Public Utility Smart Meters; Statutory Construction; Alleged Safety Concerns; Burden of Proof

Povacz v. Pennsylvania Public Utility Commission, 241 A.3d 481 (Pa.Cmwlth. 2020), allocatur granted May 12, 2021, appeal docket 34 MAP 2021

Four consumers (Consumers) who receive electricity distribution services from PECO and who received a notice from PECO advising that  wireless smart meters would be installed in or on their homes to replace their current meters informed PECO that they would not allow installation of the replacement meters because they emit radiofrequency electromagnetic energy (RF). PECO notified the Consumers that their electricity would be cut off entirely unless they allowed installation of smart meters. The Consumers then filed complaints with the PUC seeking to avoid forced installation of smart meters in or on their homes. Their complaints were eventually consolidated and the PUC denied the complaints.

On appeal from the PUC  the Commonwealth Court entertained six interrelated issues related to statutory (Act 129)  provisions requiring electric distribution companies like PECO to “furnish smart meter technology … in accordance with a depreciation schedule.”In its extensive opinion, the Commonwealth Court made three conclusions relevant to the questions the Supreme Court has agreed to consider

First, the Commonwealth Court found that Act 129 does not require the PUC to deploy wireless smart meters to all homes. The Court based its interpretation of the statue on four arguments:

(1) Act 129’s use of the verb “furnish” implies that even though PECO is required to make smart meters available to consumers, consumers are not required to accept the technology.

(2) Several provisions of Act 129, including the definition of “smart meter technology,” seem to contemplate customer choice vis a vis smart meters.

(3) The PUC’s webpage about smart meters uses the language of customer choice to explain the program.

(4) Act 129 does not preclude the granting of an accommodation to a customer who desires to avoid RF emissions from a wireless smart meter. The Court noted a 2016 federal case from the Eastern District of Pennsylvania in which PECO installed a smart meter on a pole some distance from the plaintiff’s home in accommodation of his claim that the prior installation of the meter on his home had caused new or exacerbated health problems.


Second, the Court found that when the PUC considers a consumer’s proposed accommodation to the standard smart meter protocol, the PUC “should consider whether accommodations are appropriate without proof of harm, so that Consumers may choose to avoid RF emissions from wireless smart meters, while allowing PECO to comply with Act 129’s mandate concerning availability of smart meter technology” (emphasis in original). Slip op. at 17. This standard does not require a consumer to show proof of harm to himself because, the court explains, “even though the actual risk to Consumers’ health is uncertain…the burden to them of forced exposure to additional RF emissions outweighs any minimal burden to PECO[,]” as it is “difficult to imagine that large numbers of other PECO customers will then flood the utility with requests to avoid RF emissions at increased cost.”

Slip op. at 18. Finally, the Court found that the PUC applied the correct burden of proof by requiring Consumers to show a conclusive causal connection between RF exposure and adverse health effects, rather than simply showing a risk of harm. The Court, relying in part on a federal case from the Northern District of Illinois called Naperville I, explained:

The PUC concedes Consumers were not required to prove harm had actually occurred; the PUC’s authority extends to claims seeking to prevent harm. However, where prevention of harm was Consumers’ aim, the burden of proof still required demonstration by a preponderance of the evidence that the utility’s proposed conduct would create a “proven exposure to harm.” Povacz (Pa. P.U.C., No. C-2015-2475023, filed Mar. 28, 2019), slip op. at 29. The PUC argues that although the occurrence of harm need not be certain, or even probable, Consumers incorrectly equated any hazard, however slight, with exposure to harm. The Naperville I court considered this issue and found that even without an option to deactivate the radio transmitters in the smart meters, the plaintiffs’ claim would not have been viable. Like Consumers here, the Naperville I plaintiffs based their claim on “a theory that the radio waves emitted from the smart meters, together with other RF-wave-emitting devices in the environment, have the potential to be harmful.” The court in Naperville I acknowledged the plaintiffs’ contention that “certain doctors believe that over time the public’s cumulative exposure to low-level RF from devices such as cell phones, radio towers, and smart meters may pose health risks, such that more accurate guidelines and standards regarding the safety of RF exposure are necessary.” Nonetheless, the court concluded “[t]he bare allegation that it is unknown whether [p]laintiffs are actually being harmed by the level of RF waves emitted from one smart meter is insufficient” to raise a claim for relief that is more than speculative.

Slip op. at 20.

The Pennsylvania Supreme Court granted petitions for allowance of appeal filed by the PUC, PECO and the Consumers  to consider five questions:

  1. Did the Commonwealth Court commit an error of law by concluding that the statute does not mandate universal deployment of smart meters, which is contrary to the plain and unambiguous statutory language of Section 2807(f)(2) of the Pennsylvania Public Utility Code, 66 Pa.C.S. § 2807(f)(2)?
  2. On a question of first impression involving Act 129’s smart meter deployment mandate, did the Commonwealth Court abuse its discretion by interpreting the Public Utility Code in a manner that violated the rules of statutory construction and disregarded the legislative intent of the General Assembly?
  3. Did the Commonwealth Court commit an error of law by articulating a burden of proof under Section 1501 of the Pennsylvania Public Utility Code, 66 Pa.C.S.§ 1501, that could result in a utility being found in violation of the Code without evidence of harm?
  4. Did the Court err when it concluded that Act 129 allows individual Consumers to reject or “opt -out” of smart meter technology, on the grounds that Act 129 requires that “Electric distribution companies shall furnish smart meter technology,” Webster’s Dictionary defines “furnish” as meaning “to provide with what is needed;. . . supply, give,” and that this definition of “furnish” does not imply that the recipient is forced to accept that which is offered?
  5. Did the lower court err as a matter of law by upholding the PUC’s interpretation of Section 1501 of the Public Utility Code as requiring as to issues of safety proof of a “conclusive causal connection” between RF exposure from smart meters and harm to Petitioners, when this heavy and unprecedented burden is not compelled by the language of the statute, where the statutory and dictionary definition of the word “safe” includes protection from the possibility of harm, not just the conclusively proven certainty of harm, and where imposition of this burden would render it impossible for Petitioners to prove their cases?


For more information, contact Kevin McKeon or Dennis Whitaker.