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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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April 24th, 2012 -On Monday evening about 35 people gathered in the Ferndale Public Library to hear a program presented by Michigan Stop Smart Meters.  Three speakers presented an overview of smart meters, the failed business case, the radiation hazards and the threat to privacy.

Speakers included Diana Ostermann, retired from a managerial career in the cell phone industry, Dr. Richard Meltzer with background in research methodology, and David Sheldon MBA with undergraduate degree in physics and economics.

Following the presentations there was a spirited discussion of what we can do as individuals and as a group to encourage a just resolution of the crisis through either regulatory action or new legislation.  Individuals expressed an interest in attending future public meetings, networking with each other, and participating in possible future demonstrations or other activities to promote public awareness of this stealth technology.

Michigan Stop Smart Meters will be sponsoring another of these informational meetings on May 23rd at the Plymouth City Library.  More details will be posted as they become available.

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by David Sheldon

In its Order of January 12th the Michigan Public Service Commission ordered each of the privately owned electric utilities operating in the State of Michigan to respond by March 16th, 2012 to a series of questions put by the Commission concerning their plans for ‘smart’ meter deployment, the costs and benefits of such deployment, and any plans they had for allowing customers to opt-out.  Many utilities responded, but the subject of this article will be the response filed by the Detroit Edison company through its attorney.

What follows are nearly all of the key assertions in Detroit Edison’s response, and after each a statement of what the actual facts are as known to credible experts in the industry.  I leave it to the reader to determine whether this utility company has been forthcoming in its responses to the Commission.

(1) DTE Assertion: “The use and deployment of smart meters in Edison’s service territory is safe …”

FACT: 
Nearly every independent study, not financed by the utility industry, has found that the type of radio waves broadcast by the smart meters, at levels far lower than FCC standards, to be suspect as a long range cause in a whole range of illnesses affecting the public at large, and as an immediate threat to a small minority of individuals who are electro-sensitive.  What DTE apparently means by its response is merely that its smart meters are legal because they comply with an obsolete FCC standard based on thermal effects alone.

The information DTE presents as to the safety of non thermal levels of radiation comes entirely from the manufacturer of the meters (Itron) or from one of the trade associations to which most utilities belong.

(2) DTE Assertion:  “The use and deployment of smart meters … provides important benefits to the reliability and operation of the electric system …”

FACT:  (1) On the plus side: the only benefits Edison has ever identified for reliability of the system are (a) faster outage detection, and (b) the ability to shift some peak demand to off peak hours through the use of either “time of use pricing” or a demand response system wherein Edison can send signals to turn off individual appliances in homes that have volunteered to participate.  The peak shifting benefit however depends on customer’s voluntary choice to participate, and, in the case of demand-response, on the customer making an investment in smart appliances.  This benefit does not follow from the mere installation of smart meters.  Also, if DTE ever did any research to find how many of its customers would volunteer for demand-response or time-of-use, it has not provided the results of any such research to buttress its case.
(2) On the minus side: A wide range of security experts have weighed in that the ‘smart grid’ will make us more vulnerable than ever to having the entire power grid brought down by hackers or terrorists.  “The vulnerability of the energy industry’s new wireless smart grid will inevitably lead to lights out for everyone,” according to leading cyber expert David Chalk.
In a recent interview on energyNow! Former CIA Director James Woolsey offered this opinion of the ‘smart grid’:
“They’re constructing a smart grid that will make it easier for you or me to call our homes on our cell phones and turn down our air conditioner on a hot afternoon. But that may well mean that a hacker in Shanghai can do the same thing with his cell phone, or worse. The so-called smart grid that’s as vulnerable as what we’ve got is not smart at all. It’s a really, really stupid grid.”

DTE Assertion:  That a DOE grant will cover one half the cost of the first 600,000 smart meters only, and that DTE intends to install 2.6 million electric meters.  DTE makes no mention in its filing where the rest of the money is to come from, but has been telling its customers that they are not paying for it. 

FACT: A recent Court of Appeals decision held that $37 million dollars that had been allowed by MPSC as a charge back to customers was improper.  This tells us where the rest of the money was going to come from and shows DTE’s claims in this regard to be false.

DTE Assertion: The company presents a laundry list of hypothetical benefits in support of its smart meter deployment.  It makes no attempt to quantify these benefits in dollar terms or to show that the benefits will outweigh the costs to utility customers.

FACT:  The Commission had asked each electric utility to supply an “estimate of the savings to be achieved by the deployment of smart meters.”

DTE Assertion:  “Due to the elimination of estimates and the accurate reads, customer complaints in the areas where AMI is installed have fallen off dramatically.”

FACT:  DTE presents no data in support of this claim.  In fact, to the casual observer, it would seem that customer complaints about skyrocketing bills have gone off the charts since smart meters have been installed.  This has been the case in other states and we are starting to see enough instances of it here in Michigan that the burden should be on DTE to present data to show that all the highly public complaints are the exception and not the rule.

DTE Assertion:  Edison has installed over 650,000 AMI smart meters without a single OSHA safety event.

FACT:  DTE has presented no data to back up this assertion, which many would find a laughable assertion in view of all the stories of house fires, burned out meter sockets and the like in every state where these have been installed.  The company surely has some OSHA events in its overall operations and could choose to submit copies of its OSHA reports to back up this contention.

DTE Assertion:  “Gains in Customer Satisfaction are at the forefront of the non-monetary benefits”

FACT:  DTE submits nothing to substantiate this point and the overwhelming body of evidence is to the contrary.

DTE Assertion:  “Customers will be able to view their daily and hourly energy usage through our secure online system.  They can use this data to help make informed decisions regarding energy usage and to assist them in their energy conservation efforts.

FACT:  DTE does not provide any illustration of what an hourly based display of energy usage might look like to the customer.  In fact such an energy use display would be confusing to the utility customer because so many different appliances would be aggregated into the totals that the customer could not make any sense out of which appliances were responsible for the totals or which appliances could be used less or scheduled at a different hour in order to make the totals better.  In order for a really useful display to be provided DTE would have to record usage in a much more fine grained manner, for example one minute intervals, and then identify the signatures of individual appliances and label the display to show the start and stop of each individual appliance.  But to do this would contradict all the data the company presents elsewhere on the total amount of radiation the meters transmit in a 24 hour day.

DTE Assertion: In response to the Commission’s Order that utilities furnish “Any scientific information known to the electric utility that bears on the safety of the smart meters to be deployed …”, DTE responds with a statement that begins with “Edison believes that AMI smart meters are safe and have been thoroughly studied.”

FACT:  The utilities were not asked to state their beliefs – they were asked to supply “any scientific information” known to them.  Has DTE complied?  Can it really be the case that this utility has no knowledge of:

(1)   The American Academy of Environmental Medicine’s recommendation to the California PUC that smart meters are a hazard and that their deployment should be stopped?

(2)   The Hirsch report – which shows the intensity of the RF exposure from smart meters is much higher than from other commonly used devices?

(3)   The Sage Report – which shows, among other things, that even the thermal limits prescribed by the FCC are being exceeded in multi bank apartment buildings?

(4)   The Greek research which shows the effect of non-thermal radiation on mouse brains?

(5)   The Bio-Initiative Report?

(6)   The Swedish study by Ole Johansson on disturbances to the immune system by electromagnetic fields?

If DTE has no knowledge of any of this body of research then they have answered the Commission’s Order in a truthful manner.  But if they have no knowledge of any of this research then how are they competent to conduct an experiment on millions of Michigan citizens?

If they do have such knowledge then they have not responded honestly.  The Commission’s Order put a burden on them to be forthcoming and there should be a burden on them to explain why all of this research is not relevant, and only the research done by Itron and the utility trade associations is relevant.

DTE Assertion:  “The RF emissions from an AMI smart meter are similar to that emitted by a remote control or garage door opener device that is used often in everyday life …

FACT:  The RF emissions from an AMI smart meter are NOT similar to that of a remote control or garage door opener in that those devices do NOT subject the users to constant radiation on a 24/7/365 basis!  Moreover remote controls and garage door openers are devices which people choose on a voluntary basis – so that those who might be electro-sensitive can avoid them altogether.

DTE Assertion:  “At no time will any customer specific data, like addresses, phone number, account status or social security numbers be transmitted by the AMI meter or gas module”.

FACT: This statement evades the reality – which is that a number identifying the meter is transmitted – and that meter number, for a skilled hacker,  is the key to get all the rest.

DTE Assertion:  “The data collected from a AMI smart meter is the same data that is collected from an analog meter.” and “ The data collected from the AMI smart meter is energy use for the entire customer location and not data on individual appliances and devices.”

FACT: This is about as far from the truth as one can imagine.  Each appliance in the home has a ‘signature’ based on the amount of current it draws, the inrush current, the duration and the amount of phase shift.  The utility will have a library of such ‘signatures’ that it can use to interpret the data coming from an individual smart meter.  It will be possible to determine with certainty which appliances are running and when.  In California the PUC has even given their utilities permission to sell this data to third parties.  Companies are lining up to profit from this data and software already exists to efficiently convert all the home meter charts into appliance use charts.

DTE Assertion:  “The overwhelming majority of our customers fully support AMI”

FACT:  Absolutely no evidence has been offered by DTE to support this claim.  We are not aware of any market research being done to establish homeowner attitudes.  In any case the overwhelming majority of the public does not even know what has been done to them.  The company has not seen fit to educate its customers as to the pros and cons of their program.

Those utility customers who have taken the time to educate themselves have almost universally rejected the program – as is evident from over 400 complaints filed on the MPSC’s own website.

DTE Assertion:  With regard to persons opting out of smart meters ‘ “their lack of participation will reduce the benefits of AMI for all customers …”

FACT:  No evidence has been supplied to support this claim.  If the supposed benefit of AMI to the customer is that he can understand his usage better and make decisions to conserve – how would such a benefit be impacted in any way by his neighbor’s decision not to participate?

DTE Assertion:  “The Company should be made whole for all incremental costs, the electing customers should bear the costs, and the opt out charges should be based on costs consistent with the provisions of PA 286, M.C.L. 460,6”

FACT:  The cited public act cuts both ways.  If it is not lawful under the Act for customers not opting out to bear costs properly attributable to the opt-out customers, then the reverse should also be true:  Customers choosing to opt-out should not be charged any of the costs needed to provide AMI service to the class of customers who want and choose to retain that service!

DTE Assertion:  “The opt-out program shall not operate in a manner that contradicts or unreasonably interferes with the AMI benefits enjoyed by all other customers …”

FACT:  (1) The opt-out customers are arguing that they have a constitutional right under the 4th Amendment to the U.S. Constitution, to protect the privacy of their homes.  That right does not yield and must never yield to the desire of some other customers to enjoy “AMI benefits” that are not an essential aspect of a regulated monopoly service provider.

(2) The whole basis of utility regulation of a monopoly public service provider is that the monopoly provide only that service which must be provided on a monopoly basis, leaving it to the free market to supply customer’s desires for bells and whistles.

DTE Assertion:  “Opt-out decisions must be initiated and made by individual customers and not by broader interest groups or municipalities on their behalf.  Opting out will … subject the customer to additional charges, so permitting third party’s to make this selection is inappropriate.”

FACT:  Allowing municipalities to opt-out, or to create certain neighborhoods within their cities that have no smart meters, would allow for the creation of safe havens for the electro-sensitive minority in the population.  Without community opt-out there could be no safe havens.  Individual opt-out alone will never solve the problem for the electro-sensitive, because they will still be bombarded with RF radiation from their immediate neighbors on all sides.  For the same reason individual opt-out will not solve the problem for those of us who are NOT electro-sensitive but wish to take the precaution of living in an area free of smart meter radiation in order to protect our long run health!

Even if it were true that a community opt-out would subject all in that neighborhood to additional costs (a fact not yet established), people still have freedom of choice when it comes to picking a city or a neighborhood in which to live.  Those who are electro-sensitive will gravitate toward neighborhoods where they may enjoy some protection and may well choose to bear any increased costs that are necessary – though it seems more likely their cost of electricity should be less since the utility will avoid all manner of expenses for installing smart meters in those areas, maintaining wireless systems in those areas, and so forth.  Those who want the benefits of smart meters or wish to avoid any opt-out costs can choose other neighborhoods in which to live.

In our society we choose to provide all sorts of accommodations for people with various disabilities.  We provide handicapped parking spots, curb cuts for wheelchairs, handicapped bathroom and so on.  I think most of us accept any inconvenience these accommodations may cause us because we recognize the value of allowing people who are challenged in various ways to enjoy a fuller participation in society.  It is just and it allows society to benefit from their talents.

Being electro-sensitive is a recognized disability like any of these others.  We should seek to make it possible for such people to live among us and to fully participate in our economic and social life.  We should seek, moreover, to make it possible for there to be safe havens for those who simply want to be prudent about their long run health risks!

DTE Assertion:  “Edison intends to file its op-out program to address specific details as part of its next general rate filing.”

MY RESPONSE:  It is time for DTE to file a specific opt-out plan NOW.  This controversy has gone on for a year or more already.  It is time.  DTE is playing a game to get as many meters installed as possible before the MSPC makes any decision on opt-outs.

The Michigan Public Service Commission owes it to the public it serves to impose an immediate moratorium on any more smart meter installs until such time as the opt-out issue has been resolved and an objective study of the health risks has been completed.



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March 16th, 2012 – In their responses today to the MPSC Order, both DTE and Consumers Energy fail to present a concrete smart meter opt-out proposal.   On February 17th, DTE spokesman Len Singer was quoted in Michigan Tech News as stating that his company would provide an opt-out proposal “in a filing next month”.  A spokesman for Consumers made a similar statement.   Instead both companies now say they will present such a proposal as part of the rate setting process (no estimated date) and that any such proposal shall require the opt-out customers to bear a whole laundry list of possible costs that may be occasioned by their opting out.

The MPSC had given the public a month following the utility company submissions to express their comments.  Yet we find that our month will almost certainly be up long before we learn of any concrete opt-out proposal.  And it was the issue of opt-out, more than any single other issue, that caused the Commission to open this docket in response to the repeated urging of municipal governments.

The utilities justify their long list of potential opt-out charges because of PA286 (2008), MCL 460.6, which requires no subsidy for any class of customers

What is NOT mentioned is a whole laundry list of special costs, not needed to maintain basic electricity service, which will be occasioned in order to supply certain other customers with the alleged ‘benefits’ of smart meter technology.  IF OPT-OUT CUSTOMERS ARE TO BEAR ANY EXTRA COSTS NEEDED TO SERVICE THEM, SHOULD THEY NOT, BY THE SAME TOKEN, BE SPARED ALL THE EXTRA COSTS THE UTILITY INCURS TO SERVICE THE CLASS OF CUSTOMERS WHO CHOOSE TO ENJOY THE ALLEGED ‘BENEFITS’ OF THE AMI SYSTEM?

Now the utility will no doubt argue that “Advanced Metering Infrastructure” (AMI) is now their “standard platform” and that those customers who wish to deviate from the “standard platform” should bear any additional costs involved.  But wait a minute – what gave the utility the right to create a platform that goes way beyond its traditional function of providing electrical energy and then call that the “standard”?  Did the marketplace give them that right?  Clearly not.  No evidence has been presented by either company that any research was done before deployment to see if customers wanted this new technology.  There is no evidence we have seen that any utility customers ever asked for these AMI features or that any have expressed their appreciation for these features once they got their ‘smart’ meter.

Did the MPSC give the utilities the right to make AMI their standard platform.  We have been repeatedly informed that MPSC made no such decision.  Rather the MPSC’s repeatedly stated position has been that “we do not interfere with the utility’s business practices”.

Did federal legislation give them that right?  Again the answer is no.  The “Energy Act of 2005” and the “Energy Independence Act of 2008” both specified that smart meters were to be ‘voluntary’.  Yet nobody has been asked to ‘volunteer’ to date.

So it would appear that DTE and Consumers have taken it upon themselves to adopt AMI as their standard.  In so doing they have brought into being a product without a market.  Yet those of us, including the majority of all utility customers, who never asked for or wanted this technology, are to be forced to pay for its costs.  Their plan evidently is that ALL their customers pay the AMI costs and then those who opt out of it should also pay the costs of opting out of it, while enjoying none of the supposed benefits of AMI.

We think a much more appropriate and just allocation of costs would be for all utility customers to be given a clear choice between AMI and traditional service.  Then those who choose the AMI service should pay any extra costs occasioned by their choice – including the cost of the smart meters, the labor to install them, the costs of radio receivers on the poles, the costs of the whole new main office system that communicates with these new meters and so on.  None of these costs should be borne by those who opt to maintain their traditional service.

Then the utility could clearly say they are not asking either class of customers to subsidize the other class – in conformity with Public Act 286.

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February 28th, 2012 – Representative Paul Opsommer (R) of Dewitt introduced today a bill in the Michigan House, HR 5439, to allow utility consumers to opt out of “advanced meters” otherwise known as ‘smart’ photo of Michigan Capitol buildingmeters.  This bill, like the McMillin bill before, has been referred to the House Energy Committee.  If either bill passes we will have reached a real landmark in our fight against an abusive technology.

This latest bill does go even further than the first one to protect us:

  • Respect for community moratoriums.
  • Utility requested to remove an ‘advanced meter’ must do so within 15 days
  • Compromise on fees:  A $50 removal fee – but only if there had been previous consent by present or previous owner.  No ongoing monthly fees for opting out!
  • Utility may not offer a discount or rebate to anyone for accepting an advanced meter.
  • Except where customer explicitly requests an “advanced meter”, the utility must send letter out 6 months prior to install explaining what an “advanced meter” is and explaining opt-out procedure.
  • Where customer has formally requested opt-out, utility must acknowledge in writing.
  • Covers municipal energy utilities as well as those regulated by MPSC.
  • Customer may opt-out of later generation advanced meter even if first generation one was accepted.
  • Advanced meter data transmissions must be encrypted and may not contain the customer’s name or address.  Only a customer identifier number is allowed.
  • Customer data may not be posted on internet except with a secure protocol and a password.
  • Customer data may not be given to law enforcement except under court supervision.
  • Shutoffs shall require an in person visit at least 48 hours in advance to verify address.
  • Secure system and audits by Commission concerning shutoff procedures.

There are only two provisions we can think of that we would like to see added to this bill.  One would be to redefine “advanced meter” to include any meter that is capable of recording and storing usage in intervals of an hour or less, can act as a gateway between appliances in a home and the utility and also has two way real time communication with the utility to support demand-response programs.

While wireless radio transmissions are one of the major objections to the present variety of ‘smart’ meter, such wireless communication should not be viewed as an essential or defining attribute of a ‘smart meter’.  After all, in some other nations, all the objectives of a smart meter program have been achieved by fiber optic or other hard-wired means.  The definition matters if consumers are to be protected from ALL violations of their privacy and Fourth Amendment rights.  No utility customer should ever be forced to accept a meter that is a surveillance device but sends the customer data over a phone line or over the power line itself.

The other provision we would like is a strong community opt-out.  It is not clear if the community moratorium provision in this bill would afford more than temporary protection.  Any city or township should be able to enact a zoning ordinance that would establish certain safe zones for those citizens who are concerned about the possible long term health effects of being bombarded 24/7 with radio waves from their neighbors meters as well as their own.  Individual opt-out alone won’t be enough to save the health of susceptible individuals.

Read the full text of the Opsommer bill by clicking here.