LAW OFFICES DYKEMA GOSSETT

800 M ICHIGAN NATIONAL T OWER

L ANSING , M ICHIGAN 48933- I 742 , Michigan Ann Arbor, Michigan Bloomfield Hills, Michigan Grand Rapids, Michigan Washington, DC , Illinois T ELEPHON E (5 I 7) 374-S IO0

F ACSIMILE (5 I 7) 374-S I 9 I WWW.DYKEMA.COM ALBERT ERNST DIRECT DIAL: (512) 324-9155 E-MA IL : [email protected]

September 14,200O

Ms. Dorothy Wideman Executive Secretary Michigan Public Service Commission 6545 Mercantile Way, Ste. 7 Lansing, MI 48911

Re: Case No. U-12134 CECo and DECO Code of Conduct Approval MECA Response in Opposition to MAFC’s Application for Leave to Appeal ALJ’s Ruling

Dear Ms. Wideman:

Enclosed please find original and four copies of Michigan Electric Cooperative Association Response in Opposition to Michigan Alliance for Fair Competition Application for Leave to appeal AlJ’s Ruling in the above-referenced matter. Also enclosed is Proof of Service upon the Parties of Record.

If there are any questions or comments, do not hesitate to contact me.

Sincerely,

Albert Ernst

AE/jmb Enclosures cc: Mike Peters Service List MECA Managers LANOl\ 69757.1 ID\ AE STATE OF MICHIGAN

II BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

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In the matter of the approval of a code of conduct ) for CONSUMERS ENERGY COMPANY and ) Case No. U-12134 THE DETROIT EDISON COMPANY. 1

MICHIGAN ELECTRIC COOPERATIVE ASSOCIATION RESPONSE IN OPPOSITION TO MICHIGAN ALLIANCE FOR FAIR COMPETITION APPLICATION FOR LEAVE TO APPEAL ALJ’S RULING

G 2 Pursuant to Rule 337( 1) of the Michigan Public Service Commission’s (“Commission’) I3 z 4 Rules of Practice and Procedure, R 460.17337(l), the Michigan Electric Cooperative Association Yz. B 5 (“MECA ‘7 respectfully submits this response in opposition to Michigan Alliance For Fair t i! 5 $ Competition’s (“MAFC ‘7 August 3 1,200O Request For Immediate Consideration Of And Appeal $ 5 j Of ALJ’s Ruling Striking The Testimony And Exhibits Of Michigan Alliance For Fair f: j Competition’s Witness Anthony M. Ponticelli. = ,: := 5 Per Rule 337(l), the Commission’s decision on MAFC’s appeal is divided into two i:: 2 : E : subparts - (i) should the Commission grant the application for leave to appeal, i.e., should it even 8 3 $ Q consider MAFC’s appeal and review the ALJ’s ruling at this time, and (ii) if the Commission

does consider this matter at this time, should it reverse the ALJ’s ruling. As discussed below,

MECA answers “yes” to (i) and “no” to (ii). II I

With respect to whether the Commission should arant MAFC ‘s avvlication for leave to

avveal and review the AU’s ruling at this time, Rule 337(2) sets forth the following standard:

“The commission will grant an application and review the presiding officer’s ruling of any of the following provisions apply:

00 A decision on the ruling before submission of the full case to the commission for final decision will materially advance a timely resolution of the proceedings. w A decision on the ruling before submission of the full case to the commission for final decision will prevent substantial harm to the appellant or the public-at-large. cc> A decision on the ruling before submission of the full case to the commission for final decision is consistent with other criteria that the commission may establish by order. k 7 MECA believes that MAFC’s appeal meets subsections (a) and (b) above. In the event 0i E 5 that the Commission determines that MAFC should participate in this proceeding, it would be $ i best to find that out now rather than later. Time is of the essence in this proceeding. The ALJ’s $ $ schedule in this docket provides for the filing of initial briefs by September l&2000 and reply 9 g briefs on October 2, 2000 (Tr 728). Moreover, 2000 PA 141 requires the Commission to z 1 ; establish a code of conduct for utilities within 180 days after the effective date of the act. MCL ; 5 i 460.1 Oa(4); MSA 22.13( 1 Oa)(4). Thus, the Commission must issue its order in this docket no 11 5 z later than December 2,200O. Accordingly, an expeditious ruling on MAFC’s appeal is required. 5 E k* With respect to whether the Commission should reverse the AU’s ruling, the ALJ stated i 8 at the July 12,200O pre-hearing conference that additional testimony could be submitted under I 9 z limited circumstances:

Anybody that wishes to file additional testimony will do so by July 27’h. And care should be taken that it should not be legal argument. which should be reserved for briefs, and it should not be matters that could have been and should

2 have been placed in the testimonv in the initial proceeding under this docket number (Tr 728)(emphasis added).

Despite the ALJ’s warnings, MAFC attempted to introduce the pre-filed Direct Testimony

of Anthony M. Ponticelli even though it consisted of legal argument and could have been

submitted in earlier proceedings. Mr. Ponticelli’s testimony presents his opinion as to the state

of the law in numerous states, including Michigan. As the ALJ astutely recognized in his

decision granting the motion to strike:

But nothing in [Mr. Ponticelli’s] testimony, as I see it, addresses anything new raised by the recent revisions to the new law, beyond a very small piece dealing with the coverage of the new Act and that is a legal issue that can be addressed in briefs. Carrying on that point, the bulk of the testimony is in fact legal argument. It’s a sort of state-of-the law type of presentation with respect to codes of conduct. As [Detroit Edison] states, the case law can be argued in brief. I don’t particularly like having witnesses, even lawyers, take the stand to explain the law. That’s reserved for briefs. That’s the way we do it here. That’s the most efficient and economic way to handle legal arguments. If every nartv. in order to bolster its leaal standing in the case, decides to put on a witness to discuss the law, we’re poinn to spend time cross-examining lawvers about the law. And I don’t believe the Commission wants me to start engaging in that kind of conduct on the evidentiarv records. It’s called an evidentiarv record because it’s for putting in evidence, not putting in leaal argument (Tr 767)(emphasis added). i Moreover, even if Mr. Ponticelli’s testimony did not consist of legal argument, which it does, j_ s z MAFC could have easily submitted this testimony in the initial proceedings in this docket. i n Finally, the ALJ’s ruling striking Mr. Ponticelli’s testimony must be upheld because the /; z $ testimony seeks to introduce inadmissible hearsay in the form of a recent FTC report (AMP-1)and c $ a letter from four Michigan legislators (AMP-3).’ As the ALJ properly noted, the FTC report was 5 ;

I MAFC also sought to introduce a Maryland Public Service Commission ruling (AMP-2). This is a legal citation as opposed to substantive evidence, however, and properly belongs in MAFC’s brief.

3 not drafted by Mr. Ponticelli and is thus inadmissible under MRE 80 1 and 802. Because the FTC

report also explicitly states that it “does not necessarily represent the views of the Federal Trade

Commission,” and it was not compiled pursuant to a duty imposed by law, it cannot fall within

the Public Records hearsay exception under MRE 803(S). Likewise, the ALJ correctly

determined that Mr. Ponticelli did not draft the legislative correspondence and thus it confitures

inadmissible hearsay. Accordingly, the ALJ”s ruling was clearly correct and Mr. Ponticelli’s

testimony should not be allowed.

WHEREFORE, MECA respectfully requests that MAFC’s appeal be denied and that ALJ

Schankler’s ruling be affirmed. ?

Respectfully submitted,

DYKEMA GOSSETT PLLC Attorneys for the

MICHIGAN ELECTRIC COOPERATIVE ASSOCIATION

5 Dated: September 14,200O BY Albert Ernst (P24959) / u Christine Mason Soneral (P58820) 800 Michigan National Tower Lansing, MI 48933 I 14 Tel: 517-374-9155/517-374-9184 i Fax: 517-374-9191 8 Email aernstadykema. corn 8 cmason@dykema. corn

BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

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In the matter of the approval of a code of conduct ) for CONSUMERS ENERGY COMPANY and ) Case No. U-12134 THE DETROIT EDISON COMPANY. ) /I ) I

PROOF OF SERVICE

STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) 1 Jeanne M. Beachnau, being first duly sworn, deposes and says that on the 14th day of g September, 2000, she caused to be served upon the persons listed in the attached Service List, 2 ! copies of Michigan Electric Cooperative Association Response in Opposition to Michigan B $ 2 Alliance For fair Competition’s Application for Leave to Appeal ALJ’s Ruling in the above- g % referenced matter by United States first class mail and electronic mail.

f Subscribed and sworn to before $ me this 14’h day of September, 2000.

g Ingham County, Michigan My commission expires: 12/l 7/03 II SERVICE LIST

CASE NO. U-12134

Alpena Power Company Wisconsin Electric Power Company James D. Florip Northern States Power Company - WI Gillard Bauer Mazrum Florip Wisconsin Public Service Corporation Smigelski & Gulden Upper Peninsula Power Company 109 E. Chisolm Harvey J. Messing Alpena MI 49707 Sherri A. Wellman Phone: 5 17-356-3444 Loomis Ewert Parsley Davis & Gotting Fax: 517-354-2821 232 S. Capitol Avenue, Ste. 1000 e-mail: [email protected] Lansing, MI 48933 Phone: 5 17-482-2400 Detroit Edison Company Fax: 5 17-482-7227 Bruce R. Maters e-mail: [email protected] Jon P. Christinidis 2 The Detroit Edison Company Michigan Electric Cooperative Assn. $ 2000 Second Avenue, 688 WCB DTE Edison America, Inc. ; Detroit, MI 48226 Edison Sault Electric Company $ Phone: 3 13-235-748 1 Albert Ernst ! Fax: 313-235-8500 Dykema Gossett PLLC ; e-mail: [email protected] 800 Michigan National Tower $ (Maters) Lansing, MI 48933 2 e-mail: [email protected] Phone: 5 17-374-9 155 i (Christinidis) Fax: 517-374-9191 0 e-mail: [email protected] 5 2 Consumers Energy Company i Raymond E. McQuillan Unicorn Energy, Inc. 5 H. Richard Chambers John M. Dempsey i 2 12 W Michigan Avenue, M- 1082 Dickinson Wright PLLC i Jackson, MI 49201 215 S. Washington Square, Ste. 200 z Phone: 5 17-788-0677 Lansing, MI 48933 $ Fax: 517-788-0768 Phone: 5 17-487-4763 5 e-mail: [email protected] Fax: 5 17-487-4700 i [email protected] e-mail: [email protected] 8 $ Indiana Michigan Power Company Energy Michigan 0 Daniel L. Stanley Eric J. Schneidewind Honigman Miller Schwartz & Cohn Vamum Riddering Schmidt & Howlett LLP 222 N. Washington Square, Ste. 400 20 1 N. Washington Square, Ste. 2 10 Lansing, MI 48933 Lansing, MI 48933 Phone: 517-377-0714 Phone: 5 17-428-6237 Fax: 5 17-484-8286 Fax: 5 17-428-6937 e-mail: [email protected] e-mail: [email protected]

6 ABATE Michigan Alliance for Fair Competition Robert A. LeFevre Roderick S. Coy Clark Hill PLC Haran C. Rashes 2455 Woodlake Circle Clark Hill PLC Okemos, MI 48864 2455 Woodlake Circle Phone: 517-381-9193 Okemos, MI 48864 Fax: 517-381-0268 Phone: 517-381-2132 e-mail: [email protected] Fax: 517-381-0268 II e-mail: [email protected] Robert A.W. Strong Clark Hill PLC PG&E Corporation 255 S. Old Woodward Ave., 3rd Floor Michael S. Ashton Birmingham, MI 48009 Fraser Trebilcock Davis & Foster PC Phone: 248-642-9692 1000 Michigan National Tower Fax: 248-642-2 174 Lansing, MI 48933 e-mail: [email protected] Phone: 5 17-428-5800 Fax: 5 17-428-0887 2 Midland Cogeneration Venture e-mail: [email protected] g Michael J. Brown z Howard & Howard Attorney General Jennifer M. Granholm g 222 N. Washington Square, Ste. 500 Orjiakor N. Isiogu 3 Lansing, MI 48933 Assistant Attorney General ; Phone: 5 17-377-0609 Special Litigation Division 5 Fax: 517-485-1568 PO Box 30212 2 e-mail: [email protected] Lansing, MI 48909 F I Phone: 517-373-1123 i New Energy, Inc. Fax: 5 17-373-9860 i Jack D. Sage e-mail: [email protected] ; Vamum Riddering Schmidt & Howlett LLP 4 PO Box 352 MPSC Staff i. Grand Rapids MI 49501 David Gadaleto i Phone: 616-336-6557 Assistant Attorney General f Fax: 616-336-7000 6545 Mercantile Way, Ste. 15 : e-mail: [email protected] Lansing, MI 48911 5 f. Phone: 5 17-334-7650 i Michigan Petroleum Association and Fax: 5 17-334-7655 8 Michigan Association of Convenience e-mail: [email protected] j Stores D Don L. Keskey Knaggs Harter Brake & Schneider PC 1375 S. Washington Avenue, Ste. 300 Lansing, MI 489 10 Phone: 517-428-1659 Fax: 5 17-482-2689 e-mail: [email protected]

7 Administrative Law Judge Hon. George Schankler Michigan Public Service Commission 6545 Mercantile Way, Ste. 14 Lansing, MI 48911 Phone: 5 17-24 l-6060 Fax: 517-241-6061 e-mail: [email protected]

Ms. Freddi L. Greenberg 1603 Orrington Avenue Suite 1050 Evanston, IL 60201 Phone: 847-864-40 10 Fax: 847-864-4037 e-mail: [email protected] z E-mail Only g Jeanne Beachnau - [email protected] g Mindy Smith - msmith@dickinson- E wright.com Z _IZ