Healing Law

Re: Smart Meters in Municipalities; North Carolina

A forwarded email from the desk of Senator Bob Steinburg, on the behest of Ed Stiles his office manager, as informed by Chris Saunders of the Legislative Analysis Division. In regards to my request on information in response to the implementation of Smart Meters in Elizabeth City, NC.

Received November 6th, 2020 at 2:30PM

Senator Steinburg and Ed,

There is no State law concerning customers’ or electric service providers’ rights with respect to the installation of smart meters. In 2018, the Utilities Commission issued an order that established an opt-out process for Duke Energy customers who objected to installation of smart meters. That program allows customers to opt out for a $150 one-time fee plus an $11.75 monthly fee, but those fees are waived for a customer with a notarized doctor’s note confirming that the customer has health issued related to the smart meter technology. However, this order only applies to Duke Energy customers, so it would not apply in this case.

The Utilities Commission generally does not have jurisdiction over electric service provided by municipalities or electric cooperatives. Municipalities are specifically exempted from the definition of a “public utility” under Chapter 62 of the General Statutes, which establishes the Utilities Commission’s authority to regulate utility service within the State. Please see G.S. 62-3(23)d. (The term “public utility,” except as otherwise expressly provided in this Chapter, shall not include a municipality….). Electric service provided by a municipality is generally governed by Article 16 of Chapter 160A of the General Statutes. To the extent that the Utilities Commission has any role in regulating municipal electric service, it is mostly limited to G.S. 160A-331.2(d)(2) and G.S. 160A-334, which grant the Commission the authority to approve transfers of service among a municipality and another electric service provider in limited circumstances.

Because there is no applicable legislation and the Commission generally does not regulate municipal electric service, the terms of Elizabeth City’s electric service agreement would most likely control whether a customer could opt out of having a smart meter.  We’ve contacted the Public Staff but they did not have Elizabeth City’s electric service agreement, and I’ve emailed and left a voicemail with Elizabeth City’s electric department directly requesting a copy, but have not yet gotten a response.

Regarding grounds for termination of an electric customer’s service, these also are not specified in statute. The grounds for termination should be provided in the service agreement with Elizabeth City. We cannot precisely determine the grounds for termination of service specific to Elizabeth City without the service agreement. For instance, as noted in a recent publication by UNC’s School of Government on the Governor’s executive orders limiting disconnection of utility services for failure to pay during the Covid emergency, the publication provides: “A local government, pursuant to its adopted policies, may continue to disconnect service for other reasons, such as meter tampering, or because the connection is causing problems for the system, or because a temporary disconnection is necessary to add new connections to the system.” We also contacted the Public Staff about this issue, and they confirmed that electric service could be disconnected for breach of the terms of the service agreement.

The Attorney General’s office has some information about termination of utility service, but please note the last item on this page:

If your constituent is concerned that his power may be improperly disconnected, the constituent may want to contact the Consumer Protection Division of the Attorney General’s Office 1-877-5-NO-SCAM or (919) 716-6000.

If your constituent objects to the city’s actions on the issue of smart meters, he may want to file a complaint with the Utilities Commission, with the process outlined here. However, given the Commission’s limited jurisdiction over municipal electric service providers, we are not sure if the Commission has jurisdiction to hear the complaint. Your constituent may ultimately want to contact a private attorney to explore opportunities that may exist for action against the city before the Commission or in another venue, since this area of law is complex, and, as you know, legislative staff can only provide general information to members on laws governing any given matter, but is prohibited from providing legal advice to private citizens.

I hope that information is helpful. Please let me know if you have any additional questions or concerns.

Thanks,

Chris Saunders

Staff Attorney

North Carolina General Assembly

Legislative Analysis Division

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