Tuesday, 23 September 2014

CPUC denies rehearing of decision on SmartMeter opt-out fees

During a closed session at its most recent meeting on 11 September 2014, the California Public Utilities Commission (CPUC) voted unanimously to deny my application for rehearing of the CPUC's earlier summary decision to reject my protest of Pacific Gas & Electric Co.'s tariff of surcharges for gas and electric customers at any location where PG&E has been "unreasonably" denied access to install a "SmartMeter".

That's a mouthful! What does it mean?

It means that PG&E is trying to pull a fast one on California property owners. And it means that the corrupted and captured CPUC, a government agency which is supposed to regulate and exercise oversight over investor-owned, for-profit utilities like PG&E, is instead helping PG&E in its property-rights grab and shielding PG&E from judicial review.

Here's how:

Power companies like PG&E want to track and transmit usage readings in real time, automatically. That will save the utility companies the cost of sending a meter reader to walk each block once a month, and give utilities more information about each customer's minute-by-minute power consumption (which information can be used by the utility company for a variety of profitable operational, marketing, and surveillance purposes).

In order to do this, utilities are deploying "Smart Meters" that transmit gas, electric, water, etc. readings by radio at frequent intervals.

In San Francisco, for example. the government-operated municipal water department installed metering transmitters on the water pipes leading to individual buildings. Typically these new meters are located on city property in the vaults under city-owned sidewalks that already held water shut-off valves for each building. The city water department also installed a network of transceivers on city-owned property: "A total of 81 Data Collectors are located throughout the city on our facilities and City-owned poles and rooftops." Those transceivers in turn relay meter readings over commercial cellular data networks to the water department. The only components of this system ever placed on customer premises are the meter and transmitter (not receiver) to serve that individual customer.

But rather than locating transceivers on its own property, rather than paying to acquire transceiver sites or to acquire rights to place transceivers on others' property, and rather than using (and having to pay for) existing cellular data networks, PG&E and other for-profit utility companies have tried to use SmartMeter deployment as the pretext to (a) build out their own general-purpose wireless mesh data networks and (b) expropriate customer premises, without compensation, as sites for the utilities' wireless data transceivers.

I don't understand why competing cellphone companies, who have invested billions of dollars and years of shoe leather to negotiate contracts with property owners, site by site, for the rights to place each cellular voice and data transceiver node, aren't screaming more loudly at this unfair competition from power companies in the antenna siting and wireless data businesses.

Regulations and tariffs require customers to allow the utility to install a meter and other equipment necessary to serve that customer on customer premises. But there is no requirement as a condition of service to allow installation of equipment to serve other customers or third parties. The electric company can't cut off your power because you refuse to allow them to build a transformer farm in your back yard to serve the entire neighborhood without paying the owner of your premises for that right.

If a utility wants to take private property for such a purpose without your agreement -- to build a high-tension line across your land, for example -- they have to try to get the government to seize the property by eminent domain in exchange for compensation at fair market value.

Nor can a utility charge you a higher rate or extra fees because the owner of your premises declines to donate property or siting rights to the utility. That would be like saying, "You can still get a landline phone in your apartment if the building owner won't let us put a cellphone tower on the roof. But in that case we'll charge you a monthly fee for the building owner having 'opted out' of giving us free cellphone tower siting rights on their property."

For-profit utilities typically need permission from state regulatory agencies (like the CPUC) for infrastructure deployment, at least if they want to include the costs in their "rate base". But California law is clear that CPUC regulatory authorization does not and cannot create or alter property rights, and that neither the CPUC nor utilities have authority to take property by eminent domain.

So if, for example, a utility gets approval from the CPUC for a high-tension line across other people's property, the utility still has to acquire the property or the necessary rights (easements), either by negotiation and contract or by eminent domain, before it can build.

PG&E and other California utilities got regulatory approval from the CPUC to install a so-called "SmartMeter" at each home which incorporates a general-purpose wireless mesh network data transceiver to serve other utility customers and third parties.

But rather than going door to door the way cellphone companies and other wireless data companies have done to acquire the necessary antenna siting rights, PG&E simply started deploying its wireless data network on customer premises, without compensation, for its own profit.

It shouldn't have been a surprise that some property owners and utility customers weren't home when PG&E's SmartMeter installation contractors came knocking, while others said, "No, thank you", "How much are you offering to pay me to put that thing on my house?", "Sorry, I already granted exclusive commercial antenna siting rights on these premises to the cellphone company that has their antenna on the roof," or "Come back with an easement."

Since the CPUC has no authority to take customers' property by eminent domain, what could the CPUC do to help out its cronies at PG&E? When PG&E's friends at the CPUC learned about the problems PG&E was having getting donations of unpaid siting rights, one sympathetic CPUC staff member suggested that PG&E deem any customers at such locations to have "elected" to pay a monthly surcharge:

In your advice letter, you may want to add language about those customers who do not choose. Either they are automatically opting in or opting out or you may want to add penalty language or disconnection language. Just a thought after looking at the meter that was under lockdown.

PG&E took up this CPUC staff suggestion, and incorporated such a provision into an "advice letter", a type of fast-track application for "uncontroversial" changes to its tariff that can be summarily approved by the CPUC without evidentiary hearings or formal regulatory proceedings.

At this point, in March 2012, I filed a formal protest with the CPUC against this provision of PG&E's proposed "advice letter" for SmartMeter "opt-out fee" tariff changes.

To be clear, my protest has never had anything to do with the safety (or lack thereof) of SmartMeters, what I think of wireless data networks (I use them every day), or whether PG&E has a right to install and access meters and equipment to serve individual customers on those customers' premises.

What I have protested, and all that I have protested, is the imposition of penalty surcharges on customers at locations where the property owner has declined to give away part of their property to PG&E for its use as a commercial wireless mesh data network node to serve third parties.

Having captured both the CPUC and the California legislature, PG&E and the other big for-profit utilities have gotten the legislature to make it as difficult as possible to challenge utility or CPUC actions, preserving only a figment of entitlement to judicial review.

I've had to slog through two and a half years of administrative proceedings to get a final CPUC decision rejecting my protest. Now I have only a 30-day window to petition a real court to review the CPUC's action for legal errors.

The CPUC decision was issued on September 11th (I didn't learn of it until several days later, when I got back from the TBEX conference in Cancún), so I would need to file a petition for review in the California Superior Court in San Francisco by October 11th.

If you know a lawyer who would be interested in taking on such a case, pro bono, please let me know or have them get in touch with me directly.

Link | Posted by Edward on Tuesday, 23 September 2014, 12:42 (12:42 PM) | TrackBack (0)
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