Marilynne Martin, the organizer of the Martin Petition (see http://www.floridapsc.com/library/FILINGS/14/00583-14/00583-14.pdf), went to great lengths to appear in Tallahasee on May 9th, in order to present Oral Argument as to why the Florida Public Service Commission (FPSC) should NOT deny her Motion for Reconsideration regarding the substantive matters of health, privacy, safety, etc.
Martin did an excellent job of summarizing the facts of the Florida “smart” meter debacle. No due process, no proper rule-making, and a complete abdication of responsibility and accountability by the FPSC.
In spite of the clear logic of Martin’s argument, the FPSC voted to deny her own Motion for Reconsideration, and also denied the Motion for Reconsideration of the second Petition (the “Ahn Petition”; see http://www.floridapsc.com/library/FILINGS/14/00582-14/00582-14.pdf).
Martin’s presentation will serve as a historical record of the FPSC’s complete dereliction of its duty.
VIDEO of Martin’s Argument:
(Note: video may be slow to load)
The text of Martin’s Oral Argument, as transcribed by the FPSC, is downloadable here:
The text is reprinted here:
FPSC CHAIRMAN GRAHAM:
Ms. Martin, you have ten minutes.
Yes. My name is Marilynne Martin. I am the qualified representative and also a petitioner for the Martin petitioners. We have 20 people on our petition. And I want to thank you for this time to give oral argument.
The order we are asking you to reconsider limits the scope and jurisdiction of this proceeding to be held in September to issues of cost and cost allocation only. It denies all issues of health, safety, and privacy, as well as other issues such as the standard meter designation to be heard.
The denial comes with two parts. One, a lack of jurisdiction by the Commission, and the second being the concerns regarding the deployment should have been raised in the 2008 rate case. And I’d like to focus today on facts that I think that were overlooked as far as law and facts, and that has to do with the petitioners right to proper notice and due process as well as some of the Commission powers that exist under the current statutes.
A fundamental requirement of due process is proper notice and adequate notice. Notice is knowledge of facts which would naturally lead an honest and prudent person to make an inquiry. We assert that proper notice was not given to the petitioners in the 2008 rate case where the smart meters were approved. The public was not told that the meters would be mandatory, nor was the public told that an active wireless neighborhood area network was to be constructed and operated through these meters on their home.
We understand that both the Commission and its staff as well as the utilities received about six to ten years of training on the smart grid and smart meters. So when FPL said at the service hearings introducing smart meters, that had significant meaning to you. But is it reasonable to expect the public to have knowledge; that is, for them to know they must be mandatory, because in order to work properly through a wireless mesh network.
The fact is that no mention was made of wireless nor mandatory and there doesn’t appear to be any news reported prior to the order on that also. So we ask you how John Q. Public had notice to dispute this action at the time. The fact is that the petitioners received notice after that proceeding had concluded. I went and got the deployment letters, and they brought the issues to the service hearings being conducted in the 2012 rate case.
The notice of that hearing for 2012 said that the purpose was to take testimony from the public on the quality and the adequacy of FPL’s service and other matters relating to the rate case. We ask you if it is true that this March 2010 order made the smart meter the standard meter, and it was mandatory, and all should have known it, then why did the Commissioners shut down the proper and legal testimony coming before them at that time? Why didn’t FPL and the Commissioner give notice to the people at that time? Why wasn’t the public told in the 2012 service hearings that this was standard service and they were to be charged or needed to take it as a mandatory meter? Why was appropriate and legal testimony denied and a separate track set up with separate comment cards to be handled under separate proceedings?
At the Melbourne service meetings, Ms. Bulger (phonetic), a customer, came forth and asked a very simple question, and she said, “Can these meters shut your electric off via an office without an employee coming?” She was not given an answer. So it appears people are confused as to what this equipment can and cannot do two years after, but you’re asking us to have known to dispute it.
So did the public receive their due process rights in the smart meter workshop that was set up, the separate track that was set up? And we say no. The public did not have the equal opportunity to present their facts, respond to staff questions, refute the facts, recommendations? The public’s request for presentations at that workshop were denied. There was also no notice provided after you had your Internal Affairs meeting on the briefing report, and no notice came out after that meeting to tell us how to protest that recommendation. No notice of rulemaking was even set up.
So the petitioners assert the fact that they were denied their due process rights to be heard. In addition, since such meetings and decisions were unreasonably delayed until February 29th, 2013, the petitioners were further denied their due process rights to protest the 2012 rate case settlement which was issued on January 14th where the period has closed.
A comprehensive investigation into important consumer issues did not occur on September 20th, 2012, as promised, nor was due process allowed. There was no notice of how to dispute those finding. And until FPL filed this non-standard meter tariff today, in August, the public had no avenue to appeal the recommendations made in that briefing report. So we contend this is the place for all disputes to finally be heard.
Administrative Procedures Act 120.57(e)(1) says an agency or administrative law judge may not base agency action that determines the substantial interest of a party on an unadopted rule. We ask you to consider whether the smart meter workshop briefing report, the recommendation that the utilities decide for themselves to offer an internal meter, and, if so, must present a cost-based tariff, is that an unadopted rule?
And also, you know, we have Order Number 18893 which basically transferred the ownership of meter enclosures to us, and the order simply states for a meter. This equipment is not a meter. So the petitioners believe their due process rights of law have been denied.
So the order that you are opining on today suggests also that the Commission has the power to mandate a product to be placed directly on the home of the customer, but the Commission has absolutely no jurisdiction over the safety of that product, and we respectfully disagree. The fact is that this Commission has broad powers and also responsibility for public safety. A smart meter is now part of your distribution facilities. It wasn’t prior, okay, the analog wasn’t, but this is. If you want to shut off service to somebody five houses away from me, you have to bounce that signal through my home. It is definitely part of distribution facilities, and you definitely have responsibility for that.
The Commission in this order has overlooked Section 366.05, which give it power to prescribe standards of quality and to require replacements when necessary to promote the convenience and welfare of the public. In addition, Section 366.06 gives it powers that whenever the Commission finds, upon request made, that practices of any public utility are unjust, unjustly discriminatory, or in violation of law that public hearings be held. Many of my petitioners avoid all sources of wireless. It makes them ill. They have doctors notes telling them to do so.
You were suggesting they have to accept as standard service a product directly on their homes that they have been instructed to avoid and is known to make them ill, and that their only remedy is to sue, for which the disabled cannot afford.
This approved fee also places an undue burden on the poor. We say choice of meter. I certainly, in my financial situation, have a choice. But if you are living on a fixed income, that’s no choice at all, and you have gotten comment letters on that. So we ask you to relook at our petition. We ask you to put the tariff order — that’s what we ask, we ask you to kind of put that order on hold, hold the proper hearings so we can have due process. Then based on those hearings, then we can make a proper decision on a non-standard tariff meter and what needs to be included in there. But it is time for the public, and petitioners very much request, respectfully, that our rights under the law to be heard be heard, and these are not frivolous issues.
FPSC CHAIRMAN GRAHAM:
Thank you, Ms. Martin.
Note: To view the full “Hearing” (about 25 minutes long) go to:
http://www.floridapsc.com/agendas/audiovideo/index.aspx, and under the May 9, 2014 date, click on “Video.” When the video player comes up, scroll down to “Item 11. Docket No. 130223-EI Petition for approval of optional non-standard meter rider, by Florida Power & Light Company.”