Appeals of DTE Smart Meter Plan Will be Heard!

Michigan Smart Meter Appeal Hearing

Court of Appeals RotundaMark Your Calendar! The long awaited appeals of the DTE smart meter opt-out plan will be heard by the Court of Appeals in Lansing on January 13th, 2015 at 10 AM! It is important that we have as many as possible attend!

 Two appeals were filed June 14th, 2013 of the DTE opt-out plan approved by the Michigan Public Service Commission. Dissatisfaction with this opt-out plan focused on two primary issues:

a) the plan did not allow anyone to keep (or get back) their analog electric meter, and

b) the plan requires payment of extortionate “opt-out fees” which will prevent many from opting out and are only likely to be increased in future years.

Analog electric meters are the only kind that is accepted by most smart meter protesters. The reasons are that they cannot invade privacy by tracking household behavior minute by minute, because they do not emit microwave radiation and because they do not put low frequency “dirty electricity” on home wiring. DTE would have us believe that they are addressing our concerns by offering a “non-transmitting” smart meter as the opt-out meter. They are NOT. Two appeals were filed on June 14th, 2013 to try to overturn the May 15th, 2013 decision of the Michigan Public Service Commission (MPSC) that approved DTE’s “opt-out” program. These appeals have taken 19 months to reach the point where they can be heard and decided. They are:

The Edwards/Kurtz/Panzica appeal – issues as follows:

  • The MPSC effectively did mandate smart meters by its opt-out decision and lacked statutory authority to make such a mandate.
  • The opt-out decision cannot stand because there was no consideration of what benefits, if any, the so called opt-out meters provide the opt-out customers in exchange for the fees being imposed.

For a more detailed discussion of the issues raised by this appeal see the discussion at:

The Dominic and Lillian Cusumano appeal – issues are as follows:

  • The scope of the MPSC hearings of DTE’s opt-out proposal was improperly limited by the administrative judge. No consideration was given to the type of meter to be offered opt-out customers, no attention to privacy concerns and no attention to the fact that many opt-out customers would be paying fees just to maintain the health they had before smart meters were deployed.
  • The administrative judge incorrectly applied a doctrine of “managerial prerogatives” to limit the jurisdiction of the MPSC regarding issues profoundly affecting the welfare, health and privacy of utility customers and the public.
  • Issues ruled “beyond the scope” in this case based on the notion they had been addressed in earlier MPSC cases had not, in fact, ever been addressed at all.
  • Appellants were denied the opportunity to establish an evidentiary foundation for their complaint that both the ‘smart meter’ and the ‘non-transmitting’ opt-out meter violate the Fourth Amendment to the U.S. Constitution.

The two above appeals were consolidated into one for hearing purposes.

What will happen at this appeal hearing: A three judge panel will hear oral arguments for and against these appeals. Typically the judges take turns throwing questions out to be answered by the parties. In this case there will be attorneys representing DTE, attorneys representing the MPSC and attorneyKurt Koehler will be representing appellants in the first case (above). The second appeal was brought by the Cusumanos without benefit of an attorney and they will not be eligible to participate in oral argument. They must stand on their written briefs. It is likely however that some argument will be heard about their briefs since judges may wish to question the attorneys for DTE and MPSC with regard to the Cusumano appeal. Sometimes the type of questions judges pose give a clue, which way the judge is leaning. Sometimes not. A good way to get a sense of how this might go is to watch the video of the Maine Supreme Court hearing on smart meters on this website:

What Are the Possible Outcomes:

1) The court may uphold the decision of the MPSC and deny both appeals.

2) The court may find that the decision was illegal because the MPSC exceeded the authority granted it by the legislature.

3) The court may find that the decision must be reversed because the scope was improperly limited by the MPSC so as to prevent building a record of competent evidence to support the decision. In this case the court would likely remand the case back to the MPSC for a do-over, with specific instructions about issues they must consider and types of evidence they must hear the second time around.

4) The court may find that the decision must be reversed and remanded to MPSC with instruction to consider what benefits, if any, the opt-out plan provides the opt-out customers.


Court Address:
2nd Floor, Hall of Justice
925 West Ottawa St.
Lansing, MI


16 thoughts on “Appeals of DTE Smart Meter Plan Will be Heard!

  1. We Just opted out of Consumers smart meter and will have to pay 69.00 to opt out and 9.20 per mo. extra on our bill. I thought it was better for now to do that than fight with them for now. At least I don’t have it in my home. What do you think and can we at some point recover the cost. Thank you.

    • R. Beebe, Hopefully you are getting to keep your analog meter in return for these fees. We believe that nobody should have to pay a utility fees in order to preserve the health or privacy they had prior to the utility’s actions. Whenever you pay a monthly ‘opt-out’ fee, you should indicate in some way that you are paying “under protest”. Somewhere down the line we may bring a class action suit to recover all these unjust fees. If you paid under protest you may be in a stronger position.

  2. I wish I would have known about this! I would have taken leave from my job in Detroit to drive to Lansing to attend. I have twin babies- almost 2 and I am pregnant with my 3rd. I live in Royal Oak, and have a smart meter from Royal Oak for water, and what looks like two smart meters for DTE because my home was once a rental. I am trying to sort out how to get these dangerous things off my home in order to protect my children and developing fetus- who are particularly vulnerable. I even have headaches and other symptoms that I attribute to these smart meters since I did not have them before we moved. I think many people are like me, they want so bad to get these damned things off and out of in the case of the water meter, their homes but don’t know where to begin. I am especially confused about the steps to take to get an analog water meter back. I specifically told the water employee I was not consenting to the installation and he proceeded to laugh at me and go down to my basement! I would greatly appreciate any specific direction to rid of these things. I think that as citizens and parents we need to get organized because this is a violation of our privacy and health and it will only get worse if we don’t stop it now.

    • Nicole, Please consider registering as a ‘follower’ of this website. Just scroll down our homepage a bit and you will see a box on the right side where you can enter your email address. If you had done this some time ago you would have automatically received notice of the Lansing Appeals Court Hearing. I had announced it on this site 10 days ago and then issued a reminder 2 days before the hearing.

      We are in the planning stages of assembling a group of plaintiffs for a lawsuit against DTE to stop the forced installations of ‘smart’ meters. Would you like to be part of this? If so, please email:

      If there is sufficient interest we might also consider a lawsuit naming several city governments for forcing smart water meters on their citizens. Again, the purpose would be to stop the forced installations. I personally know of families that have had their water shutoff for refusing a smart water meter and have lived for 6 months or longer on bottled water and rain water. It is a crime that anyone should be forced to this in this country and relevant officials should be held accountable in a court of law.

      • Our city just decided on ‘smart’ water meters as well… my downfall… my husband works for the city. Everyone says that these aren’t the same as the DTE meters.. to me, a smart meter is a smart meter.. period..I am in Fraser ..

  3. I called and opted out. Last week a technician was at my door and wanted to install the meter. I told him that I had called and opted out. He asked if I knew of the up-charges and I said I did. He left. Now I got a letter from DTE Saying that I cannot refuse a DTE representative access to my meter to change it?! I did no such thing first off. Should I just sit tight and wait to see what happens tomorrow??

    • Mary, Actually you CAN and SHOULD refuse a DTE representative access to the meter enclosure (your property) on your home IF you have reason to believe the purpose of their visit is to install a ‘smart’ meter. These devices are dangerous to both health and privacy and they are, in our judgment, completely ILLEGAL! DTE has NO LAW (federal or state) and no duly enacted regulation of the Public Service Bureau that gives it any authority whatsoever for installing these dangerous devices. The company counts on people’s ignorance of the law and the technology and also on the fact that public officials who should be enforcing existing laws are not doing so. Michigan’s Attorney General is particularly at fault for all that we are going through now. He has laws at his fingertips that he could enforce if he so chose!

      • I came upon this particular site after I had received the letter. I don’t want that meter and they know it. I already have Hashimotot’s and anxiety on occasion. I don’t need more problems.

      • Dave,

        Thanks for your reply. I am following it now, I don’t really know any other source of information on this topic locally. I would be interested in participating as a plaintiff and trying to help out in other ways, but for now I am asking for expertise on what I should do right now to get the 3 smart meters off of my home to protect my children. I don’t really see any SOP on how to handle things. And although I have fairly decent writing skills, I am not sure what specifics to write or where to begin, I feel that the only way they will take you seriously is if you use specific verbiage and legal terms in which I am not acquainted with too much. I don’t think getting my water shut off is wise as they consider that negligence when you have children and I am not taking that risk. If I did not have children it would be another story.


    • Marge, The big thing right now is the Michigan Court of Appeals hearing on two appeals of DTE’s opt-out policy. Thia will take place on Tuesday January 13th in Lansing at the Hall of Justice at 10 am. We want a lot of people to show up for this to show that there is strong support.The story above gives all details.
      We will be posting more stories on our website as other events develop. Best thing you can do is become a follower of this website by entering your email in the appropriate box on right side of screen. Then you will get an email everytime we publish something new.

      • I’m from Rockford MI and just received a “Consumers Energy” notice to install a upgraded smart meter I do NOT want. What should I do? Is this the same appeal for Consumers Energy customers or just for DTE?

      • Ani, The appeals that will be heard January 13th are for the DTE ‘Opt-Out’ plan only. But there is also an appeal of the Consumers Energy ‘opt-out’ plan coming up later this year. That one was filed by a group of 16 appellants from the Muskegon area who are represented by counsel. That appeal tackles not only the opt-out plan but the decision to allow Consumers to recoup costs of smart meters for all their customers. We will be announcing that one on this website when we learn of the hearing date. Please register as a follower of our site so that you will get an automatic email whenever we post something new.

  4. fyi, Cusumanos don’t get oral argument because their brief was late. Your article makes it sound like it is because they are pro se.

  5. As an FYI, Pennsylvania has no opt out and it has gone ahead and approved third party suppliers – five of them I read, resulting in huge electric bills. It is of utmost importance that Michigan adopt an opt out policy for those wishing to protect their privacy by retaining their analog meters. Here in AZ, our city hired an attorney to protest our electric utility’s original “set-up” fee to switch out smart meters for analog meters and the monthly meter reading charge. Since Sedona Smart Meter Awareness conducted a concentrated campaign for the past three years, we achieved 20-25% of residential opt out and as a result, the attorney succeeded in convincing the regulator that no “set-up” fee should be charged to those who retained their analog meters and only the $5/mo. fee remains.

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