- SmartMeter Opponents Blast Proposal to Charge for Opt-outs (Marin I.J. Nov 23, 2011)
- Santa Cruz Joins the Battle Against SmartMeters (KCBS Radio Aug. 27, 2011)
News from Tobin Law Group
Clients and Friends:
We would like to let you know about some of the significant developments in our practice over the last few months.
We have traditionally focused entirely on the regulatory and commercial aspects of the telecommunications industry as it has evolved from a regulated monopoly structure to a substantially deregulated competitive structure. This evolution has been fueled by new technologies, with federal and state laws and regulations struggling to keep pace. That same process has now begun in the electric power industry, as new technologies and social demands challenge the regulated rate of return monopoly industry structure of the existing utilities, and create both opportunities and risks for new entrants with better ideas. Again, these technology and market-driven changes are outpacing the ability of government regulators to adapt the existing legal frameworks of this industry. Significant problems are also beginning to challenge the traditional regulated industry structure of water utilities, facing supply shortages, increasing demands, and resulting regulatory policy challenges similar to those facing electric utilities.
Below are some examples of how TLG is now participating in these developments, as well as other news about the firm.
California PUC Grants Application of Consumers Power Alliance, Forcing Southern California Edison to Implement a Wireless Smart-Meter Opt-out Plan
Pacific Gas & Electric (PG&E), Southern California Edison (SCE), and San Diego Gas & Electric (SDG&E), California’s three large investor owned utilities (IOUs) regulated by the CPUC, have been broadly deploying time of day electric meters (referred to as “SmartMeters”) using wireless mesh radio network technology for the last few years. Public opposition to these networks has increased dramatically as installations have accelerated. The IOUs have now installed over 12 million wireless SmartMeters, as well as additional network receivers, repeaters, and transmitters, creating some of the largest wireless networks in California. It is estimated that the IOUs have spent over $10B on these wireless mesh network facilities to date. While the CPUC allowed these installations, it never studied their health, safety, environmental, cost, or privacy implications. As the number of wireless meters and associated wireless mesh network facilities placed in operation has increased, public awareness of the negative effects of the deployment has resulted in escalating opposition to the program on all of these grounds, and others.
In July of this year TLG filed an Application on behalf of Consumers Power Alliance, Public Citizen, and 17 other concerned citizens groups and corporations urging the CPUC to require SCE to file a SmartMeter Opt-out Plan consistent with its prior directive to PG&E. SCE had previously announced that it would not do so absent a mandate from the CPUC. The Application also asked the CPUC to impose certain minimum requirements of such a Plan on SCE.
On November 10, 2011, the CPUC granted the Application of Consumers Power Alliance et al, ordering SCE to file its Opt-out Plan within two weeks. The CPUC decision can be seen here.
The CPUC also required SCE to provide detailed technical and cost information on the alternative to the "radio off" Opt-out solution as urged in our Application. These issues will now proceed to formal CPUC decision. The reasonableness of the expenditures on this wireless mesh network, and whether and to what extent shareholders, customers opting out, or the ratepayers generally should bear them, will be a key issue. In the meantime, the CPUC has also ordered that the IOUs establish Delay Lists that will allow concerned customers to defer installation of a SmartMeter until the outcome of the opt-out proceeding is finalized. Still to be addressed is whether customers who received SmartMeters without consent should similarly have the right to have them removed pending outcome of the case.
This case and the similar PG&E case (below), and related litigation and commercial matters, represent a broadening of our traditional focus on telecommunications. But many of the same issues addressed over the last decades as the telecommunications industry was opened to competition and deregulated are now faced by the current monopolistic electric utility industry as evolving technologies create alternatives for consumers and new entrants.
TLG Protests PG&E SmartMeter Plan on Behalf of County and Municipal Governments
At the direction of the CPUC, in March of this year PG&E filed a CPUC Application seeking CPUC approval of a SmartMeter Opt-out Plan which would permit consumers to avoid installation of a wireless SmartMeter installed because of privacy, health, or other concerns. However, the PG&E proposal sought significant charges for any customer wishing to opt-out, and proposed that the technological method of implementing an opt-out would be to turn off one of the radios of an individual SmartMeter.
Representing an initial coalition of Marin County, the Town of Fairfax, and the Alliance for Environmental and Human Health, TLG filed a Protest of the PG&E Application. The Protest asserted that PG&E had violated lawful ordinances of numerous local governments by refusing to obtain county or municipal permits for its SmartMeter development; that the California Environmental Quality Act was being ignored; that the proposed wireless mesh networks are unnecessary and harmful; that the network was insecure and could allow breach of privacy rights; and that the proposed rates were excessive. Since the filing of the Protest twelve more local governments have joined the client coalition, along with additional real estate and citizens interests. The Protest can be seen here.
The Assigned Commission recently issued a draft proposed decision which reduces the rates proposed by PG&E and requires an opt-out program. However, it does not adequately address the concerns of local governments regarding community impacts, or address problems raised by several parties. Further proceedings will be required before the final CPUC decision.
Recent Communications and Technology Matters
We continue to be involved in telecommunications, Internet, and information services matters. Among the representative projects we have recently undertaken are:
- Defending local exchange carriers in Complaint proceedings before the CPUC involving disputed application of local exchange switched access charges to advanced information services such as VOIP and interactive data services;
- Advice concerning compliance with FCC and international regulations to developer of network management software and services used by CMRS providers to route international mobile telephone traffic;
- Pursuing complaints against wireless carriers for failure to compensate a local exchange carrier for access services as required by federal and state law;
- Representation of clients in Alternative Dispute Resolution (mediation) proceedings before the CPUC in complaint and investigation cases;
- Representation of clients in investigation proceedings raising issues of state versus federal jurisdiction, definitions of information services, and responsibility of various participants involved in the provision of components of an information service for alleged regulatory violations;
- Advice to regulated telephone utilities regarding impact of new FCC intercarrier compensation rules on retroactive and prospective bases;
- Advice to a financial institution regarding structuring of its acquisition of control of a regulated telephone company.
- Litigation in Federal District Court concerning interpretation of communications network agreements, successful removal of one proceeding to the CPUC on primary jurisdiction grounds, and ultimate settlement of the matter before trial;
- Litigation in Federal District Court concerning intercarrier compensation payments between telecommunications service providers;
- Representation of client before the Ninth Circuit US Court of Appeals in support of a favorable CPUC decision, and before the Federal District Court on remand;
- Development of an aggressive litigation strategy based on state and federal law and consistent with overlapping regulatory claims.
- Negotiation of affinity agreements between real estate developers and communications, video, and broadband service providers.
- Advice to real estate developers concerning wireless tower siting issues.
- Representation of large, multi-location business clients in negotiation of telephone, broadband, and other network services agreements.
- Advice to information service providers concerning the structuring of service offerings under evolving federal and state law and regulation.
- Advice to clients regarding the provision of electric power or generating facilities to consumers consistent with regulatory constraints and state energy policy.
In the last several months we have been privileged to add a range of new clients in these areas. They include:
- 16 County and Municipal governments in California, participating in energy matters and related strategic actions;
- 15 active local and national citizens groups participating in CPUC energy proceedings as well as broader political activities in furtherance of their objectives;
- Customers challenging the practices of a mutual water cooperative as requiring the cooperative to become a public utility;
- Information service providers concerning the jurisdiction of state regulatory bodies to regulate certain information services, the structuring of services to preclude regulation as telephone services, and agreements with other information service providers and telecommunications service providers.
New Senior Attorneys
Two experienced senior attorneys have joined Tobin Law Group, both of whom Jim Tobin has known for decades:
Jose E. Guzman (Joe) has over thirty years of regulatory and government relations experience in telecommunications, water, and electric utility matters. His clients have included Sprint, Duke Energy, NRG Energy, and the California Water Association. Joe was recently re-elected to the Board of Directors of the California Council of Public Utility Counsel, and is active in several community groups. Joe’s email address is firstname.lastname@example.org and his telephone number is 415-732-1705.
William B. Saul (Bill) has over thirty years experience in corporate tax matters, including as an IRS trial lawyer, the principal tax officer for the Southern Pacific railroad until its merger with Union Pacific, as a member of the tax consulting practice of Deloitte & Touche, and his own business structuring and tax practice. Bill’s email is email@example.com, and his telephone number is 415-732-1706.
New Office Address
We have moved all of two blocks to a new office next to the Tiburon Town Hall and Belvedere-Tiburon Library. The new address is 1100 Mar West Street, Suite D, Tiburon, CA 94920. All of our email addresses and telephone numbers remain the same.