By David Sheldon*
July 15th, 2015 Update: The outrageous decision of the Michigan Court of Appeals in the Stenman case (discussed elsewhere on this site in detail) means that, at least until that decision is successfully appealed, or the legislature passes a new law, the law regards the “smart meter” as a lawful meter and the utility customer can have his or her electrical power shut off for refusal to permit its installation, or for resorting to self help in removing a smart meter already installed. It is still possible to challenge the applicability of this law to your self under some conditions. Bear in mind this will not be an easy course. You will be regarded initially as having at least violated the terms on which customers can have electrical service. If you removed a smart meter you may also be accused of “meter tampering.” Either way your power will likely be shut off. You will then have the choice of either giving in to a smart meter installation or the burden of suing the utility to get your power restored. You will then likely be required by a trial court to either prove that you suffered actual (not hypothetical) damage from either a privacy invasion or from the health effects of a smart meter. These are not things that many customers will be in any position to prove or that any customer should have to prove If you cannot make these proofs your only chance will be to appeal your case all the way up to the Michigan Supreme Court and try to get the doctrine laid down in the Stenman case reversed. In the meanwhile we continue to work for legislation that would reform all this.
First we must acknowledge that DTE or Consumers ‘smart’ electrical meters, and the question of whether they may be refused or removed by the customer, present a novel situation for which there is no clear or simple answer that may be found in a statute or in the workings of the courts to date. So far there have been 2 test cases of this very issue in the Oakland County Circuit Court. One judge ruled against DTE. The other judge ruled for DTE. Both cases are now on hold pending appeals to the Michigan Court of Appeals. However there are some controlling legal principles that can give us a pretty good idea how the courts will eventually rule.
1) The common law right of any private property owner (residence or business) to control access to his property and to bring a civil tort action for trespass against anyone entering property or taking actions while on the property without permission. This right applies except to the extent the property owner has given an easement or right of access to a utility. But utilities such as DTE or Consumers must be acting within the terms of their easement in order to be exempt from a trespass action.
2) The right of access all Michigan utility customers give utilities, as a condition of receiving electrical service, the right to install a “meter”, to read that “meter” and to inspect it, repair it or replace it as the utility deems necessary. The utility installs a “meter”, which remains the property of the utility, that plugs into the customer’s meter socket. There is a regulation of the Michigan Public Utilities Commission (MPSC) that a customer must give this right of access as a condition for receiving electrical service. There is also an MPSC regulation that permits a utility to shutoff power if denied this access.
3) The word “meter” has a precise legal meaning – both in state law and in the regulations of the MPSC. Both the law and the regulations mentioned above define an electric meter as “a device that measures the integral of the electric power consumed over a time interval (kilowatt hours)”. A utility, therefore, cannot honestly claim that it is merely exercising the rights of access that are a condition for receiving service when it is installing a device which goes way outside the definition established by law. The lawful definition of meter does not include a radio-transmitting device or a surveillance device or a device by which a utility may remotely turn off power to a home or business. A utility is likewise not exercising the rights provided to it by MPSC regulations when it installs in your meter socket a device which actually is a relay station by which the utility can monitor individual appliances within a home or send commands to turn off those individual appliances.
4) The “smart meter” device DTEand Consumers Energy are installing on millions of homes and businesses does not meet the definition of meter. Accordingly we believe that DTE and Consumers Energy do not have a right of access to install such a device on a private home or business. For it to do so without explicit approval from property owners constitutes trespass and we believe could be subject to a civil lawsuit seeking money damages and/or an injunction to prohibit the illegal conduct.
5) The statute that created the Michigan Public Service Commission (MPSC) charged that commission with the responsibility to assure safe delivery of electric power to the public. In the face of enormous evidence from scientists all over the world that smart meters damage the health of the public, the MPSC has so far refused to exercise its responsibility to conduct hearings and take evidence concerning these health complaints.
6) There is also a felony surveillance law passed by the legislature that prohibits the attaching of a “surveillance device” to any home without the homeowner’s knowledge and consent. The term “surveillance” is very broadly defined so that it would clearly encompass tracking detailed electrical activities within the home. There is no exception in this law that would exclude utilities from its scope. The National Institute of Science and Technology has issued a privacy report in which it has labeled smart meters as surveillance devices. The head of the CIA has publicly stated that the government will use smart meters to spy on people. Yet we see no example of any prosecutor bringing felony charges against DTE or its employees for doing precisely what the law forbids.
7) In order for DTE to be able to make the ‘smart’ meter device a condition of service, they would need the MPSC to revise existing regulations that specify what the conditions of service are. The MPSC would have to expand the definition of ‘meter’ so as to encompass the functions of a smart meter. Revising these regulations necessarily must follow the Administrative Procedure Act of 1969, which in turn gives a joint committee of the State House and Senate the power to veto any proposed regulation. The MPSC has not made any effort to get such revised regulations on the books. Instead it has taken the illegal course of declaring that it “will not interfere with a utility’s business practices”, in direct violation of its own charter.
8) In order for DTE to make the ‘smart’ meter device a condition of service, they would also need to persuade the legislature to modify the existing felony surveillance law so that it does not apply to utilities. And they would need to persuade the legislature that there is no need for the MPSC to conduct any hearings on the health issues of the new meters.
9) Even if the MPSC were to change both the surveillance law and the definition of ‘meter’ (with the acquiescence of the joint legislative committee) the new definition would be subject to challenge on Fourth Amendment grounds. Recent decisions of the U.S. Supreme Court make it clear that if a government agent were to attach a ‘smart’ meter to a private home without consent and without a valid search warrant, the high court would view that as a Fourth Amendment violation. In order to apply the Fourth Amendment to the actions of a privately owned utility we must show that the utility is a “state actor” because its actions, specifically with regard to smart meters, are being orchestrated by both the federal and state governments, both of whom will have access to the data these meters collect. Federal and state governments are effectively doing an end run around the warrant requirement of the Amendment by having a private monopoly utility do their dirty work.
10) A regulated public utility in Michigan may not arbitrarily deny service to a customer, except for cause recognized in duly promulgated regulations of the MPSC. Where the utility cuts off power to a customer solely for refusal to accept a “smart meter”, the utility has become an outlaw because the regulations do not empower it to make a smart meter a condition of service. In this situation the customer would have a civil lawsuit for “denial of service” and could seek as damages whatever costs have been sustained by the failure of the utility to provide service as required by law. The customer could also seek a court injunction commanding the utility to restore service.
11) When a utility seeks to force upon its customers installation of a device to be attached to their homes and businesses that is NOT a “meter” as that term is defined in law, and which IS a ‘surveillance device” as that term is defined in law, the utility has violated the terms of service which was laid down by state law and by the MPSC through its duly promulgated regulations. The utility has become an outlaw. The question then becomes this: If the utility will not obey the terms of service established by lawful process, and the agency charged with regulating them will not enforce those terms of service, and prosecutors will not prosecute under the state’s felony surveillance law, what options then remain to the utility customer?
(a) Seek redress by filing a civil suit seeking an injunction to prohibit the illegal conduct complained of.
(b) Defend his or her home in the meanwhile by revoking the utility’s free access to replace the existing analog meter.
(c) In the case where an illegal device has already been installed by the utility, remove the offending device and replace it with a lawful meter.
As noted in the beginning of this article, we are faced with a novel situation where the law is far from clear. We already have 2 test cases in the circuit courts, one of those on appeal, and will no doubt need to bring other test cases before the law finally becomes settled. We currently have 5 smart meter cases from the Public Service Commission pending before the Michigan Court of Appeals.
* The author is not an attorney but has represented himself successfully in a number of cases in federal and state courts. The reader is encouraged to seek the advice of his own attorney before choosing a course of action.