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S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the complaint of ) RAYMOND COCHRAN against ) Case No. U-11834 AMERITECH MICHIGAN. ) ) At the March 22, 1999 meeting of the Michigan Public Service Commission in Lansing, Michigan. PRESENT: Hon. John G. Strand, Chairman Hon. David A. Svanda, Commissioner OPINION AND ORDER I. HISTORY OF PROCEEDINGS On November 9, 1998, Raymond Cochran filed a complaint against Ameritech Michigan pursuant to the Michigan Telecommunications Act, 1991 PA 179, as amended, MCL 484.2101 et seq.; MSA 22.1469(101) et seq., (MTA). The complaint alleged that Ameritech Michigan had improperly included Mr. Cochran’s name, address, and telephone number in the October 31, 1998 edition of a Detroit metropolitan area telephone directory. On December 2, 1998, Ameritech Michigan filed an answer and affirmative defenses. Pursuant to due notice, a prehearing conference was conducted by Administrative Law Judge Robert E. Hollenshead (ALJ) on December 4, 1998. Mr. Cochran, Ameritech Michigan, and the Commission Staff (Staff) participated in the proceedings. On December 11, 1998, Ameritech Michigan filed a motion to dismiss Mr. Cochran’s com- plaint. On December 16, 1998, answers to the motion to dismiss were filed by Mr. Cochran and the Staff. On January 5, 1999, the ALJ conducted a hearing on the motion to dismiss. After considering the positions of the parties, the ALJ issued an oral Proposal for Decision (PFD) that recommended dismissal of Mr. Cochran’s complaint in its entirety. On January 29, 1999, exceptions to the PFD were filed by Mr. Cochran and Ameritech Michi- gan. On February 9, 1999, replies to exceptions were filed by Ameritech Michigan and the Staff. II. NATURE OF THE COMPLAINT Background Information From 1971 through August 28, 1997, Mr. Cochran was a customer of Ameritech Michigan for basic local exchange service. During this entire period of time, Mr. Cochran paid for his name, address, and telephone number not to be listed in Ameritech Michigan’s telephone directories. In August 1997, after discovering that Ameritech Michigan had included his name, address, and telephone number in several Detroit metropolitan area telephone directories, Mr. Cochran filed a civil lawsuit against Ameritech Michigan in Oakland County Circuit Court alleging breach of con- tract, gross negligence, invasion of privacy, and fraud. Ameritech Michigan obtained dismissal of the Oakland County Circuit Court lawsuit by arguing, among other things, that the Commission had primary jurisdiction over claims like those asserted by Mr. Cochran. Ameritech Michigan also con- tended that its Tariff M.P.S.C. No. 20-R controlled the outcome of the proceeding by limiting Page 2 U-11834 damages to a credit or a refund for the fee paid for nonpublished service during the period in which the customer’s listing appeared in local directories. On February 24, 1998, Mr. Cochran filed a complaint against Ameritech Michigan that was docketed as Case No. U-11639. On August 20, 1998, the Commission issued an order in Case No. U-11639 finding that Ameritech Michigan had violated Section 502 of the MTA, MCL 484.2502; MSA 22.1469(502), by obtaining dismissal of Mr. Cochran’s civil action by wrongly asserting that the dispute involved a regulated service and was controlled by a Commis- sion-approved tariff. Ameritech Michigan was ordered to cease and desist from further such viola- tions of the MTA and was also ordered to pay a $2,000 fine. However, the Commission determined that Mr. Cochran’s other assertions regarding the publication of his name, address, and telephone number by Ameritech Michigan were beyond the province of the Commission. In so doing, the Commission specifically declined to make a determination regarding whether Ameritech Michigan’s actions would give rise to an actionable claim based on negligence, fraud, or invasion of privacy. Rather, the Commission noted that such claims were “beyond the purview of the Commission and must be pursued before the courts.” Order, Case No. U-11639, p. 18. Current Controversy Subsequent to issuance of the August 20, 1998 order in Case No. U-11639, Mr. Cochran became aware that his name, address, and telephone number had been published in the October 31, 1998 edition of another of Ameritech Michigan’s metropolitan Detroit telephone directories. On November 9, 1998, Mr. Cochran filed the instant complaint, which stated that at all times subse- quent to August 27, 1997 he was a customer of AT&T Communications of Michigan, Inc., (AT&T). He also alleged that his service arrangement with AT&T included his payment for Page 3 U-11834 unpublished telephone service. Accordingly, he maintained that Ameritech Michigan violated Sections 502 and 503 of the MTA, MCL 484.2502 and 484.2503; MSA 22.1469(502) and (503), as well as several sections of the Consumer Protection Act, 1976 PA 331, as amended, MCL 445.901 et seq.; MSA 19.418(1) et seq. (CPA). Further, Mr. Cochran alleged that he sustained compensable economic losses of $52,000. Finally, he requested an award of $866,000 for punitive damages and recoupment of his reasonable legal costs. III. MOTION TO DISMISS In its motion to dismiss, Ameritech Michigan contended that the Commission’s August 20, 1998 order in Case No. U-11639 clearly indicated that the Commission lacked jurisdiction to enter- tain Mr. Cochran’s request for recovery of his alleged economic losses and his claim for punitive damages. Moreover, Ameritech Michigan insisted that Mr. Cochran’s November 9, 1998 complaint failed to allege any violation of the MTA. Further, because Ameritech Michigan ceased providing Mr. Cochran with basic local exchange service on August 28, 1997, Ameritech Michigan also insisted that it could no longer be held accountable for the publication of Mr. Cochran’s name, address, and telephone number, which occurred on October 31, 1998. Ameritech Michigan also quoted Mr. Cochran’s testimony from Case No. U-11639 in an apparent attempt to demonstrate that Mr. Cochran had not requested unlisted service from AT&T at the time that he switched providers in August 1997. Indeed, Ameritech Michigan asserted that Mr. Cochran’s November 9, 1998 complaint lacks merit because it is contradicted by his former testimony in Case No. U-11639. Ameritech Michigan also maintained that Mr. Cochran’s general allegations regarding violations of the CPA were simply too vague to justify invocation of the Page 4 U-11834 Commission’s limited investigative powers under that act. According to Ameritech Michigan, the Commission’s authority pursuant to MCL 445.918; MSA 19.418(18) is limited to investigating matters concerning public utilities and then providing the results of such investigations to the Department of the Attorney General. Additionally, Ameritech Michigan stressed that the issue of the appropriateness of the Commission’s intervention pursuant to the CPA was considered and rejected in Case No. U-11639. Finally, citing Section 209 of the MTA, MCL 484.2209; MSA 22.1469(209), Ameritech Michigan argued that Mr. Cochran’s claims were frivolous and he should be required to pay all attorney fees and costs incurred by Ameritech Michigan in defending this complaint. IV. PROPOSAL FOR DECISION In his PFD, the ALJ recommended that Mr. Cochran’s complaint be dismissed for failing to state a claim for relief that could be granted by the Commission. In so doing, the ALJ placed emphasis on the Commission’s August 20, 1998 order in Case No. U-11639. Indeed, he noted that the Commission found only one violation of the MTA, which was related to the misrepresentation by Ameritech Michigan regarding whether nonpublished service is regulated by the Commission. Further, the ALJ noted that the Commission specifically declined to addressed the merits of Mr. Cochran’s claims for damages, which the Commission clearly indicated should be adjudicated in a court of law. Even assuming all of Mr. Cochran’s well pled allegations to be true, the ALJ nevertheless concluded that the remedies sought by Mr. Cochran’s complaint did not come within the Commission’s jurisdiction. The ALJ also found that Mr. Cochran’s allegation that Ameritech Michigan unlawfully misappropriated and published his name, address, and telephone number for Page 5 U-11834 commercial gain or to solicit business was entirely unfounded. Likewise, the ALJ concluded that Mr. Cochran’s allegations regarding gross negligence, fraudulent misrepresentation, gross invasion of privacy, unwarranted endangerment, intentional infliction of emotional distress, and interference with contractual relations were also beyond the scope of the Commission’s jurisdiction. Finally, the ALJ concluded that Mr. Cochran’s complaint failed to plead a violation of the CPA with sufficient specificity to allow the Commission to go forward with an investigation. V. DISCUSSION In his exceptions, Mr. Cochran argues that the claims asserted in his November 9, 1998 com- plaint are quite different from the claims that were contested in Case No. U-11639. According to Mr. Cochran, his current complaint clearly and concisely alleges three separate violations of Section 502(a) of the MTA, MCL 484.2502(a); MSA 22.1469(502)(a). The common thread link- ing each of these alleged violations is that they all involve Mr. Cochran’s assertions that Ameritech Michigan made false, misleading, and deceptive statements regarding the conditions of providing telecommunications service. According to Mr. Cochran, Ameritech Michigan has falsely claimed that (1) AT&T requested publication of his name, address, and telephone number in Ameritech Michigan’s directories, (2) misrepresented Mr. Cochran’s prior testimony from Case No. U-11639, and (3) falsely implied that Mr. Cochran did not request unpublished service from AT&T. The problem with Mr.

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