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Analysis by David Sheldon
(July 19th, 2015)

On July 15th, 2015, a decision was handed down by the Michigan Court of Appeals that, if not appealed, will severely constrain the rights of all Michigan utility customers. This article is written, in part, as a response to an inaccurate and misleading article published a few days ago on another smart meter website. Sadly that article unfairly characterized the efforts of a couple to defend themselves against utility bullying and implied that, if only they had hired a good lawyer, the outcome would have been different.

We know there are thousands of you, in southeastern Michigan alone, who have resisted the forced installation of a “smart” electric meter. Many of you have locked your meter enclosures or otherwise limited access by utility installers bent on replacing your traditional meters.

Thousands of others who have the new smart meters are now suffering serious health effects that limit them in the use and enjoyment of their homes. The universal experience has been that, once a smart meter is installed, the utility will not remove it for any reason. At least 20 families that we know of have found it necessary to resort to self help in order to rid themselves of an intrusive and life limiting device.

Such was the case for Ralph and Donna Stenman of Farmington Hills. In early 2012, after pleading with DTE to remove a smart meter that was making Donna ill, the couple finally resorted to removing the offending device themselves and replacing it with an industry standard calibrated analog meter. The smart meter itself was in no way tampered with. It was simply removed from the meter housing (owned by the homeowner) and safely returned to DTE.

The utility objected that the meter the couple installed was not an approved device. The couple responded that DTE was welcome to replace it at any time with an analog meter of their own specifications. The utility responded with threats and repeated attempts to re-install the smart meter. The Stenmans believed they had no choice but to notify the utility that any access to their meter would have to be by appointment only and under supervised conditions. The result was that DTE sued the Stenmans seeking, among other things, an injunction that would command the couple to allow DTE installers to enter upon their property for the purpose of re-installing the smart meter.

The lawsuit was heard by Oakland Circuit Judge Rudy Nichols in the fall of 2012. The couple wound up representing themselves after approaching a number of attorneys who refused to take the case, stating either that it was hopeless to go up against a utility or that DTE would bankrupt them if they took the case. A preliminary hearing was scheduled with DTE asking for a summary judgment.

In preparation for that hearing much research was done on the law to determine what sort of evidence the couple would need. Michigan Stop Smart Meters provided assistance. The couple filed a formal response to the suit, explaining why the smart meter had to be removed, and providing an affidavit from a doctor that an identical smart meter installed on another home had caused severe illness. Also presented was a government document explaining how these meters would invade privacy and that they should be installed only with consent of the homeowner. The couple fully expected that this preliminary evidence would be enough that the judge would schedule a trial. Instead, in December of 2012, the judge granted DTE a summary judgment with no opportunity for the couple to present any further evidence.

Judge Nichols stated in his decision that the Stenmans had not met their burden to present evidence showing that, if a trial were held, they had a reasonable chance to prevail. Yet another Oakland Circuit Judge had heard an identical lawsuit by DTE against another couple a month earlier, been presented with the identical evidence, and found that evidence sufficient to warrant scheduling a trial. Judge Nichols also ignored the fact that DTE had not presented any evidence that their smart device had ever been authorized by either the legislature or the Michigan Public Service Commission. The law is clear that a summary judgment is only legal when there are no material facts in controversy. The law is also clear that any ambiguity in the factual situation must be resolved in favor of the non moving party – in this case the Stenmans. Judge Nichols decision was clearly contrary to law.

An appeal was filed. The Stenmans filed their appeal brief without benefit of an attorney. The wheels of justice turn slowly. It took from December of 2012 until June of 2015 for oral argument to be scheduled. The Stenmans finally found an attorney to represent them at the oral argument. Some of you had the opportunity to hear that.

On July 15th a decision was finally issued that upheld Judge Nichols’ decision in all respects and provided no relief to the Stenmans. In reaching this conclusion the Court of Appeals found that:

  1. That even though the burden of proving the necessary elements of a complaint always (by law) falls on the plaintiff, that burden can be cast, when convenient, upon the defendant.
  2. That, although DTE had never presented any evidence, or even an assertion, that their smart meters were lawful, these meters were nonetheless lawful.
  3. That, even though the Michigan Public Service Commission (MPSC) had no jurisdiction to tell a privately owned utility what kind of meters to use(*), the MPSC nevertheless had the authority to authorize the new smart meters, and the utility could rely on that authority to force installation of the new meters.
  4. That, even though a private utility is required to have its rules and conditions of service approved by the MPSC, and no such approval had actually been given for the utility to make smart meters a condition of service, that the utility could, nonetheless, mandate smart meters.
  5. That, even though the MPSC has consistently refused to hold any evidentiary hearings on the possible health dangers of smart meters, they were entitled to conclude, as a matter of law, that health effects of smart meters are negligible.
  6. That, even though the “opt-out” plan offered by DTE allows nobody to avoid having a smart meter and was not even an available plan when the Stenmans resorted to self help, this plan is cited as one of the reasons Judge Nichols was justified in his ruling.
  7. That even though there is no practical alternative to DTE service for most people in southeastern Michigan, nonetheless being a DTE customer is “voluntary”.
  8. That even though evidence was provided the court that an identical smart meter had made a child severely ill, this did not constitute evidence that it might endanger the lives of an elderly couple.
  9. That even though the issue of the “opt-out” plan being an opt-out in name only was fully discussed in the Stenmans’ original pleadings before Judge Nichols, the Court of Appeals finds that this issue was not raised in the trial court.
  10. That, although the Stenmans provided an official publication of the U.S. government in which the National Institute for Standards and Technology concluded that smart meters will violate the privacy of homeowners wherever they are installed, the Court of Appeals finds that such concerns with privacy are merely “conjectural and hypothetical”, and that there has been no showing of “actual or imminent harm”. Therefore the Stenmans “have no standing” to raise the Fourth Amendment issue.

Whether one reaches this point fully represented by an attorney or reaches it through one’s own efforts makes little difference in the end.

What we see in this Appeals Court decision is not respect for or observance of law. What we see is a politically motivated decision based on the idea that nothing should get in the way of the smart grid agenda. Or that nothing should get in the way of powerful interest groups.

This is not to say that our legal system is hopeless or that we shouldn’t try to defend our rights through lawful means. Not every panel of the Court of Appeals will be as unreasonable as this one, and not every trial judge will be as unreasonable as Judge Nichols.

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* Another panel of this same Court of Appeals so ruled in March, 2015 in the case of Cusumano v. MPSC.

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Dr. David O. Carpenter to Testify Against “Smart Meters”
in Utility Rate Case
before
Michigan Public Service Commission.

David_O_Carpenter_from_the_University_at_AlbanyDr. Carpenter’s position is that the current smart meter technology
poses health risks both because of the microwave radiation and
because of the low frequency “dirty electricity” these meters put
on the wiring of homes and businesses.

Cross Examination of Dr. Carpenter
Michigan Public Service Commission
7109 West Saginaw Highway
Lansing, MI

Monday July 6th, 9 AM

Dr. Carpenter is currently Director of the Institute for Health and the Environment, State University of New York at Albany. He has published some 350 papers in peer reviewed journals.

We would like to see as many as possible attend the above
hearing before the administrative judge to show support for
Dr. Carpenter and for the testimony he is providing that will
be so helpful to our cause.

Directions from Detroit area: Follow I-96 from Detroit to Lansing and continue up the west side of Lansing, then exit to Saginaw Highway
and proceed
about 3 blocks east.

If you care about putting the brakes on this harmful technology, consider making a donation of $100, $50, $25 or whatever you
can afford to cover Dr. Carpenter’s travel expenses.

The doctor is, apart from reimbursement of out of pocket expenses, receiving no payment for his testimony. It is costing about $1,000
for air fare and rental car to bring him to this hearing.
This money
has been advanced by
Michigan Stop Smart Meters. Any money
raised
in excess of these travel expenses will go toward our ongoing
legal efforts and toward cost of
travel to put on smart meter
lectures
all over the state.

Please send contributions by check or money order to:

Michigan Stop Smart Meters
215 West Troy #4004
Ferndale, MI 48220

 

 

Link

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.

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February 16th, 2012 – Representative Tom McMillin (R) of Rochester introduced today, along with 8 co-sponsors, proposed smart meter opt-out legislation in the Michigan House of Representatives.  The bill, known as H.B. 5411, contains a whole series of prohibitions against the electric utility companies of the state with regard to what are termed “advanced meters” and directs the Michigan Public Services Commission (MPSC) to enforce these prohibitions.

The bill prohibits any such utility from (a) requiring a customer to accept an “advanced meter”, (b) from refusing to remove one if already installed, or (c) from “imposing any disincentive on a customer for not accepting the installation or use of an ‘advanced meter’.”

For those customers who do accept an “advanced meter”, the bill would prohibit the utility from collecting data from the meter more often than once per month “unless requested by the customer”, and would further prohibit the giving of “any meter use data from an advanced meter to any person other than the utility.”

The bill has been referred to the Energy and Technology Committee.  We are hopeful the Committee will, after due consideration, forward this bill to the full House for an up or down vote.  If the bill should survive all hurdles and become law, we think some powerful protections will have been put in place to protect the property rights and the Fourth Amendment privacy rights of Michigan homeowners.  We very much appreciate the effort Tom McMillin has put forward to get this bill drafted and to muster the support of so many of his colleagues to co-sponsor.

A provision we would very much like to have seen in this bill would be a “community opt-out” as well as an individual opt-out, at least for those communities where smart meters have not already been installed.  The issue is that an individual who opts out only gains partial protection from the possible electro magnetic effects upon his or her health.  He is still immersed in a sea of such radio radiation produced by all the smart meters of his immediate neighbors.  Only a community opt-out, or a statewide ban, would provide real protection against layering more and more radiation on homes that are already bombarded with radio and tv signals, cell phone tower radiation, and WiFi radiation from all the homes in the area.

Two other provisions we don’t see in the bill are a mandate that the MPSC conduct a proper investigation of the health effects of the meters, or a moratorium on further installs pending the results of such an investigation.  We know that the current investigation by MPSC has, despite the pleas of nine city governments, been designed to exclude health effects and to make no provision for halting or slowing ongoing installations.

The bill defines what “advanced meter” means.  We would like to have seen a definition that would encompass all the variations of ‘smart’ metering that a utility might install – so that the utility not be able to escape the requirements of this proposed law just by, for example, turning off the radio feature, while still tracking granular usage data to be uploaded by different means.  We are recommending that a definition be made that is more along the lines of that published by the U.S. Department of Energy (DOE).

Still this bill is a start – a big first step.  Our hats are off to Rep. McMillin and his eight Republican colleagues who co-sponsored.  They seem to have focused on the property rights and Fourth Amendment issues. We do not see smart meters as a partisan issue, however, and would hope that Democrats in the House might introduce their own proposal that would broaden the final legislation to include more focus on the health effects and possible remedies for that.

To read the actual proposed legislation, click here.

MPSC SLEIGHT OF HAND

Aside

January 26, 2012, Revised February 3rd Sadly we must report that our earlier optimism concerning the investigation of ‘smart’ meters by the Michigan Public Service Commission (MPSC) may not have been warranted.  We thought there was hope they would give us a fair and transparent review of our smart meter complaints.  After all nine city governments had asked for a proper investigation and eight of those governments had specifically mentioned they wanted the health effects thoroughly considered.   Health effects have been a big part of the public uproar.

Yet a careful re-reading of the Commission’s Order of January 12th indicates that health effects were not included in the list of issues to be considered.  And we think we have discovered the reason for this.

The Commission actually defines the scope of its Order by the way in which it summarizes the concerns expressed by the nine city governments.  Instead of an accurate restatement of what the cities are all asking for we see this curious language: “investigate the safety of the physical attachment of a smart meter to a residential dwelling house”.  None of the nine city governments used such a phrase.  Rather nearly all of them had specifically asked for a review of the “health and safety” issues related to smart meters.  The use by the various cities of both the words “health” and “safety” clearly indicates that, in the minds of city officials, these two words mean two different things.

The directions in the Order to the various utilities, and to its own staff when preparing the final report, refer back to the issues as (inaccurately) phrased in the summary of what the cities requested.

(The above two paragraphs were added at the suggestion of one of our members to add additional clarity)

Nearly all of the nine city governments also asked the Commission to put a hold on any further deployments until the Commission could complete a thorough review.  But there is no hold – and the utilities have made it plain they are going forward full speed.  By the time this investigation winds up in June DTE alone might well have installed another half million meters.  If the Commission thought there was any real chance they were going to find the privacy or safety protections inadequate would they not want to prevent any more damage being done until their investigation is complete?

The key to why health effects were excluded from the present study we think is to be found in a study the Commission ordered from its own staff last summer culminating in a report dated August 3rd, 2011.  The report was titled “REPORT ON THE IMPACT OF RADIO FREQUENCY EMISSIONS FROM SMART METERS”.  A link to the full text of that report may be found at the end of this article.

The report concludes with the statement “Staff has concluded that RF emissions from smart meters have been shown to be in compliance with FCC standards and these standards are sufficient to protect people from potential adverse health and safety effects.”  Since the Commission has already made up its mind on this issue they apparently believe there is no point revisiting it now.

The report states “Commission staff chose to include publications from sources it considered to be the most credible.”  This turned out to mean only 6 sources and 2 of those were industry trade associations whose bias is well known. Another failing of this report was that the staff people involved were evidently unwilling to sign their names to it.  This is an issue of responsibility and accountability.  It also means that the public has no way to judge the particular qualifications of the people making these judgments about which sources are “credible” and which are not.

Though there is a rich literature of respectable scientists who have published in professional journals against electromagnetic radiation at non-thermal levels, the staff chose to ignore all of these.   Two of the non industry affiliated sources used  – the World Health Organization (WHO) and Lawrence Berkley National Lab made cautious statements indicating that the possibility of non-thermal health effects could not be ruled out and merited further study. WHO moreover classified electromagnetic radiation as “possibly carcinogenic to humans.”

Staff’s conclusion includes the words “and safety effects”.  A careful reading of their entire study would show that the question of safety – to the extent that includes issues other than the health effects – was nowhere addressed at all.  A proper consideration of safety effects might include the risk of meters starting fires and the risk that the radiation from the meters might interfere with pacemakers or other sensitive medical equipment.

But there is yet another aspect of this report that is troubling.  The introduction stated that the report was “written in response to health and safety questions from the public concerning RF emissions from wireless smart meters.”  Yet the report was never released to the public, or to those of us who had raised the health and safety questions, nor was it posted on the MPSC’s own website.   We were not aware that staff was working on any such study at the time it was taking place and there was certainly no opportunity for input to the process, or for challenging any of the sources used.

This was in no way an open or transparent process.  The only reason we are in possession of the report now or even know that a report existed was because DTE provided it to the City of Madison Heights recently and the city put it on their public website.

So where does that leave us?  The Commission has now laid out an open process, but that process is to exclude health effects and there will be a powerful temptation to not find any privacy faults in the system because so much money will have been expended already.

Finally the Commission is calling into question its own jurisdiction and its own expertise, implying that it will almost certainly defer to the industry and issue no order that will change anything at the end of the day.

We strongly suspect that unless we can find some way to get the courts or the legislature to intervene, that nothing good will come from this investigation.  We understand that State House Representative Thomas McMillan(R) of Rochester Hills is drafting opt-out legislation.

To read the full report of Commission staff from last August, click here.