The opinion
ACCEPTED
03-14-00661-CV
4251520
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 4:01:27 PM
JEFFREY D. KYLE
No. 03-14-00661-CV CLERK
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTINFILED IN
3rd COURT OF APPEALS
DEVVY KIDD ET AL., AUSTIN, TEXAS
2/23/2015 4:01:27 PM
Appellants,
v. JEFFREY D. KYLE
Clerk
PUBLIC UTILITY COMMISSION OF TEXAS,
Appellee.
Appeal from the 419th Judicial District Court, Travis County, Texas
The Honorable Darlene Byrne, Judge Presiding
BRIEF OF APPELLEES AEP TEXAS CENTRAL COMPANY, AEP TEXAS
NORTH COMPANY, CENTERPOINT ENERGY HOUSTON ELECTRIC,
LLC, TEXAS-NEW MEXICO POWER COMPANY, AND ONCOR
ELECTRIC DELIVERY COMPANY LLC
Patrick J. Pearsall Dale Wainwright
State Bar No. 24047492 State Bar No. 00000049
ppearsall@dwmrlaw.com dale.wainwright@bgllp.com
DUGGINS WREN MANN & BRACEWELL & GIULIANI LLP
ROMERO, LLP 111 Congress Avenue, Ste. 2300
P. O. Box 1149
Austin, Texas 78701
Austin, Texas 78767-1149
(512) 744-9300 (512) 472-7800
(512) 744-9399 fax (800) 404-3970 fax
ATTORNEY FOR AEP TEXAS ATTORNEY FOR CENTERPOINT
CENTRAL COMPANY AND AEP ENERGY HOUSTON ELECTRIC, LLC
TEXAS NORTH COMPANY
Stephanie C. Sparks Jo Ann Biggs
State Bar No. 24042900 State Bar No. 02312400
ssparks@jw.com jbiggs@velaw.com
JACKSON WALKER L.L.P. VINSON & ELKINS LLP
901 Main St., Ste. 6000 2001 Ross Ave., Ste. 3700
Dallas, Texas 75202 Dallas, Texas 75201-2975
(214) 953-6000 (214) 220-7735
(214) 953-5822 fax (214) 999-7735 fax
ATTORNEY FOR TEXAS-NEW ATTORNEY FOR ONCOR ELECTRIC
MEXICO POWER COMPANY DELIVERY COMPANY LLC
ORAL ARGUMENT PROVISIONALLY REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
INDEX OF AUTHORITIES..................................................................................... ii
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................2
STANDARD OF REVIEW .......................................................................................3
ARGUMENT AND AUTHORITIES ........................................................................3
I. Sovereign immunity has not been waived. ......................................................3
II. The APA’s public hearing requirement applies only when an agency
adopts a rule. ....................................................................................................6
III. The Commission has seriously considered Appellants’ concerns about
advanced metering technology and allowed them to participate in
proceedings at the Commission. ....................................................................10
CONCLUSION AND PRAYER .............................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................18
APPENDICES .........................................................................................................20
i
INDEX OF AUTHORITIES
Cases
El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n,
247 S.W.3d 709 (Tex. 2008) ..................................................................................4
Texas Comm’n on Envtl. Quality v. Bonser-Lain,
438 S.W.3d 887 (Tex. App.—Austin 2014, no pet.) .................................... 3, 5, 9
Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) .................................................................................3
Statutes
Tex. Gov’t Code Ann. § 311.034 ...........................................................................4, 5
Tex. Gov’t Code Ann. § 2001.021 .................................................................... 1, 5, 6
Tex. Gov't Code Ann. § 2001.023 .............................................................................8
Tex. Gov’t Code Ann. § 2001.029 .................................................................... 6, 7, 8
Tex. Gov’t Code Ann. § 2001.035 ................................................................ 2, 4, 5, 8
Tex. Gov’t Code Ann. § 2001.038.............................................................................5
Tex. Gov't Code Ann. § 2001.171 .............................................................................5
Other Authorities
S. Rep. No. 752, 79th Cong., 1st Sess., pt. 4, at 201 (1945)......................................7
Rules
16 Tex. Admin. Code § 22.282 ..................................................................................6
16 Tex. Admin. Code § 25.133 ................................................................... 12, 13, 14
Commission Proceedings
Pub. Util. Comm’n of Texas, Project No. 40404, Petition for Initiation of
Rulemaking Proceedings Regarding Smart Meters ........................................ 1, 10
Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to
Advanced Metering Alternatives ................................................................... 12, 13
Pub. Util. Comm’n of Texas, Project No. 40190, Project Relating to
Advanced Metering Issues ....................................................................... 10, 11, 12
ii
STATEMENT REGARDING ORAL ARGUMENT
If the Court believes oral argument will aid its decisional process, Appellees
AEP Texas Central Company, AEP Texas North Company, CenterPoint Energy
Houston Electric, LLC, Texas-New Mexico Power Company, and Oncor Electric
Delivery Company LLC (collectively, “Utility Appellees”), will be available to
address the Court’s questions or concerns. However, the Utility Appellees do not
believe that oral argument is necessary to resolve the issues in this case. This case
concerns only the straightforward application of the doctrine of sovereign
immunity and the construction of unambiguous statutory provisions.
iii
STATEMENT OF FACTS
The Commission proceeding from which Appellants filed their appeal
involved a request to the Commission under Administrative Procedure Act (APA)
§ 2001.021 in May 2012 “to initiate and conduct rulemaking procedures… relating
to the deployment of smart meters by electrical utilities and others as part of their
Advanced Metering System (AMS) program.” See Clerk’s Record (CR) at 20 (Pub.
Util. Comm’n of Texas, Petition for Initiation of Rulemaking Proceedings
Regarding Smart Meters, Project No. 40404, Order Denying Petition for
Rulemaking at 1 (July 13, 2012) (“Project No. 40404”)). The Commission
docketed Appellants’ rulemaking petition in Project No. 40404. In June 2012, the
Appellants requested the Commission to hold a public hearing on the issues raised
in their petition for a rulemaking. Rather than initiate a rulemaking proceeding as
a result of the Appellants’ petition, in July 2012, the Commission issued an order
denying the petition for a rulemaking and explained that it was denying the petition
“because the Commission has another project to address Petitioners’ concerns
about smart meters, Project No. 40190, PUC Proceeding to Evaluate the
Feasibility of Instituting a Smart Meter Opt-out Program.” See id. at 24-25
(Project No. 40404, Order Denying Petition for Rulemaking at 5-6). The
Appellants then initiated judicial review of the Commission’s order.
1
The Commission did ultimately adopt a rule addressing advanced metering
service in Project No. 41111. As discussed below, several of the Appellants
participated in Project No. 41111. None of the Appellants, however, challenged the
validity of or otherwise appealed the rule promulgated in Project No. 41111.
In addition to the facts stated above, the Utility Appellees adopt and
incorporate herein Appellee Texas Public Utility Commission’s Statement of
Facts, as set forth in its Appellee’s Brief filed on February 23, 2015.
SUMMARY OF THE ARGUMENT
In this appeal, Appellants contend they are not seeking judicial review of the
Commission’s decision denying their petition for rulemaking in Project No. 40404.
See Appellants’ Brief at 10 (“this is not an appeal of the denial of a rulemaking”).
Instead, Appellants claim they seek judicial review of the Commission’s denial of
their request for a public hearing in that project. Appellants argue that APA
§ 2001.035 waives sovereign immunity with respect to their lawsuit. Id. at 12-19.
APA § 2001.035, however, applies only to a rule actually adopted by an agency.
Tex. Gov’t Code Ann. § 2001.035(a) (applies to “a rule ... a state agency adopts
....”) (emphasis added). The Commission did not adopt a rule in Project No. 40404.
Thus, APA § 2001.035 does not provide jurisdiction for Appellants’ suit.
Therefore, the suit is barred by the well-established doctrine of sovereign
immunity.
2
In addition to the points discussed below, the Utility Appellees adopt and
incorporate herein the arguments of the Commission in its Appellee’s Brief.
STANDARD OF REVIEW
A trial court’s order granting a plea to the jurisdiction is reviewed de novo.
See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.
2004); see also Texas Comm’n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887,
892-93 (Tex. App.—Austin 2014, no pet.). To determine whether a plaintiff has
affirmatively demonstrated the trial court’s subject-matter jurisdiction to hear a
case, a reviewing court considers the facts alleged in the petition along with any
evidence submitted by the parties, to the extent such evidence is relevant to the
jurisdictional issue. Miranda, 133 S.W.3d at 227. The pleadings are construed in
the plaintiff’s favor, taking all factual assertions as true and looking to the
plaintiff’s intent. Id. at 226-27. If the pleadings affirmatively negate jurisdiction,
then the plea to the jurisdiction must be granted. Id.
ARGUMENT AND AUTHORITIES
I. Sovereign immunity has not been waived.
A trial court lacks subject-matter jurisdiction over lawsuits against the State
and its agencies absent an express waiver of sovereign immunity. Id. at 224. And
this rule applies to judicial review of agency administrative actions. Bonser-Lain,
3
438 S.W.3d at 893. A waiver of immunity must be expressed by clear and
unambiguous language. Tex. Gov’t Code Ann. § 311.034.
Appellants contend that APA § 2001.035 waives sovereign immunity with
respect to their appeal of the Commission’s refusal to hold a public hearing in
Project No. 40404. See Appellants’ Brief at 12-19. The plain language of that
provision, however, makes clear that it does not apply to this case.
APA § 2001.035 states, in relevant part, as follows:
(a) A rule is voidable unless a state agency adopts it in substantial
compliance with Sections 2001.0225 through 2001.034.
(b) A person must initiate a proceeding to contest a rule on the
ground of noncompliance with the procedural requirements of
Sections 2001.0225 through 2001.034 not later than the second
anniversary of the effective date of the rule.
Tex. Gov’t Code Ann. § 2001.035(a)-(b) (emphasis added).
Nothing in APA § 2001.035 expressly waives sovereign immunity when an
agency denies a petition for rulemaking or a request for a hearing to initiate a
rulemaking. There is no question that a rule is invalid when an agency
promulgates it without complying with the proper rulemaking procedures. See El
Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 715
(Tex. 2008) (citing Tex. Gov’t Code Ann. § 2001.035(a)). But Appellants do not
challenge the validity of a rule. More importantly, the Commission did not adopt a
rule in the underlying docket. Consequently, APA § 2001.035 does not apply.
4
The legislature has unambiguously expressed its intent to waive sovereign
immunity to allow judicial review of certain types of agency decisions under the
APA. See, e.g., Tex. Gov’t Code Ann. § 2001.038 (permitting a suit for declaratory
relief to determine the validity or applicability of a rule) and § 2001.171
(providing, under certain circumstances, an independent right to judicial review of
a final decision in a contested case). The APA, however, is silent with respect to
whether a person may appeal, or otherwise challenge, the denial of a hearing
request where the Commission did not adopt a rule. And, APA § 2001.035, the
provision Appellants rely upon for jurisdiction, includes compliance with APA
§§ 2001.0225 through 2001.034 and tellingly excludes from its purview
§ 2001.021, the provision under which Appellants filed their petition for a
rulemaking in Project No. 40404.
In Bonser-Lain, this Court held that the APA’s “deliberate silence” with
respect to agency decisions on petitions for rulemaking established that the “APA
does not provide a right to judicial review of an agency’s refusal to adopt rules.”
438 S.W.3d at 894. Statutory “silence” is not a “clear and unambiguous” waiver of
immunity to enable a suit against a state. Tex. Gov’t Code Ann. § 311.034. The
same rule applies here.
5
II. The APA’s public hearing requirement applies only when an agency
adopts a rule.
The crux of Appellants’ complaint is that the Commission erred in denying
their request for a rulemaking without first holding the public hearing they
requested under APA § 2001.029 and 16 Tex. Admin. Code § 22.282(d).
Appellants’ reliance on these provisions is misplaced.
Section 2001.029 provides that “[a] state agency shall grant an opportunity
for a public hearing before it adopts a substantive rule if a public hearing is
requested by: (1) at least 25 persons ....” Tex. Gov’t Code Ann. § 2001.029(b)(1).
Similarly, 16 Tex. Admin. Code § 22.282(d) provides that the Commission may
initiate a rulemaking project by publishing notice in accordance with the rules, and
that a public hearing on a proposed rule “shall be granted if requested by at least 25
persons.” 16 Tex. Admin. Code § 22.282(d). Both provisions deal with
rulemakings that have already been initiated, not a petition for initiation of a
rulemaking.1 Moreover, neither provision provides a petitioner the right to a public
hearing on a petition for rulemaking.
1
A petition for the initiation of rulemaking is governed by APA § 2001.021, which
provides a state agency with only two options for addressing the petition: (1) deny the petition in
writing, stating its reasons for the denial or (2) initiate a rulemaking proceeding. Tex. Gov’t
Code Ann. § 2001.021(c). The rulemaking provisions (such as a public hearing under APA
§ 2001.029) only apply after the Commission has decided to initiate a rulemaking proceeding. Id.
§ 2001.029(b).
6
Even if an actual rulemaking proceeding is initiated (which did not happen
in the instant case), APA § 2001.029 requires a hearing only if a rule is actually
adopted – “[a] state agency shall grant an opportunity for a public hearing before it
adopts a substantive rule ....” Tex. Gov’t Code Ann. § 2001.029(b) (emphasis
added). If the agency ultimately takes no action, there is no requirement to hold a
hearing.
The legislative history of analogous provisions of the federal APA further
rebuts Appellants’ alleged right to a public hearing in this case. Specifically, the
Senate Judiciary Committee Report on the federal APA states the following with
respect to petitions for rulemaking:
The mere filing of a petition does not require an agency to grant it, or
to hold a hearing, or engage in any other public rule making
proceedings. The refusal of an agency to grant the petition or to hold
rule making proceedings, therefore, would not per se be subject to
judicial reversal.
S. Rep. No. 752, 79th Cong., 1st Sess., pt. 4, at 201 (1945) (emphasis added).
Appellants argue this cannot be correct because it would allow the
Commission to play a “shell game” to eliminate a party’s right to a hearing “by
simply failing to complete the adoption of the specific rule for which the hearing
was requested” and then proposing its own rule on the same subject in a separate
proceeding. See Appellants’ Brief at 19 & 21. Appellants insist this could mean
7
“that no public hearing on a rulemaking would ever have to be held at all.” Id. at
21. Appellants are wrong.
It is true that the Commission is not required to hold a hearing if it does not
adopt a rule. But the Commission cannot adopt a rule without holding a hearing
when properly requested. Any rule adopted in violation of the public hearing
requirement in APA § 2001.029 is voidable. See Tex. Gov’t Code Ann.
§ 2001.035(a).
If the Commission proposes a similar rule in a separate proceeding, as
Appellants suggest, it must also provide notice of its intent to adopt the proposed
rule. See id. § 2001.023. A party can then participate in the new rule rulemaking
proceeding and request a hearing, which, as discussed below, is exactly what
Appellants did.
Appellants’ characterization of the Commission's discretion to manage its
rulemaking docket as a “shell game” is a fiction. Appellants not only had an
opportunity to participate in a public hearing in another project (Project No. 41111)
on the same matters at issue, but Appellants failed to appeal the rule the
Commission actually adopted in that proceeding. Appellants point to no legislative
requirement that the Commission must hold a separate hearing on any petition for
rulemaking so long as twenty-five people request the hearing. Appellants’
unbridled interpretation of the statute would mandate hearings regardless of
8
whether a petition is duplicative of a pending rulemaking (as was the case with
Project Nos. 40404 and 40190) or is simply a verbatim recitation of a previously
rejected petition. This would create a limitless waste of agency resources, and
Appellants have provided no valid reason to justify such an interpretation.
Appellants’ claim of “a right without a remedy” is inapposite. For one,
Appellants did not have a right to a public hearing. Appellants, therefore, do not
have a remedy to appeal the denial of their hearing. Appellants tellingly confuse
the right to a hearing after a rulemaking proceeding has been opened with the
Commission’s discretionary function to grant or deny a petition for a rulemaking.
Appellants did have a “remedy” to address issues with the advanced metering
service rule adopted in Project No. 41111. Appellants could have appealed the
adopted rule and challenged the rulemaking process. They chose not to avail
themselves of the available remedy.
In sum, Appellants have not cited any clear waiver of sovereign immunity
that applies to their lawsuit. This Court has already ruled that the APA does not
provide a right to judicial review of an agency’s refusal to adopt rules. See Bonser-
Lain, 438 S.W.3d at 894. Similarly, the APA does not permit an appeal of an
agency’s refusal to hold a hearing in a proceeding in which the agency did not
adopt a rule. It is only when the Commission initiates a rulemaking and actually
adopts a rule that a hearing must be held when properly requested, as the
9
Commission did in Project No. 41111. Therefore, the trial court correctly granted
the Commission’s plea to the jurisdiction.
III. The Commission has seriously considered Appellants’ concerns about
advanced metering technology and allowed them to participate in
proceedings at the Commission.
While not pertinent to the legal question of sovereign immunity, the
impression Appellants attempt to create is that the Commission ignored their
asserted concerns regarding advanced metering technology. That is not accurate.
Instead of ignoring Appellants’ concerns, the Commission gave appropriate
consideration to the matters raised by Appellants and accorded them two
opportunities to participate in a public hearing and present oral testimony and
supporting information on these matters.
Prior to Appellants’ petition for a rulemaking in Project No. 40404, the
Commission initiated an investigative proceeding in Project No. 40190 to look into
issues related to advanced meters, including health and safety matters.2 In its order
denying Appellants’ petition for a rulemaking, the Commission notified Appellants
that it intended to consider the issues raised by them in Project No. 40190. See CR
at 24-25 (Project No. 40404, Order Denying Petition for Rulemaking at 5-6). The
2
See Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues, Project
No. 40190, Final Details for August 21st Public Forum on Advanced Metering & Related Issues
(Aug. 20, 2012) (“Project No. 40190”). A copy of this document is included in Appendix A. The
document can be found at:
<http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch_Re
sults.asp?TXT_CNTR_NO=40190&TXT_ITEM_NO=570> (last visited on February 23, 2015).
10
Commission also transferred Appellants’ comments from Project No. 40404 to
Project No. 40190.3 Appellants were given the opportunity to participate in the
public forum held in Project No. 40190 on August 21, 2012, and several individual
Appellants presented testimony and submitted information at this public forum.4
On December 17, 2012, after considering and evaluating the academic
literature on radio frequency (“RF”) and electromagnetic frequency (“EMF”)
emissions from advanced meters, the PUC Staff filed a report in Project No.
40190.5 The PUC Staff concluded that “the large body of scientific research
reveals no definite or proven biological effects from exposure to low-level RF
signals” and further stated that it “had found no credible evidence to suggest that
advanced meters emit harmful amounts of EMF.”6
3
See generally Project No. 40190, Item Nos. 399-517 (July 24, 2012) (transferred
comments from Project No. 40404). The list of filings in Project No. 40190 can be found at
http://interchange.puc.texas.gov/WebApp/Interchange/application/dbapps/filings/pgControl.asp?
TXT_UTILITY_TYPE=A&TXT_CNTRL_NO=40190&TXT_ITEM_MATCH=1&TXT_ITEM
_NO=&TXT_N_UTILITY=&TXT-
n_FILE_PARTY=&TXT_DOC_TYPE=ALL&TXT_D_FROM&TXT_D_TO=&TXT_NEW=tr
ue (last visited on February 23, 2015).
4
See Appendix A at 2-3 (listing Appellants Devvy Kidd, Thelma Taormina, and Beth
Biesel as “Invited” or “Public & Stakeholder Comment” participants).
5
See Project No. 40190, Staff Report on Health and Radiofrequency Electromagnetic
Fields from Advanced Meters, Introductory Memorandum (Dec. 17, 2012). This document is
included in Appendix B. The full report can be found at:
<http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch_Re
sults.asp?TXT_CNTR_NO=40190&TXT_ITEM_NO=661> (last visited on February 23, 2015).
6
Id. at 1.
11
On January 7, 2013, the Commission initiated project No. 41111, a proposed
rulemaking proceeding, to consider adoption of a rule relating to advanced
metering alternatives. On February 21, 2013, the Commission issued its proposed
rule, 16 Tex. Admin. Code § 25.133, for a smart meter opt-out in Project No.
41111.7 On the same day, the Commission provided the petitioners in Project No.
40190 with notice of the proposed rule.8 The Commission accepted written public
comment on its proposed rule in April 2013. As part of the public comment
process in Project No. 41111, Appellants submitted extensive written materials on
their health and safety concerns regarding advanced meters.9
7
See Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to Advanced
Metering Alternatives, Proposal for Publication on New 25.133 and Amendment to 25.214 as
Approved at the February 14, 2013 Open Meeting (Feb. 21, 2013) (“Project No. 41111”),
published in 38 Tex. Reg. 1328 (Mar. 1, 2013). This document can be found at:
http://interchange.puc.state.tx.us/WebApp/Interchange/Documents/41111_6_750581.PDF>
(last visited on February 23, 2015).
8
See Project No. 40190, Information on Proposed Rule (Feb. 21, 2013). This document is
included in Appendix C. This document can also be found at:
<http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch
_Results.asp?TXT_CNTR_NO=40190&TXT_ITEM_NO=700> (last visited on February 23,
2015).
9
See Project No. 41111, Hearing Submissions & Proposals (April 19, 2013). Appellants’
submission can be found at:
<http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch
_Results.asp?TXT_CNTR_NO=41111&TXT_ITEM_NO=22> (last visited on February 23,
2015).
12
On March 29, 2013, the Texas Eagle Forum, whose members include certain
of the Appellants, requested that a public hearing be held in Project No. 41111.10
On April 10, 2013, the Commission issued a notice that a public hearing would be
held on April 19, 2013 in Project No. 41111.11 At this public hearing, Appellants’
attorney (David Tuckfield at the time) and several of the individual Appellants
testified about the meters.12
On August 15, 2013, the Commission issued its order adopting 16 Tex.
Admin. Code § 25.133, which provides a mechanism for a customer who does not
want an advanced meter to opt out.13 In its order adopting this rule, the
Commission addressed Appellants’ health and safety concerns. The Commission
stated that:
10
See Project No. 41111, Request for Hearing (Mar. 29, 2013). The Texas Eagle Forum’s
hearing request is included in Appendix D. The pleading can also be found at:
<http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch_Re
sults.asp?TXT_CNTR_NO=41111&TXT_ITEM_NO=8> (last visited on February 23, 2015).
11
See Project No. 41111, Notice of Public Hearing (April 10, 2013). A copy of the
Commission’s notice is included in Appendix E. The notice can also be found at: <
http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch_Res
ults.asp?TXT_CNTR_NO=41111&TXT_ITEM_NO=16> (last visited on February 23, 2015).
12
See Project No. 41111, Order Adopting New 25.133 and Amendments to 25.214 as
Approved at the August 9, 2013 Open Meeting at 1-2 (Aug. 15, 2013), published in 38 Tex. Reg.
5452 (Aug. 23, 2013) (listing Appellants Devvy Kidd, Nick and Thelma Taormina, and Beth
Biesel and Appellants’ attorney at that time, David Tuckfield, as participating in and testifying at
the hearing held in Project No. 41111, in addition to submitting written comments). A copy of
the Commission’s order in Project No. 41111, excluding attachments, is included in Appendix F.
The order can also be found at:
<http://interchange.puc.state.tx.us/WebApp/Interchange/application/dbapps/filings/pgSearch_Re
sults.asp?TXT_CNTR_NO=41111&TXT_ITEM_NO=41> (last visited on February 23, 2015).
13
Id. at 55.
13
Public Commenters provided anecdotal information related to
negative health effects they attribute to the installation of advanced
meters. David Tuckfield, representing the petitioners in Project No.
40404 (Petitioners), commented that the commission should conduct a
study of the health effects of advanced metering and provide the
public with information regarding health and safety. …
The commission acknowledges the comments made by Public
Commenters Mr. Biesel, Ms. Biesel, Mr. Tuckfield, Mr. Allen, Mr.
Ramsland, Mr. Hemphill, and the Petitioners. The commission
evaluated health, privacy, and operational concerns against
advanced meters and concluded that the concerns are unwarranted.
However, through this rulemaking the commission is giving
customers the right to choose metering service that does not require
use of advanced meters. As with other non-standard services,
customers choosing this non-standard metering service will be
required to pay the costs for the service.14
Despite their claims to the contrary, Appellants did provide written
materials, testimony and comments in public hearings before the Commission
regarding their concerns about advanced metering systems. Moreover, Appellants
failed to appeal the rule promulgated in Project No. 41111. Accordingly, while not
pertinent to the legal issue of sovereign immunity, the Commission has given
serious consideration to the matters Appellants raised and on two occasions
accorded Appellants the opportunity for the public hearing they would have this
Court believe they were denied.
14
Id. at 22 and 24 (emphasis added).
14
CONCLUSION AND PRAYER
For the foregoing reasons, Appellees AEP Texas Central Company, AEP
Texas North Company, CenterPoint Energy Houston Electric, LLC, Texas-New
Mexico Power Company, and Oncor Electric Delivery Company LLC, respectfully
request that this Court affirm the trial court’s Order Granting Defendant’s Plea to
the Jurisdiction and dismissing the cause for want of subject-matter jurisdiction,
and further request all other relief to which they may show themselves entitled.
Respectfully submitted,
Rhonda Colbert Ryan
State Bar No. 17478800
rcryan@aep.com
AMERICAN ELECTRIC POWER
SERVICE CORP.
400 W. 15th St., Ste. 1500
Austin, Texas 78701
(512) 481-3321
(512) 481-4587 fax
15
Patrick Pearsall
State Bar No. 24047492
ppearsall@dwmrlaw.com
DUGGINS WREN MANN & ROMERO, LLP
P.O. Box 1149
Austin, Texas 78767
(512) 744-9300
(512) 744-9399 (fax)
/s/ Patrick Pearsall
Patrick Pearsall
ATTORNEYS FOR APPELLEES
AEP TEXAS CENTRAL COMPANY
AND AEP TEXAS NORTH COMPANY
Dale Wainwright
State Bar No. 00000049
Dale.Wainwright@bgllp.com
Davison Grant
State Bar No. 08300010
Davison.Grant@bgllp.com
Lindsay Hagans
Lindsay.Hagans@bgllp.com
State Bar No. 24087651
BRACEWELL & GIULIANI LLP
111 Congress Avenue, Ste. 2300
Austin, Texas 78701
(512) 472-7800
(800) 404-3970 fax
Jason M. Ryan
State Bar No. 24033150
Jason.ryan@centerpointenergy.com
Assistant General Counsel
CENTERPOINT ENERGY SERVICE
COMPANY, LLC
1111 Louisiana Street, Ste. 4669
Houston, Texas 77002
16
(713) 207-7261
(713) 574-2661 fax
/s/ Dale Wainwright
Dale Wainwright
ATTORNEYS FOR APPELLEE
CENTERPOINT ENERGY HOUSTON
ELECTRIC, LLC
Patrick R. Cowlishaw
State Bar No. 04932700
pcowlishaw@jw.com
Stephanie C. Sparks
State Bar No. 24042900
JACKSON WALKER L.L.P.
901 Main St., Ste. 6000
Dallas, Texas 75202
(214) 953-6000
(214) 953-5822 fax
Scott Seamster
State Bar No. 00784939
Scott.seamster@pnmresources.com
Corporate Counsel
TEXAS-NEW MEXICO POWER COMPANY
225 E. John Carpenter Fwy., Ste. 1500
Irving, Texas 75062
(469) 484-8577
(469) 484-8033 fax
/s/ Stephanie C. Sparks
Stephanie C. Sparks
ATTORNEYS FOR APPELLEE
TEXAS-NEW MEXICO POWER COMPANY
17
Jo Ann Biggs
State Bar No. 02312400
jbiggs@velaw.com
Cortney C. Thomas
State Bar No. 24075153
cthomas@velaw.com
VINSON & ELKINS LLP
2001 Ross Ave., Ste. 3700
Dallas, Texas 75201-2975
(214) 220-7735
(214) 999-7735 fax
/s/ Jo Ann Biggs
Jo Ann Biggs
ATTORNEYS FOR APPELLEE
ONCOR ELECTRIC DELIVERY
COMPANY LLC
CERTIFICATE OF COMPLIANCE
I certify that this document contains 3,388 words in the portions of the
document that are subject to the word limits of Texas Rule of Appellate Procedure
9.4(i), as measured by the undersigned’s word-processing software.
/s/ Patrick J. Pearsall
Patrick J. Pearsall
18
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 9.5, I certify that on the
23rd day of February, 2015, the foregoing document was electronically filed with
the Clerk of the Court using the electronic case filing system of the Court, and that
a true and correct copy was served on the following lead counsel for all parties
listed below via electronic service:
Roger B. Borgelt
BORGELT LAW
614 S. Capital of Texas Highway
Austin, Texas 78746
Counsel for Appellants Devvy Kidd, et al.
Kellie E. Billings-Ray
OFFICE OF THE ATTORNEY GENERAL
Environmental Protection Div.
P. O. Box 12548, MC-066
Austin, Texas 78711-2548
Counsel for Appellee Public Utility Commission of Texas
/s/ Patrick J. Pearsall
Patrick J. Pearsall
19
APPENDICES
A. Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues,
Project No. 40190, Final Details for August 21st Public Forum on Advanced
Metering & Related Issues (Aug. 20, 2012)
B. Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues,
Project No. 40190, Staff Report on Health and Radiofrequency
Electromagnetic Fields from Advanced Meters, Introductory Memorandum
(Dec. 17, 2012)
C. Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues,
Project No. 40190, Information on Proposed Rule (Feb. 21, 2013)
D. Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to
Advanced Metering Alternatives, Request for Hearing (Mar. 29, 2013)
E. Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to
Advanced Metering Alternatives, Notice of Public Hearing (April 10, 2013)
F. Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to
Advanced Metering Alternatives, Order Adopting New 25.133 and
Amendments to 25.214 as Approved at the August 9, 2013 Open Meeting
(Aug. 15, 2013)
20
APPENDIX A
Final Details for 8-21-12 Public Forum
Public Utility Commission of Texas
Memorandum
To: All Interested Parties
From: Christine Wright, Infrastructure & Reliability Division
Jacob Lawler & Joseph Younger, Legal Division
Date: August 20, 2012
Re: Project No. 40190: Project Relating to Advanced Metering Issues: August
21st Public Forum – Important Information including the Final Agenda,
Meeting Procedures and Speakers Roster
Attached is important information for interested parties regarding the Public Forum.
This Forum will be open to the public and will be held in the Reagan Building located
at the corner of 15th Street and Congress. Parking is available on the street, at the
Capitol Visitors Parking Lot (at the corner of 13th Street and Trinity) and at the Bob
Bullock History Museum Parking Garage (at the corner of 18th Street and Congress).
The final agenda is attached. The Speakers Roster contains the names of individuals
that have agreed in advance to speak at the Public Forum as of 10:00 a.m., August
20th. If you send a request to speak after this has been filed, your name will added to
the list by staff. Same-day sign-up will be allowed, although space will be limited.
If you are a speaker, you are not required to file written comments summarizing your
position in this project.
The meeting will begin at 10:00 a.m. All speakers must sign-in beforehand. Sign In
begins promptly at 9:30 a.m. We will be taking a lunch break.
This meeting will be broadcast live, and can be accessed on the Commission webpage
at: http://www.puc.state.tx.us/agency/topic_files/40190_Forum.aspx.
This broadcast will remain online and available for viewing after the meeting.
Transcripts will also be available following the meeting. They can be accessed by
contacting Kennedy Reporting at http://www.kennedyreporting.com/
1
PROJECT NO. 40190
PROJECT RELATING TO § PUBLIC UTILITY COMMISSION
ADVANCED METERING §
ISSUES § OF TEXAS
Public Forum
Community Input on Advanced Meters and Related Topics
August 21, 2012
Location: Reagan Building, 105 West 15th St.
Room HGR-140/Overflow in Room 110
Sign In Begins: 9:30 A.M.
Start Time: 10:00 A.M.
I. Welcome Remarks
II. Overview of Meeting Procedures
III. Staff Introduction
IV. Public Official Comments
V. Invited Comments
A. ERCOT ISO (Joel Mickey)
B. We The People Are The 9-12 Association, Inc. (Thelma Taormina)
C. Pecan Street (Brewster McCracken)
D. Ban Texas Smart Meters (Cindy Carriger)
E. Texas is Hot
F. Devvy Kidd
G. City of Houston (Tina Paez)
H. Citizen Lobbyist Network & Texas 10th Amendment Center (Sharlyn Wall)
I. Smolen & Fox, Smolen & Associates (Paul Smolen)
J. Texans Against Smart Meters (John Marler)
K. Public Citizen (Tom “Smitty” Smith)
VI. Utility Response Panel
VII. Expert Panel
A. Brent Bullock (Technical Consultant)
B. Rob Kavet, ScD (Senior Technical Executive, EPRI)
C. Curtis Bennett (Chief Science Officer, Building Construction Engineering Technologist
Adjunct Faculty For 2 Education Groups Thermografix Consulting Corporation)
D. Robert Hebner, Ph.D. (Director, Center for Electromechanics, University of Texas at
Austin)
VIII. Consumer & Stakeholder Comments
2
Speakers Roster
Project 40190: Public Forum for Community Input on Advanced Meters & Related Topics
August 21, 2012
Invited Comments Organization
Joel Mickey ERCOT ISO
Thelma A. Taormina We the People/912 Commission
Brewster McCracken Pecan Street
Cindy Carriger Ban Texas Smart Meters
TBA Texas is Hot
Devvy Kidd
Tina Paez City of Houston
Sharlyn Wall Citizen Lobbyist Network & Texas 10th Amendment Center
Paul Smolen Fox Smollen & Associates
John Marler Texans Against Smart Meters
Tom "Smitty" Smith Public Citizen
Utility Response Panel Organization
TBA Oncor Electric Delivery
TBA Oncor Electric Delivery
TBA Texas New Mexico Power
TBA Texas New Mexico Power
TBA CenterPoint Energy Houston Electric
TBA CenterPoint Energy Houston Electric
TBA AEP Texas
TBA AEP Texas
Expert Panel Organization
Brent Bullock Technical Consultant
Rob Kavet, ScD Senior Technical Executive, EPRI
Curtis Bennett Chief Science Officer, Thermografix Consulting Corporation
Robert Hebner, Ph.D. Director, Center for Electromechanics, UT Austin
Public Official Testimony Organization
Mayor Allen Owen Missouri City
Mayor Marcus E. Knight Lancaster
Mayor Greg Wortham Sweetwater
Public & Stakeholder Comment Organization/Location
Beth Biesel Dallas
Terry L. Guy Spring
April Arfa ECO Development Group LLC
Phillip McDonough Montgomery
Tracy Stephens Hurst
Tracy Eubanks Carrollton
Ward Hansen Arlington
Brenda Crockett Champion Energy
Ned Ross Direct Energy
Ginger Russell Texas Patriots Lax
Steve Davis ARM
Janise Cookston We Texans
Thomas A. Bazan Houston
3
Public Forum
Important Information and Meeting Procedures
Updated Monday, August 20th, 2012
The purpose of this Public Forum is for the Public Utility Commission of Texas (Commission) to
receive public comment on issues relating to advanced meters. The goal of the forum is to
receive comments from multiple perspectives in order to better inform the Commission’s
decision-making process. The Commission will not take a vote at the Public Forum on any
proposal presented at the forum. The Public Forum is also not a debate. It is an opportunity for
the public to be heard. The Commission encourages public attendance and participation at this
Public Forum. Participants are expected to follow the outlined procedures to ensure fairness to
all parties and to maintain an orderly and efficient proceeding.
Participation Welcomed and Encouraged
Participation by members of the public at this Public Forum is welcomed and encouraged. The
following procedures for the forum have been designed to produce the most efficient and
effective process for allowing the public to provide comments to the Commission. The
Commission reserves the right to change these procedures as it deems necessary in order to allow
the forum to function as efficiently as possible.
What to Expect
The Public Forum will begin promptly at the published start time.
Doors to the meeting room will open approximately 30 minutes before the published start
time.
A modified agenda and a Speakers Roster is attached.
How to Participate
Each person already on the published Speakers Roster will still need to sign-in on the day
of the Forum.
- There will be additional, but limited, time for participants who are not on the
published Speakers Roster to speak at the Public Forum. Same day sign-up will
be available between 9:30 a.m. and 10:00 a.m. at the sign-in table.
Invited Comments
Speakers will be taken in the order that they appear on the Roster. Any speaker may
yield his time to another speaker on the list in order to give a single speaker a maximum
of 20 minutes speaking time. Each speaker has a maximum of 5 minutes.
Invited and Expert comments should not be redundant.
Speakers should present all comments as briefly as possible.
Speakers must remain courteous and respectful at all times.
4
Consumer & Stakeholder Comments
Each speaker will be asked to fill out a speaker card when signing in, prior to the start of
the Public Forum.
Speakers will be taken in the order that they appear on the Roster. We have set a time-
limit to ensure as many speakers as possible have the opportunity to speak. Each speaker
has 3 minutes to speak.
Any speaker may yield his time to another speaker on the list in order to give a single
speaker a maximum of 15 minutes speaking time.
Public comments should not be redundant.
Speakers should present all comments as briefly as possible.
Speakers must remain courteous and respectful at all times.
Groups
If a group of individuals wishes to address the Commission on the same topic, the group
must designate one spokesperson. That spokesperson will be allowed to speak only
during the time allotted.
Prohibitions
Those in attendance are asked to please refrain from disrupting the meeting by making
noise of any kind (this includes shouting, whistling, applauding, and the use of noise-
making devices).
Those in attendance are asked to please refrain from bringing signs, banners, or other
similar items into the meeting room.
The Commission will not receive public comment at this Forum unless it appears on the
posted agenda or the speaker is recognized by the Commission.
Anyone who does not follow these procedures or who disrupts the Public Forum may be
asked to leave.
5
APPENDIX B
Staff Report on RF & EMF from SmartMeters
Donna L. Nelson Rick Perry
Chairman Governor
Kenneth W. Anderson, Jr.
Commissioner
Rolando Pablos
Commissioner
Brian H. Lloyd
Executive Director Public Utility Commission of Texas
___________________________________________________________________________________________________________________________________
Date: December 17, 2012
To: Chairman Donna L. Nelson
Commissioner Kenneth W. Anderson, Jr.
Commissioner Rolando Pablos
From: Alan Rivaldo
Infrastructure & Reliability Division
Subject: Project No. 40190, Project Relating to Advanced Metering Issues
Report on Health and Radiofrequency Electromagnetic Fields from Advanced Meters
Recently, some citizens of Texas have expressed concern over the potential health effects of exposure
to the radiofrequency emissions from the wireless technology of advanced metering. Some of these
individuals have appeared before or submitted comments to the Commission (under Project 40190,
Project Relating to Advanced Metering Issues) and the Texas Senate Committee on Business and
Commerce (at http://www.senate.state.tx.us/75r/senate/commit/c510/c510.htm).
Some have relied on social media as a source of information because it disseminates ideas rapidly and
widely, but it also can be inaccurate and lack objectivity. Therefore, Staff decided to investigate the
health concerns expressed by citizens and other interested parties. The product of this investigation is
the attached document intended to objectively address the issue and help inform decision makers.
Staff reviewed recent research on the potential health effects of radio frequency electromagnetic field
(RF EMF), reported on the findings, and assessed disputes regarding the findings.
Staff found many scientific research papers published on the effects of EMF on health over a period of
nearly 90 years; they number in the thousands. Despite this extensive body of work, scientific
research continues, and dozens of papers are published each year.
Staff has determined that the large body of scientific research reveals no definite or proven biological
effects from exposure to low-level RF signals. Further, Staff found no credible evidence to suggest
that advanced meters emit harmful amounts of EMF.
While many different organizations have performed primary research on health and RF EMF, Staff
relied heavily on the following sources:
1. The California Council on Science and Technology (CCST), an independent state agency,
assessed the available evidence of whether FCC standards provide sufficient protection of public
health. Its report also questioned whether additional standards are needed to ensure adequate
protection from adverse health effects of wireless communication technology.
2. The Michigan Public Service Commission requested help from Lawrence Berkeley National
Laboratory (LBNL) in assessing claims made by some individuals who refuted the findings of
the CCST report. The PUCT report summarizes the LBNL work.
3. The measurements and assessments performed by the Electrical Power Research Institute
(EPRI), an organization that performs research and provides technical expertise to the electrical
utility industry.
Staff found the CCST conclusions, LBNL’s work, and the investigations by EPRI to be highly credible
and based on sound scientific principles.
Other material Staff reviewed, found valuable, and used to inform the report came from:
The federal government (FCC, NIH, and other agencies);
The Canadian government and its provincial health authorities;
Countries in Western Europe;
Several municipalities deploying advanced meters;
Various governmental entities in Australia;
Academia;
The United Nations’ World Health Organization;
Utility industry organizations; and
International standards-settings organizations.
Alan Rivaldo is available to answer any questions you may have.
2
Health and RF EMF from
Advanced Meters
An Overview of
Recent Investigations and Analyses
Public Utility Commission of Texas
Infrastructure & Reliability Division
Staff Report
Prepared by Alan Rivaldo
Project No. 40190
December 2012
This document is work supported by the Department of Energy under award numbers
DE-OE0000092 and DE-OE0000180.
Any views presented in this paper do not necessarily represent a Commission decision.
Health and RF EMF from Advanced Meters ii Public Utility Commission of Texas
Table of Contents
Executive Summary ................................................................................................................................................. 1
Introduction ............................................................................................................................................................ 5
The Science.............................................................................................................................................................. 6
Background – Radiation, Science ........................................................................................................................ 6
Radiation ......................................................................................................................................................... 6
Figure 1: Chart of the Electromagnetic Spectrum........................................................................................... 7
Figure 2: Types of Radiation and Their Frequency Ranges ............................................................................. 8
Figure 3: Calculated Average Power Density vs. Distance for a Typical Smart Meter .................................... 9
The Scientific Method, the Value of Meta-analysis, Laymen Difficulties, and other Cautions ..................... 14
Recent Studies and Expert Opinions ..................................................................................................................... 24
California Council on Science and Technology Report and Responses ............................................................. 24
Response to CCST Report: County of Santa Cruz Health Services Agency .................................................... 24
Michigan Public Service Commission: SGTAP Assessment of Santa Cruz Memo.......................................... 25
Michigan Public Service Commission: SGTAP Assessment of AAEM Submittal ............................................ 26
Table 1: SGTAP Assessment Using Hill Criteria ............................................................................................. 28
Electric Power Research Institute ..................................................................................................................... 30
EPRI Technical Report on RF Emissions from Two Models of Smart Meters ................................................ 30
EPRI Comments on the Santa Cruz and AAEM Memoranda ......................................................................... 32
Table 2: EPRI Findings – Radio Frequency Levels from Various Sources ...................................................... 37
EPRI Comments on Sage Report ................................................................................................................... 38
Joint White Paper of EEI, UTC, and AEIC ........................................................................................................... 38
Government and Academia .................................................................................................................................. 40
National Cancer Institute at the National Institutes of Health ......................................................................... 40
FCC Letter: Equipment Authorization, Exposure Limits, and Interference ....................................................... 41
GAO Report: Exposure and Testing Requirements for Mobile Phones Should Be Reassessed .................... 42
Other Governmental Jurisdictions and Agencies .............................................................................................. 43
City of Naperville, Illinois............................................................................................................................... 43
Maine Center for Disease Control & Prevention .......................................................................................... 44
Vermont Department of Health .................................................................................................................... 44
Monterey County, California ......................................................................................................................... 45
Australia: Smart Meter Installations in the State of Victoria ........................................................................ 45
United Kingdom: Health Protection Agency ................................................................................................. 47
Health Canada: Safety Code 6 ....................................................................................................................... 47
Health and RF EMF from Advanced Meters iii Public Utility Commission of Texas
British Columbia Provincial Health ................................................................................................................ 48
Ontario Province: Ontario Agency for Health Protection and Promotion .................................................... 48
City of Richmond, British Columbia and Vancouver Coastal Health ............................................................. 49
Norwegian Institute of Public Health ............................................................................................................ 49
Swedish Council for Working Life and Social Research ................................................................................. 50
Health Council of the Netherlands ................................................................................................................ 50
World Health Organization ........................................................................................................................... 50
Comments by Academia on Public Concerns about Wireless Smart Meters ................................................... 52
Montréal Polytechnic and McGill University Open Letter ............................................................................ 52
University of Ottawa: RFcom Review Panel Reports .................................................................................... 52
Other Issues........................................................................................................................................................... 54
Potential for Interference with Medical Devices .............................................................................................. 54
Claims of Electromagnetic Hypersensitivity ...................................................................................................... 55
World Health Organization ........................................................................................................................... 55
King’s College London: Systematic Review of Provocation Studies for EHS ................................................. 56
Recent Court Decision Regarding Claim of EHS ............................................................................................ 57
Use of EMF as a Weapon .................................................................................................................................. 57
Directed Energy Weapons ............................................................................................................................. 57
Cold War Studies on Behavior Modification and Human Vulnerability ........................................................ 58
Other Material................................................................................................................................................... 60
Conclusion ............................................................................................................................................................. 62
Acronyms and Abbreviations ................................................................................................................................ 64
References and Resources .................................................................................................................................... 66
Health and RF EMF from Advanced Meters iv Public Utility Commission of Texas
Executive Summary
This paper is a survey of existing scientific research and analyses that have been performed to investigate the
potential health effects of exposure to low-level radio frequency electromagnetic fields emitted by wireless
communication devices including smart meters. No independent empirical research has been performed by
Public Utility Commission of Texas (PUCT) staff, but the results of several studies are summarized in this report.
Decades of scientific research have not provided any proven or unambiguous biological effects from exposure
to low-level radio frequency signals. Further, Staff reviewed all available material and found no credible
evidence to suggest that smart meters emit harmful amounts of Electromagnetic Field (EMF) radiation.
Radiation comes in two forms: ionizing and non-ionizing. The methods of data transmittal by smart meters
most common in Texas (which communicate wirelessly) and other forms of telecommunications (television,
radio, cell phones, satellite) utilize non-ionizing EMF radiation in the Radio Frequency (RF) band, commonly
known as RF EMF.
In contrast, ionizing radiation carries an inherently greater amount of energy; it may come from the decay of
fissionable material like uranium or from EMF at significantly higher frequencies, such as X-rays or cosmic rays.
Because of its inherent high energy, ionizing radiation is known to cause cellular disruption which may lead to
various acute or chronic medical problems, including the induction of cancer.
Smart meters do not emit or utilize ionizing radiation.
RF EMF can cause the heating of living tissue (thermal effect) when the tissue is exposed to a certain level of
intensity, which is the only known risk of exposure to such emissions. The Federal Communications
Commission (FCC) has therefore established two tiers of Maximum Permissible Exposure (MPE) - one tier
applies if exposure occurs in an occupational or “controlled” situation, and the other tier applies if the general
population is exposed or exposure results from an “uncontrolled” situation. The FCC uses a safety factor for
the general population tier that sets the MPE at 1/50th of the level of known thermal effects while the
occupational MPE is set at 1/10th of the level. Because smart meters are devices deployed among the general
population, the more restrictive of the two safety factors is applied; the MPE for the general population is 80%
lower than the occupational MPE.
Many governmental health agencies from around the world, including those at the state, provincial, county,
and city levels, in addition to academic institutions and other researchers have stated that there are no known
non-thermal effects from exposure to RF EMF. This lack of non-thermal effect includes the effects which
manifest from exposure to ionizing radiation. Nonetheless, substantial medical research on any potential non-
thermal effects of non-ionizing radiation has been conducted and is ongoing. It is anticipated that medical
researchers will continue to perform investigations of both the potential thermal and non-thermal health
effects of RF for the foreseeable future.
It is important to note that one must use caution when relying solely on the results of individual research
studies because conflicts or inconsistencies may exist among the results of other individual studies. Laymen
often may not recognize poorly executed studies, or they can misinterpret the results of properly conducted
scientific research. Either circumstance may lead a casual observer to draw errant conclusions. Furthermore,
it is impossible to scientifically prove absolute safety (the null hypothesis).
Health and RF EMF from Advanced Meters 1 Public Utility Commission of Texas
The Electric Power Research Institute (EPRI) has undertaken several substantial investigations of smart meter
RF EMF, and found that smart meters comply with the FCC MPE requirements. Furthermore, it found that in-
residence exposure to the emissions from a smart meter is greatly mitigated by several factors:
The intensity of RF EMF is reduced exponentially with greater distance from the emitting device;
The shielding provided by the meter enclosure;
The home’s building materials further weaken the field strength;
The meter antenna orientation inhibits the inward direction of the field pattern; and
RF EMF emissions are only intermittent; a smart meter typically transmits 1 - 5% of the time.
Several governmental entities such as the City of Naperville in Illinois, the Vermont Department of Health, the
Victorian State Government of Australia, and the City of Richmond in British Columbia, Canada have performed
their own tests on RF EMF from smart meters. These tests corroborated the results of EPRI’s investigations.
Some smart meter opponents have raised the concern that the meters may interfere with other electronic
devices. Smart meters typically communicate using the 902-928 MHz frequency band which is unlicensed
spectrum and falls in the vicinity of where some cordless telephones operate. The FCC’s technical rules
mitigate the potential for the meters to interfere with other electronic devices by requiring them to be tested
and certified as compliant with these rules before they can be marketed. Financial penalties can be assessed if
one does not comply with the appropriate FCC equipment authorization procedure.
Despite a lack of credible evidence, opponents have challenged the use of common devices that emit RF EMF
on the basis of health and environmental concerns. Some of these concerns involved cell phones and towers,
some focused on the use of Wi-Fi1 in schools, and a few were specifically related to smart meter deployments.
As a result of concerns about the wireless technology employed by smart meters, the California state
legislature commissioned the California Council on Science and Technology (CCST) to perform a study. The
CCST, an independent, non-profit organization, solicited input from technical experts and reviewed and
evaluated available research information about health impacts of RF emitted by electric appliances and smart
meters. The CCST report concluded that:
The exposure to RF from smart meters was lower than that from many household devices;
The FCC standard provides adequate protection from known thermal effects;
There were no identified non-thermal health effects from existing common household devices,
including smart meters; and
There was no call at this time for devising standards to govern the non-thermal effects of RF exposure.
In response to these findings, various parties opposed to smart meters filed comments with the California
Public Utilities Commission which questioned or conflicted with the conclusions of the CCST report. As a
result, the Michigan Public Service Commission asked Lawrence Berkeley National Laboratory (LBNL) to review
the assertions made in those comments. EPRI also provided its opinions on the submitted comments
separately. EPRI found that the submitted comments ignored a substantial amount of existing evidence and
that the content indicated a general misunderstanding of concepts and basic principles about smart meters.
LBNL was far more critical of the meter opponents’ comments in its response and provided greatly detailed
assessments of what it viewed as shortcomings of the submittals.
1
Wi-Fi is a popular technology that allows an electronic device to exchange data wirelessly using radio waves over a
computer network, including high-speed Internet connections. Wi-Fi products are based on the Institute of Electrical and
Electronics Engineers’ (IEEE) 802.11 standards.
Health and RF EMF from Advanced Meters 2 Public Utility Commission of Texas
Some opponents of smart meters have raised the idea of the existence of Electromagnetic Hypersensitivity
(EHS), a condition in which certain people seem to be especially susceptible to EMF, exhibiting a wide range of
physical afflictions. The World Health Organization (WHO) has issued documents on the topic, including
recitations of a number of studies which had been conducted on individuals claiming to suffer from EHS. The
studies typically attempted to elicit symptoms under controlled laboratory conditions. The WHO concluded
that the symptoms experienced by those who have been described as being hypersensitive were not
correlated with EMF exposure, and therefore there was no scientific basis to link EHS symptoms to EMF
exposure. It suggested that symptoms experienced by some EHS individuals might arise from environmental
factors unrelated to EMF or that the symptoms may be due to pre-existing psychiatric conditions or stress
reactions resulting from worrying about EMF health effects, rather than the EMF exposure itself. Further,
scientific studies show that people who are ill are highly receptive to negative suggestion and may
demonstrate a “nocebo response” as a result of these suggestions.
A few people opposed to the use of wireless technologies have made claims that EMF can be used as a
weapon to cause pain, disrupt thought, or alter or control human behavior. Smart meters do not have the
capabilities to do these things.
Smart meters are designed to measure a customer’s overall electricity usage and deliver that data to the utility.
A meter may also offer a limited set of information to an end user if he desires. Smart meters are not intended
for, are not designed to, and do not have the capability to harm an individual or direct a person’s thoughts or
actions.
Health and RF EMF from Advanced Meters 3 Public Utility Commission of Texas
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Health and RF EMF from Advanced Meters 4 Public Utility Commission of Texas
Introduction
Some members of the public have expressed concerns over the possible health effects from exposure to
electromagnetic fields (EMF) emitted by advanced meters that transmit data wirelessly (smart meters). People
have stated their concerns in public forums hosted by the Public Utility Commission of Texas (PUCT) or
submitted written comments to the agency. The comments are available on the PUC’s website under project
40190.2 Citizens have also appeared before the Texas Senate Committee on Business and Commerce3 to make
statements. This report is intended to inform decision makers and other parties interested in the topic.
Decades of scientific research have not provided any proven or unambiguous biological effects from exposure
to low-level radio frequency signals. In reviewing all available material, Staff found no credible evidence to
suggest that smart meters emit harmful amounts of EMF.
This paper begins by explaining radiation which is a word that has several meanings. This document explains
the distinction between ionizing and non-ionizing radiation. Also discussed are some fundamental
characteristics of radio-frequency EMF (RF EMF) which is the non-ionizing form of radiation utilized by almost
all wireless forms of telecommunication and by smart meters that send data through the air.
Because properly understanding radiation and health depends upon understanding the foundations of science,
this paper explains the scientific method and outlines what constitutes valid science. Some people have
claimed that they can make scientific arguments against the use of wireless communications technology, or
describe what they view as its egregious hazards, or produce evidence of harm. This document provides
guidance when considering such assertions.
As new technologies continue to pervade our lives, matters of science are addressed more often by our legal
system. Public policy must also address technology, and those who craft laws and regulations often rely on
external sources to provide subject matter expertise in matters of science, including medicine. This was true
for the California Public Utilities Commission (CPUC). CPUC asked the California Council on Science and
Technology (CCST) to analyze submittals made by various experts in science and medicine regarding RF EMF.
CPUC received comments that were critical of the CCST report. Various parties responded in defense of the
conclusions of the CCST report. This paper summarizes the CCST report, some of the reply comments, and
responses to those comments. Staff found the CCST conclusions to be based on sound scientific principles.
Several entities, such as the Electric Power Research Institute (EPRI), have measured the level of RF EMF
exposure one would receive from smart meters. This report summarizes the findings of the EPRI investigations
as well as those performed by other organizations.
This paper discusses standards for human exposure to EMF and regulations that govern devices which emit
EMF. This report provides statements from health agencies of several countries and those made by academia
regarding human exposure to RF EMF. This document concludes with a discussion about a purported medical
condition called electromagnetic hypersensitivity and the notion of using EMF as a weapon. A chart of
acronyms and abbreviations follows, along with an alphabetized list of references and resources.
2
<http://interchange.puc.texas.gov/WebApp/Interchange/application/dbapps/filings/pgControl.asp?TXT_UTILITY_TYPE=A
&TXT_CNTRL_NO=40190>.
3
<http://bandc.posterous.com/updated-october-9-2012-agenda-with-links-57790>.
Health and RF EMF from Advanced Meters 5 Public Utility Commission of Texas
The Science
Background – Radiation, Science
The fear of things that cannot be seen is innate to human beings. Imagine being dropped off alone in a forest
in the middle of the night, with no moon to light the way. Are there venomous snakes or scorpions underfoot?
Are there other unseen threats nearby? RF EMF is also invisible, so some people may be predisposed to
feeling anxious about it.
Fear of the unknown is also common, and to some people, the notion of wireless communications technology
is new, or something with which they have no experience. To make matters worse, wireless technology is a
form of electromagnetic radiation (EMR), and the term “radiation” is rather ambiguous and commonly
misunderstood. Exposure to radiation has been traditionally associated with chronic illnesses (specifically
cancer) and death. Lastly, microwave ovens use EMR to cook food and boil water; knowing this, some people
may imagine themselves being cooked or boiled alive if exposed to EMR.
Radiation
Radiation can be characterized as energetic particles or waves traveling through matter or space. Radiation
can come from natural or man-made sources. For this report, it is important to first know that there are two
types of radiation: ionizing and non-ionizing. Making the distinction is crucial because the word “radiation” on
its own can evoke images of the victims of the atom bomb or the outcomes of the Chernobyl and Fukushima
Daiichi disasters, when in fact the many forms of radiation we encounter in our daily lives are inert.
Ionizing Radiation
Ionizing radiation can come in one of two forms: particulate (e.g. neutron, alpha, or beta particles) or
electromagnetic (e.g. gamma, cosmic, or X- rays). Ionizing radiation has such a high energy level that when it
hits an atom, typically an electron is stripped away or dislodged from the shell of the atom. This changes the
properties of the atom – leaving it with a net positive charge. Note that the high energy level of ionizing
radiation is basic to its nature, and distinct from what its intensity may be in any given instance.
Ionizing radiation is generally harmful and potentially lethal because it can alter the molecules in living
organisms, such as the genetic material of cells. If the genetic material of a cell is altered, it may lead to death
of the cell or to cell mutation.
Ionizing radiation can come from outer space or from naturally occurring materials in the terrestrial
environment, such as uranium or radon gas. Ionizing radiation can also be introduced into the environment
from human activities like nuclear power production, medical and industrial uses, the transportation of
radioactive material, mining, and by drilling for oil and gas. Note that smart meters do not produce or use
ionizing radiation.
Non-Ionizing Radiation
In contrast, the waves of non-ionizing radiation inherently do not possess enough energy to displace electrons
from the shell of an electron. Non-ionizing radiation may cause excitation of an electron, moving it to a higher
energy state, but not stripping it away.
Health and RF EMF from Advanced Meters 6 Public Utility Commission of Texas
Electromagnetic radiation whose frequency is between that of extremely low frequency radiation and
ultraviolet light is considered non-ionizing radiation. The radio emissions from cell phones, smart meters, and
other forms of wireless communication lie between these two extremes. Therefore, radio communication
from a smart meter is a form of non-ionizing radiation.
Electromagnetic Spectrum
The various forms of radiation, whether ionizing or non-ionizing, lie on a continuum called the electromagnetic
spectrum, as seen in Figure 1. Smart meters that communicate wirelessly use frequencies that are between
the frequencies of UHF television channels and those of mobile phones (somewhere between 900 MHz and 2.4
GHz), depending on the wireless technology (or technologies) the meters employ.
Figure 2 shows some of the chart’s information in a tabular format. The frequency range in which wireless
smart meters transmit data has been emphasized in that figure.
Note that the Public Utility Commission of Texas addressed potential health effects of extremely low frequency
(60 Hz) electric power at very high voltages and currents, as is conducted in transmission lines. That report,
issued in 1992, was entitled “Executive Summary: Health Effects of Exposure to Powerline-Frequency Electric
and Magnetic Fields.” The considerations being addressed in this Health and RF EMF from Smart Meters
report are substantially different from those contemplated in 1992.
Figure 1: Chart of the Electromagnetic Spectrum4
4
Not shown in the chart is the fact that as the frequency (Hz) of radiation increases, the “electron volt” (eV) value
increases in a linear fashion. In this context, electron volts serve as a measure of how much energy the radiation carries
and therefore the potential it has to excite an electron (or, if it has enough energy, dislodge it from an atom).
Health and RF EMF from Advanced Meters 7 Public Utility Commission of Texas
Figure 2: Types of Radiation and Their Frequency Ranges
Top End of
Frequency Designation or
Frequency Range Range (in Hz) Abbreviation Primary Use
Radio. Non-ionizing radiation.
3 – 30 Hz 30 ELF Submarine communications
30 – 300 Hz 300 SLF Not commonly used; electrical power is in this range
300 – 3000 Hz 3,000 ULF Military communications
3 – 30 kHz 30,000 VLF Submarine communication
30 – 300 kHz 300,000 LF Military, AM radio
300 kHz – 3 MHz 3 million MF AM radio, shortwave radio
3 – 30 MHz 30 million HF Amateur radio, CB radio, aviation radio
30 – 300 MHz 300 million VHF VHF TV, FM radio, amateur radio
300 MHz – 3 GHz 3 billion UHF “microwave” UHF TV, land-based mobile radio, cell phones, smart meters
3 – 30 GHz 30 billion SHF “microwave” WLAN, radars, industrial devices
30 – 300 GHz 300 billion EHF “microwave” Short range data transmission
Light. Non-ionizing radiation.
300 GHz – 400 THz 400 trillion Infrared (IR) TV remote controls, heat lamps
400 THz – 770 THz 770 trillion Visible (“light”) Illumination
Ionizing radiation.
750 THz – 30 PHz 30 quadrillion Ultraviolet (UV) Tanning beds, medical, industrial applications
30 PHz – 30 EHz 30 quintillion X-Ray Medicine, scientific, and industrial uses
more than 15 EHz > 15 quintillion Gamma ray Medicine, scientific, and industrial uses
Electromagnetic Fields
An electromagnetic field is the result of the mutual interaction of electric and magnetic fields.5 An electric field
can be most simply described as being produced by stationary charges. A higher voltage yields a stronger
electric field. In contrast, a magnetic field is produced by moving charges (typically electrons, i.e., an electric
current). A greater current flow yields a stronger magnetic field.
An RF electromagnetic field is an electromagnetic field that is produced by electrical current that is oscillating
at a radio frequency, which is defined as a frequency between 3 cycles per second and 300 billion cycles per
second. Smart meters typically communicate with one another (or to their data concentrator) in a frequency
band that is near 900 MHz.
Electromagnetic (EM) field intensity decreases greatly with distance. There are many variables involved in
precisely calculating the anticipated intensity of an EM field from a given distance. To simplify the
mathematics involved, it can be reasonably stated that the intensity of an EM wave, which is three-
5
<http://www.britannica.com/EBchecked/topic/183201/electromagnetic-field>.
Health and RF EMF from Advanced Meters 8 Public Utility Commission of Texas
dimensional, decreases exponentially at a rate of approximately the square of the distance from its source.
This is known as the inverse-square law,6 expressed as a mathematical formula by:
(where Y is the intensity and X is relative distance).
For example, if the EM intensity from a smart meter is measured to be at an initial distance of 1 foot away,
then , the field intensity from two feet away, would be ( , or . From a three-foot distance, the
intensity will be ( , or . From ten feet away, the field intensity will only be ( ) , or 1/100th of
what it was at one foot away. Figure 3 shows how the average power density of EMF from a typical smart
meter varies with distance.
Upon inspecting the graph, the power density value may appear to become zero, but in actuality it does not;
the resolution of the image belies the asymptotic nature of the curve. While the power density may seem to
become infinitesimal at the greater distances shown, the radio circuitry of smart meters is sensitive enough to
receive and process the signal.
Figure 3: Calculated Average Power Density vs. Distance for a Typical Smart Meter7
6
<http://www.osha.gov/SLTC/radiofrequencyradiation/electromagnetic_fieldmemo/electromagnetic.html#appendix_b>.
7
Notes: The graph shows expected (calculated) values. The power density is average power density, not instantaneous;
measured values will vary around a nominal value. This graph does not account for possible ground reflections, but
ground reflections would not change the basic shape of the curve. Graph source: EPRI.
Health and RF EMF from Advanced Meters 9 Public Utility Commission of Texas
EMF and RF EMF in our Environment
Almost all household devices powered by electricity emit RF EMF in some amount. The FCC has classified
devices in three categories – intentional radiators, unintentional radiators, and incidental radiators.
Intentional radiators deliberately generate and emit RF energy. Typical intentional radiators include
cordless telephones, remote control toys, garage door openers, mobile data devices such as iPads, and
other low power transmitters.
Unintentional radiators are devices that generate and use RF energy within the device but are not
intended to emit RF energy. Typical unintentional radiators include devices such as personal
computers, printers, automobile dashboard electronics, and other digital devices that have internal
“clocks” or circuitry used for timing within the device. Radio receivers, such as television receivers and
AM/FM radios, are also unintentional radiators.
Incidental radiators are devices that generate RF energy during the course of their operation but are
not intentionally designed to generate or emit that energy. Typical incidental radiators include
automobile ignition systems, ceiling fans, vacuum cleaners, electric shavers, and mechanical light
switches.
RF EMF also comes from natural sources, such as the sun, the Earth, and the outer layer of the Earth’s
atmosphere (the ionosphere).
The environment in which we live includes numerous other sources of RF EMF sourced from outside the home.
These sources are intentionally transmitted and beyond an individual’s control. The transmitting sources emit
RF at a much greater intensity than smart meters do, and the signals permeate homes and other buildings.
This RF EMF has had a ubiquitous presence both indoors and outdoors since the 1920s when AM radio
broadcasts (centered near the 1 MHz frequency) were introduced. In the 1930s, FM radio (around 100 MHz)
was introduced, and then in the 1940s and 1950s, the broadcasting of VHF television (50 to 200 MHz) and UHF
television (400 to 900 MHz) expanded. Satellite communication started in the 1960s and is now
commonplace, including for consumer use. Cellular telephone towers (base stations) have been deployed in
increasing numbers since at least the 1990s; they are now considered ubiquitous.
Other sources of RF EMF one may encounter in public and private places are wireless routers, cordless
telephones, cellular phones, RF remote control devices, and baby monitors. The intensity of EMF emitted by
each of these devices is documented to be well below the threshold that requires any type of notification
signage.8
The Role of RF EMF in our Country’s Infrastructure
The United States of America (U.S.) has had a wireless communications infrastructure in place for nearly a
hundred years. For example, radio and television stations have continually broadcasted their programming in
all directions for public consumption since the early part of last century. Emergency services like police, fire,
and ambulance services have their own dedicated radio spectrum. Municipal governments and the military
also transmit data on various frequency bands assigned to them. Citizen’s Band and short wave radio are used
by individuals and hobbyists, but one could argue that it is also a part of our nation’s communications
infrastructure that benefits all, especially in times of emergency.
8
<http://standards.ieee.org/findstds/standard/C95.2-1999.html>.
Health and RF EMF from Advanced Meters 10 Public Utility Commission of Texas
Satellite transmissions blanket our country from above, using various frequencies in the RF band. Downlinks
from satellites are used by the television and radio industries for delivery of syndicated programming to local
stations. Satellites also provide Internet access to users in remote areas and television programming for those
without access to cable television or who seek an alternative. They also provide subscription-based
programming for SiriusXM radio, and to fulfill government functions such as transmitting climate and mapping
data and Global Positioning System (GPS) locational and timing information (which is used by utilities). The
military also uses satellites for communications and surveillance.
Cell phones and their associated base stations are also a common source of EMF, having become ubiquitous
worldwide; the International Telecommunication Union reported that there were six billion mobile phone
subscriptions by the end of 2011, nearly one for every human being on the planet.9
Some people object to the installation of wireless smart meters on the grounds that they fear exposure to RF
and because they do not anticipate benefitting from the devices’ advanced capabilities. What they may not
realize or acknowledge is that every individual is continuously exposed to RF emitted by a multitude of local
television (TV) and radio stations, irrespective of whether one ever chooses to tune into any of them.
When a new radio or TV station begins broadcasting in a community, it introduces a new source of RF to a
wide area. While the exposure to RF emissions is the primary consideration for the topic of this paper, some
opponents of smart meters have called attention to their power output. It is therefore worth noting that the
permitted maximum effective radiated power (ERP, which includes antenna gain10) of an FM radio station
transmitter in the U.S., depending upon its FCC classification, can be as high as 100,000 watts.11 In contrast,
the radio module in a wireless smart meter is only capable of a maximum power output of one watt, and in
some implementations, it is even less than that. The ERP of a stationary cell phone base station is limited to
either 500 or 1000 watts, depending on its location.12 The maximum peak ERP of a cell phone in the U.S., for
example one operating in the GSM-1900 band and at GSM Power Class Number 30, is two watts.13
Despite the fact that radio stations broadcast at power levels that are tens of thousands times higher than
those of smart meters, Staff could not find any references to reported health complaints or individuals
attributing their health issues to new radio or TV transmissions. Similarly, while a limited number of people
may still have some trepidation regarding cellphone towers, their ubiquity and the continued popularity of cell
phones and other wireless communication devices seems to have quelled the number of concerns being
expressed.
Advanced Metering Infrastructure
Making prudent investments in RF communications technologies has become essential to maintaining our
quality of life, and many aspects of the world’s infrastructure depend upon it. Many industries, including
electrical utilities, use radio communication as an essential tool. Until recently, utilities have traditionally
limited their use of radio to telemetry, transmitting system data from distant points along the transmission
portion of the electric grid.
9
<http://www.itu.int/net/pressoffice/press_releases/2012/70.aspx>.
10
In this context, this is defined by how well a transmitting antenna converts input power into radio waves headed in a
specified direction.
11
<http://www.fcc.gov/encyclopedia/fm-broadcast-station-classes-and-service-contours>.
12
<http://www.gpo.gov/fdsys/pkg/CFR-2011-title47-vol2/xml/CFR-2011-title47-vol2-sec22-913.xml>.
13
<http://www.radio-electronics.com/info/cellulartelecomms/gsm_technical/power-control-classes-amplifier.php>.
Health and RF EMF from Advanced Meters 11 Public Utility Commission of Texas
Now many of the electric utilities in the U.S. are enhancing the distribution portion of the electrical
infrastructure by modernizing its technology. One of the ways electrical utilities are upgrading distribution grid
technology is by replacing existing electric meters with Advanced Metering Infrastructure (AMI). The meters
being replaced typically have an analog display14 in the form of a series of dials that indicate accumulated
usage and a large spinning aluminum disk that protrudes through the face of the meter. This
electromechanical technology is over a century old and has shortcomings.
The most important feature of the meters used in AMI (“smart meters”) is that they measure and record usage
data in regular intervals15 and allow for two-way communications between the utility and the customer. These
smart meters and their associated communication components form an infrastructure that allow utilities to
overcome the old technology’s limitations and is now crucial to the utility and to the energy market’s proper
functioning.
Almost all smart meters used in the U.S. communicate by means of wireless technology. Each utility proposes
the technology it will deploy and determines how it is to be configured in order to best suit the needs of its
service area. The most common method of communication chosen by Texas utilities has been in the form of a
wireless mesh network.
A wireless mesh network topology allows “mesh-enabled” meters to securely route data via other nearby
meters and relay devices. These meters and relay devices are connected to several other mesh-enabled
devices. All these devices function as signal repeaters and relay the data to an access point. The access point
device aggregates, encrypts, and conveys the data to and from the utility (this is known as the backhaul
portion of the network). The access point typically uses cellular phone technology to transport this data.16
Wireless Technology Standards and Regulation
Intentional radiator devices such as cordless telephones, cellular phone handsets, and smart meters operate in
unlicensed spectrum. Unlicensed spectrum is simply a band that has pre-defined rules for both the hardware
and the deployment methods of the transmitting radio; they are required to be tested and certified as
compliant with these rules before they can be marketed. Financial penalties can be assessed if one does not
comply with the appropriate Federal Communications Commission (FCC) equipment authorization
procedure.17 The mitigation of potential interference within the bands is addressed by the FCC definition of
technical rules rather than the agency restricting the bands by issuing an exclusive license to use the
spectrum.18,19
Any person or entity that complies with the rules for the equipment (which are pre-certified by the
manufacturer) and its use can establish a license-free network at any time for either private or public
purposes. This is why a person can set up a wireless network at home and a utility can set up its smart meter
mesh network without having to obtain a license from the FCC. The radio(s) in the smart meter is pre-certified,
just as a home user’s wireless router is.
14
Note that not all meters being replaced have the same appearance. A few of the old meters may have digital displays
and solid state circuitry, but are not considered to be AMI.
15
Due to the limited scope of this paper, the specific market and regulatory aspects of Texas and the ERCOT market and
the infrastructure design choices of each of the utilities will not be discussed.
16
There are several possible variations to the mesh design described above. Take what is outlined here as an example.
17
<http://transition.fcc.gov/Bureaus/Engineering_Technology/Documents/bulletins/oet63/oet63rev.pdf>.
18
<http://www.wimax.com/wimax-regulatory/what-is-unlicensed-spectrum-what-frequencies-are-they-in>.
19
U.S. frequency allocations: <http://www.ntia.doc.gov/files/ntia/publications/spectrum_wall_chart_aug2011.pdf>.
Health and RF EMF from Advanced Meters 12 Public Utility Commission of Texas
The FCC is required by the National Environmental Policy Act of 1969 to evaluate the effect of emissions from
FCC-regulated transmitters on the quality of the human environment. At the present time there is no
federally-mandated RF exposure standard. However, several non-government organizations, such as the
American National Standards Institute (ANSI), the Institute of Electrical and Electronics Engineers (IEEE), and
the National Council on Radiation Protection and Measurements (NCRP) have issued recommendations for
human exposure to RF electromagnetic fields.20 The potential hazards associated with RF electromagnetic
fields are discussed in the FCC’s Office of Engineering and Technologies (OET) Bulletin No. 56, “Questions and
Answers About Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields.”21
On August 1, 1996, the FCC adopted the NCRP’s recommended MPE limits for field strength and power density
for the transmitters operating at frequencies of 300 kHz to 100 GHz. In addition, the FCC adopted the Specific
Absorption Rate (SAR) limits for devices operating within close proximity to the body as specified within the
ANSI/IEEE C95.1-1992 guidelines.22 The FCC’s requirements are detailed in Parts 1 and 2 of the FCC’s Rules and
Regulations [47 C.F.R. 1.1307(b), 1.1310, 2.1091, 2.1093].23,24,25,26
Studies by EPRI and others have found that the exposure an individual would receive from a smart meter that
is 10 feet away is not much different from the range of exposure levels received from TV and radio broadcasts.
The Effects of RF EMF on Living Tissue
There are three scientifically established mechanisms where EMF is known to cause health effects:27,28
Induced voltage gradients and/or electric currents in the body;
Thermal effects (dielectric heating); and
Ionizing radiation effects.
The relative importance of these mechanisms depends on the EMF frequency and field strength. Decades of
research into EMF and health has produced a large body of scientific literature which national and
international standards organizations have reviewed to establish their safe exposure limits. For example, the
WHO has formally recognized the International Commission on Non-Ionizing Radiation Protection (ICNIRP) to
develop its international EMF exposure guidelines.
At frequencies in the range of 0-3 kHz, induced voltage gradients and/or electric currents in the body are the
only known health effects in the presence of strong electric and magnetic fields. Because the purpose of this
report is to address smart meters that communicate using RF, induced voltages and currents will not be
discussed. Smart meters do not emit ionizing radiation, so that topic will also not be covered in this document.
If one would like to know more about the health effects of induced voltages or ionizing radiation, credible
resources are freely available elsewhere.
20
<http://transition.fcc.gov/oet/rfsafety/background.html>.
21
<http://transition.fcc.gov/Bureaus/Engineering_Technology/Documents/bulletins/oet56/oet56e4.pdf>.
22
<http://standards.ieee.org/findstds/standard/C95.1-2005.html>.
23
<http://www.gpo.gov/fdsys/pkg/CFR-2011-title47-vol1/xml/CFR-2011-title47-vol1-sec1-1307.xml>.
24
<http://www.gpo.gov/fdsys/pkg/CFR-2011-title47-vol1/xml/CFR-2011-title47-vol1-sec1-1310.xml>.
25
<http://www.gpo.gov/fdsys/pkg/CFR-2009-title47-vol1/xml/CFR-2009-title47-vol1-sec2-1091.xml>.
26
<http://www.gpo.gov/fdsys/pkg/CFR-2009-title47-vol1/xml/CFR-2009-title47-vol1-sec2-1093.xml>.
27
<http://www.emfandhealth.com/EMFExplained.html>.
28
<http://standards.ieee.org/findstds/standard/C95.6-2002.html>.
Health and RF EMF from Advanced Meters 13 Public Utility Commission of Texas
Thermal effects are the primary health impact when living tissue absorbs enough EMF power to cause heating.
This effect is the primary concern in the RF frequency range of 30 MHz to 300 GHz. In theory, the total EMF
power absorbed by tissue is determined by the photon energy multiplied by the number of photons per
second being absorbed. The practical method used to measure this energy is based on the SAR. For portable
devices, the FCC specifies that SAR safety limits are to be used.29 These safety limits are specified in units of
watts per kilogram (W/kg) of body tissue.
Note that the energy from devices that are not intended for use within 20 centimeters of a user, such as smart
meters, is measured using a different methodology. The FCC safety limits for these devices, known as
Maximum Permissible Exposure (MPE), are specified in units of microwatts per square centimeter (μW/cm2).
Existing regulations from the FCC set the SAR and MPE safety limits in the U.S. Other countries such as the
United Kingdom (UK), Canada, and Australia have similar standards. International standards regarding safety
for commercial products also exist from entities such as the WHO and the ICNIRP and are also similar to the
U.S. standards.
The Scientific Method, the Value of Meta-analysis, Laymen Difficulties, and other Cautions
The investigation of RF EMF and its potential effects on health requires an understanding of several fields of
science. While the intent of this report is not to impart a deep understanding of all the relevant scientific fields
of study, it is still important to have a basic grasp on the concepts and what science itself entails. The latter is
referred to as the scientific method.
Meta-analysis is an important tool in science because in some areas of study there are a large number of
studies which are similar, and researchers want to have a method of combining them to help facilitate drawing
satisfactory conclusions.
People generally have an interest in maintaining their health, so any given research study that shows a positive
correlation between a disease and an environmental factor will naturally have the tendency to pique the
interest of the public more than one that does not show any correlation. While journalists and news editors
have codes of ethics and guidelines for professional conduct,30,31,32,33 there is a risk that the mass media may
sensationalize an individual study which shows such a correlation and be less inclined to report research
studies that refute the findings, because documenting something which may be interpreted by an audience as
uneventful is not as captivating or lucrative. Studies have revealed that the publishing of misconceptions
about alleged effects of exposure to electric or magnetic fields in the popular press is not uncommon.34,35,36,37
Some less reputable media outlets may be motivated by viewership ratings, subscription renewals, or webpage
hits, rather than reporting the news properly. Integrity in the media plays a role in maintaining the integrity of
scientific research.
29
The FCC defines portable devices as transmitters whose radiating structures are designed to be used within 20
centimeters (approximately eight inches) of the body of the user.
30
<http://www.rtdna.org/pages/media_items/code-of-ethics-and-professional-conduct48.php?g=36?id=48>.
31
<http://www.apme.com/?page=EthicsStatement>.
32
<http://asne.org/content.asp?pl=24&sl=171&contentid=171>.
33
<http://www.spj.org/ethicscode.asp>.
34
<http://www.dtic.mil/dtic/tr/fulltext/u2/a275434.pdf>.
35
<http://www.jmpee.org/JMPEE_PDFs/26-4_bl/JMPEE-Vol26-Pg189-Jauchem.pdf>.
36
<http://www.jmpee.org/JMPEE_PDFs/28-3_bl/JMPEE-Vol28-3-Pg140-Jauchem.pdf>.
37
<http://www.jmpee.org/JMPEE_PDFs/30-3_bl/JMPEE-Vol30-Pg165-Jauchem.pdf>.
Health and RF EMF from Advanced Meters 14 Public Utility Commission of Texas
Understanding the concepts behind science is important because opponents of wireless data transmission
technologies have attempted to use science (typically by quoting research studies) as support for their
arguments. At the same time, one must remain mindful of the relationships among science, modern media,
and the public.
Scientific Method
The modern use of the word “science” is defined both as a reliable body of knowledge that can be logically and
rationally explained and also by the method of pursuing that knowledge, namely, the scientific method.
Scientific method requires inquiry to be based on evidence that is empirical and measurable and is subject to
specific principles of reasoning. More specifically, the scientific method consists of systematic observation,
measurement, and experiment, as well as the formulation, testing, and modification of hypotheses.38
The following process steps39 are considered the basic elements of scientific method:
Formulate a question - to summon an explanation of a specific observation, or it can be open-ended;
Hypothesis - a conjecture that may explain the observed behavior;
Prediction - made by determining the logical consequences of the hypothesis;
Test - investigate (via experiment) whether the real world behaves as predicted by the hypothesis; and
Analysis - determine what the experimental results demonstrate and decide the next actions to take.
Other components are necessary to the scientific process, even when all the iterations of the steps above have
been completed:
Replication - if an experiment is repeated and does not produce the same results, this implies that the
original results were in error. As a result, it is common for a single experiment to be performed
multiple times, especially when there are uncontrolled variables or other indications of experimental
error. Surprising or significant results may motivate other scientists to also investigate, especially if
the results would be important to their own work.
External review - experts perform a peer review, which is an evaluation of the experiment. These
experts give their opinions anonymously to foster unbiased criticism. The peer review does not certify
correctness of the results, only that the experiments themselves were sound. Note that the evaluation
of the experiment depends on its description being supplied by the experimenter. If the work passes
peer review (which may require new experiments requested by the reviewers), it will be published in a
peer-reviewed scientific journal. The journal that publishes the results indicates the perceived quality
of the work.
Data recording and sharing - scientists must record all data very precisely to reduce their own bias and
aid in replication by others. This data must be supplied to other scientists who wish to replicate any
results. Experimental samples that may be difficult to obtain must also be shared.
Scientific studies are intended to be as objective as possible to reduce any bias in how the results are
interpreted. All data and the methodologies employed are to be documented, archived, and shared so that
they are available for close scrutiny by other researchers. This gives scientists the opportunity to verify results
by attempting to reproduce them and establish statistical measures of the reliability of the experimental data.
38
<http://oxforddictionaries.com/definition/english/scientific%2Bmethod>.
39
<http://en.wikipedia.org/wiki/Scientific_method>.
Health and RF EMF from Advanced Meters 15 Public Utility Commission of Texas
Meta-analysis
The study of EMF has been going on for decades resulting in a multitude of research studies, many of which
possess similar elements. The existence of such large bodies of work makes researchers want to integrate
similar studies and attempt to synthesize more definitive conclusions. The traditional method of integration
calls for a reviewer to provide a narrative, namely a chronological discourse on previous findings.40 Gene V.
Glass, the statistician and researcher who coined the term meta-analysis, considered the traditional method to
be flawed and inexact because reviewers:
Are unable to deal with the large number of studies on a topic and focus on a small subset of studies,
often without describing how the subset was selected;
Often cite the conclusions of previous reviews without examining those reviews critically; and
Are usually active and prominent in the field under review. Therefore, they might not be inclined to
give full weight to evidence that is contrary to their own positions.
In a meta-analysis, research studies are collected, coded, and interpreted using statistical methods similar to
those used in primary data analysis. The result is an integrated review of findings that is more objective and
exact than a narrative review.
Inherent Problems and Laymen Difficulties with Scientific Research; Non-traditional Medicine
Science is by no means a discipline of perfection; it depends upon human thought and activity, and is thereby
subject to human failings, including the introduction of bias into the process steps outlined above. Most
failures can be attributed to inadvertent errors, while some failures can be pinned on researchers that have
taken shortcuts through the scientific process. Only rarely have researchers who had been generally
considered to be legitimate been found attempting to subvert science for personal benefit, to perhaps gain
notoriety, or to secure future research grants.41
Findings of scientific misconduct occasionally come to light. In the course of gathering material for this paper,
Staff discovered several studies of RF EMF and health that were found to be fraudulent. For example, the U.S.
Department of Health and Human Services’ (HHS) Office of Research Integrity found that Robert P. Liburdy,
Ph.D. engaged in scientific misconduct in biomedical research by intentionally falsifying and fabricating data
and claims about the purported cellular effects of EMF that were reported in two of his scientific papers. 42
Another example of misconduct was exposed through an investigation performed by an independent review
body at the Medical University of Vienna. The investigation revealed that data was fabricated in two papers
authored by lab chief Hugo Rüdiger and his colleagues in 2005 and 2008 which reported DNA breakage in cells
exposed to electromagnetic fields. The papers were part of a European Union-funded project called REFLEX.43
Some people have made assertions that research studies that had depended upon funding or other support
from industry should be considered as unreliable and having tainted results. What is far more important than
the sources of funding for research is strict adherence to the scientific process. Rigorous peer reviews,
combined with attempts by others to replicate results, tend to remove from consideration studies whose
results rely on questionable research practices. Opponents of wireless technology may not understand this,
and have expressed dismay when content from studies they favor does not appear in other documents such as
40
<http://echo.edres.org:8080/meta>.
41
<http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0005738>.
42
<http://grants.nih.gov/grants/guide/notice-files/not99-111.html>.
43
<http://www.emfandhealth.com/sciencerudigerfraud.pdf>.
Health and RF EMF from Advanced Meters 16 Public Utility Commission of Texas
the report by the California Council on Science and Technology.44 There is a risk that opponents may attribute
the exclusion of favored material to attempts by government agencies or industry to suppress the truth rather
than accepting the idea that the opponents’ favored studies were errant or lacked scientific rigor.
Nonetheless, some research studies can receive undeserved notoriety despite shortcomings such as:
Experiments that are poorly designed or lack sufficient controls;
Studies that are inadequately peer-reviewed;
Public revelation of findings that are only preliminary;
Reports that are unpublished but appear in the popular press;
Reports published in scientific journals of lesser esteem;
Conclusions that are drawn to satisfy a political agenda rather than advance human knowledge; and
Cited primary research studies are old and out of date.
The “BioInitiative Report”45 is an example of a report that received notoriety despite being viewed negatively
by the research community. Its contributors are described as a group of 14 scientists, researchers, and public
health policy professionals. The stated purpose of the report was to document “bioeffects, adverse health
effects and public health conclusions about impacts of non-ionizing radiation.” The document was edited by
Cindy Sage, an environmental consultant, and Dr. David O. Carpenter, director of the Institute for Health and
the Environment at the State University at Albany (New York).
The report is often cited by opponents of wireless technology, but it was widely criticized by government
research agencies and subject matter experts in Australia,46 Belgium,47 the European Commission (EC),48
France,49 Germany,50 and the Netherlands.51 It was also criticized by EPRI52 and the IEEE.53 The overall opinion
of these institutions was that the report had many shortcomings. Some of the stated criticisms were that the
report:
Provided views that were not consistent with the consensus of science;
Recommended safety limits that were not supported by the weight of scientific evidence;
Included selection bias in several research areas;
Lacked objectivity and balance; and
Suffered from uneven editing quality.
Some researchers have developed a level of notoriety for their assertions regarding the purported dangers of
EMF exposure. Opponents of wireless technology have naturally called upon these people to testify as expert
witnesses and this tends to raise their profiles to an even greater degree. These efforts have not always been
successful. For example, Carpenter attempted to rely on his work on the BioInitiative Report as one of the
qualifications to testify as an expert for intervenors opposed to plans by Hydro Québec, a utility in Canada, to
44
<http://www.ccst.us/publications/2011/2011smart-final.pdf>.
45
<http://www.bioinitiative.org/freeaccess/report/docs/report.pdf>.
46
<http://www.acrbr.org.au/FAQ/ACRBR%20Bioinitiative%20Report%2018%20Dec%202008.pdf>.
47
<http://mmfai.info/public/docs/eng/MMF_Viewpoint_BioInitiativeReport.pdf>.
48
<http://ihcp.jrc.ec.europa.eu/our_activities/public-health/exposure_health_impact_met/emf-
net/docs/efrtdocuments/EMF-NET%20Comments%20on%20the%20BioInitiative%20Report%2030OCT2007.pdf>.
49
<http://www.afsset.fr/upload/bibliotheque/964737982279214719846901993881/Rapport_RF_20_151009_l.pdf>.
50
<http://www.emf-forschungsprogramm.de/int_forschung/wirk_mensch_tier/Synopse_EMFStudien_2008.pdf>.
51
<http://www.gezondheidsraad.nl/sites/default/files/200817E_0.pdf>.
52
<http://emf.epri.com/BioInitiative_Working_Group_Report_Updated_7-09.pdf>.
53
<http://www.emfandhealth.com/12265_COMAR_2009.pdf>.
Health and RF EMF from Advanced Meters 17 Public Utility Commission of Texas
install wireless smart meters on homes and businesses. The regulatory authority for the province, The Québec
Energy Board (The Board), stated (translated from French):54
“The Board has refused to grant the requested expert status on the grounds that David Carpenter is
not a doctor, never had clinical experience with patients and has never personally done any research
on the effects of RF health.55 The Board does not, however, reject his testimony in the case because of
his knowledge on the research done by others in this field. It therefore accepted this testimony,
subject to establishing the probative value to be accorded.”
The Board also did not view Carpenter as independent and unbiased, as required by its rules governing the
expectations of expert witnesses. The Board stated (translated from French):56
“Clearly, the witness Carpenter, expert or not, does not meet the criteria of objectivity which the
Board is entitled to expect.”
Another individual who has been described as an expert by opponents of wireless technology is Magda Havas,
a professor at Trent University, a liberal arts institution located in Peterborough, Ontario, Canada. Havas is
not a medical doctor; she has a B.S. degree in biology and a Ph.D. in botany (the study of plant life).57
While not naming Havas directly, in response to her assertions against the proposed installation of Wi-Fi in
several schools in Canada and the U.S., her colleagues at Trent University published a brief statement58 in the
Peterborough Examiner newspaper:
On the issue of health effects of radio frequency waves, a large body of evidence now exists, and the
international consensus is described in the references listed at www.trentu.ca/physics/emfrefs.pdf.
Based on these considerations, we do not believe that electromagnetic waves associated with Wi-Fi in
schools pose a health risk to children or teachers.
Profs Bill Atkinson, Peter Dawson, David Patton, Ralph Shiell, Alan Slavin and Rachel Wortis
Members of the Department of Physics, Trent University
Havas’ critics are not limited to her colleagues at Trent. There are a few websites whose stated goals are to
enhance the public’s familiarity with sound scientific concepts. These sites state that their contributors seek to
promote a better understanding of science and to help others distinguish between evidence-based science and
poor science. Some contributors have responded to Havas’ activities by creating pages that are dedicated to
exposing and explaining what they claim to be significant flaws in her studies, contradictory statements she
has made, comments which were not consistent with established facts, and instances where they claim she
had misled the public.59,60,61,62,63,64,65
54
<http://internet.regie-energie.qc.ca/Depot/Projets/111/Documents/R-3770-2011-A-0163-DEC-DEC-2012_10_05.pdf>.
55
David O. Carpenter holds a medical degree (M.D.) from Harvard but is not accredited to practice medicine.
56
<http://www.regie-energie.qc.ca/regie/DirectivesInstructions/Regie_RoleExperts_18juillet2011.pdf>.
57
<http://www.magdahavas.org/dr-magda-havas-bio/>.
58
<http://www.thepeterboroughexaminer.com/2010/10/15/physicists-see-no-danger-from-wifi-in-schools>.
59
<http://www.emfandhealth.com/EMF&Health%20EHS%20Poor%20Studies%201.html>.
60
<http://www.emfandhealth.com/EMF&Health%20EHS%20Poor%20Studies%202.html>.
61
<http://www.emfandhealth.com/EMF&Health%20EHS%20Poor%20Studies%203.html>.
62
<http://www.emfandhealth.com/EMF&Health%20EHS%20Poor%20Studies%204.html>.
63
<http://www.emfandhealth.com/EMF&Health%20EHS%20Poor%20Studies%205.html>.
64
<http://www.emfandhealth.com/EMF&Health%20EHS%20Poor%20Studies%206.html>.
Health and RF EMF from Advanced Meters 18 Public Utility Commission of Texas
Note that some of the work that Havas performs involves the study of Electromagnetic Hypersensitivity (EHS),
which has not been recognized by the medical or scientific communities as a valid diagnosis.
Some scientists and medical practitioners may be valued as experts by a small segment of the population
because their ideas have been proclaimed as novel or superior because they do not conform to the prevailing
conclusions of the scientific or medical communities. These researchers and medical professionals may be
characterized as fighting the medical or scientific establishments for the benefit of their supporters. The
problem is if these maverick researchers become imbued with noble stature because of these impressions, it
may put the integrity of true science and medicine at risk.
Scientists prefer to maintain cordial relationships with one another and therefore avoid using the terms “junk
science” and “pseudoscience” when referring to research or unconventional medical treatments they find
questionable, because these terms are considered pejorative.
While skepticism of research is central to ensuring its quality, it is important to avoid being drawn to the allure
of ideas that conflict with the body of scientific evidence. Without an appreciation for the meaning and value
of scientific consensus, one risks being distracted by notions that have been discounted by numerous studies
conducted in adherence to the scientific method.
Scientific consensus can be described as the collective judgment, position, and opinion of the community of
scientists in a particular field of study.66 In the context of scientific research, consensus is general agreement
and not unanimity, which has a stricter meaning. This collective judgment of scientists cannot be used as a
valid scientific argument on its own, and that it is not part of the scientific method; it is more the result of it.
A consensus can be developed by scientists through replication of experimental results, peer review, and
publication of results – key components of the scientific method. When this process is followed iteratively and
agreement exists, those within the discipline recognize they have reached a consensus. As scientific research
continues and new data is produced by experiment, models are refined. This change may bring about shifts in
scientific consensus. How consensus within the scientific community develops over time is a study in its own
right.67
The challenge for researchers becomes communicating to outsiders (especially laymen) that scientific
consensus has been reached. This is because to the uninitiated, the debates through which science progresses
may seem to be contestation. Laypeople and others outside the particular field of study who misinterpret
these scientific debates as adversarial may reach erroneous conclusions about the science. When scientific
debate is misinterpreted in this manner, effective government also may be subject to risk. The risk is that
members of the public that have misconceptions about the existence of scientific consensus may exert
pressure on their elected leaders to devise public policy that is based on faulty assumptions.
In medicine, one result of misinterpreting scientific debate can be a mistaken belief in a medical diagnosis that
the scientific community does not recognize as valid, such as EHS. If the true cause of an affliction is not
diagnosed, it can lead to negative consequences for an individual. Medical professionals and others may offer
treatments that are not efficacious or have not been properly vetted for safety. The pursuit of these
treatments can delay receiving effective medical care.
65
<http://www.sciencebasedmedicine.org/index.php/cfls-dirty-electricity-and-bad-science/>.
66
<http://en.wikipedia.org/wiki/Scientific_consensus>.
67
<http://asr.sagepub.com/content/75/6/817.full.pdf+html>.
Health and RF EMF from Advanced Meters 19 Public Utility Commission of Texas
The Internet offers amulets made of crystal or stone, typically worn as a pendant around the neck, that are
purported to help an individual overcome EHS or to mitigate the claimed negative health effects of exposure
to EMF. No valid scientific explanations are offered to explain the mechanisms by which these items may
operate. Dietary supplements are promoted with claims they provide a “strong protective effect” against EMF
but have not been assessed by the U.S. Food and Drug Administration (FDA) for safety or effectiveness.
Some physicians offer treatments for EHS and other purported “environmental sensitivities.” One such doctor
is Dr. William J. Rea of Dallas, Texas. An example treatment by Rea is that he will administer injections of a
highly diluted solution of automobile exhaust to provide an “electromagnetic imprint” of the environmental
pollutant. Rea claims that a patient’s immune system will interact with the injections and desensitize the
patient to the substance.
Staff has not been able to locate any other references to the term “electromagnetic imprint” in a medical
context.
Rea’s treatments had met with controversy, leading the Texas Medical Board to file a complaint against
him68,69,70 that resulted in a Mediated Agreed Order issued in 2010, requiring his consent form to state:
The injections given are not FDA-approved;
The patient will be receiving non-traditional medicine (must be in bold and oversized print);
The effectiveness of the injections is disputed;
There has been no testing of the contents of the injection or any proven medical effectiveness;
The therapeutic value of the injections is not established or proven;
There is no active agent in the therapy being provided; and
The injections are not endorsed, sanctioned, or approved by the Texas Medical Board.
Rea’s controversial treatments were also featured on a segment of ABC News’ Nightline television program in
2008.71,72
Rea appeared before the Texas Senate Committee on Business and Commerce on October 9, 2012 to speak as
a medical expert in opposition to wireless smart meters.
Cautions about Anecdotes, Attempts at “Do-it-Yourself” Science, and Reliance on Social Media and Blogs
Opponents of smart meters have provided accounts of ill health or have cited anecdotal reports of health
problems that have been attributed by laypeople to the installation of smart meters. Caution must be used
when considering anecdotal reports, because they:
Are prone to human cognitive biases such as confirmation bias;73
Use nonprobability sampling and therefore suffer from self-selection bias;74
68
<http://www.casewatch.org/board/med/rea/order.shtml>.
69
<http://www.med.ohio.gov/pdf/Minutes/2011/08-11minutes.pdf>.
70
<http://www.tmb.state.tx.us/news/press/2010/090210.php>.
71
<http://abcnews.go.com/Nightline/video?id=5881281>.
72
<http://www.youtube.com/watch?v=-gx4zxxi0xQ>.
73
In psychology and cognitive science, confirmation bias is a tendency to search for or interpret information in a way that
confirms one’s preconceptions, leading to statistical errors. Source:
<http://www.sciencedaily.com/articles/c/confirmation_bias.htm>.
Health and RF EMF from Advanced Meters 20 Public Utility Commission of Texas
Do not supply a sufficiently large sample size;
Prevent a rigorous statistical analysis of subject sample data;
Do not account for a myriad of variables present in the environment (lack of controls); and
Do not provide evidence that other aspects of the scientific method were followed.
In summary, conclusions drawn primarily from anecdotal reports do not possess scientific merit.
A common tendency for laypeople is to “cherry pick” scientific literature. Cherry picking is the act of pointing
to data or individual cases that seem to confirm a particular position, while ignoring a significant portion of
data or cases that may contradict the position. Selectively referencing only the studies that support a view is a
common example of confirmation bias. Cherry picking may be committed unintentionally. Scientists are not
immune to the behavior.
When raising concerns about wireless technology, some opponents have acquired RF EMF measurement
equipment and posted online videos75 showing readings being taken from smart meter installations. These
videos have been presented as evidence that the smart meters were emitting RF EMF at levels higher than
those claimed by utilities or meter manufacturers. More discerning viewers may question the validity of these
videos for the following reasons:
The videos tend to be brief, relying on fleeting numbers displayed on a readout;
The data do not appear to be recorded for later study or shared with others;
No evidence is provided that the operator is certified to use the measuring equipment;
It is not noted whether the operator received any formal training to avoid, for example, using
improper techniques when setting up or handling the equipment;
Little explanation is offered to help the viewer determine if the appropriate settings were used (such
as unit scaling) or whether instantaneous peak or average values were being measured;
No evidence is given that the equipment was properly calibrated; and
There may be other tools available which are better suited to the intended use.
One video76 on YouTube that provides an example of an EMF measurement device being used purports to
show the deleterious effects of a smart meter on a shrub situated directly in front of the meter in Stratford,
Ontario, Canada. On the afflicted plant, the leaves have curled up and are losing color. There are two shrubs
of identical breed on either side of it which do not seem to be as adversely affected. While a shrub is clearly
not a human being, some smart meter opponents refer to the video as evidence of its apparent danger to all
living things.
The person who recorded the video enabled the “audio analysis” mode on the measurement device, which
creates a shrill sound reminiscent of a police siren but with varying pitch. The sound is intended to represent a
characteristic signal pattern of the EMF being detected, which helps the device’s user to identify the source of
emissions. To an individual who has not experienced the operation of this device, the sound it makes in the
presence of EMF may seem disturbing and evoke an unpleasant emotional response in the uninitiated.
74
Self-selection bias is a specific form of selection bias. Selection bias leads to distortions, because certain characteristics
are over-represented in a sample. Self-selection bias introduces other errors. For example, sample populations that are
the result of self-selection suffer from a correlation with willingness to be included. There may be a purposeful intent on
the part of respondents.
75
Go to YouTube: <http://www.youtube.com> and search for “smart meter emissions” or other similar phrases.
76
<http://www.youtube.com/watch?v=lsuP_WBBr2c>.
Health and RF EMF from Advanced Meters 21 Public Utility Commission of Texas
An interesting observation about this video which some viewers may not notice is that as the camera focuses
closely on the vegetation, it is readily apparent that the shrub is infested by what appears to be a large number
whiteflies or aphids. These kinds of insects suck juices from the leaves of host plants, and can lead to serious
injury, causing wilting, yellowing, leaf drop, and possibly death. As the video camera pans back and forth, one
can see that the insects are also on the leaves of the adjacent shrubs, but are not yet as prevalent. The ability
for viewers to provide comment is disabled for this particular video, so no one can call attention to the insect
infestation or challenge the claims made by the person who posted the video.
The Texas A&M Forest Service estimated that 301 million trees had died across Texas forestlands as a result of
the 2011 drought,77 but to date there have been no known credible reports of dying vegetation attributed to
smart meters or other wireless equipment despite the fact that millions of the devices have been deployed in
the state.
Many smart meter opponents who have made assertions about the purported detrimental health effects of
wireless technology have cited material obtained from blogs,78 Internet videos, and other forms of social
media as sources of information. Blogs may contain items that are topical but they are not to be confused
with news sites; contributors to blogs are not held to standards for journalistic integrity. Most of the cited
blogs are run by self-described activists who overtly state their opposition to smart meters and for various
reasons. While blogs and social media sites have democratized the Internet, enabling almost anyone to widely
publish his points of view, caution must be used when considering material obtained from such sources. These
sites have many shortcomings, including the following:
Site content is not vetted for objectivity or a diversity of opinions;
Inaccurate reporting is common, and errors are rarely corrected;
Many comments are written in an authoritative manner, promoting speculative statements as factual;
Provocative language and hyperbole are often used to elicit emotional responses;
Individuals promoted as experts tend to lack substantial academic credentials or possess credentials
that are not associated with the field of study under consideration; and
There is no assurance that authors resist the influence of advertisers or special interests.
The people who run blogs typically are not scientists and do not realize that an individual study is not to be
considered definitive. Much of the research that Staff found cited on blogs was old and may have been out of
date, or had been considered unreliable by the scientific community.
Case Law and Matters of Science
The Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals,79 General Electric Co. v. Joiner,80 and
Kumho Tire Co. v. Carmichael81 articulated what is known as the “Daubert standard.” The standard addressed
Rule 702 of the Federal Rules of Evidence,82,83 and clearly defined a judge’s role in playing “gatekeeper,”
determining whether expert testimony is based on sound scientific reasoning and methodology.
77
<http://texasforestservice.tamu.edu/main/popup.aspx?id=16509>.
78
A blog is a website that typically contains an online personal journal and that sometimes allows users to post their own
opinions and commentary or other information.
79
509 U.S. 579 (1993).
80
522 U.S. 136 (1997).
81
526 U.S. 137 (1999).
82
Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.
83
<http://www.law.cornell.edu/rules/fre/rule_702>.
Health and RF EMF from Advanced Meters 22 Public Utility Commission of Texas
According to Rule 702, Testimony by Expert Witnesses, a witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion or otherwise if:
a. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
b. The testimony is based on sufficient facts or data;
c. The testimony is the product of reliable principles and methods; and
d. The expert has reliably applied the principles and methods to the facts of the case.
In 2011, the National Academies published84 the third edition of its Reference Manual on Scientific Evidence,85
which was developed to guide judges as they encounter scientific evidence at trials. The cases are taken into
consideration when government uses the “weight of evidence” to create public health policy and law.86
In a matter that is germane to the topic of this report, the Daubert case and the reference manual were both
cited in a recent court decision in which the plaintiff claimed his exposure to low-level RF EMF emitted by
electronics within his neighbor’s house were triggering adverse health effects.87 The court excluded the
plaintiff’s evidence because it was not scientifically reliable and consequently granted the defendant’s motion
for summary judgment for failing to demonstrate causation.88
Public Policy
The WHO published “Establishing a Dialogue on Risks from Electromagnetic Fields,”89 a handbook intended as
a guide for decision makers and those who craft policy to help reduce misunderstandings and improve trust
through better dialogue when faced with a combination of public controversy, scientific uncertainty, and the
need to operate or establish infrastructure facilities that emit EMF. The guide discusses risk assessment, risk
perception by the public, and risk management. The document also calls out the need for involvement by
individuals or organizations with the right set of competencies. It states that a combination of relevant
scientific expertise, strong communication skills, and good judgment are required by those in the areas of
management and regulation to properly respond to challenges presented by the topic. The handbook also
provides references and suggested reading material for those who seek more information.
84
<http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=13163>.
85
<http://www.nap.edu/catalog.php?record_id=13163>.
86
<http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2004.044727>.
87
Firstenberg v. Monribot and Leith, No. D-101-CV-2010-00029, New Mexico 1st Dist, Santa Fe County, Sept 18, 2012.
88
<http://www.casewatch.org/civil/firstenburg/dismissal_order.pdf>.
89
<http://www.who.int/peh-emf/publications/EMF_Risk_ALL.pdf>.
Health and RF EMF from Advanced Meters 23 Public Utility Commission of Texas
Recent Studies and Expert Opinions
California Council on Science and Technology Report and Responses
In 2010, the CPUC initiated an investigation of smart meters. Several members of the California State
Assembly asked the California Council on Science and Technology to provide assistance to the CPUC.
CCST is an independent, not-for-profit 501(c)(3) corporation established in 1988 by the California legislature. It
is designed to offer expert advice to the state government and to recommend solutions to science- and
technology-related policy issues. CCST’s Board of Directors is composed of representatives from its sponsoring
academic institutions, as well as the business and philanthropic communities.90
The Assembly’s request to provide assistance was motivated by concerns expressed by the public about the
possibility of health effects from exposure to RF EMF emitted by smart meters. In January 2011, CCST issued
“Health Impacts of Radio Frequency from Smart Meters.” The document was authored by a project team that
consulted with over two dozen experts and sifted through more than one hundred articles and reports which
CCST considered as providing a thorough, unbiased overview in a relatively rapid manner. The report
identified four key findings: 91
1. Wireless smart meters, when installed and properly maintained, result in much lower levels of RF
exposure than many existing common household electronic devices, particularly cell phones and
microwave ovens.
2. The current FCC standard92,93,94 provides an adequate safety factor against known thermally induced
health impacts of existing common household electronic devices and smart meters.
3. To date, scientific studies have not identified or confirmed negative health effects from potential non-
thermal impacts of RF emissions such as those produced by existing common household electronic
devices and smart meters.
4. Not enough is currently known about potential non-thermal impacts of radio frequency emissions to
identify or recommend additional standards for such impacts.
CCST did not undertake primary research of its own to address issues. Its response was limited to soliciting
input from technical experts and to reviewing and evaluating available information from past and current
research about health impacts of RF emitted by electric appliances in general, and more specifically by smart
meters.
Response to CCST Report: County of Santa Cruz Health Services Agency
Following the release of the CCST report, Poki Stewart Namkung, Health Officer of the County of Santa Cruz
Health Services Agency (Santa Cruz), issued a memorandum. The memo was published on January 13, 2012
and is entitled “Health Risks Associated with Smart Meters.”95 The document has gained notoriety for two
reasons. The first reason is because it made assertions that were in direct opposition to the CCST report’s key
90
<http://www.ccst.us/about.php>.
91
<http://www.ccst.us/publications/2011/2011smart-final.pdf>.
92
<http://transition.fcc.gov/Bureaus/Engineering_Technology/Documents/bulletins/oet65/oet65.pdf>.
93
<http://transition.fcc.gov/Bureaus/Engineering_Technology/Documents/bulletins/oet56/oet56e4.pdf>.
94
<http://www.gpo.gov/fdsys/pkg/CFR-2011-title47-vol1/xml/CFR-2011-title47-vol1-sec1-1310.xml>.
95
<http://www.santacruzhealth.org/pdf/2012%20Report%20on%20SmartMeters.pdf>.
Health and RF EMF from Advanced Meters 24 Public Utility Commission of Texas
findings. The second reason is because the assertions made in the Santa Cruz memo have been used by some
smart meter detractors to justify calls for a moratorium on installation of the devices.
The Santa Cruz memo stated that CCST’s report did not account for the frequency of transmissions, any
reflections of the emissions, banks of smart meters firing simultaneously, or distances closer than three feet.
The memo also asserted that smart meters would emit RF EMF almost continuously and that it would not be
possible to program them to not operate at 100% of a duty cycle (on continuously). It stated that because of
these factors, one could not claim that Smart Meters do not exceed the time-averaged MPE limit adopted by
the FCC.
The Santa Cruz memo also stated that RF EMF exposure is additive96 and consumers may have already
increased their exposures to RF EMF emissions in the home through the voluntary use of RF emitting devices.
Michigan Public Service Commission: SGTAP Assessment of Santa Cruz Memo
On March 20, 2012, the Michigan Public Service Commission (MPSC) asked the Smart Grid Technical Advisory
Project (SGTAP) to review the Santa Cruz memorandum. SGTAP is located at the Lawrence Berkeley National
Laboratory (LBNL) and provides technical assistance and training to state regulatory commissions on topics
related to smart grid. Primary SGTAP contributors are Roger Levy, a Research Specialist and owner of Levy
Associates, and Janie Page, a Science/Engineering Associate at LBNL and the former Managing Editor at
Bioelectromagnetics Society. SGTAP’s response provided an analysis97 of the Santa Cruz memo and called its
accuracy and substance into question.
SGTAP noted the following:
1. The Santa Cruz memo made statements that were technically and scientifically incorrect and not
supported by any research.
2. The memo did not appear to provide a balanced representation of the research, the risks, or the
mitigation options.
3. The memo was instead largely focused on scientifically unsupported claims related to EHS.
4. Only half of the memo’s citations met the peer review criteria that Santa Cruz itself had identified as
necessary to be considered as a valid source.
5. Out of the remaining references, half came from a single issue of the journal Pathophysiology,98 which
would only provide a limited acknowledgement to other relevant health, scientific, or industry sources.
By relying so much on the journal, Santa Cruz denied exposing itself to a diversity of sources.
Finally, SGTAP noted that science can work toward understanding the causes of any health effects if and when
they are observed, but it has never been able to categorically declare anything as being completely safe.
SGTAP Comments on Hirsch Document
SGTAP pointed out that the Santa Cruz memo had referred to a five‐page document authored by Daniel Hirsch,
a lecturer on Nuclear Policy at the University of California, Santa Cruz. This is notable because Hirsch had
critiqued the CCST report and opponents of smart meters have cited Hirsch’s document as support for their
argument.
96
Note that the letter stated additive not cumulative.
97
<http://eetd.lbl.gov/ea/ems/reports/schsa-042012.pdf>.
98
<http://www.sciencedirect.com/science/journal/09284680/16/2-3>.
Health and RF EMF from Advanced Meters 25 Public Utility Commission of Texas
SGTAP concluded that:
1. The Hirsch document was not a formal report. It was a private submittal to the CPUC that did not
meet Santa Cruz’s own standards for consideration.
2. The educational and professional credentials of neither Hirsch nor his assistants could be identified
which may have qualified them to profess expertise on EMF radiation, health, or smart meter
operations.
3. The Hirsch document was severely flawed in several respects:
a. It made arbitrary assumptions;
b. It changed results that had been independently measured for some RF EMF emitting devices
to levels that are not physically possible; and
c. It further inflated figures that already had been overstated in the CCST report.
EPRI also published a paper critical of the Santa Cruz memo. EPRI’s comments will be discussed later in this
report.
Michigan Public Service Commission: SGTAP Assessment of AAEM Submittal
On April 12, 2012, the American Academy of Environmental Medicine (AAEM)99 submitted a letter100 to the
MPSC in opposition to the installation of smart meters in homes and schools. According to AAEM’s website, it
is an international association of physicians and other professionals interested in the clinical aspects of humans
and their environment. AAEM states on its site that it is interested in expanding the knowledge of interactions
between human individuals and their environment, as these may be demonstrated to be reflected in their
total health.
The AAEM site states that it provides research and education in the recognition, treatment and prevention of
illnesses induced by exposures to biological and chemical agents encountered in air, food, and water. The
certifying board for AAEM is the American Board of Environmental Medicine (ABEM), founded in 1988.101 It is
worth noting that neither AAEM nor ABEM is recognized by the American Board of Medical Specialties
(ABMS).102,103 Furthermore, the certification criteria required by ABEM are relatively sparse compared to those
of ABMS. ABEM requires that an applicant have three years’ experience practicing environmental medicine,
take the AAEM medical instructional courses, and pass a written and an oral exam.
In contrast, the ABMS certification process involves 3-7 years of residency in the specialty, testing in the
specific area of practice, a fellowship program of 1-3 years’ duration and an optional subspecialty certification.
In order to maintain certification the doctor is subjected to an ongoing peer evaluation and improvement
process designed and administered by specialists in the specific area of medicine.
As a result of AAEM’s letter, MPSC asked SGTAP to review the submittal. SGTAP provided a report104 on April
18, 2012, which focused on the logical foundation of the AAEM statements and the relevance of its citations to
99
<http://www.aaemonline.org/>.
100
<http://efile.mpsc.state.mi.us/efile/docs/17000/0391.pdf>.
101
<http://www.americanboardofenvironmentalmedicine.org>.
102
<http://www.abms.org/Who_We_Help/Physicians/specialties.aspx>.
103
The ABMS was established in 1933, and is composed of approved medical boards which represent 24 broad areas of
specialty medicine. ABMS is the largest physician-led specialty certification organization in the U.S. The American
Medical Association’s Council on Medical Education plays a significant role in ABMS.
104
<http://eetd.lbl.gov/ea/emp/reports/aaem-042012.pdf>.
Health and RF EMF from Advanced Meters 26 Public Utility Commission of Texas
the smart meter issues. SGTAP did not comment on the technical merits of the individual research citations in
the AAEM letter.
The SGTAP assessment found the following four aspects of the AAEM submittal to be problematic:
1. AAEM’s assertion that research established causality of non-thermal effects;
2. The AAEM research citations and references were unrelated to smart meters;
3. AAEM’s claims of electromagnetic hypersensitivity; and
4. AAEM’s statements about the RF environment.
The following items provide detail on SGTAP’s findings.
Aspect 1: SGTAP’s Findings on AAEM’s Assertion of Non-thermal Effects Causality
When considering the purported causality of non-thermal effects, recall that RF represents an extremely wide
range of radio waves from 3 kHz to 300 GHz that spans eight orders of magnitude.105 SGTAP stated that the RF
EMF range cannot be generalized down to a single signal and that RF EMF is distinguished by a variety of
independent characteristics, including frequency and intensity.
SGTAP pointed out that existing research has emphasized the unique characteristics and potential differences
in effects from various RF EMF signals and sources. Thus, SGTAP concluded, an RF EMF effect reported at one
frequency from one source cannot be presumed to imply an effect at another frequency from a completely
different source.
The thermal effects observed as a result of exposure to RF EMF emissions at lower intensities are due to
known mechanisms and could imply larger effects at a higher intensity.
Non-thermal effects are different because they appear to be related to distinct characteristics of the biological
system being exposed and that symptoms or effects appear at specific frequencies or at distinct combinations
of fields but not at others. Because there are no identified clear mechanisms for non-thermal RF EMF effects,
there is no basis for someone to extrapolate observed non-thermal effects from one RF EMF source to
another.
The AAEM submittal referred to the nine “Hill Criteria”106 and the results of research studies which AAEM had
extended to smart meters. Note that the criteria are most often used for assessing evidence of causation in
epidemiological studies to test whether a particular agent is the cause of a selected effect. The criteria are
typically employed when it is difficult to establish controls for all experimental variables. Using the criteria in
research requires one to infer the causative agents from observational data.
SGTAP pointed out that inference is not proof and stated that the criteria cannot be applied when there are no
research-related observational results. SGTAP concluded that it is not appropriate to presume an effect when
the RF EMF sources differed in frequency, intensity, and proximity to critical biological tissues. Table 1 was
included in the SGTAP report and addresses each criterion in relation to cell phones and smart meters.
Reviewing the assessment of these criteria, it appears that the criteria have not been satisfied for cell phones,
but it is quite obvious that the Hill criteria have not been satisfied for smart meters. No matter how well the
criteria may or may not have been satisfied for cell phones, the significant differences between the two
105 8
An order of magnitude is a Power of Ten, so eight orders of magnitude would be 10 , or a 1 followed by eight zeroes
(100,000,000).
106
<http://www.edwardtufte.com/tufte/hill>.
Health and RF EMF from Advanced Meters 27 Public Utility Commission of Texas
technologies and the absence of research that specifically addresses smart meter operating characteristics
make any attempt to assess smart meters using Hill’s criteria moot.
Table 1: SGTAP Assessment Using Hill Criteria
Hill Criteria Cell phones Smart Meters
Strength: How large is the effect? No widespread disease has yet No published, peer-reviewed,
been reported. scientific research at this
time.
Consistency: Has the same Limited evidence from No published, peer-reviewed,
association been observed by INTERPHONE study,107 scientific research at this
others, in different populations, interpreted differently by time.108
using a different method? different researchers.
Opponents of smart meters
focus strictly on Hardell’s
positive results without
acknowledging the other results
in the INTERPHONE study.
Specificity: Does altering only the A variety of studies has looked at No published, peer-reviewed,
cause alter the effect? changes in experimental setup scientific research at this
to alter the source or size of the time.
exposure with compelling
results, most of which are
related to distinct endpoints
(e.g. oxidative stress markers
and pathological changes in
brain tissue in AAEM citation 16)
Temporality: Does the cause Hard to discern in some No published, peer-reviewed,
precede the effect? epidemiology studies because scientific research at this
hard to know state of individuals time, although some people
prior to study. Generally well claim a particular set of
controlled in lab studies. symptoms arise shortly after
meters are installed.
Biological gradient: Is there a Intensity of fields is often No published, peer-reviewed,
dose response? assumed as dose in a thermal scientific research at this
model. For non-thermal effects, time.
these criteria may not apply until
we have a better understanding
of dose.
Plausibility: Does it make sense? Mechanisms have not been well No published, peer-reviewed,
(Hill noted that knowledge of the developed other than heating scientific research at this
mechanism is limited by current processes, where it is assumed time.
knowledge). that energy accumulates until
dissipated.
107
<http://ije.oxfordjournals.org/content/39/3/675.full.pdf>.
108
For the purposes of the Hill criteria, reported symptoms need to be derived from well-structured research, not self-
reported anecdotal reports (e.g. Internet blogs, newspaper articles, complaints/statements to regulatory commissions,
etc.).
Health and RF EMF from Advanced Meters 28 Public Utility Commission of Texas
Coherence: Does the evidence fit Limited coherence – many of the No published, peer-reviewed,
with what is known regarding the reported effects have unknown scientific research at this
natural history and biology of the etiologies. time.
outcome?
Experiment: Are there any clinical There are some studies No published, peer-reviewed,
studies supporting the suggesting effects under certain scientific research at this
association? circumstances. time.
Analogy: Is the observed Presumed to be supported by Presumed to be supported by
association supported by similar earlier (generally higher power) cell phone studies.
associations? microwave studi
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