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July 22, 1998 Michigan Open Access Update

July 22, 1998-Supreme Court Spurns Challenge to PSC's Authority. On July 13th, the Michigan Supreme Court dealt a severe blow to the utilities' strategy of challenging the Michigan Public Service Commission's ("MPSC") legal authority to force the utilities to implement Open Access. At issue was whether the utilities could get the Supreme Court to immediately hear their appeal of the MPSC's current Open Access Program, thus sidestepping review by the Michigan Court of Appeals. The utilities wanted to avoid the Court of Appeals because it had already upheld the authority of the MPSC to order into effect an earlier version of Open Access, known as the Pilot Wheeling Program. Based on that precedent, it is likely that the Court of Appeals will now uphold the current program. Hopefully, this development will also give the MPSC greater confidence in their legal authority and encourage them to be more aggressive in pressuring the utilities to implement the Open Access program as soon as possible.

Additional Delays in Open Access Implementation are Likely. The revised Open Access Implementation Plans of both Edison and Consumers proposed a new first capacity solicitation bid submission date of October 13, 1998, based on the assumption that the MPSC would approve their plans by July 31, 1998. That will NOT happen, however, because the MPSC has set August 10, 1998, as the date for receiving comments from interested parties regarding the Implementation Plans. Interested parties will undoubtedly file comments which criticize the Implementation Plans and which propose changes. Assuming that the MPSC takes several weeks to review the comments and make its final decision, the previously announced bid submission date will likely be pushed off by about one month.

Questions? If you have any questions, feel free to call Bob Strong at (248) 642-9692, or e-mail rstrong@clarkhill.com.