cpuc denial of cep rehearing request (12/20/2012)
DESCRIPTION
On Dec. 20th, 2012, CPUC Commissioner Michael Peevey denied the May 22, 2012 request of CEP for a rehearing concerning opt-outs, fees, zone of safety, and the health impacts of smart meters. The reasons for denial are false - CEP provided solid medical and legal grounds, which may be viewed in its original rehearing request. This is yet an example of a corrupted CPUC that is non-responsive to the pain and suffering that smart meters are causing the public, and one that caters to the Industry.TRANSCRIPT
L/cdl Date of Issuance
December 27, 2012
34302407 1
Decision 12-12-040 December 20, 2012
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Application of Consumers Power Alliance
et al. for Modification of D.08-09-039 and
a Commission Order Requiring Southern
California Edison Company to File an
Application for Approval of a Smart Meter
Opt-Out Plan.
Application 11-07-020
(Filed July 26, 2011)
Application of Utility Consumers’ Action
Network for Modification of Decision 07-
04-043 so as to Not Force Residential
Customers to Use Smart Meters.
Application 11-03-015
(Filed March 24, 2011)
Not Consolidated
ORDER DENYING REHEARING OF DECISIONS
(D.)12-04-018 AND D.12-04-019
I. INTRODUCTION
In this Order we dispose of the applications for rehearing of Decision
(D.) 12-04-018 and D.12-04-019 (or “Decisions”) filed by the Center for Electrosmog
Prevention (“CEP”).
In D.12-02-014, issued prior to the two decisions challenged herein, the
Commission modified Pacific Gas and Electric Company’s (“PG&E’s”) Advanced
Metering Infrastructure (“AMI or SmartMeter”) Program to approve an option for
residential customers who, for whatever reason, do not wish to have a wireless
SmartMeter with radio frequency (“RF”) transmission capability (“opt-out option” or
“opt-out service”). (D.12-02-014, at p. 2.)1 Opt-out service allows a customer to retain
1 Application of Pacific Gas and Electric Company for Approval of Modifications to its SmartMeter
Program and Increased Revenue Requirements to Recover the Costs of the Modifications (“PG&E Opt-Out Decision”) [D.12-02-014] (2012) __ Cal.P.U.C.3d __.
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any non-SmartMeter currently at their residence, or have an existing SmartMeter replaced
with an analog electric and/or gas meter. The Commission also adopted interim fees and
charges to cover PG&E’s costs to provide the opt-out service.2 (D.12-02-014, at pp. 1,
29-32.)3
In D.12-04-018 and D.12-04-019, we adopted corresponding opt-out
service modifications to the AMI Programs already in place for Southern California
Edison Company (“SCE”) and San Diego Gas and Electric Company (“SDG&E”),
respectively.4
The Center for Electrosmog Prevention (“CEP”) filed timely applications
for rehearing of both Decisions asserting that each Decision is unlawful based on:
(1) health and safety issues; (2) cost considerations; and (3) miscellaneous policy issues.
A response to the application for rehearing of D.12-04-018 was filed by SCE.
We have carefully considered the arguments raised in the applications for
rehearing and are of the opinion that good cause has not been established to grant
rehearing. Accordingly, we deny the applications for rehearing of D.12-04-018 and
D.12-04-019 because no legal error has been shown.
II. DISCUSSION
CEP lodges identical challenges to D. 12-04-018 and D.12-04-019.
However, CEP fails to specify, analyze, or explain how the Decisions violate any legal
authority or requirement. Even CEP characterizes its allegations as merely “areas of
2 Utility costs include: purchasing a new meter; going to the customer location to install and service the
meter; monthly meter reading costs; and labor involved in rendering the existing SmartMeter non-communicative. (PG&E Opt-Out Decision [D.12-02-014], supra, at p. 29.).
3 The interim fees and charges are subject to adjustment once a decision on costs and cost allocation for
the opt-out option is issued. (PG&E Opt-Out Decision [D.12-02-014], supra, at p. 32.)
4 Southern California Edison Company’s Application for Approval of Advanced Metering Infrastructure
Deployment Activities and Cost Recovery Mechanism (“Decision Approving SCE AMI Deployment”) [D.08-09-039] (2008) __ Cal.P.U.C.3d __; Application of San Diego Gas & Electric Company for Approval of an Advanced Metering Infrastructure Deployment Scenario and Associated Cost Recovery and Rate Design (“Opinion Approving SDG&E AMI Project”) [D.07-04-043] (2007) __ Cal.P.U.C.3d __.
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disagreement or strong concern.” And the rehearing applications do no more than restate
various recommendations CEP proposed during the proceedings.
Rehearing applications are not a proper vehicle to merely reargue positions
taken during a Commission proceeding. Further, the rehearing applications fail because
they do not comply with the statutory requirement under Public Utilities Code section
1732. Section 1732 states:
The application for rehearing shall set forth specifically the
ground or grounds on which the applicant considers the
decision or order to be unlawful….
(Pub. Util. Code, § 1732.)
Even if we were inclined to consider the rehearing applications, CEP’s
objections are flawed and without merit for the reasons briefly discussed below.
A. Health and Safety Issues
Virtually every issue CEP raises stems from CEP’s fundamental concern
regarding the health and safety impacts of RF transmissions attendant to wireless
SmartMeter technology. To the extent that issue was relevant at all, it was at the time of
the original decisions approving deployment of the utility AMI Programs. However,
those decisions are now final and not subject to challenge pursuant to Public Utilities
Code sections 1709 and 1732(b).5
As we explained in D.12-04-018 and D.12-04-019, any alleged negative
health effects of SmartMeters was outside the scope of these proceedings because it was
not material to determining what opt-out option (non RF emitting meter) should be
approved. Thus, CEP’s challenges are without merit.6
5 Pub. Util. Code § 1709 [“In all collateral actions or proceedings, the orders and decisions of the
commission which have become final shall be conclusive.”]; Pub. Util. Code § 1731, subd. (b) [Challenge
required within 30 days of a decision.]. (See also Coast Truck Line v. Asbury Truck Company (1933) 218
Cal. 337, 340.). All subsequent section references are to the Public Utilities Code unless otherwise stated.
6 CEP also alleges that the Commission wrongly denied the Motion of Southern Californians for Wired
Solutions to Smart Meters (“SCWSSM”) to ask the California Department of Public Health (“CDPH”) to
review the health effects of SmartMeters. (CEP 5/22 Rhg. App., at p. 14; CEP 5/24 Rhg. App., at p. 12.)
This allegation is without merit. Because alleged SmartMeter health effects issues were beyond the scope
of the proceedings, CDPH participation and review was not warranted. (D.12-04-018, at pp. 21-23;
(footnote continued on next page)
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Nevertheless, CEP contends the Decisions erred by failing require a 2000
foot “safe zone” (i.e., RF free zone) around any residence choosing the opt-out service.7
(CEP 5/22 Rhg. App., at p. 14; CEP 5/24 Rhg. App., at p. 12.)
N legal authority requires “safe zones” to be established around residences
with SmartMeters. California policy directs the Commission to advance smart grid
technologies (including SmartMeters) to further the State’s overall energy policies.8
(D.12-04-018, at pp. 18-21; D.12-04-019, at pp. 18-20.)9 And SmartMeters are now the
metering standard.
Accordingly, it was reasonable to reject CEP’s proposal because imposing
“safe zones” could prevent other customers from having a SmartMeter at their home. It
could also increase energy costs for other customers by preventing them from effectively
(footnote continued from previous page)
D.12-04-019, at pp. 20-21.) Accordingly, it was reasonable and lawful to deny SCWSSM’s Motion.
Moreover, even if health issues were within the scope of the proceeding, CEP fails to establish why
CDPH participation would have been essential. The Federal Communications Commission (“FCC”), not
the CDPH, is the government entity formally charged with authority to set RF exposure limits. (47 Code
of Federal Regulations (“C.F.R.”) § 15.) And the Commission has lawfully considered and applied the
FCC’s findings. (See e.g., PG&E Opt-Out Decision [D.12-02-014], supra, at pp. 13-14 (slip op.);
Application of EMF Safety Network for Modification of D.06-07-027 and D.09-03-026 [D.12-06-017]
(2012) __ Cal.P.U.C.3d __, at pp. 2-3.)
7 CEP also suggests the Decisions violated the Commission’s duty to protect the safety of utility
customers under Public Utilities Code sections 8360-8369. (CEP 5/22 Rhg. App., at p. 2, fn. 3.) These provisions merely provide in pertinent part: “It is the policy of the state to modernize the state’s electrical transmission and distribution system to maintain safe, reliable, efficient, and secure electrical service….” CEP fails to offer any evidence to show that authorized opt-out service fails to comply with this requirement.
8 See e.g., Energy Action Plan II, dated October 2005, located at:
www.cpuc.ca.gov/PUC/energy/Resources?Energy+Action+Plan/. This is entirely consistent with federal policy. (See the federal Energy Independence and Security Act (EISA) of 2007, Section 1301, stating:
It is the policy of the United States to support the modernization of the
nation’s electricity transmission and distribution system to maintain a
reliable and secure electricity infrastructure that can meet future demand
growth and to achieve each of the following, which together characterize
a Smart Grid: 9 See e.g., Opinion Approving SDG&E’s AMI Project [D.07-04-043], supra, at pp. 3-6 (slip op.);
Pub.Util. Code §§ 8360 – 8369 [State policy to develop a smart grid infrastructure including advanced metering (SmartMeter) technologies. (See specifically Pub. Util Code, § 8366, subd. (a).)
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monitoring and adjusting their energy use. (D.12-04-019, at pp. 16-17.) CEP offers no
evidence or argument here to explain how that determination was incorrect or unlawful.
CEP also contends we erred by failing to require that customers be
informed about the alleged negative health effects of RF emitting SmartMeters. (CEP
5/22 Rhg. App., at p. 10; CEP 5/24 Rhg. App., at pp. 8-9.)
We reiterate that the purpose of this proceeding was to select a non-RF
emitting meter option. Thus, CEP’s proposal, which relates to only SmartMeters, was
not material our determinations. Even if it was, CEP offers no tangible, proven factual
evidence that SmartMeters cause negative health effects.
We point out that CEP also ignores that the Decisions did impose
appropriate notification requirements directly related to the approved opt-out service.
Specifically, we directed the utilities to notify customers of the availability of that
service. (D.12-04-018, at p. 32 [Ordering Paragraph Number 2, subds. 1 & 2];
D.12-04-019, at p. 29 [Ordering Paragraph Number 2, subds. 1 & 2].) There was no
reason to require the utilities to notify customers regarding all the possible reasons a
customer might want opt-out service, because customers do not need to explain any
reason at all for choosing the service. (D.12-04-018, at pp. 2, 22; D.12-04-019, at pp. 2,
21.)
Finally, CEP argues that all collector meters should be removed.10
(CEP
5/22 Rhg. App., at p. 13; CEP 5/24 Rhg. App., at pp. 11-12.)
This proposal was not material because collector meters are not used in
connection with opt-out service. Further, removal of collector meters would violate State
Smart Grid policy for the same reasons as “safe zones.” Thus, CEP’s proposal was
properly rejected.
10
Collector meters are the equipment which receives and transmits energy usage data from the residential SmartMeters.
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B. Cost Considerations
CEP contends that any charges for opt-out service discriminate against
customers with medical conditions and/or lower income customers (such as those in the
California Alternative Rates for Energy (“CARE”) Program), because the charges will act
as an impediment to selecting the service. (CEP 5/22 Rhg. App., at pp. 8-9; CEP 5/24
Rhg. App., at pp. 6-7, citing Pub. Util. Code, § 453(b).)
We recently considered, and rejected, a similar claim in D.12-11-018.11
As
discussed in that decision, Section 453 provides in relevant part:
(b) No public utility shall prejudice, disadvantage, or require
different rates or deposit amounts from a person because of
ancestry, medical condition, marital status or change in
marital status, occupation, or any characteristic listed or
defined in Section 11135 of the Government Code….
(Pub. Util. Code, § 453, subd. (b).)
CEP does not show how the Decisions will result in any prejudicial,
disparate, or discriminatory treatment. All customers are treated equally in that they may
select the opt-out service for any reason, without question and without need for any
explanation. (D.12-04-018, at pp. 2, 24; D.12-04-019, at p. 2, 22-23.) In addition, the
Decisions adopted the same interim service costs for all residential customers.
(D.12-04-018, at pp. 23-24, 33; D.12-04-019, at pp. 19, 29-30.)12
That said, we did approve an exception to ensure that costs would not be an
impediment for low income customers. (D.12-04-018, at pp. 23-24, 33; D.12-04-019, at
pp. 19, 29-30.) Customers who qualify for the CARE and Family Electric Rate
11
Application of Pacific Gas and Electric Company for Approval of Modifications to its SmartMeter Program and Increased Revenue Requirements to Recover the Costs of Modifications (“Order Denying Rehearing of D.12-02-014”) [D.12-11-018] (2012) __ Cal.P.U.C.3d __, at pp. 13-14 (slip op.).
12 Non-CARE customer initial fees were set at $75, with an ongoing monthly charge of $10.
(D.12-04-018, at pp. 23-24, 33 [Ordering Paragraph Number 2, subd. 3]; D.12-04-019, at pp. 19, 22 [Ordering Paragraph Number 2(c)].).
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assistance (“FERA”) Program will pay a lower fee for opt-out service.13
However, CEP
fails to show any legal or factual basis why a customer with a medical condition should
receive preferential treatment (no fees) relative to other utility customers. Section 453(b)
explicitly prohibits such different treatment based on medical conditions.
CEP also argues that a customer’s right to safety dictates that any opt-out
service costs be borne by utility investors and/or the companies.14
(CEP 5/22 Rhg. App.,
at pp 5-6; CEP 5/24 Rhg. App., at pp. 3-4.)
CEP identifies no safety risks associated with the approved opt-out service.
Even if it did, requiring SCE and SDG&E to provide different equipment such as an
analog meter for customers who want opt-out service will require the utilities to incur
additional costs. It is consistent with cost of service ratemaking policy and practice to
lawfully allow utilities to charge customers the cost of providing service.15
We are aware
of no legal authority which exempts a customer from such costs or suggests they should
be free from any costs by virtue of our duty to ensure a safe and reliable electrical system.
Finally, CEP recommends there be no rate increases attendant to opt-out
service, and that refunds should be given to customers for costs they already paid for
SmartMeters or prior analog meters. (CEP 5/22 Rhg. App., at pp 5-7; CEP 5/24 Rhg.
App., at pp. 5-6.)
13
CARE and FERA customers to pay a $10 initial fee with a $5 ongoing monthly fee. (D.12-04-018, at pp. 23-24, 33 [Ordering Paragraph Number 2, subd. 3]; D.12-04-019, at pp. 19, 22 [Ordering Paragraph Number 2(c)].).
14 CEP suggests that the Decisions failed to adequately provide for customer privacy and security rights.
The Commission has already adopted rules to protect the privacy and security of customers in connection with electricity usage data attendant to Smart Grid technologies. (Order Instituting Rulemaking to Consider Smart Grid Technologies Pursuant to Federal Legislation and on the Commission’s own Motion to Actively Guide Policy in California’s Development of a Smart Grid System [D.11-07-056] (2011) __ Cal.P.U.C.3d __.) CEP does not explain or establish why the existing rules are inadequate. Further, should CEP wish to challenge existing protections or propose additional ones, the proper venue to do so is the Commission’s rulemaking proceeding on those issues. (See e.g., D.12-04-018, at p.31 [Conclusion of Law Number 17].)
15 Cal. Const. art. XII, §§ 1-6; Consumers Lobby Against Monopolies v. Public Utilities Commission
(1979) 25 Cal.3d 891, 905-906; Southern California Gas Company v. Public Utilities Commission (1979) 23 Cal.3d 470, 474-475.
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Cost issues such as those CEP raises were not within the scope of the Phase
1 Decisions. Our Phase 1 cost analyses were limited to setting interim fees to allow
immediate implementation of the opt-out service. We intend to consider other cost-
related proposals in Phase 2, as warranted.16
(D.12-04-018, at pp. 18-20, 25, 31
[Conclusion of Law Number 11]; D.12-04-019, at pp. 18-20, 28 [Conclusion of Law
Number 12].) Thus, it was reasonable to not act on CEP’s recommendation at this time.
C. Policy Issues
CEP states it “disagrees” that opt-out service should be considered an
additional service. It reasons that because federal guidelines only direct States to
consider the use of SmartMeters (as opposed to mandating their installation), analog
meters should be the only, and basic, meter option.17
(CEP 5/22 Rhg. App., at pp. 4-5;
CEP 5/24 Rhg. App., at pp. 2-3.)
As already discussed, it is California policy to advance smart grid
technologies (including SmartMeters).18
CEP may continue to disagree with that policy.
However, that does not establish legal error on the part of the Commission.19
Finally, CEP restates a number of general policy proposals with apparent
disregard for the fact they were either integrated into the adopted requirements,
reasonably not acted on because they are deferred for Phase 2 consideration, or properly
rejected because CEP failed to provide any support for the proposal.
16
That would include cost issues CEP raises in connection with locations having multiple meters. (See e.g., D.12-04-019, at pp. 19-20.)
17 CEP reiterates its argument that all Commission members should be investigated and removed from
making any decisions regarding these matters due to conflicts of interest. (CEP 5/24 Rhg. App., at pp. 13-14.) This argument was considered and rejected in D.12-04-018 because CEP failed to meet the requisite legal standard for disqualification of decisionmakers. Specifically, CEP did not show any clear and convincing evidence that the entities to be disqualified had an unalterably closed mind. (D.12-04-018, at pp. 27-28, citing Association of National Advertisers, Inc. v. Federal Trade Commission (D.C. Cir. 1979) 627 F.2d 1151, 1170 [Stating also that disqualification of every decisionamaker who holds opinions on the appropriate course of future action would eviscerate the proper evolution of policymaking and substantially interfere with the development of agency policy. (Id. at p. 1174.)]. CEP fails to show any clear and convincing evidence to support its repeated allegations here.
18 See ante, fn. 8.
19 Southern California Edison Company v. Public Utilities Commission (2005) 128 Cal.App.4
th 1, 8.
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For example, CEP recommends that utilities should notify customers of the
opt-out service availability and not discourage customers from selecting that service.
(CEP 5/22 Rhg. App., at pp. 5, 11; CEP 5/24 Rhg. App., at pp. 3, 9.)
The Decisions incorporated both these proposals.20
(See e.g., D.12-04-018,
at p. 23, Number 2 & p. 24, Number 2; D.12-04-019, at p. 22, Numbers 2 [Directing the
utilities to notify customers of the opt-out service, and providing that customers may
choose the service for any reason, or no reason, without explanation.].)
CEP recommends that the Commission adopt provisions for multiple meter
properties. (CEP 5/22 Rhg. App., at pp. 10-12; CEP 5/24 Rhg. App., at pp. 8-10.)
Multiple meter issues are to be considered in Phase 2 of the proceedings. (See e.g.,
D.12-04-019, at pp. 18, 19-21.)
Lastly, CEP proposes that opt-out service be extended to commercial and
solar customers. The Decisions reasonably rejected that proposal because CEP offered
no support to show why it would be warranted in light of the fact such customers take
service on tariffs that require meters which capture interval energy consumption data
(i.e., non-analog meters). Accordingly, we find no legal error.21
III. CONCLUSION
For the reasons stated above, the applications for rehearing of D.12-04-018
and D.12-04-019 are denied because no legal error has been shown.
Therefore IT IS ORDERED that:
1. The applications for rehearing of D.12-04-018 and D.12-04-019 are denied.
20
CEP also states customers should be able to select the opt-out service year round. The Decisions put no limit on when customers may select the service. Thus, CEP fails to show any error.
21 Finally, CEP objects to SmartMeters arguing that any Smart Grid benefits are purely theoretical. (CEP
5/22 Rhg. App., at pp. 14-15; CEP 5/24 Rhg. App., at p. 13.) CEP is entitled to hold that view. However, its view is not material to the Decisions’selection or adoption of an opt-out (non-SmartMeter) service. Not does its personal view establish legal error.
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2. These proceedings, Application (A.) 11-07-020 and A.11-03-015, are
closed.
This order is effective today.
Dated December 20, 2012, at San Francisco, California.
MICHAEL R. PEEVEY
President
TIMOTHY ALAN SIMON
MICHEL PETER FLORIO
CATHERINE J.K. SANDOVAL
MARK J. FERRON
Commissioners