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Romeo v. Pennsylvania Public Utility Commission

Commonwealth Court of Pennsylvania

February 8, 2017

Antonio Romeo, Petitioner
v.
Pennsylvania Public Utility Commission, Respondent

          Submitted: September 23, 2016

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge[1]HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          P. KEVIN BROBSON, Judge

         Antonio 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 proceedings.

         As background, by Act 129 of 2008 (Act 129), [2] the General Assembly amended the Public Utility Code (Code), [3] for 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).

         After Act 129's smart meter directive took effect, the Commission adopted a Smart Meter Procurement and Installation Implementation Order (Commission's Smart Meter Order)[4] 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), [5] which the Commission approved after finding it to be in compliance with Act 129.[6]

         In 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.[7] 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[8] (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).

         Romeo 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.

         In 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.

         The ALJ 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.

         Romeo's 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, ¶ 2.)

         The Commission denied the exceptions, [9] adopted the ALJ's decision, and supplemented the ALJ's decision by addressing Romeo's federal preemption challenge.[10] 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.

         On appeal, [11] 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.

         With regard to preemption, Romeo directs our attention to Section 2621(d)(14)(A) of PURPA, 16 U.S.C. § 2621(d)(14)(A), which provides:

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, [12] Romeo argues that because Congress has declined to make the installation of smart meters mandatory, Act 129's compulsory ...


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