New Hampshire passed a law this summer that in my view provides the most restrictive approach to the deployment of smart meters: Customers must opt-in by providing written permission! RSA 374:62 states in part:

II.(a) No electric utility that sells or provides electricity within the state of New Hampshire shall install a smart meter gateway device on or in a person’s home or business without the written consent of the person or persons who own the home or business.
   (b) An electric utility selling or providing electricity shall create a form that the person or persons who own the home or business must sign to opt-in to having a smart meter gateway device installed on or in his or her home or business. The form shall, in at least 12-point bold face type, state that:

(1) The opt-in is optional and one’s service will not be affected if one elects not to
opt-in; and
(2) The device is a “smart meter gateway device,” and provide the definition in subparagraph I(a).

Given the percentages associated with successful opt-ins, kiss your business case goodbye. Sporadic deployment will erode most reliability, theft of service, environmental and energy efficiency related benefits associated with advanced smart meters.

This law came to my attention when reviewing a recent New Hampshire Public Utility Commission (“NHPUC” or “Commission”) order denying a request for hearing on the installation of smart meters. The case involved a request by Ms. Wirth, a residential electric customer served by the New Hampshire Electric Cooperative (“NHEC”), to have a hearing because she wanted to opt-out of the smart meter being installed by NHEC. While I was stunned to learn of the above law, the order is well written and is worth reading because of its unique approach to the RF issue. After determining the meters installed by NHEC are not subject to the opt-in requirements of RSA 374:62 because they are not “smart meter gateway devices” as defined in the law, the Commission found the meters met the FCC’s limits on exposure to RF radiation. The Commission then set out to determine whether or not to accept the FCC’s standard or adopt a separate RF standard for New Hampshire. The NHPUC relied on case law regarding RF limits and the cell phone industry to ultimately conclude that the FCC limits pre-empt a separate and potentially conflicting state standard.

In Farina v. Nokia Inc., 625 F3d 97 (3d Cir. 2010) the United States Court of Appeals for the Third Circuit upheld the dismissal of a case brought by a group of consumers claiming that cellular telephones caused adverse health effects due to their RF emissions. The court found that the FCC regulations required a balance between safety and the rapid development of an efficient communications system. As a result, the Farina court found that the FCC limits on RF radiation exposure, codified at 47 C.F.R. § 2.1093(d), pre-empted state guidelines.