Is There a Silver Bullet for “Smart” Meters in Michigan

By David Sheldon*

(Article modified on 12/15/14)

Many of us who have been protecting our analog meters have been receiving threatening letters from DTE suggesting that our electricity might be “interrupted” within 15 days if we do not agree to let them install a “smart” or “advanced” meter or “opt-out” meter. These 15 day letters are not actual disconnect notices unless they say “Disconnect Notice” at the top, identify the customer of record, the service address where power will be disconnected, a date certain on or after which disconnect will take place and enumerate the appeal rights.

For a discussion of specific tactics in your communication with DTE we recommend an excellent article on another website with whom we work closely: http://www.smartmetereducationnetwork.com/optout-how-to-respond-to-dte-letters-phone-calls-threats.php#2 Sooner or later, however, there will be a need to state your position.

In this article we will try to provide some guidance as to how to state your position in a way that is legally valid and could be maintained  in a court proceeding should that ever become necessary.

(1) Simple Code Words Not Enough. Many have been hearing of late that there are simple code words like “de jure” that can be put into a letter or court brief to stop DTE in its tracks. Such is not the case. All cases in our regular courts are heard “de jure” and all disputes between private parties in this country are heard under civil law. To go into a court and demand that your case be heard “de jure” and “not under civil law” will do no more than cause a judge’s eyes to roll.

(2) There is no one magic court case that may be used as the key to open all doors. Many have been hearing that the mere mention of the case of Norton v. Shelby County will knock down all obstacles.

(3) The key is to understand the nature of the tariff (contract) under which we take electrical service from a regulated monopoly utility. The tariff and the regulations of the Michigan Public Service Commission (MPSC) say that when we sign up for electric service we give the utility permission to install an electric meter upon our property and to have access to that meter at all reasonable times in order to read it, inspect it, repair it or replace it with another meter at their sole discretion. Their access to the meter on our property is not trespass because we are deemed to have consented to such access.

(4) The tariff binds the utility as well as the customer. The situation we face is one in which Michigan utilities, DTE and Consumers Energy, are NOT complying with the terms of the tariff or the terms of duly promulgated regulations of the MPSC. The law will hold that when we signed up for electric service, we consented only to the installation and access to a “meter,”not to a computer or radio transmitting device. Those wanting a more detailed discussion of these issues will find it at this link: https://michiganstopsmartmeters.com/winning-smart-meter-legal-arguments/

(5) In court, which side has the initial burden of proof? When challenged in court, the burden will be on the utility to demonstrate that their “smart meter” conforms to the definition of meter in the law. If it does not, they are violating their contract and there will be no need for us to assume the burden of proving that it damages our health or violates our privacy. When they violate their contract the law of trespass comes into play.

(6) Is there a Fourth Amendment violation as well? We also know that “advanced” or “smart” meters do violate our privacy and that too should not be hard to prove in court. Because the utilities are deploying these devices at the behest of the government, in order to gather data for the government, they are enabling the government to violate our Fourth Amendment rights to be secure in our homes. They are enabling the government to do an end run around the warrant requirement.

(7) What about damage to my health? You may be quite certain that your smart meter or your neighbor’s smart meter has damaged your health. With testimony from your doctor it may not be hard to prove in court that your health did decline in the months following smart meter installation. The really hard part will be proving what is the cause of your health decline. We think the other arguments enumerated here are much easier to prove.

(8) Are utilities also violating statutory law? Utilities are violating the penal surveillance law MCL 750.539d, which makes the attachment of a surveillance law to a private home without the owner’s knowledge and consent a felony punishable by 2 years in prison for a first offense, 5 years for a repeat offense. Attorney General Bill Schuette, when asked why he is not enforcing this law, argues both that the new meters are not surveillance devices or, alternatively, that if they are surveillance devices it matters not because the utility customer has consented to their installation by signing up for utility service. Both of his arguments are an insult to the intelligence of Michigan utility customers.

So there is no single silver bullet. But if we combine all of the above arguments we think it will be quite enough to obtain a court order prohibiting DTE from continuing to intimidate and bully its customers. Achieving this result will require one or more individuals with the courage to bring a legal action against DTE. Such a case would begin with a well pleaded complaint and a request for a preliminary injunction to stop DTE’s bullying tactics until a determination can be made as to the legality of DTE’s forced installations.

Why is it so hard to find an attorney to represent us? We know that many attorneys in today’s world have priced their services out of reach of an individual of average means. There is an old British expression, originally attributed to author Wilkie Collins that says “But the Law is still, in certain inevitable cases, the pre-engaged servant of the long purse.” We know too that utilities like DTE and Consumers Energy have long purses.

Those of us who can afford the high costs of an attorney are encouraged to shop around for one that will honestly present their case. It will not be easy to find one for this issue even if you can afford one. For those who cannot afford an attorney or cannot find a competent one willing to take on DTE, the only option may be to represent themselves in court. Those who choose this path will need to engage in much study and preparation. For those willing to travel this path we can provide some assistance for which we make no charge. Our help is free to those who are fighting a battle that will help us all in the end.

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* The author is not an attorney, but has represented himself successfully in court on many occasions. Readers are encouraged to seek out the advice of their own attorneys before choosing a course of action.

 

 

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12 thoughts on “Is There a Silver Bullet for “Smart” Meters in Michigan

  1. I read words like “private property” and “owner”. Look at your assessment. How is your property classified? Private or Residential? Are you the “owner” or a “resident”? Ask your assessor when and by whose authority was your “private” property converted to “residential”. Better yet, serve him/her with a FOIA. Only the owner may forbid trespass. Think about it!

  2. The problem is, any person with a brain that functions with intelligence realizes the harm these “meters” bring to our doors. Most people are “sheep” and will not think nor stand up for anything. We who are “thinkers” in America are being “forced” to conform in all areas of life–which makes the blood that was spilled for our independence, bill of rights, etc.,so many years ago, a complete farce in today’s world. Those that are representatives of the people and who we thinkers in life would turn to for aid and assistance and legal representation in our fight for our rights, and to keep our electricity turned on, turn their heads and seek to line their pocket books with dollars only from sure things and winnable causes. I have requested assistance to a law firm that I thought was the best law firm here in Michigan–Figer Law–and Asked to be represented to help me keep my analog meter and not have my electricity turned off.—-they refused me—said they understood the problem but were not getting involved in “that one”. Wow. with no recourse available to me—-I am “forced to conform” to keep my electricity on. that it totally unfair! and I realize a battle I cannot even begin to win. To fight this increases my stress level, puts pressure on my heart, affects my health, and causes me undo stress and strain–there goes my peaceful retirement right down the drain. I’m simply too old for this. and if I go to a retirement home, nursing home, or even a hospital—-they have installed smart meters. there is no escaping this–none whatsoever! Feel trapped? I do.

    I’m a senior citizen whose brain currently still works just fine, and I think that its a crying shame that no one will represent me and others like me, and I’m being forced to accept this “meter” which probably will end up causing me all kinds of health issues. I’m too old to join your rally at Lansing.

    I have no problem accepting DTE’s opt-out program BUT I WANT TO KEEP MY CURRENT ANALOG METER–even volunteered to read it myself every month….but they won’t let me do that and are bullying me with turning off my electricity.

    I thought we had a NON-BULLYING LAW that was recently passed for children? We are all “children” when bullied by those bigger than we are!

    • Saryia, We are well acquainted with the problem you raise about legal representation. It isn’t just the Figer law firm. Between several of us we have approached over 20 law firms with this issue. They all understand the problem but none will help. Their eyes glaze over when they hear you want to be represented against DTE, or they say “that isn’t in my area of specialization”. As noted in the article you are commenting upon “There is an old British expression, originally attributed to author Wilkie Collins that says ‘But the Law is still, in certain inevitable cases, the pre-engaged servant of the long purse.’ We know too that utilities like DTE and Consumers Energy have long purses. There is really only one remedy for this deplorable situation: that is for people to learn to represent themselves in court. If you, or anyone reading this, is interested in learning how to do this with respect to the smart meter issue, please contact me: fdshel@gmx.com

    • Saryia, I have been asked to post a response to you from Linda of Smart Meter Education Network:
      “Take a look at the Smart Meter Education Network website to learn how to keep the meter off your home. Lots of info on our Keep the Meter Off Your Home page. smartmetereducationnetwork.com

  3. There are two separate grids. This is not one grid which is being upgraded. This is where all confusion begins. The original system delivers energy. The new wireless smart grid extracts data. The two have become intentionally conflated in the mind of the public and are assumed to be one and the same. They are not. The smart grid is an altogether separate wireless demand management data extraction communication system which serves a purpose distinctly different than that carried out by the original energy distribution system. The term “meter” is a misnomer. This wireless device is actually a gateway or portal between two separate systems. The original system “gives”. It delivers energy (or water, or gas). The new system “takes. It is a wireless data extraction system.
    This new wireless communications network succeeds in introducing over voltages and microwave distortion while it manages to continuously and relentlessly push forward. It succeeds only because the smart grid refers to itself as an energy grid, when in fact it is not. This encourages the public and each private property owner to accept that this is an “upgrade” to an existing situation. And that acceptance is predicated on a misunderstood assumption that this device is a meter, and that as a meter it is capable of real time measurement. An actual mechanical meter operates on voltage and only measures energy usage. A genuine meter does not do estimated virtual readings, snapshots, totalization, is not in lag to actual real time usage, does not measure reactive power (which is not usage) nor convert it into usage, does not co-opt and control a privately owned service panel or circuit box, does not override the private owner’s whole house master switch by using a remotely operated RD switch, does not use uninsulated whole house wiring system owned by the private property owner to operate the energy distribution grid while billing private owners to run the system in exchange for wireless removal of their privacy and monitoring of all their activities via frequency graphing . A real electromechanical meter is UL approved and insurable. Just because this computerized device has four prongs does not make it inherently electrically compatible with a privately owned private property UL approved analogue meter socket or meter base.
    This device is an electronic doppelganger. How does the installation of this device on a private owner’s meter socket not constitute tampering with private property for undisclosed purposes as well as for profit? Does an electromechanical meter data share? No. Does this NM&CN device share the data outside the device once it has obtained it wirelessly? Doesn’t this mean that data is now no longer located inside the associated device i the way that it was kept inside a real meter? Would a real meter share private with all other homes which are converted into hopping nodes which run the system, at greatly increased expense to every customer? Does this device void the safety rating of the private owner’s meter socket as a matter of electrical fact? Is this device in compliance with electrical code, building code, engineering code? Why then is it referred to as a “meter” rather than a network portal, rather than what the industry itself calls it, a Network Management and Communications Node, one of billions of such nodes in a massive data extraction network system, one which functionally becomes an extension of the privately owned home’s own electrical system and couples every home into one continuous circuit capable of turning entire areas into one single antenna operating at one single frequency, inducing total harmonic distortion inside, outside and in one blanket covering every interlinked home. It is a network node, it is a bi-directional transmitter, it is an antenna, – but it is not a meter. And once data goes wireless it enters the wild west of jurisdiction so new and lawless that such data effectively no longer belongs to the owner.
    Therein lies the rub. Utilities everywhere claim to have done an upgrade to an existing energy grid, even when the wireless network piggybacks on an ageing infrastructure, much of which has mostly not been upgraded at all. This scheme has intentionally changed the nature of the entire contract without disclosure, without fully informed consent, by violating the terms of the original contract, while using the term “meter” for a monitor that serves as the foundation for a bait and switch strategy. Stop calling it a meter.

  4. Here in Arizona I am currently working the same meter argument in a formal complaint against APS (our utility) that’s being heard by an administrative judge at the ACC (our PSC). The complaint is that APS is violating the state’s consumer fraud statute which basically says that businesses can’t lie, mislead, deceive, omit material facts, etc. Along with all the usual lies APS has told about their SMs, I contend that the very name they have given to their communications system is misleading. Radio transceivers are not meters.

    BTW, I do not have a lawyer. Yes, it would be great if I did but I don’t. Look into your state’s complaint system. Maybe you can do the same.

    BTW, in an ideal world the state AG would be enforcing the law. I tried to get ours to do so but they blew me off. So I had to go the ACC complaint route. The difference is if the AG had taken the case I’d be just spectating. At the ACC, because I am the complainant, I have to prove my case. Good thing I grew up on Perry Mason, LOL.

    From my complaint:

    As we review the lies and deceptions, note that APS also calls “smart” meters “automated meters”. Both terms, however, are industry “public relations” terminology and are misleading. While having metering capabilities, the devices are actually utility networking equipment, antennas and transceivers (they receive and transmit other people’s data as well as that of the location where they are installed). By calling the devices “meters”, utilities have been able to skirt the fact that they are taking the antenna/transceiver siting rights of property owners without compensating those property owners. Shouldn’t that be considered theft?

    Utilities have easements for meters, simple place-specific measuring devices, not for transceivers or antennas that are installed without permission or compensation and for the purpose of moving data from other locations to implement the utility’s business plan. It’s as though a company branch office, albeit “automated”, has been set up on each customer’s property.

    From my reply to APS’s response:

    Can it really be true that the two lawyers who wrote the response to my complaint have no idea what antenna/transceiver siting rights are? Can it really be true they could not figure it out based on what I wrote?

    Let me put siting rights another way then. If employees of a telecommunication company came and put a microwave radio transceiver on someone’s private property, the company’s employees could be arrested for trespass. In order to avoid breaking the law, the company would first have to negotiate an agreement with the property owner. Why? Because the property owner has siting rights by virtue of the fact of being the property owner.

    As I explained in my complaint, APS’s pattern of deception began with misleadingly calling their antennas and transceivers “meters”. Yes, the devices have metering capabilities but they are also utility networking equipment, installed for the purpose of moving data from other locations to implement the utility’s business plan Essentially, APS is building their own private communications network and using the private property of ratepayers on which to do so. APS does not have easement for a communications network.

    Note how often (in just 10 double spaced pages) the APS lawyers mention that the devices measure electricity. Since the APS lawyers have omitted mentioning all the other functions of the devices, one might think that’s all the devices do.

      • Same issue with campaign donations here in AZ also — both “dark” and transparent donations. And then there are the “charitable” donations made by APS which amount to nothing more than influence peddling. One AZ city council member I spoke with said he doubted his council would go against APS “because of all they did for the community.”

        Another point gleaned from all this is that if these monopolies have enough profit to blow on donations of any kind then their profits are too great, rates too high.

  5. The radio frequency electric and gas meters cause health issues and should be removed. Why are high up people so blind to this issue? And better still, WHY are they even being allowed on everyone’s homes? The amount of radiation they give off is ridiculous! I hope there are gigantic lawsuits against DTE in the very near future.

    • James,

      High up people are so “blind” to these issues, as you put it, because they have ambitions to be re-elected or to rise to still higher office. They believe they will need the generous campaign money and other help that special interests can provide. Official campaign donation records show that DTE has spread a lot of money around among Lansing legislators. And that may only be the tip of the iceberg, because our own Channel 7 in Detroit is currently doing a story on “dark money” that influences elections through issue ads with no need for donors to be identified.

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