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A Better Partnership
July 16, 2015

COA holds that utility companies may install “smart meters” on customer property and enter onto property without owner permission

The Michigan Court of Appeals in Detroit Edison Company  v. Stenman, No. 321203, held that Michigan utility provider, Detroit Edison Company (“DTE”), may install “smart meters” on customer property, and the installation of the meters did not violate the property owners’ health and privacy rights under the Fourth Amendment. It further held that DTE may enter onto real property to service its equipment without landowner permission.
 
In 2011 DTE installed an advanced metering infrastructure meter, commonly known as a “smart meter” on the Stenmans’ property. The Stenmans alleged that the smart meter emitted electromagnetic radiation and permitted the conducting of surveillance or recording events and activities on their property. After notifying DTE of their concerns, they removed the smart meter, mailed it back to DTE and installed an analog meter. Thereafter, the Stenmans also asserted that DTE may only enter their property to perform activities on their property if DTE scheduled an appointment at a time convenient for the Stenmans.
 
DTE filed suit alleging that it was permitted to install the smart meter under Michigan law and the Michigan Public Service Commission (“PSC”) rules and that the Stenmans were obligated to protect its equipment. Further, it argued that PSC rules permit DTE to enter their property without appointment.
 
The Court held in favor of DTE. It first determined that there was no genuine issue of material fact regarding whether the smart meter installation was lawful under the PSC’s definition of the word “meter.” The Court reasoned that under PSC rules, DTE was permitted to install meters on customer property and that a plain reading of those rules did not exclude from its definition the technology used in smart meters. Therefore, the Court held, the smart meters were within the PSC rules, thus the smart meter on the Stenmans’ property was lawful. The Court further decided that the installation was not a violation of the Fourth Amendment, as the Stenmans’ failed to demonstrate they were personally impacted by the smart meter. Rather, their argument focused on an affidavit demonstrating the health of a three-year-old child was impacted by similar technology—the child, however, was not involved in the case.
 
Lastly, the Court held that pursuant to PSC regulations, as a condition for the Stenmans using the utility services, DTE is granted access to the Stenman’s property at all reasonable hours to “install, turn on, disconnect, inspect, read, repair or remove its meters, and to install operate and maintain other Company property, and to inspect and determine the connected electrical load.” Therefore, the Court held that DTE, under applicable regulations, could not be prohibited by the Stenmans from entering their property.
 
Thus, the Court held in favor of DTE and sanctioned their ability (1) to use smart meters, (2) to prohibit their removal by customers, and (3) to enter upon property without property owner permission to service the meters.

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