public road, street, or alley does not extinguish or otherwise limit the right. This conclusion is consistent with the rule’s purpose of avoiding unnecessary duplication of electrical facilities.
For this reason, contrary to the dissent’s contention, our reading of the rule does not redefine “customer” as “premises.” Both this opinion and the dissent give the same effect to the word “customer” in Rule 411(11). We agree that to trigger the right of first entitlement, there must first be a “customer” served by the utility. We further agree that the “premises of that customer” dictate the scope of the utility’s right.
In this case, is it undisputed that Cherryland was the first utility to provide electric service to buildings and facilities on the Oleson farm. Once Cherryland did so, Rule 411(11) gave it the right to serve the entire electric load on the premises. That right was unaffected by subsequent changes in the “customer,” because the right extends to the “premises” of the “buildings and facilities” that existed at the time service was established. Later destruction of the buildings and facilities on the property did not extinguish that right.
Given that Cherryland is entitled to the benefit of the first entitlement in Rule 411(11), it is irrelevant that TCLP is a municipal corporation not subject to PSC regulation. Rule 411(11) both grants and limits rights. It grants a right of first entitlement to Cherryland while
In sum, the PSC’s determination that Cherryland had the right to serve the entire premises was authorized by law and supported by competent, material, and substantial evidence. Plaintiff has failed to demonstrate that the PSC’s May 2006 order was unlawful or unreasonable.
THE PSC IS NOT REQUIRED TO IMPOSE INTEREST ON A REFUND
The PSC’s authority to award interest in addition to a refund under these circumstances is not explicitly authorized by statute. Rather, it has its genesis in the Court of Appeals’ decision in Detroit Edison Co v Pub Serv Comm.
However, plaintiff has cited no authority for the proposition that the PSC must award interest when it grants a refund in these circumstances.
Nor has plaintiff demonstrated that the PSC’s failure to award interest was “unreasonable.” We have defined “unreasonable” as “arbitrary, capricious or totally unsupported by admissible and admitted evidence.”
Cherryland’s application for approval of the LRS rate noted that the rate is available only to customers with a load factor greater than 50 percent and at least a 1500-kilowatt load. Plaintiff met these requirements only in August 2003 and July 2005. Moreover, the PSC had previously fined Cherryland for charging plaintiff an unapproved rate. Taken together, this evidence supported the PSC’s determination. It was not clearly unreasonable for Cherryland to change the rate charged to plaintiff because plaintiff had not complied with the load requirements for the LRS rate.
MCL 460.558 REQUIRES THAT A FINE BE IMPOSED WHEN A UTILITY FAILS OR NEGLECTS TO COMPLY “WILFULLY OR KNOWINGLY”
MCL 460.558 states:
Every corporation, its officers, agents and employes, and all persons and firms engaged in the business of furnishing electricity as aforesaid shall obey and comply with every lawful order made by the commission under the authority of this act so long as the same shall remain in force. Any corporation or person engaged in such business or any officer, agent, or employe thereof, who wilfully or knowingly fails or neglects to obey or comply with such order or any provision of this act shall forfeit to the state of Michigan not to exceed the sum of 300 dollars for each offense. Every distinct violation of any such order or of this act, shall be a separate offense, and in case of a continued violation, each day shall be deemed a separate offense. An action to recover such forfeiture may be brought in any court of competent jurisdiction in this state in the name of the people of the state of Michigan, and all moneys recovered in any such action,*45 together with the costs thereof, shall be paid into the state treasury to the credit of the general fund.[30 ]
The Court of Appeals reasoned that MCL 460.558 does not apply solely in cases of “wilful or knowing failure to comply with a lawful PSC order; it also applies in the event of negligent noncompliance.”
“Wilfully” and “knowingly” are adverbs, which generally modify verbs. The most natural reading of MCL 460.558 is that these terms are intended to modify both verbs immediately following them and separated by the disjunctive “or.”
The record here indicates that the PSC determined that Cherryland made a mistake by unilaterally imposing the LCI rate. The PSC concluded that Cherryland should instead have sought clarification of its July 2004 order. It was not unlawful or unreasonable to conclude that Cherryland did not 'willfully or knowingly fail or willfully or knowingly neglect to obey or comply with the PSC’s July 2004 order. Hence, MCL 460.558 did not require the PSC to impose a fine on Cherryland.
We hold that a utility’s right of first entitlement under Mich Admin Code, R 460.3411(11) entails the right to serve the entire premises. That right is not extinguished when there is a new customer, i.e., new “buildings and facilities served,” on the premises. We also hold that, absent a statutory mandate to do so, the PSC need not impose interest when it awards a refund to a party. Finally, we hold that the PSC is required to impose a fine pursuant to MCL 460.558 only when a utility willfully or knowingly neglects to comply with its order. Therefore, we reverse the judgment of the Court of Appeals and reinstate the decision of the PSC.
Mich Admin Code, R 460.3411(11).
MCL 460.558.
TCLP later sued Cherryland for tortious interference with a contract and recovered $275,000. Plaintiff was not a party to that litigation.
In re Application of Cherryland Electric Coop, order of the Public Service Commission, entered July 22, 2004 (Case No. U-13716), p 8.
In re Complaint of Great Wolf Lodge of Traverse City, LLC, Against Cherryland Electric Coop, order of the Public Service Commission, entered May 25, 2006 (Case No. U-14593), p 15.
Great Wolf Lodge of Traverse City, LLC v Pub Serv Comm, 285 Mich App 26; 775 NW2d 597 (2009).
MCL 124.3(2) provides that “[a] municipal corporation shall not render electric delivery service for heat, power, or light to customers outside its corporate limits already receiving the service from another utility unless the serving utility consents in writing.”
Great Wolf Lodge of Traverse City, LLC v Pub Serv Comm, 486 Mich 869 (2010).
In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 108; 754 NW2d 259 (2008).
Detroit Base Coalition for Human Rights of the Handicapped v Dep’t of Social Servs, 431 Mich 172, 185; 428 NW2d 335 (1988), citing Gen Motors Corp v Bureau of Safety & Regulation, 133 Mich App 284; 349 NW2d 157 (1984).
MCL 462.25; see also Mich Consol Gas Co v Pub Serv Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973).
Const 1963, art 6, § 28.
MCL 462.26(8).
In re Regulations Governing Service Supplied by Electric Utilities, order of the Public Service Commission, entered July 13, 1982 (Case No. U-6400), p 10.
In re Complaint of Indiana Mich Power Co Against Midwest Energy Co, order of the Public Service Commission, entered June 7, 2005 (Case No. U-14193), p 19.
Mich Admin Code, R 460.3411(11).
Mich Admin Code, R 460.3411(1)(a).
Mich Admin Code, R 460.3102(f).
The dissent’s citation of Rule 411(14) does not aid its argument. First, the purpose behind Rule 411(11) does not “influence [our] interpretation” of the rule. Post at 56 n 2. We simply observe that our interpretation of the rule’s language is also consistent with that purpose. Rule 411(14) does nothing to undercut our interpretation.
Thus, the dissent’s statement that “if there are no buildings or facilities being served, there is no ‘customer,’ ” post at 53, is correct, but irrelevant.
Our disagreement with the dissent appears when the scope of this right is fully defined. The dissent does not view the parameters of the right of first entitlement in Rule 411(11) as firmly established when the utility first serves a customer. Instead, it is an undefined right that a property owner is free to vitiate at any time by tearing down all of the “customers” on the property. Similarly, a later-constructed road dividing the property in two would create a new “premises,” hence a new “customer,” if there were no buildings being served on the newly defined “premises.” This approach leaves the utility’s right of first entitlement
Mich Admin Code, R 460.3411(2).
We note that a utility may waive this right “if another utility is willing and able to provide the required service and if the [PSC] is notified and has no objections.” Mich Admin Code, R 460.3411(12).
Detroit Edison Co v Pub Serv Comm, 155 Mich App 461; 400 NW2d 644 (1986).
Significantly, the Legislature has made interest awards mandatory under other circumstances involving the PSC. See, e.g., MCL 460.6j(16) (stating that if the PSC orders “refunds or credits” to customers in orders involving “a power supply cost reconciliation,” the refunds, credits, or additional charges “shall include interest”) (emphasis added).
Detroit Edison, 155 Mich App at 470-471 (“[T]here is no reason why the interest element of the guarantee needs or ought to he determined by the circuit court as part of its equitable powers. The circuit court’s equitable powers arise from situations where there is probable cause to believe that a party is threatened with irreparable injury. ... The method of establishing an interest rate simply does not present a situation of a comparable nature. Moreover, this complex subject is one in which the Commission has superior expertise.”).
Associated Truck Lines, Inc v Pub Serv Comm, 377 Mich 259, 279; 140 NW2d 515 (1966).
Emphasis added.
Great Wolf Lodge, 285 Mich App at 47.
See generally Porto Rico Railway, Light & Power Co v Mor, 253 US 345, 348; 40 S Ct 516; 64 L Ed 944 (1920) (“When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”).
Concurring in Part
(concurring in part and dissenting in part). Although I concur in the majority’s holdings that the Public Service Commission (PSC) was not required to include interest on the refund it ordered Cherryland Electric Cooperative to pay and that the PSC was not required to impose a fine on Cherryland, I respectfully dissent from the majority’s holding that the right of Cherryland to provide electrical service to the property at issue was not extinguished when all the buildings on the property were demolished. Instead, I conclude that, pursuant to Mich Admin Code, R 460.3411 (Rule 411), once all the buildings on the subject property had been demolished, Cherryland no longer had any “customer” on the property, and, thus, its “entitle[ment] to serve the entire electric load on the premises of that customer” was extinguished. Accordingly, I would reverse the Court of Appeals’ judgment regarding the imposition of interest and a fine, vacate the remainder of the
I. STANDARD OF REVIEW
MCL 462.26(8) provides, “In all appeals under this section the burden of proof shall be upon the appellant to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable.” To declare a PSC order unlawful, “ ‘there must be a showing that the commission failed to follow some mandatory provision of the statute or was guilty of an abuse of discretion in the exercise of its judgment.’ ” In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999), quoting Giaras v Mich Pub Serv Comm, 301 Mich 262, 269; 3 NW2d 268 (1942). “The hurdle of unreasonableness is equally high. Within the confines of its jurisdiction, there is a broad range or ‘zone’ of reasonableness within which the [PSC] may operate.” In re MCI Telecom Complaint, 460 Mich at 427, citing Mich Bell Tel Co v Pub Serv Comm, 332 Mich 7, 26-27; 50 NW2d 826 (1952). In addition,
[w]hen considering an agency’s statutory construction, the primary question presented is whether the interpretation is consistent with or contrary to the plain language of the statute. While a court must consider an agency’s interpretation, the court’s ultimate concern is a proper construction of the plain language of the statute. rv?
... As established in [Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935)], the agency’s interpretation*48 is entitled to respectful consideration and, if persuasive, should not be overruled without cogent reasons.... But, in the end, the agency’s interpretation cannot conflict with the plain meaning of the statute. [In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 108; 754 NW2d 259 (2008).]
“In construing administrative rules, courts apply principles of statutory construction.” Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Servs, 431 Mich 172, 185; 428 NW2d 335 (1988).
II. ANALYSIS
A. RIGHT TO SERVE
Rule 411(2) states that “[ejxisting customers shall not transfer from one utility to another.” Mich Admin Code, R 460.3411(2). Rule 411(11) provides that the “first utility serving a customer pursuant to these rules is entitled to serve the entire electric load on the premises of that customer even if another utility is closer to a portion of the customer’s load.” Mich Admin Code, R 460.3411(11). Rule 411(1)(a) defines “customer” as “the buildings and facilities served rather than the individual, association, partnership, or corporation served.” Mich Admin Code, R 460.3411(1)(a). And Mich Admin Code, R 460.3102(j) defines “premises” as “an undivided piece of land that is not separated by public roads, streets, or alleys.”
In In re Complaint of Consumers Energy Co, 255 Mich App 496; 660 NW2d 785 (2003), the subject property was purchased by Meijer, Inc., in August 1999. Consumers Energy Company provided electric service to the property from the 1940s until November 1999, when all the buildings on the property were demolished so that Meijer could build a store and gas station. After Great Lakes Energy Cooperative began providing
The Court of Appeals reached this conclusion by focusing on the fact that “a mere change in ownership does not allow the customer to transfer to another utility,” id. at 503, because the “customer” is not “the individual, association, partnership, or corporation taking service,” id. at 502, citing Rule 411(1)(a). The problem with the Court of Appeals’ opinion in Consumers Energy, however, is that, although it correctly recognized that the “customer” is not “the individual, association, partnership, or corporation served,” it failed to recognize that the “customer” is also not the property being served. Mich Admin Code, R 460.3411(1)(a). Instead, the “customer” consists of the “buildings and facilities served.” Id. Therefore, when all the buildings on a piece of property have been demolished, the utility no longer has an “existing customer” on the property to serve. That is, although a change in ownership does not by itself enable the new owner to transfer to another utility, the destruction of all the buildings on a piece of property does enable the new owner to do so, because that destruction is the
The Court of Appeals in the instant case, being bound by Consumers Energy but apparently unconvinced by its analysis, sought to distinguish the two cases. It did this by focusing on language in Consumers Energy, 255 Mich App at 503, that emphasized that “the discontinuation of service was directly related to the change in ownership . ...” It interpreted this language as “leav[ing] open the possibility that a discontinuation of service, and demolition of buildings coming about for reasons other than direct furtherance of a plan to change ownership or land uses, can indeed extinguish an existing customer.” Great Wolf Lodge of Traverse City, LLC v Pub Serv Comm, 285 Mich App 26, 38; 775 NW2d 597 (2009). That is, it interpreted Consumers Energy
as indicating that where service to buildings or facilities is interrupted, or buildings are demolished or facilities are removed, in direct connection with a change of ownership or land use, neither the service interruption nor the replacement of old buildings and facilities with new ones creates a new customer. To avoid interpreting that case, or the definition of “existing customer,” as locking an incumbent utility into that status for a given parcel in perpetuity if it so chooses, with no regard for periods of interruption in service or elimination of buildings and facilities, it is*51 necessary to recognize that some such interruption or elimination would indeed work an end to the utility-customer relationship. [Id. at 39-40.]
Accordingly, it held that
[i]f the changes in buildings and facilities and interruption of service came about in reasonable proximity to and for the purpose of a change in ownership and plan for the site, then under [Consumers Energy], those changes and that interruption did not create a new customer. If, however, the previous owner held on to the site for a significant period after all land uses requiring electricity had been abandoned, requested that electric service be terminated, and demolished buildings or removed facilities, or at least allowed them to stand without electricity, for reasons other than anticipation of an immediate change of ownership or land use, then those actions should be deemed to have extinguished the previously existing customer or customers on the site, thus severing the utility-customer relationship. [Id. at 40.][1 ]
The problem, of course, is that this distinction is nowhere to be found or implied in Rule 411. In my judgment, the Court of Appeals here was attempting to effect a compromise between the actual language of Rule 411 and Consumers Energy. The Court of Appeals apparently recognized that Rule 411 defines “cus
If Rule 411(1)(a) calls for carefully distinguishing between individuals, associations, partnerships, or corporations taking service from the buildings and facilities served, with only the latter two constituting a “customer,” it also demands distinguishing buildings and facilities served from the parcels served. The rule providing the definition could easily have stated that the customer was the parcel, but instead specified buildings and facilities. It follows, then, that where there are no buildings or facilities being served, there is no customer. [Great Wolf Lodge, 285 Mich App at 39.]
However, the Court of Appeals was nevertheless bound to follow Consumers Energy, which held that “for purposes of Rule 411, a change of ownership and demolition of all buildings served did not create a new customer.” Id. at 38. As a result, the Court of Appeals attempted to reconcile Rule 411 and Consumers Energy by holding that sometimes, as in Consumers Energy, a change of ownership and demolition of all buildings served does not create a new “customer,” while sometimes, as perhaps in the instant case, a change of ownership and demolition of all buildings served does create a new “customer.” Because this Court is not bound to follow Consumers Energy, I would hold that Consumers Energy was wrongly decided because it is inconsistent with Rule 411, which defines “customer” as “the buildings and facilities served” rather than the parcel of land served.
I agree with the Court of Appeals that the “customer” consists of “the buildings and facilities served”; the “customer” for purposes of the present dispute is neither the owner of the property nor the parcel of land. Therefore, “where there are no buildings or facilities being served, there is no customer.” Great Wolf Lodge,
The same is true here. Once all the buildings on the property had been demolished, Cherryland no longer had any “customers” on the property and, therefore, was not entitled to serve Great Wolf Lodge’s newly constructed water-park resort. Rule 411(2) provides, “Existing customers shall not transfer from one utility to another.” Mich Admin Code, R 460.3411(2). Because Rule 411(l)(a) defines “customer” to mean “the buildings . . . served,” Mich Admin Code, R 460.3411(l)(a), it communicates by extrapolation that “[e]xisting [buildings served] shall not transfer from one utility to another.” In this case, once all the buildings had been demolished, Cherryland no longer had any “existing customer” on the property that was prohibited from transferring from one utility to another.
In addition, Rule 411(11) provides, “The first utility serving a customer pursuant to these rules is entitled to serve the entire electric load on the premises of that customer . .. .” Mich Admin Code, R 460.3411(11). Because Mich Admin Code, R 460.3411(1)(a) defines “customer” to mean “the buildings . . . served,” and Mich Admin Code, R 460.3102(j) defines “premises” to mean
The majority holds that a utility’s “right to serve the entire electric load on the premises” of a “customer” is “unaffected by subsequent changes in the ‘customer[.]’ ” Ante at 41.1 do not necessarily disagree with this statement. For example, if Electric Company XYZ served a house on the subject property, Electric Company XYZ would be entitled to serve a subsequently built barn on the same property because, pursuant to Rule 411(11), a utility is “entitled to serve the entire electric load on the premises of that customer. . . .” This right is not affected when the “customer” changes from being only the house to being both the house and the barn. However, what the majority fails to recognize is that because “customer” is defined as “the buildings .. . served,” Mich Admin Code, R 460.3411(l)(a), if there are no buildings on the property, there are no “customers” on the property. And if there are no “customers” on the property, there is no longer any “first [or second or third] utility serving a customer [that] is entitled to serve the entire electric load on the premises of that customer .. ..” Mich Admin Code, R
The majority focuses on the fact that Rule 411(11) states that the utility is “entitled to serve the entire electric load on the premises of that customer .. ..” (Emphasis added.) However, in doing so, the majority loses sight of the fact that in order for there to be a right to serve the entire “premises,” the utility has to first be serving some “customer” on the “premises.” In this case, once all the buildings on the property had been demolished, Cherryland was no longer serving any “customers” on the property and, therefore, no longer possessed any right to serve the entire “premises.” That is, it was no longer “entitled to serve the entire electric load on the premises of that [nonexisting] customer.” Mich Admin Code, R 460.3411(11). The fact that there is now a new “customer,” i.e., building, on the property does not change this result because there are no rules or statutes that require a new “customer” to be served by the same electric utility that served the previous “customer” on the same piece of property.
Although an “agency’s interpretation is entitled to respectful consideration and, if persuasive, should not be overruled without cogent reasons,” Rovas Complaint, 482 Mich at 108, it must not be forgotten that in Consumers Energy, when all the buildings that Consumers Energy had served had been demolished by Meijer, the PSC concluded that Meijer did not consti
However, there is no dispute that Cherryland is currently rendering electric service to Great Wolf Lodge. Great Wolf Lodge has consistently argued that this should not prevent it from transferring to another utility because the only reason Cherryland is serving Great Wolf Lodge is that Cherryland refused to remove its service drop so that the buildings could be demolished and the water-park resort could be built. Great Wolf Lodge raised this issue before the PSC, the trial court, the Court of Appeals, and this Court. The PSC summarized Great Wolf Lodge’s argument as follows: Great Wolf Lodge “had a choice of electric service providers in 2001” and “because that choice was thwarted by Cherryland’s refusal to remove the service drop, the [PSC] should now declare that [Great Wolf Lodge] has full choice in transmission and distribution services.” The PSC rejected this argument, stating that Great Wolf Lodge “has not cited any legal authority as a basis for the [PSC] to grant the relief sought under the circumstances of this case.” However, neither the trial court nor the Court of Appeals addressed this
B. INTEREST
I agree with the majority that the PSC was not required to award interest on the refund it ordered Cherryland to pay. Although Detroit Edison Co v Pub Serv Comm, 155 Mich App 461, 469; 400 NW2d 644 (1986), held that the PSC possesses the authority to award interest on refunds, it did not require the PSC to award interest. Because no statute, rule, or caselaw requires the PSC to award interest on refunds, Great Wolf Lodge has not satisfied its burden of showing by clear and satisfactory evidence that the PSC’s decision to not award interest was unlawful or unreasonable. See MCL 462.26(8).
C. FINE
I also agree with the majority that the PSC was not required to impose a fine on Cherryland. MCL 460.558 provides that “[a]ny corporation. . . [that] wilfully or knowingly fails or neglects to obey or comply with [a
In the instant case, the PSC determined that Cherryland’s understanding of the PSC’s July 22, 2004, order was not unreasonable, and, therefore, Cherryland did not “wilfully or knowingly” fail or neglect to obey or comply with this order. In its July 22, 2004, order, the PSC ordered Cherryland to charge Great Wolf Lodge the large resort service (LRS) rate. Four months later, Cherryland began to charge Great Wolf Lodge the higher large commercial and industrial (LCI) rate. According to Cherryland, it did this because Great Wolf Lodge was not satisfying the 1,500-kilowatt minimum monthly load requirement that must be met for the LRS rate to be charged. The PSC explained that when it ordered Cherryland to charge the LRS rate, it assumed that Great Wolf Lodge was in compliance, and would remain in compliance, with the terms and conditions of the LRS rate, and therefore it did not address what Cherryland should do if Great Wolf Lodge failed to comply with the load requirement for the LRS rate. The PSC concluded that, although “Cherryland should have sought clarification of the July 22 order,” “Cherryland’s interpretation of the July 22 order was not so clearly unreasonable as to justify the imposition of a fine . .. .”
III. CONCLUSION
Once all the buildings on the property had been demolished, Cherryland no longer had any “customer” on the property, and, therefore, its right to provide electric service to the property was extinguished. Because no rule, statute, or caselaw requires the PSC to impose interest on refunds, the PSC was not required to impose interest on the refund at issue. Finally, because Cherryland did not “willfully or knowingly fail[] or neglect[] to obey or comply with [the PSC’s July 22, 2004] order,” MCL 460.558, the PSC was not required to impose a fine on Cherryland. Accordingly, I would reverse the Court of Appeals’ judgment regarding the imposition of interest and a fine, vacate the remainder of the Court of Appeals’ decision, and remand to the trial court for it to address Great Wolf Lodge’s argument that it should not now be considered a Cherryland “customer,” even though Cherryland is currently serving Great Wolf Lodge, because Cherryland had coerced Great Wolf Lodge into becoming its “customer.”
Because the Court of Appeals could not determine from the record whether the discontinuation of service was directly related to the change in ownership, it remanded this case to the PSC “for full factual development, findings, and conclusions in this regard.” Great Wolf Lodge, 285 Mich App at 41. It also
vaeate[d] the [PSC’s] holding, and the circuit court’s affirmance, that Cherryland is entitled to continue serving Great Wolf [Lodge]; clarified] that for purposes of Rule 411, “customer” means buildings and facilities, not the land on which they once stood; [and] declare[d] that a significant interruption of service to buildings or facilities can extinguish the existence of an existing customer in some situations^] [Id.]
The majority suggests that this interpretation is inconsistent with the rule’s “purpose of avoiding unnecessary duplication of electrical facilities” because when a piece of property is subdivided, new “customers” that would be free to contract with different utility companies would be created. Ante at 39-40 & n 22. However, the majority fails to apprehend the significance of Rule 411(14). This rule provides, “Regardless of other provisions of this rule,... a utility shall not extend service to a new customer in a manner that will duplicate the existing electric distribution facilities of another utility, except where both utilities are within 300 feet of the prospective customer.” Mich Admin Code, R 460.3411(4). Therefore, the majority’s concerns about the duplication of electrical facilities when property is subdivided need not influence its interpretation of Rule 411(11). Contrary to the majority’s contention, Rule 411(14) is not an “irrelevant distraction.” Ante at 40 n 20. Indeed, given that the majority believes that it is important enough to point out that its interpretation of Rule 411(11) is “consistent with the rule’s purpose of avoiding unneces
To the extent that Great Wolf Lodge argues that it should be allowed to obtain service from Traverse City Light & Power (TCLP), a municipal corporation not subject to PSC regulation, MCL 124.3(2) is applicable. MCL 124.3(2) provides, “A municipal corporation shall not render electric delivery service for heat, power, or light to customers outside its corporate limits already receiving the service from another utility unless the serving utility consents in writing.” MCL 460.10y(2), like Rule 411(1)(a), defines “customer” as “the building or facilities served . ...” In this case, once all the buildings on the property had been demolished, there were no “customers . . . already receiving [electric] service from another utility,” and, thus, at that point, MCL 124.3(2) would not have prevented Great Wolf Lodge from obtaining service from TCLP However, whether the fact that the water-park resort is now receiving electric service from Cherry-land prevents the resort from obtaining service from TCLP instead is a question that the trial court should address on remand.
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