Submitted: September 23, 2016
BEFORE: HONORABLE P. KEVIN BROBSON, JudgeHONORABLE JULIA K.
HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge
KEVIN BROBSON, Judge
Romeo (Romeo) petitions pro se for review of the
order of the Pennsylvania Public Utility Commission
(Commission), adopting the Initial Decision of an
Administrative Law Judge (ALJ) and dismissing Romeo's
exceptions to the Initial Decision. We now affirm, in part,
reverse, in part, and remand the matter for further
background, by Act 129 of 2008 (Act 129),  the General
Assembly amended the Public Utility Code (Code),
the purpose of reducing energy consumption and demand. Act
129 set in motion a multi-phase implementation process that
addresses electric distribution companies and default service
provider responsibilities, conservation service providers,
smart meter technology, time-of-use rates, real-time pricing
plans, default service procurement, market misconduct,
alternative energy sources, and cost recovery. With regard to
smart meters, Act 129 provided that electric distribution
companies were to provide the Commission with smart meter
technology procurement and installation plans for approval.
Section 2807(f) of the Code, 66 Pa. C.S. § 2807(f).
Act 129's smart meter directive took effect, the
Commission adopted a Smart Meter Procurement and Installation
Implementation Order (Commission's Smart Meter
Order) to "establish the [standards that the
smart meter] plan[s] must meet and provide guidance on the
procedures to be followed for submittal, review and approval
of all aspects of each smart meter plan."
(Commission's Smart Meter Order at 1.) PECO Energy
Company (PECO) then filed with the Commission a Petition for
Approval of its Smart Meter Technology Procurement and
Installation Plan (Smart Meter Plan),  which the
Commission approved after finding it to be in compliance with
April 2015, Romeo filed a complaint alleging that PECO was
threatening to terminate his electric service because he did
not allow PECO access to his meter to replace it with a smart
meter. Alleging that PECO's attempts to force
the installation of a smart meter on his property are in
violation of federal law, specifically, the Energy Policy Act
of 2005 (Energy Policy Act), Romeo claimed that
"to the extent that PECO is relying on [Act 129] as a
justification for forcing the installation of a smart meter
on my property, PECO's actions are in violation of the
[Energy Policy Act], which pre-empts Act 129."
(Romeo's Complaint, dated April 27, 2015 at 7, ¶ 9).
asserted that all of his electric bills are paid on time and
in full. While he has not denied PECO access to his property
in order to read his meter, he has not and will not request
the installation of a smart meter on his property. He further
claimed that PECO was unfairly targeting him for the
installation of a smart meter, as PECO was not trying to
force the installation on some of his neighbors. Finally, he
asserted that the smart meters cause fires, serious health
and safety issues, and privacy concerns, providing links to
two news articles about smart meter fires. As relief, Romeo
requested that the Commission order PECO to refrain from
shutting off his electric service and to cease its attempts
to install a smart meter on his property.
response, PECO filed an answer with new matter and
preliminary objections averring that, in accordance with Act
129, it was required to install Advanced Metering
Infrastructure meters for all of its current Automated Meter
Reading customers by the end of 2014. It argued that,
pursuant to its tariff, it has the right to access a
customer's property at all reasonable times for the
purpose of installing, removing, or changing equipment
belonging to PECO, and that the tariff allows it to terminate
a customer for cause if access to the meter is refused. PECO
added that neither Act 129 nor its Smart Meter Plan provides
customers an option to opt out of smart meter installation.
PECO asserted that because its smart meters are being
installed in compliance with state law and the
Commission's Smart Meter Order, no legal basis exists for
Romeo's complaint and that the complaint should be
dismissed as a matter of law. PECO contended in its
preliminary objections that Romeo's complaint should be
dismissed under the Commission's regulation at 52 Pa.
Code § 5.101(a)(4), relating to legal insufficiency.
Romeo responded, arguing that PECO failed to address his
argument that Act 129 is preempted by federal law, and,
accordingly, PECO did not have the authority to force
installation of a smart meter on his property.
sustained PECO's preliminary objections and dismissed
Romeo's complaint, concluding that under state law, a
customer does not have the option to opt out of the smart
meters that an electric distribution company is required to
deploy and install pursuant to its Commission-approved Smart
Meter Plan. Explaining that PECO is required by statute and
the Commission's Smart Meter Order to implement its Smart
Meter Plan, install smart meters throughout its service
territory, and charge a smart meter technology surcharge to
all of its metered customers, the ALJ concluded that the
Commission does not have the authority, absent a legislative
directive, to prohibit PECO from installing a smart meter
even if a customer does not want one. The ALJ did not address
either Romeo's preemption issue or his allegation that
the meters were unsafe.
exceptions to the ALJ's decision only asserted that the
ALJ ignored his argument that federal law preempts Act 129.
He went on to argue that the ALJ's conclusion that the
Commission does not have the authority to prohibit PECO from
installing smart meters is incorrect and "rather,
federal law compels the Commission to direct PECO to
cease and desist in its attempts to force installation of the
smart meter." (Romeo's Exceptions to the ALJ's
Initial Decision Granting Preliminary Objections, dated July
20, 2015 at 1, ¶ 1 (emphasis in original).) He contended
that the ALJ mischaracterized his arguments as "merely
seeking to 'opt out' of the installation of the smart
meter" when, in fact, he "is asking the Commission
to recognize that PECO's acts are being taken in
violation of federal law." (Id. at 2, ¶
Commission denied the exceptions,  adopted the ALJ's
decision, and supplemented the ALJ's decision by
addressing Romeo's federal preemption
challenge. Concluding that Act 129 was not
preempted by the Energy Policy Act, the Commission explained:
Section 1252 of the Energy Policy Act amended the Public
Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C.
§ 2621(d), to add provisions relating to smart
metering. PURPA expressly allows state regulatory
authorities, such as the Commission, to adopt, pursuant to
state law, standards or rules affecting electric utilities
that are different from the standards set forth in 16 U.S.C.
§§ 2621, et seq. 16 U.S.C. § 2627(b).
(Commission's March 3, 2016 Opinion at 8-9.) While Romeo
did not raise it as an exception, the Commission's
decision also addressed Romeo's claim that smart meters
were dangerous. It concluded that Romeo's challenge to
the meters on that basis was legally insufficient because
Romeo "has not presented a claim to which he could
personally testify that would support a finding that a smart
meter was responsible for any fire or damage or other
specific safety or health affects he experienced within his
home." (Id. at 9.) Romeo petitioned this Court
for review, and PECO intervened.
appeal,  Romeo again contends that Act 129 is
preempted by the federal Energy Policy Act. Romeo also argues
that the Commission's decision is contrary to Section
1501 of the Code, 66 Pa. C.S. § 1501, which requires
public utilities to maintain adequate, efficient, safe and
reasonable service and facilities for their customers,
claiming that the smart meters are unsafe, and that the
Commission erred in denying him a hearing regarding the
safety concerns he raised. The Commission responds that it
properly concluded that federal law does not preempt Act 129
and that Romeo waived the remaining issues by not raising
them in his exceptions to the ALJ's Initial Decision.
regard to preemption, Romeo directs our attention to Section
2621(d)(14)(A) of PURPA, 16 U.S.C. § 2621(d)(14)(A),
Not later than 18 months after August 8, 2005, each electric
utility shall offer each of its customer classes,
and provide individual customers upon customer
request, a time-based rate schedule under which the rate
charged by the electric utility varies during different time
periods and reflects the variance, if any, in the
utility's costs of generating and purchasing electricity
at the wholesale level. The time-based rate schedule shall
enable the electric consumer to manage energy use and cost
through advanced metering and communications technology.
(Emphasis added.) Citing to the Supremacy Clause of the
United States Constitution,  Romeo argues that because
Congress has declined to make the installation of smart
meters mandatory, Act 129's compulsory ...