L/cdl Decision 12-12-040 December 20, 2012

Date of Issuance December 27, 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 of Utility Consumers Action Network for Modification of Decision 0704-043 so as to Not Force Residential Customers to Use Smart Meters. Application 11-07-020 (Filed July 26, 2011)

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 Companys (PG&Es) 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&Es 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

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 Companys 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, CEPs objections are flawed and without merit for the reasons briefly discussed below. A. Health and Safety Issues Virtually every issue CEP raises stems from CEPs 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, CEPs 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 States 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 CEPs 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 SCWSSMs 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 FCCs 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 Commissions 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 states 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 nations 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&Es 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, CEPs 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, CEPs 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 customers 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 Commissions own Motion to Actively Guide Policy in Californias 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 Commissions 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 costrelated 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 CEPs 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 19

See ante, fn. 8. Southern California Edison Company v. Public Utilities Commission (2005) 128 Cal.App.4th 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 Decisionsselection 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

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