Tom Mitchell’s Standing Room Only Hearing

by David Sheldon

February 1st, 2018 –t DTE customer Tom Mitchell had a motion hearing before an administrative judge at the Michigan Public Service Commission (MPSC). The hearing room was filled to capacity. Purpose of the hearing was not to hear evidence on the merits of Tom’s formal complaint against electric utility DTE, but to rule on whether Tom’s case could go forward, or be dismissed as both DTE and MPSC staff were requesting. Purpose was also to rule on two motions Tom had submitted, one to set the scope of the case and one to allow out-of-state witnesses to testify via Skype.

Tom had requested a formal hearing on his complaint that DTE had threatened him with shutoff for not agreeing to accept either the standard smart meter or the smart meter with radio turned off. Tom has a heart condition known as atrial fibrillation and has an affidavit from his personal physician that having an electronic meter on his home could harm his health and even possibly cause his death. Tom believes that, under this circumstance, DTE must provide accommodation by allowing him and all others with a similar documented health condition to keep the traditional analog meter.

Administrative judge Lauren Van Steel conducted the hearing, appeared to be a good listener and also asked some hardball questions of both the DTE attorney and the attorney representing MPSC staff. At the conclusion she took all three motions under advisement. She is expected to issue her decision sometime within the next week or two.

Tom had planned to have this writer assist in the presentation, but the judge insisted that since Tom was appearing without an attorney, that he must present his case without assistance. Tom did a fantastic job!

Incredibly, the attorney for MPSC staff argued that all possible health issues had already been addressed in the 2012 report by staff and that there could never be a legitimate reason to take another look at the opt-out policy from a health standpoint, despite there never having been an evidentiary hearing on the health issues. The judge did NOT appear to be buying this line.

If she decides to let Tom’s case proceed, a new date will be set for the evidentiary hearing. This would be the one where testimony would be taken from Tom’s personal physician, experts on the dirty electricity issue and from DTE’s witnesses.

6 thoughts on “Tom Mitchell’s Standing Room Only Hearing

  1. Hi Dave,

    I would like to give you some of my thoughts. Pursuant to the Mitchell case, the issue may be whether the MPSC can make an exception to its rule that requires customers to pay opt-out penalties unless it can establish a good cause reason such as a medical condition, to avoid paying opt-out penalties.

    In this case, both Mitchell and DTE do not dispute that the MPSC has jurisdiction. DTE is arguing that the opt-out penalties had been decided already, and unless the customer can prove that AMI METERS are dangerous to the safety, health, and welfare of the public, then the individual customer who can establish a threat to its health, is without remedy.


    My position is the MPSC has no legal authority pursuant to its Enabling Act to impose opt-out penalty fees since the MPSC can only penalize those it regulates, the regulated utility
    companies. The statute does not give the MPSC any legal authority over the customers; this is why the MPSC cannot impose opt-out penalties on the customers.


    In any event, the issue of jurisdiction can be raised at anytime. So, if this goes into the courts, it can be raised then. Keep me posted on this case. Thanks.

    • Theresa, I must most emphatically disagree with your position. We have been battling for years to get the MPSC to recognize that it DOES HAVE JURISDICTION, while that agency has been arguing for years that it does not have jurisdiction over meter type, i.e. that a privately owned utility may, as a matter of “management prerogative”, use any type of meter it pleases and needs no permission from MPSC. The MPSC made exactly that argument in the U-17053 opt-out case when it was before the Michigan Court of Appeals in the Cusumano case. As to opt-out fees, the argument has always been that these are not penalties but simply rates established to cover costs of manual meter reading pursuant to the MPSC’s rate setting authority.

  2. I thought Tom Mitchell put all the so called licensed attorneys to shame with his entire testimony and beautiful rebuttals!!
    Thank you David for all the coaching, you are a pillar for Liberty,

  3. Remember that the smart meters exceed the scope of the easement originally granted. The easement was for a grounded, spark gap surge protected, all metal meter that does not catch on fire. The easement was not for a meter which was also a broadcaster and a relay, nor one that collects any more information that a one time per month measure of total watt hours used. You should not have to opt out. They should be asking for an amendment to the easement to authorize more functions.

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