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City's use of smart meters is reasonable, groups tell appeals court

On May 19, the American Public Power Association, together with two other electricity trade groups, filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit in a case challenging a member public power utility's use of smart meters for its residents and businesses.

The City of Naperville, Illinois, was sued in federal district court in 2011 over its rollout of smart meters throughout the city. The trial court dismissed the complaint. The plaintiff, a group called Naperville Smart Meter Awareness, then appealed the case to the Seventh Circuit.

In the appeal, the plaintiff alleges that the installation of an electric smart meter by a government-operated electric utility, and the obtaining of electric usage data in 15-minute increments, constitutes an illegal search and/or seizure in violation of the Fourth Amendment.

The case is a challenge to the use of smart meters by public power utilities.

Naperville filed a brief with the Seventh Circuit on May 15, arguing that its use of smart meters is reasonable and does not violate the U.S. Constitution.

On May 19, the American Public Power Association, together with the Edison Electric Institute and the National Rural Electric Cooperative Association, filed their friend-of-the-court brief supporting Naperville.

The utility groups argue that smart meters have become pervasive in the electricity industry, provide substantial public benefits in the form of greater operational efficiency and lower costs, and have been strongly supported by federal statutes and policy.

"Smart meters have become an important tool in the broader effort to modernize the nation's energy infrastructure and improve U.S. energy efficiency," APPA, EEI and NRECA said in their joint brief. "Smart meters enable electricity consumers and utilities to monitor and manage electricity use by time of day."

By the end of 2015, electric companies had installed 65 million advanced metering infrastructure, or AMI, meters, also known as smart meters, the vast majority of which are residential, the three electricity groups noted. By the end of 2016, deployment of smart meters was projected to reach 70 million, they said.

They explained that smart meters let the utility know which customers are out of power, and eliminate the need for customers to call in to report their outage - thus avoiding visits to customers' sites, and saving costs.

The Association, EEI and NRECA also pointed out that courts "recognize that, the more commonplace the method of gathering information, the less reasonable is any expectation of privacy, even in a residential setting."
"Courts also recognize that as a method of information gathering becomes typical, the corresponding expectation of privacy diminishes," the electricity trade groups said in their brief. "Aerial observation might once have been rare, but has become far more common."

Overall, Naperville's use of smart meters is reasonable when its reasons for using them are balanced against the - at most - minimal invasion of any reasonable expectation of privacy alleged by plaintiffs, they concluded.

The Seventh Circuit should reject the attempt in this case "to impose anew constitutional limitation to the pervasive use of smart meters in the United States," they told the court.