STATE OF MICHIGAN

BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

In the matter of the application and request      )
of the DETROIT EDISON COMPANY               )               Case No: U-17053
seeking approval and authority to                      )
implement its proposed Advanced Metering    )
Infrastructure Opt Out Program.                         )

 

KURTZ & EDWARDS PETITION FOR REHEARING

Linda Kurtz and Cynthia Edwards, intervenors in the above-captioned case, and appearing in pro persona, pursuant to Rule 403 of the Rules of Practice and Procedure before the Commission, file this petition seeking a rehearing of certain aspects of the Commission’s Order of May 15 approving DTE’s meter opt-out plan.  The basis of this rehearing request is new evidence and unintended consequences of the Order as originally issued. This petition for rehearing does not constitute a waiver of any argument on appeal. Intervenors reserve the right to assert arguments not made in this petition on appeal.

The new evidence is DTE’s communications with customers about the AMI program since the Order was issued. DTE appears to be notifying only selected customers of the opt-out. Furthermore, DTE appears not to be notifying customers of the opt-out option in areas in which it is currently or will imminently be installing AMI (a.k.a., “advanced” or “smart”) meters. The unintended consequences are that most utility customers will remain ignorant of the fact that there is an opt-out program, and that those customers who have not had an AMI meter installed to date may receive misleading information from the company.

 

STANDARDS FOR GRANTING A REHEARING

The Commission’s standards for considering petitions for rehearing have been repeatedly stated in the following language:

Rule 403 of the Commission’s Rules of Practice and Procedure (1992 AACS, R 460.17403), provides that an application for rehearing may be based on claims of error, newly discovered evidence, facts or circumstances arising after the hearing, or unintended consequences resulting from compliance with the order. An application for rehearing is not merely another opportunity for a party to argue a position or to express disagreement with the Commission’s decision. Unless a party can show the decision to be incorrect or improper because of errors, newly discovery evidence, or unintended consequences of the decision, the Commission will not grant a rehearing.

In re Michigan Consolidated Gas Co, MPSC Case No. U-10744 (Order Denying Rehearing dated February 5, 1996), and In re Consumers Energy Co MPSC Case No. U-11225-R (Order Denying Rehearing dated March 14, 2000).

For the issues identified in this petition, rehearing is appropriate.

ISSUE ONE: CLARITY AS TO WHO MUST RECEIVE NOTICE

The Commission’s Order is silent as to what DTE’s obligation is with respect to making its customers aware that there is an opt-out plan in which they might participate.  An unintended consequence of this omission is that DTE is not notifying all customers in advance of installation, nor is it notifying all customers post-installation, that they have a choice, but is instead notifying only those customers who, in DTE’s estimation, “expressed an interest in participating in the Opt-Out Program” (quoting from certified letters some customers have received from DTE, which are attached as Exhibits 1 and 2).  As evidence of that, intervenors are attaching three exhibits.  Exhibit 1 is a copy of a certified letter received by DTE customer Leslie Panzica-Glapa, who resides in Dexter, Michigan, as well as a copy of the envelope in which the letter was sent. This letter, dated June 4, 2013, states that the Commission has approved DTE’s opt-out plan and that “[o]ur records indicate that you expressed an interest in participating in the Opt-Out Program.” It goes on to state that Ms. Panzica-Glapa must call DTE within 30 days of receipt of the letter or she “will not be considered a participant in the opt-out” (emphasis in original).  Another customer, located over an hour’s drive away, in Rochester Hills, Michigan, received a certified letter containing the same verbiage dated June 4, 2013. This letter is attached as Exhibit 2. The name and address of the recipient have been redacted.

Exhibit 3 is the notarized statement of Shari Kustra, a DTE customer in Plymouth, MI, regarding the letter she received from DTE regarding installation of AMI (smart) meters in her area. She states:

On June 5, 2013, I received a letter from DTE notifying me that they are installing "advanced metering" in my area. Nowhere in that letter does it mention that I may opt out of that program if I so choose. I understand that DTE has implemented an opt-out program, yet apparently I am not to be notified of this program. Rather, this letter states that DTE will come to my home and install an "advanced" meter. Period. Apparently, I am not going to be given a choice to opt out.

Exhibit 4 is a copy of the letter she received.

Intervenors argue that DTE’s failure to notify all of its customers that an opt-out exists will minimize participation (because people don’t know the opt-out exists) and thereby drive up costs for those who do opt out.  This, in turn, will likely result in fewer customers participating in the opt-out because it is more pricey, and lead to a spiral of costs increasing year to year, with declining participation in each successive year, thus negating the choice the opt-out plan was supposed to offer, making it available only to those whose income makes it affordable.

Lack of clarity of this notice leads to imminent and irreparable harm. The harm is imminent, as it is occurring now and will continue to occur. It is irreparable for a variety of reasons: 1) customers cannot recover money that they would not have paid had participation been higher; 2) customers who wish or might wish to opt out but do not receive notice of the opt-out prior to installation of a smart meter on their home will suffer in a variety of ways, depending on their circumstances.  If they are never notified of or never otherwise learn about the opt-out, they will never be able to choose whether to participate in the opt-out. If they are subsequently notified by DTE of, or otherwise learn about, the opt-out, they will havelost that period of time in which they could have participated in the opt-out had they known of it. If they are among that subset of the population who cannot tolerate wireless transmissions in close proximity to their home or running through their home’s wiring, they will not be able to protect their health. This leads to a long series of ramifications, including loss of health, loss of enjoyment of their home and family, lost work time, and the potential to lose their job.

As it now stands, DTE is deciding who is or is not interested in participating in the opt-out and not giving all of their customers a chance to participate.

The letters attached as Exhibits 1 and 2 have been sent to areas of DTE service that have already been installed with AMI. Given that DTE is performing mass installations of meters, it seems illogical and cost-inefficient for DTE to not to inform customers in areas currently being or imminently scheduled to be installed. This is because DTE could mass install the radio-off meters at the same time it is installing the radio-on meters. It would not then have to send technicians back to a customer’s home to disable the radio-transmitter on an opt-out customers’ homes, saving DTE time and money. Of course, this assumes that DTE will actually notify all of its customers of the opportunity to opt out.

ISSUE TWO: CLARITY AS TO FORM OF NOTICE

The Commission’s Order and the opt-out tariff sheet attached to that order make no reference to the opt-out provisions being a one-time only provision, nor do they make any reference to customers being given a deadline of 30 days or any other fixed time period in which they must exercise their opt-out rights. Yet DTE is sending its customers who have previously expressed concerns about AMI meters a letter requiring them to enroll in the opt-out program within 30 days of the letter date. Exhibits 1 and 2 are copies of these letters received by two different customers.  The letter does not indicate that the customer’s neighborhood is scheduled for any mass installation at any particular date, so there is no apparent reason for the 30-day time limit. Also the letter does not indicate that a customer not joining the opt-out plan at this time would still have a right to opt-out later, after a fully functioning smart meter was installed.  Since a copy of the opt-out tariff does not accompany the letter, there is no way for the customer to know that they would retain that right according to the tariff.  There is no way for a customer to make a fully informed decision without a copy of the tariff in hand.

DTE is requiring customers to call their main number (800-477-4747) to opt out (see Exhibits 1 and 2). This gives the person taking the customer call the opportunity to attempt to dissuade the customer from opting out. It also gives the opportunity for the agent answering the call to provide (knowingly or unknowingly) incorrect information with regard to the opt-out and thus influence the customer’s decision. Anything of such a grave contractual nature should be done in writing. The harm that may be suffered by individuals calling this number to opt out is imminent and irreparable.

Moreover, by requiring customers to phone their main number, DTE is requiring the customer to figure out which numbers they must press to get to the right agent and is setting the customer up for frequent long wait times. These wait times can be so long that a customer who is attempting to opt out may be forced to hang up due to their own time constraints, may be dropped from the call, or may give up in frustration. If the customer is calling on the last day of the 30-day period and is unable to get through, that customer will, in DTE’s words, “not be considered a participant in the Opt-Out Program” (quoting the letter attached as Exhibits 1 and 2). Again, a contractual matter such as this should not be conducted over the telephone.

RELIEF REQUESTED

Petitioners Kurtz and Edwards ask the Commission to hold a hearing for the purpose of determining whether clarifying language should be added to its Order of May 15, 2013:

1. Prescribing the form of notification DTE should use in communicating the opt-out plan to customers.
2. Clarifying that  DTE must notify all customers of the Opt-Out Program.
3. Clarifying that DTE must make it clear that a customer may opt in or out of the program at any time.
4. Requiring that customers receive a copy of the tariff sheet.
5. Requiring that DTE give customers the option of opting out in writing.

Linda Kurtz

Cynthia Edwards

Date:  June 14th, 2013

EXHIBIT 1.1 - 1.2
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4

 

 

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