BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION
OF THE STATE OF MONTANA
In the matter of the adoption of New
Rule I regarding advanced metering
NOTICE OF ADOPTION
TO: All Concerned Persons
1. On January 29, 2021, the Department of Public Service Regulation published MAR Notice No. 38-5-248 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 111 of the 2021 Montana Administrative Register, Issue Number 2.
2. On May 14, 2021, the Governor signed into law House Bill 606, which codified new definitions of "advanced metering device," "advanced meter," and "advanced metering gateway device." It also extended the deadline for the Public Service Commission to determine whether an opt-out program for advanced meters and/or advanced metering gateway devices should be established. The new deadline is July 1, 2022. On July 23, 2021, the Department of Public Service Regulation published an Amended Notice and Extension of Comment Period on Proposed Adoption of the above-stated rule at page 896 of the 2021 Montana Administrative Register, Issue Number 14.
3. The department has adopted the following rule as proposed, but with the following changes from the amended proposal, new matter underlined, deleted matter interlined:
NEW RULE I (38.5.2603) ADVANCED METERING OPT-OUT PROVISIONS
(1) Electric and natural gas utilities shall provide customers with the option to remove an installed advanced metering device and replace it with an alternative meter approved by the commission, or to decline installation of an advanced metering device and retain the existing meter, as guided by a cost-based opt-out service tariff. An advanced metering device or advanced meter shall be defined as set forth in Montana Code Annotated. As used in this rule, "alternative meter" means all other meters that do not satisfy the definition of advanced metering device or advanced meter.
(2) Prior to installation of an advanced metering device, the utility shall give written notice to the customer at least 60 days in advance. Such notice shall clearly describe the opt-out process available to the customer and must include the following language: "Montana law allows customers to opt-out of the use of advanced metering devices according to terms and conditions set by the Montana Public Service Commission. No utility company can require the use of an advanced metering device. If you have questions about your opt-out rights, please contact the Montana Public Service Commission at 1-800-646-6150."
electric utility shall notify the customer of the following if a customer expresses interest in using an alternative meter:
(a) The customer will be required to pay the amount of the approved tariff charge determined by the commission, if applicable.
electric utility shall explain the facts concerning advanced meters and attempt to address any customer concerns prior to signing up a customer for advanced meter opt-out service. To the extent that the electric utility offers multiple options for the customer to obtain or retain either an advanced meter or an alternative meter, the utility shall explain each option and the allowable charges, if any, and allow the customer to choose from the options available.
(4) Any utility whose deployment of advanced metering devices commenced prior to the effective date of this rule must submit a schedule and a proposed tariff within 180 days of the effective date of this rule.
Any utility that begins deployment of advanced metering devices after the effective date of this rule must file a schedule and proposed tariff for opt-out service at least 120 days prior to the installation of advanced metering devices. No utility may begin deploying advanced metering devices after the effective date of this rule without a commission-approved schedule and tariff for opt-out service.
(5) When applying for approval of an opt-out service tariff, the utility shall address circumstances unique to the utility in its tariff application, including what fees, if any, should be charged to recover costs, such as the cost of removing an existing advanced meter and the subsequent installation of an alternative meter, or costs associated with providing meter reading and billing services associated with the use of an alternative meter. Every initial or revised tariff submitted pursuant to this rule must describe all alternative meters available to customers and provide a reasonable estimate of costs associated with each alternative meter.
(6) To promote customer choice, every utility must identify at least one alternative to an advanced meter in every tariff submitted pursuant to this rule, for commission approval.
If practicable, utilities Utilities should include at least one alternative type of meter that does not use radio waves or internet technology to measure, record, or send a customer's utility usage information. If a utility cannot provide such an alternative, the utility must state the reasons why, and the commission will examine all viable alternative meter ing reading options available.
AUTH: 69-2-101, 69-2-102, 69-3-103, 69-3-203, 69-3-321, 69-4-1001, 69-4-1002, 69-4-1003, 69-4-1004, MCA
IMP: 69-4-1004, MCA
4. Before initiating rulemaking, the commission solicited written comment and held informal listening sessions to gather input from the public and interested parties on advanced metering devices. The commission received more than 100 comments in writing or in person at the two listening sessions, which were held on September 30, 2020, and October 7, 2020. The commission held a formal rulemaking hearing on February 23, 2021. The commission also contacted the sponsor of House Bill 606 to receive his comments on the rulemaking.
5. The department has thoroughly considered the comments and testimony received, both in the informal listening sessions and at the rulemaking hearing. A summary of the comments received and the department's responses are as follows:
COMMENT 1: The commission received many comments from individuals who opposed the use of advanced metering devices and supported the creation of an opt-out program.
RESPONSE: The commission appreciates the commenters' input and support for the proposed rulemaking. The commission agrees that an opt-out program should be established, as demonstrated by the adopted rule.
COMMENT 2: Many commenters expressed concern that the deployment of advanced metering devices could cause or exacerbate heath issues due to radiofrequency (RF) radiation. Commenters said advanced metering devices can emit RF radiation at a greater rate and "density" than a cell phone or wireless router. Commenters were particularly concerned about the proximity of RF radiation sources near the home, and the effect that radiation could have on children and animals. Commenters noted that people have been forced to live "off-grid" to avoid exposure to RF radiation. One commenter said there were no independent studies that have shown advanced metering devices are safe. Commenters stressed the need for an opportunity opt-out of advanced metering devices.
RESPONSE: The commission notes that, without the proposed rulemaking, there would be nothing in rule or law that governs the installation of advanced metering devices in Montana.
COMMENT 3: One commenter requested the phrase "traditional meter" be replaced with "traditional analog meter" to ensure customers have access to an analog option that will not emit RF radiation. Another commenter noted that "traditional meter" is not defined in statute and is ambiguous.
RESPONSE: The commission revised its proposed rule in the amended notice published on July 23, 2021. That revised rule removed references to "traditional meters." The adopted rule adheres to the statutory definitions provided in 69-4-1001, MCA. The legislature directed the commission to consider whether to implement an opt-out program for advanced metering devices, as that term is defined in statute. The terms "traditional meter" and "traditional analog meter" are not defined in statute. The commission believes that ambiguity surrounding those terms could lead to confusion. Instead, the rule as adopted uses the term "alternative meter" to refer to any metering device that does not satisfy the statutory definition of "advanced metering device."
COMMENT 4: Several commenters expressed opinions on the opt-out fee. Of the commenters who supported the opt-out fee, one commenter supported the inclusion of an opt-out fee, but said there should be an opportunity for waivers. Another commenter said that the costs associated with allowing customers to opt-out would likely be manageable, but that utilities should provide specific information about the costs they incur. The commenter further stated that the lack of utility-specific information should not prevent the commission from establishing an opt-out program and enabling the later collection of utility-specific information on a case-by-case basis.
RESPONSE: The commission appreciates the commenters' input, and notes that the terms of any opt-out fee, including the amount of the fee and any waivers for the fee, will be addressed in an evidentiary hearing on a utility's proposed tariff. Section (5) of the adopted rule requires utilities to address the circumstances that justify any proposed opt-out fee. The commission expects utilities requesting opt-out fees to provide credible evidence of the actual costs they will incur in serving customers who opt-out.
COMMENT 5: Of the commenters who generally opposed the opt-out fee, one commenter requested the addition of a medical waiver for the opt-out fee, so that customers with a diagnosed sensitivity to radio frequency radiation would not have to pay the opt-out fee. Another commenter said that those most affected by RF radiation may be the least able to pay the fee, given limited disability benefits, and requested a means-based waiver for the opt-out fee. A commenter noted there should be options to seek a waiver without using an electronic form. Other commenters said there should be no opt-out fee, given the health hazards posed by advanced metering devices.
RESPONSE: The commission appreciates the commenters' input, and notes that the opt-out fee, including the amount of the fee and any waivers for the fee, will be addressed in an evidentiary hearing on a utility's proposed tariff.
COMMENT 6: One commenter remarked that opt-out fees must be reasonable, affordable, and approved by the commission. The commenter stated that the average opt-out fee is $10 to $15 per month, and some states have lower fees for low-income customers. The commenter said that customers in New Mexico who read their own meters pay no opt-out fees. The commenter further said that a utility should not need to chare a large opt-out fee for dedicated trips to read a meter, as opt-out meters could be checked when the neighborhood substation is checked on a monthly basis. The commenter also said utility technicians can use handheld devices to enter meter data remotely, which would limit the amount of data entry required.
RESPONSE: The commission will consider the reasonableness of any opt-out fee proposed by a utility in an evidentiary hearing on the utility's proposed tariff. The commission will also consider the reasonableness of waivers for the opt-out fee. The commission anticipates that opt-out fees will be limited to the actual expense incurred by a utility in serving customers who have opted-out, which must be proven in an evidentiary hearing.
COMMENT 7: One commenter said the opt-out fee should not send a "price signal" to force customers to accept an advanced metering device.
RESPONSE: The commission agrees that opt-out fees should be based on actual costs. The commission will evaluate evidence of actual costs in future proceedings on proposed opt-out tariffs. The commission may consider including waiver provisions to the extent actual costs effectively force customers to accept advanced metering devices.
COMMENT 8: Several commenters discussed NorthWestern Energy's current efforts to deploy new meters for customers in Montana.
RESPONSE: The commission notes that NorthWestern Energy will be required to submit a tariff for commission approval under the proposed rule. The commission further observes that this rulemaking is necessary to provide a formal opt-out program for NorthWestern's current deployment of advanced metering devices.
COMMENT 9: One commenter noted the proposed rule does not address how customers living in condominiums and apartment complexes would opt-out of an advanced metering device. The commenter suggested that a verified, medical waiver should automatically eliminate all fees associated with removal of advanced metering devices in a building.
RESPONSE: The commission will address the scope of opt-out programs and any fee waivers in an evidentiary hearing on a utility's opt-out tariff. The commission notes that it does not have jurisdiction over the relationship between landlords and tenants, and it cannot resolve disputes between landlords and tenants regarding the installation of advanced metering devices.
COMMENT 10: Two commenters referred the commission to a D.C. Circuit Court Order from Environmental Health Trust v. Federal Communications Commission, 9 F.4th 893 (D.C. Cir. Aug. 13, 2021). In that decision, the D.C. Circuit found the FCC's determination that exposure to RF radiation at levels below current limits arbitrary and capricious. One commenter said the commission should not allow utilities to deploy advanced metering devices until that litigation is resolved.
RESPONSE: The commission appreciates the commenters' submission. The commission notes that the holding in Environmental Health Trust was based on the FCC's lack of a reasoned explanation about the potential harms of RF radiation. The D.C. Circuit Court further held that the FCC provided a reasoned explanation for its rejection of claims that RF radiation was "probably carcinogenic." Ultimately, however, the commission does not regulate RF radiation, nor is the present rulemaking the appropriate venue for the commission to make factual findings about the properties of RF radiation. The commission further notes that 69-4-1004, MCA, imposes a statutory deadline for the commission to act on the opt-out rulemaking. Accordingly, the commission cannot wait on the outcome of federal litigation.
COMMENT 11: One commenter suggested that utilities can purchase base model digital meters without an RF module or factory recertified analog meters, or keep existing, functional meters as they are removed from customers' premises. The commenter also suggested utilities in other states could be contacted to determine how those utilities accommodate opting out of advanced metering devices.
RESPONSE: The commission appreciates the commenter's suggestion; however, the determination of what alternatives are or may be available is better suited to an evidentiary hearing on a utility's proposed tariff.
COMMENT 12: One commenter said informed consent language should be approved by the commission.
RESPONSE: The commission agrees that informed consent language should be approved by the commission. The proposed rule includes language that informs customers of their rights and the availability of the commission's staff to assist in understanding those rights.
COMMENT 13: One commenter said that the prudence and usefulness of advanced metering devices should remain subject to challenge in proceedings to consider opt-out tariffs. Another commenter said that there is no need for instantaneous detection of outages.
RESPONSE: In this rulemaking, the commission does not express any opinion on the prudence, usefulness, or need for advanced metering devices. Likewise, the proposed rule should not be construed to limit the issues parties may raise in future proceedings to consider opt-out tariffs. The commission initiated this rulemaking in response to 69-4-1004, MCA, which directed the commission to determine whether an opt-out program should be established. It is beyond the scope of this rulemaking to determine whether advanced metering devices are prudent, useful, or necessary.
COMMENT 14: Several commenters expressed concern about how information would be gathered from advanced metering devices and used. One commenter said the information could be used to predict granular details about a customer's energy usage. Commenters requested that the commission take steps to protect the privacy of information tracked through advanced metering devices. One commenter also said customers should be warned about the information that can be gathered by advanced metering devices as part of advising customers of their opt-out rights. Several commenters said advanced metering devices could be easily hacked by third parties or used by bad actors to track customers' behavior.
RESPONSE: The commission appreciates the commenters' privacy concerns, and notes that the Montana Legislature addressed the security and disclosure of energy use data in 69-4-1002, MCA. Beyond the provisions of that statute, the commission concludes that this rulemaking is a poor mechanism for anticipating and addressing how advanced metering technology may be used and develop in the future. The commission concludes that matters of privacy and security are better developed through contested case proceedings on the utility's proposed tariff, based on the particular devices the utility proposes to deploy.
COMMENT 15: One commenter stated that the definition of advanced metering device in statute is incorrect.
RESPONSE: The commission notes that the definition of advanced metering device was corrected in the 2021 Legislative Session. The commission's rule is based on the corrected statutory definition. The commission has revised the language of the rule to uniformly refer to advanced metering devices.
COMMENT 16: One commenter said that an opt-in process for advanced metering devices would be preferable.
RESPONSE: The commission appreciates the comment; however, 69-4-1004, MCA, requires the commission to determine whether an opt-out program should be established. The commission will separately address opt-in programs through rulemaking under 69-4-1005, MCA.
COMMENT 17: Several commenters said that advanced metering devices can catch on fire and explode more easily than other meters.
RESPONSE: The commission believes that the relative safety and reliability of proposed advanced metering devices is best addressed in an evidentiary hearing on a utility's proposed tariff. The commission anticipates that safety and reliability will vary depending on the device, manufacturer, and other factors.
COMMENT 18: One commenter said that advanced metering devices are experimental, and it would violate the Nuremberg Code to use these devices to experiment on a population.
RESPONSE: The commission notes it is not a judicial body, and is not the appropriate forum to bring claims based on a violation of ethical guidelines governing medical or research experiments.
COMMENT 19: Several commenters asserted that the Montana Constitution's right to a clean and healthful environment would be violated if utilities were permitted to install advanced metering devices.
RESPONSE: The commission does not regulate RF radiation, nor is it a judicial body responsible for determining whether RF radiation infringes upon the right to a clean and healthful environment. The commission believes that the legislative and judicial branches are better suited to determine whether RF radiation infringes upon the right to a clean and healthful environment.
COMMENT 20: Several commenters supported the use of advanced metering devices to allow customers to more closely track and conserve energy. One commenter said that advanced metering devices would provide customers with greater understanding of their energy and allow them to save money. The commenter also said advanced metering devices were also key to developing a smarter grid that can accommodate distributed generation. The commenter further said advanced metering devices allow for different types of rate design, which could be beneficial to both customers and utilities.
RESPONSE: In this rulemaking, the commission does not express any opinion on the advantages and disadvantages of advanced metering devices. The features and functionality of advanced metering devices is beyond the scope of this rulemaking.
COMMENT 21: One commenter who treats patients with acupuncture and neuropuncture said that an advanced metering device could lead to electric or electromagnetic pollution near her patients.
RESPONSE: It is unclear whether the commenter owns or leases the space where she provides acupuncture and nueropuncture services. The commission notes that it does not have jurisdiction over the relationship between landlords and tenants, and it cannot resolve disputes between landlords and tenants regarding the installation of advanced metering devices. Assuming the commenter owns the premises where she provides these services, the proposed rule will create an opt-out procedure through which she can decline the installation of an advanced metering device.
COMMENT 22: One commenter expressed concern that net metering customers could be penalized for opting out of an advanced metering device, and encouraged the commission to carefully consider how smart-grid infrastructure can be deployed without preventing distributed generation customers from exporting energy to the grid.
RESPONSE: The commission will consider the utility-specific terms of an opt-out program in evidentiary hearings on proposed opt-out tariffs. The commission appreciates the unique circumstances of net-metering customers, and believes that a tariff proceeding is the best venue for addressing those customers' concerns.
COMMENT 23: One commenter asked the commission to consider whether 120 days was enough time to process a utility's proposed opt-out tariff, particularly if parties object to the proposed tariff.
RESPONSE: The commission appreciates the comment and agrees that 120 days may not allow adequate time. The commission further notes that the language of the proposed rule might suggest that a utility could begin a new advanced metering device project before the Commission has approved an opt-out tariff. The commission has revised the proposed rule to require a commission-approved opt-out tariff before beginning a new advanced metering device project. The commission acknowledges, however, that NorthWestern Energy has already begun deploying advanced metering devices, and the revision would not apply to a project that began before the effective date of the rule. Instead, a utility like NorthWestern Energy that has already begun deployment must submit a proposed opt-out tariff within 180 days, which will begin a contested case proceeding.
COMMENT 24: After the commission published the amended notice of proposed rulemaking, one commenter said the new proposal inappropriately expanded the scope of the rule to include electric and natural gas utilities. The commenter interpreted the definition of advanced metering device to refer to electric meters only. The commenter said that expanding the scope of the rule beyond electric utilities could lead to unintended consequences. The commenter asked the commission to strike references to natural gas in the proposed rule.
RESPONSE: The commission has consulted with the sponsor of the 2021 legislation, and the sponsor has stated that the bill was intended to address both natural gas and electric utilities. The commission has amended the rule to apply to both natural gas and electric utilities. Although the commenter did not specify the type of unintended consequences at risk, the commission believes the risk is minimal. The commission concludes that, in light of the concerns raised by opponents of advanced metering devices, the requirement for opt-out programs should be consistent between natural gas and electric utilities. It would defeat the purpose of the opt-out program if a utility could force a customer who opts out of an advanced metering device for electric service to accept such a device for natural gas service. The commission does not anticipate that this requirement will cause interruptions in service or otherwise impair natural gas service, as customers are currently served without advanced metering devices.
COMMENT 25: A commenter said the rule's discussion of alternative meters sets an unreasonable and unattainable expectation about the availability of analog meters. The commenter noted that one-way communicating automated meter reading has been used in Montana since 1997. The commenter said analog meters are no longer readily available for purchase. The commenter further stated that it would be futile and a waste of resources for the commission to require a discussion of alternatives to advanced meter reading devices.
RESPONSE: The commission appreciates the commenter's input; however, the commission believes factual findings about the availability of alternative meters should be made in an evidentiary hearing, rather than rulemaking. The commission further notes that its own rule is not the source of customers' expectations regarding the availability of alternative meters. Many commenters in this rulemaking have asserted that alternatives are available from a variety of sources based on their own internet research. It is unlikely that the commission's rule will materially change the expectations of those who have strong opinions on this subject.
In light of this comment, the commission has revised (6) to clarify that the utility should identify an alternative type of meter described in the rule, rather than a specific model. The phrase "if practicable" in (6) is unnecessary, because the final sentence of (6) discusses what a utility should do if it cannot include in its proposed opt-out program an alternative type of meter described in the rule. The commission's revisions further clarify that, if a utility cannot identify an alternative type of meter described in the rule, the commission intends to consider viable alternative meter reading options, rather than specific models of meters.
COMMENT 26: One commenter supported the inclusion of natural gas meters in the rule. The commenter also doubted whether utilities would have any difficulties sourcing analog meters.
RESPONSE: The commission appreciates the commenter's input. The commission believes that an evidentiary hearing on a proposed opt-out tariff is the best venue to make findings about the availability of alternative meters.
/s/ Lucas Hamilton /s/ James Brown
Lucas Hamilton James Brown
Rule Reviewer Chair
Montana Public Service Commission
Certified to the Secretary of State November 30, 2021.