(dissenting). I respectfully dissent from the majority’s opinion. I agree with the majority that Const 1963, art 6, § 28 governs the standard for review of this case but feel that the Tax Tribunal’s decision is not supported by competent, material and substantial evidence.
As indicated by the majority, MCI Telecommunications is in the business of providing long distance telephone communications to private customers. It operates pursuant to tariffs filed with the Federal Communications Commission. Under these tariffs, MCI has full control and responsibility for the message from sender to receiver. MCI maintains a series of microwave relay stations to *40transport signals on interstate calls. Several terminals for MCI’s microwave system are located in Southeastern Michigan. MCI’s subscribers obtain access to these microwave relay stations through Michigan Bell’s local telephone system. The subscriber dials an access number which when accepted by MCI’s computer provides for the interconnection of Michigan Bell’s lines with MCI’s microwave relay system. The subscriber’s telephone call then travels through Michigan Bells system to the MCI system. Respondent assessed taxes on the fees MCI paid Michigan Bell for access on the local exchange to its customers’ phones.
Since Michigan Bell’s local exchange becomes a part of an interstate communication system when interconnected with MCI’s microwave relay system, I would find the use tax inapplicable. The use tax is imposed on telephone services by MCL 205.93a; MSA 7.555(3a) which provides:
"Sec. 3a. The use or consumption of the following services shall be taxed under this act in the same manner as tangible personal property is taxed under this act:
"(a) Intrastate telephone, telegraph, leased wire and other similar communications, including local telephone exchange and long distance telephone service which both originates and terminates in Michigan, and telegraph, private line and teletypewriter service between places in Michigan, but excluding telephone service by coin-operated installations, switchboards, concentrator-identifiers, interoffice circuitry and their accessories for telephone answering service and director advertising proceeds.”
Since MCI uses Michigan Bell’s services for interstate communications, the use tax is not applicable. Michigan Bell’s local exchange service is *41merely a channel through which the interstate communication travels at nearly the speed of light. Without access to Michigan Bell’s lines, the interstate call cannot be completed. In fact, the tariffs under which MCI operates provide that Michigan Bell must provide MCI with such interstate service.
I am unable to find that the final leg of an interstate call can be characterized as "intrastate communication”. "The business of conducting telecommunications between persons in different states constitutes interstate commerce.” State ex rel Utilities Comm v Southern Bell Telephone & Telegraph Co, 288 NC 201, 208; 217 SE2d 543, 548 (1975). As stated by the North Carolina Court of Appeals in Petition of Carolina Telephone & Telegraph Co, 1 NC App 133, 137; 160 SE2d 128, 131 (1968):
"Although all of respondent’s facilities are located in North Carolina, in performing the service involved in this proceeding, said facilities connected with those of another company to transmit intelligence between this State and other states and the intelligence transmitted was interstate from its origin to its termination.”
In Idaho Microwave, Inc v Federal Communications Comm, 122 US App DC 253; 352 F2d 729 (1965), Idaho Microwave contended that it was not subject to federal regulations since it provided services between points in Idaho and, therefore, only engaged in intrastate communication. The Court felt otherwise noting that the facilities were:
"used as a link in the continuous transmission of television signals from Salt Lake City to Burley, Idaho; there is no interruption in the flow of the signals as it is practically instantaneous. Thus, though Idaho Microwave’s physical facilities are. located within Idaho, it *42performs an interstate communication service when it takes part in the transmission of signals from Utah to Idaho.” 352 F2d 732.
Likewise, MCI’s use of Michigan Bell’s local lines constitutes an interstate communication service. The fact that MCI pays for the use of Michigan Bell’s local facilities does not change this result since Michigan Bell’s facilities are used in interstate communication. As stated in Ward v Northern Ohio Telephone Co, 300 F2d 816, 819 (CA 6, 1962), cert den 371 US 820 (1962):
"although all its facilities are located in one state, and although it is a connecting carrier, a telephone company required to furnish lines to [an interstate carrier], on reasonable request, is considered a common carrier engaged in interstate communications.”
While these cases dealt with the federal government’s ability to regulate communication systems, their definitions of interstate commerce are still applicable to the instant case. Specifically, I note that the same standard has been used in a tax case in Ealey v Bureau of Revenue, 89 NM 160; 548 P2d 440 (1976). In Ealey, a telegraph operator sought exclusion of the income she received from transmitting interstate messages from her gross income for tax purposes. Plaintiff transmitted the telegraph messages to a central relay station located in New Mexico. The Court found that plaintiff:
"[Actually transmits the message from her office in Farmington, New Mexico. As stated in the Court of Appeals opinion of Judge Hernandez:
" 'Once a telegram is transmitted bound for an interstate destination, it becomes part of the national network of telegraphic communications. Each separate *43mode of relay or transmissions cannot be isolated and taxed as a local incident.’
"As a result, then, the appellant is allowed to deduct from her gross receipts the amounts obtained from messages transmitted by her to ultimate points of destination outside of New Mexico.” 548 P2d 441.
Likewise, I believe that local authorities cannot tax each separate mode of relay or transmission of a message through MCI’s system. Since MCI uses Michigan Bell’s local facilities as part of its interstate communications network, respondent may not charge a use tax against the fees MCI pays Michigan Bell.
While this analysis precludes the need for addressing further issues considered by the majority, I will summarize my positions on these issues since I disagree with the majority’s analysis. Since I feel the use tax is inapplicable, Complete Auto Transit, Inc v Brady, 430 US 274; 97 S Ct 1076; 51 L Ed 2d 326 (1977), is also inapplicable. In Complete Auto Transit, the Supreme Court found that interstate commerce may be taxed if certain criteria are met. Since petitioner’s activities in Michigan are an insufficient taxable nexus and application of the use tax in the instant case would unduly burden interstate commerce, these criteria are not met. I find Ealey, supra, and Michigan Wisconsin Pipe Line Co v Michigan, 58 Mich App 318; 227 NW2d 334 (1975), consistent with my position that there is an insufficient taxable nexus.
The majority’s position would also unduly burden interstate communications. I feel that interstate communication deserves higher protection than the interstate transportation of goods. "[I]t is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or *44unnecessarily encumbered by State legislation.” Pensacola Telegraph Co v Western Union Telegraph Co, 96 US 1, 9; 24 L Ed 708, 710 (1877). The Supreme Court in Pensacola emphasized the great need for the unimpeded flow of information between states. According to the majority’s position in the instant case, each state which is involved with the relay of the interstate communication through the MCI network could impose a local tax. MCI could, therefore, become liable to several states for local taxes by transmitting a single phone call through its system. MCI may also be subject to disparate treatment, being taxed in some states and not taxed in others. We note that local Colorado authorities found that MCI could not be taxed for purchasing similar services from Mountain Bell.1 This uncertainty in liability operates to discriminate against interstate carriers.
I also feel that respondent’s imposition of this tax against petitioner violates the Equal Protection Clause. This is the first time respondent has ever claimed that the services provided by Michigan Bell are intrastate communication services. Michigan Bell is allowed to treat these services as interstate services. AT&T also has not been taxed for purchasing identical services from Michigan Bell. The record discloses that the failure to tax these other companies was not inadvertent, but based on respondent’s finding that interstate communications were involved. Clearly this is an arbitrary and capricious application of the use tax statute and, therefore, violates the Equal Protection Clause. Yick Wo v Hopkins, 118 US 356, 373; 6 S Ct 1064; 30 L Ed 220 (1886).
I would reverse the Tax Tribunal.
In a letter dated August 8, 1983, the City and County of Denver’s Treasury Division determined that no taxable event occurred between MCI and Mountain Bell. MCI and Mountain Bell’s relationship is substantially identical to the relationship between MCI and Michigan Bell.