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SEPTEMBER 18TH, 2018 – TWO CAUSES THAT MERIT YOUR MOST URGENT SUPPORT!  Readers of this blog are aware of the harms that can be caused, both by smart meters and by the coming onslaught of 5G cell towers. We have meter choice legislation, Michigan House Bill 4220 before the House Energy Committee and must get the facts out to a much greater population if we are to finally get this passed in this legislative session. The most effective way to get the word out is with our 1 minute radio ad that is already playing on many Michigan radio stations. But funds are needed to continue this very effective program.  Click HERE to donate!

Meanwhile telecom companies are trying to get two bills passed, Senate Bill 637 and Senate Bill 894, which would fast track a massive installation of new 5th Generation cell towers and strip local governments and property owners of any say over the location of these towers. These bills have already passed the Michigan Senate and are to be heard before the House Energy Committee on October 4th. Many of us are working very hard to bring in experts who will back us up on the harm these new towers will cause. But money is needed to fly these experts in. Without funds we won’t be able to match the experts the telecom industry will produce.  Click HERE to donate!

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Nanci Rose Gerler
Pinckney, Michigan

January 29, 2018

All Members of Michigan State House of Representatives, Energy Policy Committee

RE: Energy Committee hearing of January 30, 2018 and MPSC Case U-18486 Investigation into DTE Shut-Offs

Dear Energy Policy Committee Member,

In your investigation into violation of shut-off protocols by DTE: The scope and breadth of audacious mendacity, cruelty and brutality by a corporate monopoly turned tyranny, will spawn a “me, too” response far greater than the Flint Water Crisis and Larry Nasser scandals. For the beleaguered customers subject to their atrocities, there has been no satisfactory response or recourse from DTE nor the MPSC, whose “service to the public” is illusory. Complaints and entreaties to the corporation yield no results, only perpetuation of the standardized lies they portray as “truth” through repetition. The MPSC serves as defenders and enablers of DTE, echoing the programmed responses provided to them to the degree that MPSC staff sound exactly like DTE employees.

The MPSC has diffused and refused legitimate complaints of outrageous and egregious actions against consumers with responses like “We regulate rates, not business practices”. Personal and anecdotal experiences recount unjustified and retaliatory behaviors by DTE more often associated with organized crime syndicates and fascist governments than “standard business policies”.

Customers who object to the installation of the misnamed smart meters for many of the justifiable reasons (such as threats to health, safety of home and property, privacy, security, accuracy, and excessive costs) are subject to heinous treatment. The experiences of residents of the Glennbrook Beach Association (GBA), located in the Pinckney Recreation Area in northwest Washtenaw County, illustrates the extreme measures DTE has used to suppress opposition.  Upon notification in July 2016 of the forthcoming AMI installation, over three quarters of the forty homeowners sent a polite certified letter to DTE, requesting to retain their analog meters (as allowed by Consumers Energy). The majority of homes in this small private lakeside enclave are seasonal summer homes or cottages with some structures almost one hundred years old, which are surrounded by a land conservancy and state land. Generations of families have lived here and the majority of residents are elderly retirees on a fixed income, who wished to retain the pristine nature of their long time community environment, without the interference and issues of a wireless mesh network.

A standard form letter sent by DTE was the only reply. Residents posted legal notices, and in some cases locked meters as the only prevention to unwanted installation. In early 2017, DTE cut off locks to six homes and installed AMI meters with no notification to the residents. Phone calls of protest to DTE were ignored. On July 24, 2017 everything changed, when the GBA was subject to a military style tactical operation by DTE, deploying a convoy of ten DTE, contractor and private security vehicles to storm the private community. Power was cut at the pole to over a dozen homes of customers paid current, most of whom had received no communication from DTE since the aforementioned form letter almost a year prior. This orchestrated maneuver was staged and documented with photographs by rude and intimidating workers who thrust letters into hands or onto homes – the first notification of shut-off most residents had received. All this occurred while over 80,000 regional DTE customers still awaited power restoration after a high wind-event the previous night. This indicates a gross misallocation of resources and priorities.

Residents were shocked and traumatized by the callous cruelty of the workers who took obvious delight in cutting power, water and sanitary capacities. (GBA is on a well and electrical grinder sewer system). Scrambling to restore power, residents faced excruciating long waits on the phone (often 1.5 to 3 hours). All affected residents ordered the ‘opt out’ meter but many were informed that ‘opt outs’ were “out of stock, back ordered, unavailable for 3 to 4 weeks”, or it was “too late and they had to accept a ‘smart meter’ to have service”. However, when the DTE installer arrived the next day, he had both standard and ‘opt out’ meters for orders placed, and acknowledged that ‘opt out’ meters are ‘smart meters’ with the radio turned off  – which could be programmed on-site or remotely.

DTE’s rationale for the illegal power shut-offs was that “locking devices on meters posed health and safety hazards to the customers and neighbors”. The DTE installer proceeded to affix tamper proof locks on utility boxes (homeowner property) accessible only by DTE. This refutes DTE’s justification as spurious while imposing genuine health, safety and sanitation hazards on hapless residents without electricity, water & sewer for 2 to 8 days.

DTE’s ‘shock and awe’ strong-arm tactics forced the remainder of the residents into compliance, to avoid unwanted and unwarranted shut-off. The use of “hired goons and hired guns” (contractors and security) is never justified, especially when no aspect of the five-step process for standard shut-off protocol was adhered to.

To add insult and injury, within six days of installation my ‘opt-out’ meter was intentionally re-programmed to operate as a radio transmitting ‘smart meter’. As an extremely electro-hypersensitive individual, I experienced immediate negative health symptoms, which alerted me to the change. A neighbor confirmed that she had seen a DTE vehicle on the property the day prior (a Sunday afternoon), when there were no new orders pending. DTE did not change the meter out for six weeks, during which time both myself and my cat were debilitated by serious illness and symptoms caused by the transmitting meter. My cat’s vomiting ceased as soon as the meter was replaced with a new ‘opt-out’ meter, but he had lost one third of his normal body weight. I also lost weight due to constant nausea and sleeplessness, and it took months to recover from symptoms.

Another resident’s ‘opt out’ meter was fully defective, never registering a kilowatt since installation. This resulted in extremely high estimated bills that bore no relation to years of usage history. Hours of phone calls and emails yielded nothing but frustration and aggravation, with threat of service shut-off for non-payment of inaccurate, bloated bogus bills. He was charged $9.99 in advance for a service call to diagnose the defect. After several calls and several days, the installer did not show up for several scheduled appointments. When he finally arrived he did not have the diagnostic device necessary and simply switched to a new meter. The billing situation was unresolved by the time the seasonal resident left, because of DTE’s “continuing computer billing issues”. Immense time and energy was expended over a defective meter that was unwanted and unneeded, since such problems had not occurred with his long time analog meters.

None of the initial customers who were refused ‘opt-outs’ received them. Others who called to order them were forced to leave a message with no subsequent response or follow up. Residents have concluded that DTE is the worst company they have ever dealt with, yet have no recourse due to the state imposed monopoly. This situation allows DTE to exploit, abuse, and extricate unjustified monies from their captive customers – as exemplified by the extortionary fees charged for the ‘opt-out’ meters. Customers have the right to read and report their own meters but must pay to have them read by contractors who drive their own vehicles, and whose meager compensation in no way justifies the $9.80 monthly fee.

As long-standing paying customers who denied consent to install a new meter, we were subjected to bullying, intimidation, trickery, harassment, trespassing, destruction of property, and unjustified shut-off. Since ‘smart meter’ installation, other residents and their companion animals have experienced debilitating health effects – one dog and two cats have subsequently died.

DTE must be held responsible and accountable for their numerous transgressions against the paying public, who deserve redress and remuneration for the difficulties caused by the improper shut-offs, which constitute abuse by the utility. The report recently submitted to your committee by DTE is a work of fiction created by these masters of mendacity, and must be independently investigated and verified. As a former Ann Arbor resident who has dealt with DTE over these issues since 2012, I can attest that they lie and deceive with consistency, ie “that’s my story and I am sticking to it”.

The abusive conduct endemic to DTE necessitates the passing of bill 4220 to provide analog meter choice and protect the rights, health, safety and financial well being of DTE’s customer base (never a priority to DTE). Governed by greed and need for excessive profits, their $30 billion net worth allows them deep pockets to influence media, MPSC and politicians. The threatening and intimidating non-protocol shut-off letters (received after the fact), referred customers to call a phone number – which is the hot line to report energy theft tampering or fraud – falsely implying wrong-doing on the part of the customer.

Please use the power vested in you by the people to censure and penalize DTE, and compensate injured parties. Grant the freedom of meter choice to the citizens that elected you by representing their interests, over those of the self-serving monopoly utility corporations.

Respectfully submitted,

Nanci Rose Gerler

 

Radio Ads Will Now Support Meter Choice

WE NEED YOUR SUPPORT TO MAKE THIS HAPPEN!

October 7, 2017 – FUNDRAISER TO PAY FOR NEW RADIO ADS!

Utility Meter Choice 4 Michigan will sponsor new ads

Food, Fun and Fall (of the Smart Meter)…
as in their DEMISE!

Catered by Franks, etc. This Truck Cooks!

WhenSaturday October 7th, 2017 11:30AM to 2:30PM

Where: The Garaj Mahal,
1842 Commonwealth, Auburn Hills, 48326

Hosts:  David Lonier and Glenna Long  248-373-9111

Purpose: To raise money to buy air time for our Radio Ad informing the public about the dark side of Smart Meters.

Food & soft drinks are free.  Catering donated by Franks etc.

Soooooo…

Please give generously that the truth about smart
meters can be heard far and wide!

The radio ad will play in districts of Energy Committee
Members who are blocking Meter Choice.

Latest word is that some of our
legislators may be in attendance.

 

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by David Sheldon

September 17th, 2017 – WE NEED HELP!  Michigan Stop Smart Meters has been working for more than 6 years to fight the forced installation of ‘smart’ utility meters by Michigan’s two largest utilities.

In 2015, when we brought in world renowned expert, Dr. David Carpenter, to testify before the Michigan Public Service Commission, we appealed for your financial support and many of you gave generously to make that event happen!  We are now at a juncture where there is much more to be done and we cannot do it without your support!

Our efforts to date have been in the political, educational, legal and regulatory arenas, and has resulted in much media coverage. Our efforts have also had much to do with the introduction of several bills in our legislature designed to protect utility customers – including the Opsommer bill, the McMillin bill and, most recently, the introduction of House Bill 4220 by current Michigan House Energy Chairman Gary Glenn.  But now we need to make a full court press to see that this bill is passed on by the Energy Committee to the full House. This will involve radio ads, print ads and extensive flyering. There are also some legal battles in the works. With your support we can do a lot. Without such support we cannot.

OUR ACCOMPLISHMENTS SO FAR!
We at Michigan Stop Smart Meters have, in concert with others, been struggling for more than six years now to raise health, safety and privacy issues with respect to so called “smart meters” now being deployed by DTE on the east side of state, and by Consumers Energy on the west side.

OUR POLITICAL WORK: In concert with others we petitioned city and county governments to endorse our cause, put on special PowerPoint presentations before city councils and got the backing of 34 local governments.  This resulted in a sham MPSC investigation, but also led to the introduction of three proposed new meter choice laws – the Opsommer bill, the McMillin bill and now under consideration House Bill 4220, also know as the Glenn bill.  It also led to the spectacularly successful hearing before the House Oversight Committee on December 2nd, 2014 and a series of hearings before the House Energy Committee in 2017.

OUR EDUCATIONAL WORK: We sponsored this website and public educational meetings in Allen Park, Cheboygan, Clinton Township, East Detroit, Detroit, Ferndale, Fraser, Grand Blanc, Grand Rapids, Holland, Midland, Muskegon, Parchment, Plymouth, Rochester, Romeo, Romulus and Taylor   We have been interviewed by Macomb Daily, Oakland Press, Detroit News, Hometown Newspapers, by Holland radio’s “Talk of the Town” program, by Fox17 News in Grand Rapids, by Channel 13 in Grand Rapids and most recently this year by Guy Gordon on WJR Radio and by WXYZ TV.

OUR LEGAL WORK: We closely followed and supported two cases in Oakland Circuit Court where Detroit Edison had sued local couples who changed their own meters when they became ill and could get no relief from the utility.  In one of the cases the couple had suffered an unjust decision early on from a circuit judge and was in need of our help to mount an appeal. We provided that help. That was the Stenman case and is reported elsewhere on this website. In the other case the couple needed some initial assistance at the circuit court level, but the case ultimately settled without an appeal. We also assisted the Cusumanos in appealing the DTE ‘Opt-Out’ Plan. We assisted some residents of the Muskegon area in mounting a 16 person appeal of the Consumers Energy ‘Opt-Out’ Plan. This was the case known as Rison et al. Our support won for them a preliminary ruling from the Court of Appeals that allowed the case to survive a Motion for Summary Dismissal. That in turn led to the group receiving a financial donation that enabled them to hire attorneys to finish the case. The case was ultimately joined to one brought by the Attorney General and the two joined cases resulted in a remand of the opt-out plan back to MPSC for a redo.

OUR REGULATORY WORK: In 2015 we intervened in DTE’s general rate case before the Michigan Public Service Commission. This case included a review of the details of the smart meter opt-out program as well as cost justification for the overall smart meter program in Michigan. As part of that case we brought in world renowned Dr. David Carpenter of the State University of New York to testify before the commission. That case is reported elsewhere on this website. Many of you contributed generously to cover the expenses of bringing Dr. Carpenter in.

OUR PLANS GOING FORWARD: Our focus right now is primarily on educating more citizens to demand of their elected representatives that they pass meter choice legislation, such as the current House Bill 4220, introduced by Energy Chairman Gary Glenn, with 16 co-sponsors, and supported on the Senate floor by Senator Patrick Colbeck who has launched a campaign to be Michigan’s next Governor. This educational campaign will require funds for intensive flyering in many districts, and for newspaper and radio ads. How successful we will be with this will depend very much on the generosity of our activists with this fund raising effort.

Other legal efforts are also under consideration, including:

(1) an appeal of a particularly egregious harassment by a Michigan utility of a woman whose very life was threatened by a forced installation of a digital meter. This is a case that could set a crucial precedent to help all those whose health is endangered by smart or digital meters.

(2) a possible Fourth Amendment, multi-plaintiff lawsuit in federal court to defend the rights of all Michigan utility customers who have been forced to take a smart meter or have their power turned off.

Again, how much we can do will depend on your generosity in donating to us at this time.

If you are angry at what DTE, Consumers Energy and their cronies in state offices are doing to Michigan utility customers, and you appreciate all that we are doing to fight these injustices, then PLEASE HELP US by donation or by volunteering your time!

click to Donate

Link

(Updated May 29th, 2017)

May 27th, 2017 – An Opportunity to Show Support for Chairman Glenn’s Efforts to Move Michigan Toward a Freer Energy Environment – We strongly encourage all smart meter activists who can to attend the hearing of the Michigan House Energy Committee on Tuesday May 30th at 9 am in the Anderson House Office Building, Room 519, at 124 North Capitol Avenue, Lansing. There is a parking ramp 2 blocks north of the Anderson building on Capitol Avenue.

Chairman Gary Glenn has arranged for two of the leading proponents of replacing some of the regulation with more competition in the energy markets. This program should be quite different from some of the industry and state government people who have testified up to now.

Smart meters are just one example of what happens when there is too much monopoly power. Utilities in Michigan are forcing us to take these unwanted meters while at the same time charging us some of the highest rates in the midwest and providing less reliability and fewer choices.

The experts Glenn is bringing in can provide competent testimony about what happens when utility customers have more choices:

Todd Snitchler is former Chair of the Public Utilities Commission of Ohio (PUCO). He was first appointed in 2011 by Governor John Kasich and served on that commission until 2014. He is now a practicing attorney. Under Snitchler’s leadership Ohio made major progress in moving its utility industry away from a highly regulated model toward more competition and innovation. A scholarly article discussing utility deregulation in that state with many citations to his contributions can be found here:

http://cua6.urban.csuohio.edu/publications/center/center_for_economic_development/ElectricityMarketsInOhio

Dr. Gary L. Wolfram, an adjunct scholar at the Mackinac Center for Public Policy, is a Professor of Economics at Hillsdale College. In 2015 he released his new study Improving Michigan’s Electric Utility Industry. In the study, Wolfram highlights inefficiencies in Michigan’s regulated energy sector and recommends that legislative action is needed to control costs, reduce pollution and improve outcomes. A discussion of his work may be found here:

http://www.micef.org/press/2015/9/17/hillsdale-economist-gary-wolfram-releases-energy-study-improving-michigans-electric-utility-industry-released-today

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Analysis of the Michigan Court of Appeals Decision
May 24th, 2017

by David Sheldon*

(This case illustrates the difficulties of fighting a utility in court over smart meters, particularly when there is
perceived to be judicial bias in our courts in favor of
large corporations. It is presented at this time in view
of the recent decision of the U.S. Supreme Court not to hear this case and to underscore the necessity for our present efforts to secure legislation to protect utility customers.)

NATURE OF THE APPEAL: The defendant’s in this case, Ralph and Donna Stenman, having experienced some health symptoms from installation of a DTE smart meter, and concerned about further damage to their health and loss of privacy, strenuously objected to the installation of the smart meter, asking for return of their analog meter. When DTE ignored their pleas, the couple went ahead and replaced the smart meter with an analog meter they had purchased. DTE brought suit against them, asking the Oakland County Circuit Court for a “summary judgment” against the couple. A court can legally make a summary judgment when there are ‘no material issues of fact’ that might require a trial to resolve.

The Stenmans interviewed several attorneys and were unable to find one willing to take on DTE. Accordingly they represented themselves in the original proceeding. They requested a jury trial. Circuit Judge Rudy Nichols granted the summary judgment, so that the Stenmans were denied any kind of trial or opportunity to develop their defense. An appeal was taken to the Michigan Court of Appeals, File No 321203, over the fact they had been denied a trial. The Stenmans again filed their own appellate brief. A reply brief and oral argument were presented for them by attorney Robert Igrasin. The appeals court, judges Patrick M. Meter, Mark J. Cavanagh and Kurtis T. Wilder, issued an opinion and order in favor of DTE on July 14th, 2015 and awarded DTE its costs and decided to publish their decision, which is now in all the law libraries as a precedent for similar cases in the future.

(1) STENMAN ARGUMENT ON METER DEFINITION – DISMISSED:

The Opinion of the Court: “In the trial court and on appeal, defendants assert that a “meter” installed by a regulated public utility may only perform the functions that it is authorized by law to perform, arguing that the smart meter installed by plaintiff violated the “lawful definition of meter’ ” because it was capable of performing functions other than measuring electricity use. However, based on the plain language of the definition of “meter” in R 460.3102(g), there is no indication that electricity-measuring devices that have radio transmitters or other additional capabilities do not constitute “meters.” … The mere fact that the definition does not expressly state that a meter with a radio transmitter still constitutes a meter does not indicate that a meter with such a feature is not included under the definition. … Accordingly, we conclude that reasonable minds could not differ in finding that the smart meter installed by plaintiff qualified as a “meter.”7

Comment: The Court is saying, in effect, that the definition of ‘meter’ that is in the statute does not preclude the forced installation of any device by a monopoly utility so long as that device is called a ‘meter’ and actually does, among other things, measure electricity consumed. There is, therefore, potentially no limit on what could be forcibly installed on a private home.

(2) STENMAN ARGUMENT THAT SMART METERS WERE NEVER AUTHORIZED AS A CONDITION FOR RECEIVING ELECTRICAL SERVICE – DISMISSED:

The Opinion of the Court: “First, there was no genuine issue of material fact regarding whether the smart meter installed by plaintiff was lawful under the definition of “meter” applicable to the relevant administrative rules and tariff. Plaintiff is a public utility that is regulated by the MPSC. With regard to the regulation of public utilities, MCL 460.6(1) provides:

“The [MPSC] is vested with complete power and jurisdiction to regulate all public utilities in the state except a municipally owned utility, the owner of a renewable resource power production facility as provided in [MCL460.6d], and except as otherwise restricted by law. The [MPSC] is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of public utilities. The [MPSC] is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of public utilities, including electric light and power companies, whether private, corporate, or cooperative . . . . [Emphasis added.]”

Comment: The court is arguing, in effect, that smart meters are legal as a mandatory condition for receiving electrical service because the MPSC made them so. But the panel in this case is conveniently ignoring a ruling of a different panel of the same appeals court, on February 19th, 2015, only five months earlier. In the earlier (unpublished) case, File No. 316728, consolidated appellants Kurtz, Edwards and Cusumano had argued that MPSC had erred in authorizing a type of smart meter “opt-out meter” that did not address public concerns about privacy and health. Appellants in that case had argued the MPSC had erred in authorizing this opt-out meter without allowing any evidence to be admitted concerning privacy and health issues. This was the court’s answer to that:

PSC has only the authority granted to it by statute. The PSC has broad authority to regulate rates for public utilities, but that authority does not include the power to make management decisions for utilities. … Apellants correctly point out that the PSC has no statutory authority to enable DTE to require all customers to accept an AMI meter, even if some customers choose to opt-out of the AMI program. However, no such statute exists because the decision regarding what type of equipment to deploy can only be described as a management prerogative.”

It seems to this writer that the Michigan Court of Appeals cannot have it both ways. If the earlier panel was correct that the MPSC had no jurisdiction over meter type and hence no obligation to allow evidence on privacy or health issues before approving DTE’s “opt-out” program, then the Stenman court cannot also be correct in ruling that DTE’s meter had been established as a lawful condition for receiving electrical service. Yet the Stenman court made no reference to the earlier decision, even though one of its judges had also been on the earlier panel. When one panel of the Michigan Court of Appeals overrules an earlier panel on an issue, there is a procedure for resolving the disagreement – a procedure not followed in this case.

(3) STENMAN OBJECTIONS BASED ON PRIVACY & HEALTH – DISMISSED:

Opinion of the Court: “Second, the trial court properly concluded that defendants failed to demonstrate a genuine issue of material fact as to whether their privacy and health-related concerns constituted valid affirmative defenses that excused or justified their actions related to the smart meter … In the trial court, defendants failed to provide any authority (emphasis added) in support of their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff. … “

Comment: The Court is saying, in effect, that it is not enough for a home owner to present evidence that a utility’s actions are in fact endangering privacy or health, but that these defendants, who were without an attorney in the original court, must also cite prior court precedents where it had previously been established that privacy or health concerns could be a valid reason for opposing a utility installation. This despite the fact that the utility (plaintiff) had not cited any court precedent that privacy and health concerns were NOT a valid basis for objecting to an installation. Nor did this court cite any precedent to establish that privacy or health concerns were irrelevant to a utility installation. Where there is no precedent for a legal principle a case is generally termed a “case of first impression” and does call for analysis, but none was done by this court.

“Furthermore, even if we assume, arguendo, that defendants’ privacy or health-related concerns constitute valid defenses to their failure to comply with the relevant rules and tariff provisions, defendants failed to establish the factual bases of those defenses. “ The party asserting an affirmative defense has the burden of presenting evidence to support it.” …

“In support of their privacy defense, defendants proffered a report prepared by the National Institute of Standards and Technology entitled Guidelines for Smart Grid Cyber Security: Vol. 2, Privacy and the Smart Grid (NISTIR 7628) (August 2010). Even assuming that this report constituted admissible evidence, see MCR 2.116(G)(6), this document does not demonstrate that the smart meter installed on defendants’ property posed an actual risk to defendants’ privacy; the report generally discussed the possibility of privacy risks related to smart meters and provided recommendations for entities participating in a smart grid. …

“In support of their health-related defense, defendants provided the affidavit of Dr. Hillman, discussing the health of a three–year -old child not involved in the instant case. The affidavit does not establish that the smart meter installed at defendants’ home operated in a similar fashion, emitted the same level of “electricity [that] permeat[ed] the house,” or caused similar health effects , and thus fails to be competent evidence that the smart meter installed on defendants’ property posed a risk to defendants’ health. Again, considering the evidence that was before the trial court, we conclude that reasonable minds could not differ in holding that defendants failed to provide a factual basis for their privacy and health -related defenses and, as a result, failed to demonstrate that a genuine issue of material fact exists with regard to the viability of those defenses.

Comment: The court is saying that it is never enough to show proof that a thing has harmed others or is generally acknowledged by experts to cause a risk of harm wherever installed. The court is saying that the Stenmans must wait until their health has actually been damaged or their private information has actually been sold to third parties before they can legally object to an installation (of a device never authorized by any statute and never mandated as a condition of service by our own MPSC)

(4) STENMAN OBJECTIONS BASED ON FOURTH AMENDMENT – DISMISSED:

Opinion of the Court: “Finally, defendants argue that plaintiff’s installation of a smart meter on their home constituted a warrantless search in violation of the Fourth Amendment. We disagree. … The United States and Michigan Constitutions guarantee every person’s right to be free from unreasonable searches. US Const, Am IV; Const 1963, art 1, § 11. However, in order for Fourth Amendment protections to apply, the government must perform a search. “[T]he Fourth Amendment proscribes only government action and is not applicable to a search or seizure, even an unreasonable one, conducted by a private person not acting as an agent of the government or with the participation or knowledge of any government official.” … defendants have failed to establish that plaintiff’s installation of smart meters constitutes governmental action for Fourth Amendment purposes. Even if the state and federal governments have advocated or incentivized, as a matter of public policy, the use of smart meters, there is no indication that the government controls the operations of plaintiff, an investor-owned electric utility, or that plaintiff acts as an agent of the state or federal governments. Accordingly, we reject defendants’ claim that plaintiff’s installation of a smart meter violated their Fourth Amendment rights.”

Comment: There were ample citations in the Stenman case to situations where the government aided and abetted a private actor to commit an action later held to be a Fourth Amendment violation. In this case the federal government provided 50% of the initial funding for DTE smart meters and the MPSC mandated Michigan utilities to participate in a “Smart Meter Collaborative” to plan for the implementation of smart meters in Michigan. This court simply did not want to go there.

SUBSEQUENT ACTIONS: Application was made for the Stenmans by attorney Don Keskey to the Michigan Supreme Court to hear an appeal, and that application denied on March 8, 2016. Application was made, also by Don Keskey, to the U.S. Supreme Court for a Writ of Certiorari and denied by that court on May 4, 2017.

The legal brief filed by the Stenmans can be found HERE.

 The decision of the Michigan Court of Appeals on this case can be found HERE.

 The conflicting decision of the Michigan Court of Appeals on the earlier, Kurtz, Edwards and Cusumano consolidated appeals can be found HERE.

 CONCLUSION: In view of this case, other utility customers wishing to fight their utility in court over a smart meter installation will have a hard road to travel. That doesn’t mean it is impossible, but any future case will need to distinguish itself from this case by rigorous presentation of evidence with the first filing or first response or by the time of a first motion hearing. A case in which actual harm, and not only hypothetical harm, can be shown conclusively, would have a distinct advantage. All that happened in this case also illustrates the importance of securing a legislative solution, as many of us are attempting to do now with Michigan House Bill 4220, sponsored by Representative Gary Glenn with 17 cosponsors.

 Text of the Glenn bill as originally introduced can be found HERE. A subsequent admendment was approved in committee that excluded water utilities from the bill.

 ************************************

* David Sheldon is not an attorney but has represented himself successfully in both federal and state courts.

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MARCH 14TH, 2017 – A THIRD HEARING ON THE METER CHOICE BILL AND A GREAT PRESENTATION ON ELECTRIC CHOICE BY THE MACKINAC CENTER FOR PUBLIC POLICY.   Because there had been concerns expressed by committee members about possible shifting of costs from opt-out customers to smart meter customers, today’s hearing in the Michigan House Energy Committee began with a special presentation by Richard Meltzer, a retired PhD statistical researcher and consultant to the U.S. Department of Energy. Dr. Meltzer had also participated as an intervener in the MPSC case U-17053, the case in which the present opt-out fees for DTE were determined. Key testimony included Meltzer’s assertion that the opt-out fees determined in that case were punitive, designed not to recover costs but to discourage opt-outs, and that DTE has been very selective in attaching certain costs to classes of customers while not doing so in other cases, in order to suit its own purposes. He provided specifics in the form of exhibits from the U-17053 case to back up his assertion that the net cost shift between smart meter customers and opt-out customers had been overwhelmingly in the direction of burdening the opt-out customers.

A decision was made to defer voting on the merits of the meter choice bill to allow more time to address concerns of some committee members. Rep Glenn offered an amendment to modify the text of HB 4220,  primarily to remove water meters from this bill thereby limiting this bill to energy utilities (electric and gas) that are regulated by the Michigan Public Services Commission. The definition of “traditional meter” was also improved to remove any ambiguity that “traditional meter” could mean anything other than an analog meter. The amendment of the bill’s text was approved unanimously, with understanding that a separate bill will be introduced for the smart water meters.

The Mackinac Center presentation, by Jason Hayes, was a plea for free market principles in the electricity markets. Examples were given that in states where electric provider choice was not capped at 10% (including Michigan between 2000 and 2008) electric rates were much lower than in states where there was no choice or choice capped. In the questions following this presentation Rep Kivella asked if Mr. Hayes believed it was appropriate for smart meter opt-out rates to be set at an arbitrary figure by this legislative committee of “largely non experts” or by the Public Service Commission. The response was that “just at a gut level I don’t like the idea of trusting a Public Service Commission except where you have to, and in this case, setting electricity rates you have to.” He indicated that he would prefer a market based setting of all rates but that the PSC is the system we have.

After the Mackinac Center presentation there were more public comments on the meter choice bill. Complete video of this hearing here.