A “smart meter” is an electric meter that records consumption of electric energy in increments of an hour or less and communicates that information, at least daily, back to the utility company for monitoring and billing purposes. In the last decade, the mandatory installation and use of smart meters in consumers’ homes has provoked a national debate as to the safety of the meter, as well as the potential harm to the consumer.
On October 15, 2008, Pennsylvania Governor Edward G. Rendell signed Act 129 of 2008 (Act 129) into law. Among other things, Act 129 specifically mandates that electric distribution companies (EDCs) with at least 100,000 customers file a smart meter technology procurement and installation plan with the Pennsylvania Public Utility Commission (the Commission). Each plan was to describe the smart meter technologies the EDC proposes to install. Act 129 did not include an “opt-out” provision that would permit a customer to refuse the installation of a smart meter for any reason.
Although Act 129 does not include an “opt-out” provision, consumers in Pennsylvania have filed complaints with the Commission in an attempt to prevent their EDC from mandating the installation or preventing the termination of service for refusal to permit the EDC access to its meter for installation. While the Commission has consistently ruled that Act 129 does not permit a consumer from “opting-out” of the smart meter installation, it has permitted some customers, in limited circumstances, to bring an action that specifically alleges that the installed smart meter at their residence poses a violation of Section 1501 of the Public Utility Code (the Code), which requires all utilities to provide safe and reasonable service. For example, the Commission has permitted hearings to address the alleged potential fire hazard of the meter (smart meters are built with plastic back plates, which are alleged to be more flammable, without surge arrestors, and with thinner blades) and the potential health hazard to a specific member of a household (negative impact of radio frequencies and emissions from smart meters).
The parties on each side of this debate are equally convinced that their position is correct. While the Commission is permitting certain consumers the ability to challenge the safety of the smart meter as it specifically affects their life, the Commission has been clear to advise that “a hearing does not guarantee relief.” The consumer has a heavy burden of proving that that EDC is violating the Code. In order to make a prima facie case, at a minimum, the complaining consumer will need the testimony of their physician who can specifically testify that the installation of the smart meter at that person’s residence has negatively affected their health in violation of Section 1501. The utility, in order to refute that testimony, will need to present expert testimony to prove that the smart meter is safe. This will include testimony from the medical community to address any specific medical conditions alleged, as well as testimony to address the safety and emissions from the model of smart meter used in their installation plan.
The complainants in the limited cases that the Commission has sent to hearing have only offered their “lay opinion" testimony and have not offered any expert testimony or evidence to sustain their burden that the EDC has violated Section 1501. To date, no decision has been issued by the presiding judge Under the Code. Depending on the decision, the parties are given the opportunity to file exceptions to the decision, which are then reviewed by the full Commission. It is hopeful that a final Commission determination in each of those cases will be issued by end of calendar year 2016.
Given the General Assembly’s mandate that the EDC must install smart meters, in addition to the clear directive that consumers cannot “opt-out”, it is unlikely that a consumer will be successful in their challenge to have the smart meter installed at their residence. The Commonwealth of Pennsylvania is ahead of many states in that their smart meter legislation, which is mandatory and focused on providing the end-user customer the ability to control how much energy is consumed, remains a competitive environment for generation shopping.