The Smart Meter ‘Opt-Out’ Programs of
DTE Energy and Consumers Energy
By David Sheldon
Many of you will be receiving an ‘Opt-Out’ Notice letter from DTE Energy or Consumers Energy soon. The letter says if you don’t want a radio transmitting smart meter on your home you must sign up for their ‘opt out’ plan, thereby agreeing to let them put a “smart meter” aka “AMI meter” on your home with the “radio turned off”, and that you agree to pay both an initial fee and monthly fees indefinitely for this. The letter indicates that if you do not sign up for their plan they will put a fully functioning smart meter on your home. We think these ‘opt-out’ plans are a farce and a sham and, for most people, will not solve the problems for which an opt-out was requested in the first place.
But we think there is a third alternative not mentioned in their letter. If you still have your analog meter we think your best course of action is NOT to sign up for one of these plans. Instead, send DTE or Consumers a letter indicating that you are not signing up for their plan, but that you also refuse your consent for them to install a smart meter. To make this work you need to lock your analog meter and post a sign next to it saying that you do not consent to installation of any smart meter or “digital meter”.
In view of two recent decisions by the Michigan Court of Appeals (MCOA), some clarification is needed as to your legal right to defend your life and your home against these meters. See the newly added section “LEGAL BASIS FOR REFUSING AN ADVANCED METER” at the end of this article.
Detailed instructions on how to lock down your meter can be found elsewhere on this website. A copy of the DTE Notice letter and a form letter you can use to answer it can be found on this website.
It is possible that DTE or Consumers will begin billing you for the initial and monthly opt-out fees based on your refusals. If so we would recommend you pay those fees but pay them under protest. To not pay them would cause you to fall into arrears on your monthly utility bill and provide a pretext for the utility to terminate your service. Write a letter to the utility stating that you will pay the fees under protest, and write the words “opt-out fees paid under protest” on your bill stub and on your check. There will come a time when you may be able to join in a class action lawsuit to recover those fees.
If you already have a smart meter you may well have been waiting to see if there would be a real opt-out plan before making your move. Your best course of action will depend on how committed you wish to be in defending your life and your health. The preferred course of action is to send DTE or Consumers a letter demanding removal of the smart meter within 14 days and restoral of an electro-mechanical analog meter such as you had before the smart meter. Your letter should state that if the company will not remove the smart meter you will do it yourself, replacing it with an analog meter you can buy on the internet.
If you do proceed to purchase and install an analog meter we strongly recommend you have an electrically knowledgeable person do it. It is a 5 minute job but it could possibly be botched by someone unfamiliar with electrical things. It would also be a good idea to watch the Jerry Day video for pointers about this on freedomtaker.com
Two years ago, when the first two families changed their own meters, they were taken to court by DTE seeking an injunction to force the families to allow re-installation of a smart meter. In one of these cases the judge denied DTE’s motion for such an injunction and agreed to further consider the dispute after the appeals of MPSC rulings are decided. In the other case the judge granted the motion for an injunction but the injunction has proved to be unenforceable while the couple is appealing this case to the Michigan Court of Appeals. Both of these these families still have the analog meter they installed themselves and both still have their power on. Since then many families have changed their own meter without being taken to court and without loss of their electric service. Bottom line is that while there are some risks to changing your own meter those risks appear to be much less than we once thought.
A less desirable alternative, or ‘plan B’, would be to sign up for DTE’s opt-out plan. This will not protect your privacy nor will it eliminate all of the radiation, but at least this will eliminate some of the radiation. You can then consult with an emf abatement specialist to see whether special filters or other measures could be taken to minimize any remaining radiation.
When considering which plan best fits your needs, you will want to decide how important your health and your Fourth Amendment rights actually are.
LEGAL BASIS FOR REFUSING ‘ADVANCED’ METERS:
In view of two recent decisions by the Michigan Court of Appeals (MCOA), some clarification is needed as to your legal right to defend your life and your home against these meters.The appeals were of decisions made by the Michigan Public Service Commission (MPSC) wherein that agency maintained that it had no jurisdiction to tell a privately owned monopoly utility what kind of meters to use on private homes and businesses. Note that the MPSC did not make smart meters legal or make resistance to them unlawful. When the appeals court reviews an MPSC decision it limits its review to whether that agency made a mistake or not. It does not usually reach more fundamental issues as to the rights of the public. In these cases the MCOA held that MPSC was correct in concluding it had no jurisdiction over this meter issue. What the appeals court did not determine was whether the smart meters are legal or not or whether claims based on constitutional or property rights issues could be brought by individual utility customers. A detailed discussion of these appeal decisions can be found under our “Legal” tab.
We hold that the forced smart meter programs of DTE and of Consumers are illegal on their face. But that is a case that is yet to be won. It must be brought in one or more of the state’s circuit courts and ultimately reach the Michigan Court of Appeals again. But in this context the MCOA will have much broader jurisdiction to consider the legality and constitutionality of the whole program and not limit its inquiry to whether or not MPSC made a mistake in its ruling.
The case that needs to be brought in circuit court(s) is that the smart meter ‘opt-out’ programs of both DTE and Consumers are illegal because they seek to force smart meters on non-consenting customers and:
(1) The devices these utilities are installing do not meet the legal definition of ‘meter’ as that term has been defined by the Michigan legislature. This is no trivial matter. Homeowners and business owners have a right to control access to their property and what can be done on or to their property. These rights are protected by the law of trespass. The legislature created a conditional modification of these property rights when it made installation of a “meter” on the property a condition for receiving electrical service from a monopoly public utility. The legislature created this modification of property rights based on its understanding of what a “meter” is, which understanding has been codified in law and regulations ever since. The utilities now claim a right to install a radio-transmitting computer on each and every home and business. Worse, they believe they have the right to force installation of a radio-transmitting computer on every customer as a condition for receiving what has become a necessity of modern living.
(2) The legislature never authorized surveillance devices to be installed on Michigan homes or businesses. In fact what the legislature did do was pass a statute making it a felony to install a surveillance device on a home without the homeowner’s knowledge and consent.
(3) The Fourth Amendment to the U.S. Constitution gives every homeowner the right to be secure in his home and to have an expectation of privacy there. The Fourth Amendment is routinely applied when law enforcement seeks access to the home. A warrant, issued by a court and supported by an oath based on probable cause is required. But the courts have also held that the Fourth Amendment and its warrant requirement apply to non-governmental persons or entities when they are acting as “state agents”, i.e. when they are carrying out certain actions at the behest of government and not at their own initiative or entirely for their own purposes. Smart grid and smart meters were not initiated by privately owned utilities. They were instigated by governments – at the national and international levels.
(4) It is provable that certain people are “electro-hypersensitive” and that the kind of radio energy put out by smart meters will cause them immediate symptoms. This is a type of disability that these folks have that makes them not able to tolerate what the majority of the population may be able to tolerate. The Americans with Disability Act requires businesses to make reasonable accommodations so persons with disabilities can participate in society. The utilities are not making the kind of accommodations the law requires. As a result people with this disability are being forced into chronic illness or find that they have to live without something most people consider a necessity.
(5) There is a case to be made, though a much more difficult one in terms of evidentiary burden, that the entire population may have its long run health imperiled by these meters. Accordingly, each utility customer should have the right to choose whether or not to assume such a risk. An ‘opt-out’ program that still requires every customer to have a smart meter that can cause these long run consequences is not a true opt-out. Moreover the charging of a fee for those unwilling to risk their long run health is obscene.