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Photo of attorneys E. Kelly Conway, Michael E. Gehring and Stephen G. Harvey

Electric Utility Smart Meters Not Mandated by Law in Pennsylvania, Commonwealth Court Rules

On Behalf of | Nov 30, 2020 | Blog

Photo Credit: The Philadelphia Inquirer article “Court ruling throws Pennsylvania smart-meter plan into turmoil” by Andrew Maykuth.

You probably know that cell phones and other wireless devices emit radiofrequency electromagnetic energy (known as “RF” for short). Have you ever wondered whether RF could possibly harm you? While many people may assume no, or may not even think about it, there is some conflict in the scientific community and the most recent government studies have suggested that the question is unsettled with further research needed. Despite this, the telecommunications industry insists that RF is safe, and the Federal Communications Commission has accepted that position. Still, whether proven safe or not, most of us assume that it is our right to decide whether to accept exposure to RF by using cell phones and other wireless devices. A recent appellate case considered whether Pennsylvania electricity customers can be forced to accept exposure to RF by their electric utility’s installation of an RF-emitting smart meter at their house to record and monitor electricity usage. The Commonwealth Court of Pennsylvania in Povacz v. Public Utility Commission held that Act 129 of 2007, which authorized the rollout of RF-emitting wireless smart meters for electric utility customers in Pennsylvania, does not mandate that each customer account must accept a smart meter installed on their property as a condition to service. The case arose as three separate cases before the Pennsylvania Public Utility Commission (“PUC”). I began working on the cases in 2016 with my co-counsel Ed Lanza, also of the Pennsylvania bar, who tragically became sick with and then died of cancer in 2018, after we made an evidentiary record before the PUC. We were assisted at trial by my longtime colleague paralegal Maggie Riley, who also tragically as well as unexpectedly died two months before Ed in 2018. They exemplified the spirit of kindness, friendship, and humor in the legal profession, and I am grateful for having worked with them. Their work helped bring about this important decision. The three cases were consolidated for trial before the PUC, which held ten days of evidentiary hearings including three expert witnesses on the science of RF exposure and smart meters as well as testimony from the complainants and their doctors. Ultimately, the PUC rejected virtually all of the arguments we had presented, based on its pre-announced conclusion that Act 129 mandated smart meters for all utility customers without any possibility of an opt out or exception for any reason including concern about unwanted exposure to RF. On appeal to the Commonwealth Court sitting en banc (i.e., six judges), we prevailed on our central argument that the plain language of Act 129 does not support the position that the legislature intended smart meters for all with no right of opt out or exception for any reason. The PUC and PECO have filed petitions for review with the Pennsylvania Supreme Court, and it seems likely that the Court will agree to hear the case. On November 23, 2020 we filed a petition asking the Court to review some of the issues that we lost before the Commonwealth Court, and which we believe the Commonwealth Court got wrong. The issues in Povacz are of concern to the PUC and the electric utilities because of what they maintain is the high cost of designing and implementing programs to allow utility customers to opt out of smart meters and have the electricity usage recorded and monitored in a way that does not include a wireless device. The cost for the utilities of doing that may be higher now than it would have been if they had designed for opt outs from the start, but that seems little reason for forcing smart meters on people like the complainants in Povacz, who have very sincere and reasonable concerns about accepting RF exposure in their homes against their wishes and those of their doctors. Some farsighted legislators or regulators should confront this issue head on and reach a solution that will obviate the need for further litigation. Apart from administrative costs, there is no reason why electric utilities in Pennsylvania cannot grant smart meter opt outs for the presumably limited group of customers who request it. This is how it is handled in other states that have implemented smart meter programs for electric utilities, and there is no reason why Pennsylvania cannot do the same. Because of the Povacz decision, numerous cases that were filed before the PUC and are now on appeal to the Commonwealth Court concerning mandatory smart meters have all been stayed pending possible resolution of the main issue before the Pennsylvania Supreme Court. The earliest that any decision can be expected from the Supreme Court is 2022. Obviously, this case is ongoing and there will be further developments, which we will report on at the appropriate time.