7. Comments on Proposed Decision
The proposed decision (PD) of the ALJ in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed on December 6, 2010 by CCSF, DRA, PG&E and TURN and reply comments were filed on December 13, 2010 by PG&E.
7.1. Arguments on PD
In comments on the PD, CCSF, DRA, and TURN call for substantial modifications, while PG&E supports most aspects of the PD.
CCSF argues that the PD should be modified to "find that the City supported its Petition with sufficient new facts to justify a temporary suspension of PG&E's SmartMeter installation," find "that the Petition conforms to Rule 16.4" and that the Commission should "continue to hold this proceeding open to allow parties to comment on the findings contained in the Structure Report and concerns over RF emissions."69 Specifically, CCSF argues that the PD has adopted an "overly technical and unprecedented reading of Rule 16.4."70
DRA similarly argues that "the large volume of customer complaints about SmartMeters cited by petitioners, and the Commission's own decision to have those complaints evaluated by an outside consultant, are significant new circumstances ..."71 DRA concludes that "[i]t could not be clearer that there are material new facts."72
DRA also argues for a full investigation of the Structure Report in this proceeding. DRA takes objections to several of the findings of the Structure Report and to a September 2 "press release" that announced that "associated software and billing systems are consistent with industry standards and are performing accurately."73 DRA notes that its October 29, 2010 reply comments "question whether that broad conclusion is supported by the evidence..."74 DRA further states that it "has continued its preliminary review of the Report, and in doing so has discovered other anomalies and limitations...75
Finally, DRA contends that "most issues raised by SmartMeter complaints and by the Report's conclusions are beyond the scope of the GRC."76
TURN also argues for a consideration of the Structure Report in this proceeding. TURN argues that the Structure Report shows that "there are errors associated with PG&E's AMI system."77 TURN then proceeds to identify a number of issues mentioned in the Structure Report that it wishes the Commission to explore in this proceeding.
Finally, like DRA, TURN argues that "[t]he rate case is almost over." TURN states that it supports the settlement agreement filed in the current rate case, but states that:
... it does not appear that the issue of potential additional costs due to PG&E's need to respond to voluminous customer complaints, exacerbated by PG&E's original lack of response, was addressed in the rate case. Those are costs that might presumably be addressed in any future request for recovery of cost overruns of the AMI budget. The key, however, is proper accounting as separate from other customer care costs.78
PG&E, in contrast to CCSF, DRA, and TURN, argues in support of the PD. Specifically, PG&E argues that:
The PD appropriately denies CCSF's Petition because CCSF fails to attest to any material new facts that would justify a suspension of PG&E's SmartMeterTM Program... CCSF fails to cite to the record and fails to attest to any material new facts that would justify suspension of PG&E's SmartMeterTM Program.79
PG&E also supports its position with references to the Structure Report.
Concerning the 2011 GRC, PG&E argues that:
... the PD's references to the 2011 GRC as a forum where CCSF could have raised some of its SmartMeterTM cost concerns does not create an opportunity to re-litigate issues or, for that matter, to expand or reopen the scope of the current GRC or the pending settlement agreement.80
7.2. Discussion of Comments and Revisions
In this section, we respond to the comments on the PD and describe the changes that we have incorporated into this document.
We have eliminated the discussion of Rule 16.4 that was contained in the PD. We deny the Petition of CCSF because that the Petition fails to present allegations or alleged facts that would, if true, warrant the suspension of the SmartMeter installation program. Since the Commission is not denying the Petition on the technical ground that it fails to conform to Rule 16.4, the discussion of this technical matter is not material to our decision.
We make no other major changes to the PD. In particular, we find that the argument of CCSF, DRA, and TURN that the Commission should use this proceeding to review the Structure Group Report is unpersuasive. As noted previously, the facts alleged in the record of this proceeding, even if true, fail to warrant the suspension of the SmartMeter installation program. The PG&E reports cited by CCSF and the customer complaints reported in the media do not warrant the costly action of suspending the installation of a major infrastructure program that offers important conservation and demand response benefits.81 Thus, the Commission does not need the findings of the Structure Report to decide the matter before us.
As a general proposition, the Commission's requesting of a report does not trigger a proceeding. The Commission orders, sponsors, and receives many reports that do not become the subject of a Commission proceeding. An investigation of the Structure Report is not warranted in this proceeding nor necessary to its resolution.
Concerning our discussion of Commission proceedings for considering issues of costs and customer service, we have clarified that PG&E's GRC is just one of a set of periodic GRCs that assess customer service quality and the reasonableness of costs and rates. As TURN rightly notes, should PG&E seek rate changes to cover new costs arising in their program to install SmartMeters, that request would require Commission assent. For these reasons, we believe that issues of service quality and costs triggered by the SmartMeter program have, have had, and will continue to have, forums for consideration.
Concerning CCSF's request that the Commission now use this proceeding to investigate EMF from SmartMeters, we decline to alter the scope of this proceeding. Moreover, the Commission, in D.10-12-001 (December 2, 2010), found that EMF produced by SmartMeters is "far below the levels of many commonly used devices,"82 that the radio components of SmartMeters "are licensed or certified by the FCC"83 and that "it is not reasonable to re-open the Commission's review of Smart Meters for the purpose of considering the alleged health impacts of RF emission from Smart Meters."84
Finally, we reject PG&E's request to cite the Structure Report as a basis for denying the Petition. As we have stated above, we have before us no facts that warrant the suspension of the SmartMeter program and do not rely on the results of the Structure Report in reaching our conclusion. We decline to incorporate this study into the record of this proceeding.
69 CCSF Opening Comments at 1.
70 Id. at 2.
71 DRA Opening Comments at 2.
72 Id.
73 Id. at 4.
74 Id.
75 Id. at 5.
76 Id. at 2.
77 TURN Opening Comments at 3.
78 Id. at 5-6.
79 PG&E Opening Comments at 2.
80 Id. at 4.
81 See D.09-03-026 at 112 and 134, where the conservation and demand response benefits that flow from SmartMeters are discussed and quantified.
82 D.10-12-001, Finding of Fact 3, at 14.
83 Id., Finding of Fact 2.
84 Id., Conclusion of Law 1, at 15.
