BEFORE THE CORPORATION COMMISSION OF OKLAHOMA

Transcription

1 BEFORE THE CORPORATION COMMISSION OF OKLAHOMA IN THE MATTER OF THE APPLICATION OF ) CAUSE NO. CS SHERRY LAMB, COMPLAINANT, ) AGAINST OKLAHOMA GAS AND ELECTRIC ) COMPANY, RESPONDENT. ) HEARING: August 14, 2013, in Courtroom N. Lincoln Blvd., Oklahoma City, Oklahoma Before James L. Myles, Administrative Law Judge APPEARANCES: Don M. Powers and G. Kay Powers, Attorneys, Powers at Law, LLC, representing Complainant, Sherry Lamb Kimber L. Shoop, Attorney, representing Respondent, Oklahoma Gas and Electric Company C. Eric Davis and Pat Franz, Assistant General Counsel, representing the Consumer Services and Public Utility Divisions, Oklahoma Corporation Commission Joe Esposito, Pro Se REPORT OF THE ADMINISTRATIVE LAW JUDGE ON OKLAHOMA GAS AND ELECTRIC COMPANY'S MOTION TO DISMISS Upon a thorough review of all the filings and considering all the arguments made in this cause with regard to the motion at issue, the undersigned Administrative Law Judge ("AU") submits this Report to the Corporation Commission of Oklahoma ("Commission"). Included in this Report are the AL's recommended findings of fact and conclusions of law. I. SUMMARY OF THE RECOMMENDATION The ALJ recommends that the Commission determine that it does not have jurisdiction to grant the relief requested by Sherry Lamb ("Complainant" or "Lamb") in this cause and that the Commission should sustain the Motion to Dismiss filed by Oklahoma Gas and Electric Company COG&E"). II. PROCEDURAL HISTORY On February 27, 2013, the Application/Complaint was filed in this cause by Lamb. The allegations within the Application/Complaint were asserted against the Respondent, OG&E. On July 17, 2013, a Notice of Hearing was issued by the Commission and filed in the cause which set the Initial Hearing on the Application/Complaint of Lam u st , at 1:00 p.m. before the ALJ originally assigned to the cause. FEB

2 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 2 of 12 On August 1, 2013, an Entry of Appearance was filed in the cause by Counsel for Lamb. On August 5, 2013, OG&E filed a Motion to Dismiss and Response (the "Motion") which was set for hearing on August 14, 2013, before the ALJ originally assigned to the cause. On August 9, 2013, Lamb filed a Response of Complainant to Respondent's Motion to Dismiss ("Response"); and, the Commission's Consumer Services and Public Utility Divisions (collectively, "Staff') filed their Statement of Position. On August 13, 2013, the ALJ originally assigned to the cause announced her recusal from further proceedings and the cause was reassigned to ALJ James L. Myles.' On August 14, 2013, Joe Esposito ("Esposito") filed an Entry of Appearance and Request to Intervene, Pro Se. On August 14, 2013, prior to hearing the Motion, and over the objection of OG&E as to the sufficiency of notice to them regarding the hearing of Esposito's Request to Intervene, the ALJ heard arguments from Esposito, Lamb, Staff and OG&E on whether or not Esposito should be allowed to intervene as a party of record in the cause. After hearing the arguments of Esposito and of Counsel, the ALJ recommended that the Commission deny the Request to Intervene. The ALJ stated this recommended denial was because the cause is a specific cause consisting of a complaint of a consumer against a public utility, not a cause of a general nature such as a rate proceeding wherein the Commission has traditionally applied a liberal standard to allow intervention. The ALJ further stated that the proper parties to the cause are the core parties, being the Complainant Lamb, the Respondent OG&E and the Consumer Services and Public Utility Divisions of the Commission. Finally, the ALJ stated that Esposito would have adequate opportunity to make his opinion known as to the issues by being afforded the opportunity to make Public Comment in the cause, both orally and in writing. Also on August 14, 2013, the hearing on the Motion was held before the AU. After hearing arguments of all Counsel, the ALJ took the matter under advisement and requested briefs to be filed by the parties. At the conclusion of the hearing on the Motion the ALJ also announced that the Initial Hearing on the Merits of the Application/Complaint was continued to a date to be determined in the future and pending the ultimate outcome of the Motion. The briefs requested by the ALJ were filed by the parties indicated below, as follows: August 28, OG&E's Brief in Support of Oklahoma Gas And Electric Company's Motion to Dismiss and Response to the Complaint of Ms. Sherry Lamb ("OG&E's Brief'); 1 All references within this report to "the AU" other than those referring to "the ALJ originally assigned to the cause" are to ALJ Myles.

3 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 3 of 12 September 10, Complainant's Brief in Response to Respondent's Brief in Support of Oklahoma Gas And Electric Company's Motion to Dismiss and Response to the Complaint of Ms. Sherry Lamb ("Lamb's Brief'); and, September 25, OG&E's Response Brief in Support of Oklahoma Gas and Electric Company's Motion to Dismiss and Response to the Complaint of Ms. Sherry Lamb ("OG&E's Rebuttal Brief'). Since no oral exceptions were made to the AL's oral ruling on Mr. Esposito's request to intervene, the AU drafted and submitted a recommended Order Denying Request to Intervene and Striking Entry of Appearance. This order was considered by the Commission en banc on August 27, At that time the Commission declined to approve the recommended order and determined it would be reconsidered at a later time. That recommended order is currently pending. On September 10, 2013, Lamb filed a Motion for Recusal and Basis for the Motion, along with an Affidavit (of Don M. Powers) in Support of Motion for Recusal. Also filed was a Notice of Hearing for the Motion for Recusal setting it for hearing before the ALJ on September 26, On September 24, 2013, OG&E filed its Response of Oklahoma Gas and Electric Company to the Motion for Recusal. On September 26, 2013, Lamb filed the Affidavit of Sherry Lamb in Support of the Motion for Recusal. Also on September 26, 2013, the hearing on the Motion for Recusal was held before the AU. After hearing all the arguments of Counsel and at the conclusion of the hearing, the AU took the Motion for Recusal under advisement. The AU also stated that because of the pending Motion for Recusal, he would not issue an AU Report on OG&E's Motion to Dismiss until the Commission's decision on Lamb's Motion for Recusal was final. On October 4, 2013, the ALJ filed his Report of the ALJ on Complainant's Motion for Recusal recommending that the Commission deny the Motion for Recusal. On October 10, 2013, Lamb filed her Exceptions to the Report of the ALJ on Complainant's Motion for Recusal, along with a Motion Requesting Argument of Exceptions before the Commission en banc. On October 23, OG&E filed its Response to Complainant's Exceptions to the.5 Report of the ALJ on Complainant's Motion for Recusal. On November 26, 2013, the Motion Requesting Argument of Exceptions came on before the Commission en banc. Upon inquiry to Counsel by the Commission as to whether or not they had information or argument in addition to that within the filed pleadings, and all Counsels' reply

4 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 4 of 12 that they did not, the Commission denied the request for oral argument and took the Exceptions under advisement upon the filed pleadings. On December 19, 2013, the Commission issued Order No denying the Motion for Recusal. Since Lamb's Motion for Recusal has thus been determined by the Commission, the AU now submits this Report and Recommendation on OG&E's Motion to Dismiss for consideration by the Commission. Summary of Lamb's Complaint III. SUMMARY OF THE ARGUMENTS Lamb filed her Application/Complaint on February 27, 2013, alleging that OG&E had improperly entered onto her property for the purpose of installing a smart meter. Lamb claims that OG&E's refusal to remove the smart meter amounts to a deprivation of her "safety, health, privacy and property without compensation or due process" of which [she is] "entitled as a U.S. citizen." Further, she claims OG&E violated the Energy Independence and Security Act of 2007 (42 U.S.C , et seq.) ("EISA"), arguing the EISA was approved by Congress as an "opt in" program, but that OG&E did not give her the choice to opt in. She also claims violation of Oklahoma's Electric Usage Data Protection Act (17 O.S , et seq.) ("EUDPA"), arguing that OG&E is using information gathered by the smart meter at her house without her permission. In her request for relief, Lamb requests an Order from the Commission requiring OG&E to "remove [her] smart meter and replace [it] with [an] old analog meter until the health effects stemming from [the] meters can be resolved." Lamb also requests a "ratepayer hearing before the Commission to hear all health and privacy and safety problems statewide regarding the smart meter." OG&E OG&E's Motion to Dismiss is based on the argument that the Commission lacks jurisdiction to grant the relief requested by Lamb in her complaint. With respect to the alleged violation of the EUDPA, OG&E points out that on page 5 of Lamb's Response she is not alleging OG&E to be in violation of the EUDPA, but is asserting that statute to be unconstitutional. OG&E then stated that the Commission does not have the authority to determine the constitutionality of a statute citing case law to that effect and concluded that since there was no longer an allegation that OG&E was in violation of the EUDPA, this portion of the Complaint should be dismissed. OG&E then discussed a request that appeared at page 7 of Lamb's Response, wherein Lamb had requested that the Commission "[r]equire the Utilities to reimburse all consumers who have been damaged by the radiation from the smart meters." OG&E then argued that the

5 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 5 of 12 Commission is not a court of general jurisdiction and that it does not therefore have the authority to enter money judgments, again citing case law to that effect. OG&E then stated that the Complaint should be dismissed as to those issues as well. Next OG&E addresses pages 2 and 3 of Lamb's Response wherein she asserts that "the harm suffered by the Complainant and others is not addressed in the current electric utility rules" and that "[a]dditional rule making by the Corporation Commission is necessary to protect Oklahomans." OG&E states that it agrees with the first statement above and then argues that the request for a rulemaking is not proper within a consumer services docket cause. OG&E also addresses the complaint insofar as Lamb is asking the Commission to hear and determine the alleged health and safety effects of smart meters. OG&E details in its argument that the Federal Communications Commission ("FCC") regulates the levels of radio frequency ("RF") that devices are permitted to emit citing 47 C.F.R as authority. It further argues that the Commission should recognize the expertise of the FCC regarding RF technology and safety and not attempt to replace the FCC's judgment as to exposure limits of RF with its own. OG&E further addresses the safety allegations of the Complainant by stating that the Commission has adopted the National Electrical Safety Code ("NESC") as is set forth in Commission rules at OAC 165: Further, OG&E states that Lamb has not alleged that OG&E is not in compliance with the NESC. OG&E also addresses allegations that appear on page 3 of the Response wherein Lamb argues that she is prevented by Article IX, Section 24 of the Oklahoma Constitution from seeking relief in another venue "until the Corporation Commission has allowed due process to Complainant and her complaint regarding a 'smart meter,' which is a '... service, practice, rule, regulation or authority,... then in force,' i.e., Corporation Commission Order No " OG&E argues that a smart meter is not a rate, charge, service, practice, rule, regulation, or requirement that was prescribed by the Commission and that all the Commission's prior order did was to allow the cost recovery for the smart meters themselves. It states that Complainant has misinterpreted the Constitution and that if Complainant's interpretation were correct, then a person affected by power plant emissions would be required to complain to the Corporation Commission before it could seek a remedy in court, with the United States' Environmental Protection Agency, or with Oklahoma's Department of Environmental Quality; and, a person injured in an accident involving a utility vehicle, or someone who has a landowner dispute with the utility regarding a transmission line, would also be required to complain to the Corporation Commission before it could seek a remedy from a court simply because OG&E was allowed recovery of the costs of those assets by a Commission order. OG&E next addresses Lamb's reference to 42 U.S.C (EISA) and 16 U.S.C. 2621(14). OG&E references page 2 of the Lamb's complaint and states that Lamb "seems to be alleging that OG&E is in violation [of that statute]" and that she asks the Commission to interpret that statute as mandating an "opt out" program in Oklahoma. They then argue that this question cannot be properly before the Commission and that if it were, the statute cited does not contain any mention of an "opt out" ability relating to smart meters. In addition, OG&E argues

6 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 6 of 12 that 16 U.S.C. 2621(14) is not relevant to this proceeding. It argues that this statute only relates to time-based rates, that the standard is not mandatory, that it only is to be considered by state regulatory bodies, and that it does not have any mandate to allow customers to opt-out of having a smart meter. OG&E also addresses the question of disability accommodations because of a statement within Lamb's Response at page 3 where Lamb states "[t]he Federal government requires all businesses to provide some type of accommodations for a disabled person." OG&E argues that this could be taken to mean that Lamb was asserting that the Americans With Disabilities Act ("ADA 11) 42 U.S.C. 1201, et seq., applies to smart meters. They then argue that RF sensitivity is not a "disability" covered by the ADA and state that they reserve the right to make additional argument on this point if necessary. Finally, OG&E addresses the additional relief detailed by Lamb in her Response that had, not been previously addressed. Such additional relief was outlined as a request to: 1) "r 6`q:qu.re all utility Wi-Fi grids to be turned off or the Utility to pay for shielding the consumer from radiation" and 2) "[r]equest that the Utilities develop alternative plans fçr the tise snwit wets that do not include the use of Wi-Fi grid." OG&B referred to thepvius, agxi it had made as to these and the other issues, but also argued that this type of.re lief cear1yinycls the discretion of utility management. It stated that the Commission has only such jurisdiction and authority as is expressly, or by necessary implication, conferred upon it by the constitution and statutes again citing caselaw to that effect. It then stated that th.legis1ature has not, conferred Ithe authority upon the Commission to control OG&E's internal management decisions regarding the deployment of smart meters and that the Commission is. without power to : control.. QG&E's internal management Public Utility Division/Consumer Services Division Counsel for the Commission's Consumer Services Division filed a Statement of Position on August 9, In oral argument, Counsel also represented. the commission's Public Utility Division Counsel stated that the positions of both the Consumer. Services and the Public Uity Divisions were consistent That position being that the cause should be dismissed for the reason that the two issues that are cognizable by the Commission are the EUDPA and the meter safety issue With regard to the EUDPA, Counsel stated that Lamb has admitted OG&E's compliance with the act and is not asserting that OG&E is in violation of that act. further, they state that Lamb is merely asserting that the act itself is unconstitutional. Because of this, Staff, assert's the cause should be dismissed as to that issue They argue this because of the fundamental fact that the Commission does not have the authority to deem a statute unconstitutional, but merely has the authority to enforce a statute Regarding smart meter safety, Staff says the FCC, not the state of Oklahoma sets safe limits for RE radiation. Counsel stated that it was not disputed that OG&E's smart meters fall far under limits of RF radiation set by the FCC. They argued that the Commissipn cannot impose stricter standards than the FCC. Again, Staff counsel asserts that since Lamb does not allege that

7 . Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 7 of 12 OG&E is exceeding RF radiation limits set by the FCC, the Complaint as to the safety of the smart meter must also be dismissed. Sherry Lamb Lamb asserts that her health is negatively impacted by the electro magnetic radiation ("EMR") of the smart meter grid. She has requested of OG&E to replace her smart meter with an analog meter until the health effects of smart meters are resolved. She also has requested for the Commission to hold a hearing about the health effects of the smart meters experienced by other Oklahomans who are affected by EMR. Lamb states that EMR problems are emerging world-wide. She asserts that the effects of EMR on human beings are now widely reported and that they, like other health issues such as asbestos, tobacco and others, will not go away. (Lamb's Brief, Page 3, "Scope of the Complaint") Lamb states professional medical personnel have diagnosed her with "Electro Magnetic Sensitivity. " She states that her health and well being are damaged when she is exposed to the smart meter system and that the prior meter that she had at her home did not pose this hazard. (Lamb's Brief, Page 4, "The Damage") Lamb reiterates that she is seeking: 1) temporary. reinstallation of an analog meter at her home until the health effects of smart meters are determined; 2) hearings before the Commission to review the health, privacy and safety concerns of the smart meters; and, 3) due process from the Commission. She then states that all these requests are within the duties and power of the Commission to grant. (Lamb's Brief, Page 5, "The Prayer for Relief') Lamb states OG&E has no legal right to irradiate the citizens of Oklahoma, that such right was not granted OG&E by the Commission or the Oklahoma legislature. She states OG&E has license to deploy the meters, but not to assault Lamb. She states that OG&E, as an expert in its field should have known that the smart meter grid would irradiate people and that the Commission blindly accepted information regarding smart meter deployment in Oklahoma from OG&E. (Lamb's Brief, Page 5, "Argument - No Right to Irradiate") Lamb asserts that OG&E and Staff have "hung their hats on FCC standards" and that those are irrelevant to the issue of purposefully irradiating human beings and damaging their health. She then discusses the FCC standards themselves saying that the standards are old, and that the FCC has refused to make new standards until forced to do so. She details that a court ruling, Massachusetts v. EPA, 549 U.S. 497, (2007) required the FCC to issue an Order and Notice of Proposed Rulemaking and Notice of Inquiry on March 29, 2013, to investigate its thermal-based RFR-exposure safety standards.2 She then concludes that a parallel can be drawn from allowing a state law claim for misuse of an FDA-approved drug with OG&E's use of FCCapproved smart meters in a Wi-Fi grid which she states causes harm. (Lamb's Brief, Page 6, "Irrelevant FCC Regulations") 2 Federal Communication Commission; Docket Nos.: ET Docket No and ET Docket No : FCC

8 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 8 of 12 Lamb states she is seeking by this cause protection of her health (life) and her home (property) and that this protection is assured her by Article II, Section 7 of the Oklahoma Constitution. She states dismissal of her Complaint will violate that right. She says the ingredients of due process are the right to be heard and the right to an impartial forum and that the Commission has a duty to provide both. (Lamb's Brief, Page 7, 'Due Process") Lamb then states that in OG&E's Motion it took some 2400 words to say she has no relief available anywhere under the law unless she wants to go to the FCC, thus her Complaint should be dismissed. She also states that OG&E ignores Lamb's health damage and provides no explanation of why they cannot work with her to ameliorate that damage and that to OG&E, keeping her away from the Commission is a worthwhile endeavor. (Lamb's Brief, Page 8, "OG&E's Brief Supporting Dismissal of Ms. Lamb's Complaint") Lamb addresses OG&E's Brief insofar as it asserts she has not alleged that OG&E has violated the NESC. She then states she is not aware of the NESC and that in her complaint she alleged OG&E has deprived her of her safety which to her is a clear allegation that OG&E failed to meet its duty to furnish safe service as required by OAC 165: (Lamb's Brief, Page 8, "Additions") Lamb further addresses OG&E's Brief and states it incorrectly claims that she is asking the Commission to ignore the FCC and its determination of maximum permissible exposure limits and make its own finding that smart meters cause harm. She argues that is incorrect in that she has not addressed the FCC in her Complaint. She reiterates that she has experienced maladies since the installation of a smart meter at her home and that her request does not involve the FCC, it asks the Commission to authorize the removal of the smart meter. Further, she states that OG&E erroneously states that the Commission's power is only to matters that are outside OG&E's internal management stating that the Commission has a duty and the power to supervise, regulate and control its regulated companies citing [Article IX], Section 18 of the Oklahoma Constitution. (Lamb's Brief, Page 9, "Errors") Lamb states that the Commission, "as a government entity, has a Constitutional duty to promote the general welfare and happiness of the people affected by its decisions and regulations." She argues that the Commission "is not a rubber stamp for OG&E" and that when its decisions result in physical injury to ratepayers that it has a Constitutional duty to protect the ratepayers from its decisions. She then again cites Article IX, Section 18 of the Oklahoma Constitution as authority for her proposition that the Commission has the duty of "correcting abuses", stating that "irradiation of the public and the forced installation by OG&E of irradiation devises are abuses requiring correction." (Lamb's Brief, Page 9, "The Oklahoma Constitution") Lamb again refers to Article IX, Section 18 of the Oklahoma Constitution in relation to its charge to the Commission to remain informed of the condition of all railroads and their operation and security. She states although this refers to railroads, it exemplifies the level of responsibility to which the Commission is held and that the Commission has a duty to know about the results shown in the many studies that have been rendered regarding exposure to Electromagnetic Fields and Radio Frequency. (Lamb's Brief, Page 10, "OCC/OGE Authority")

9 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 9 of 12 Lamb's Brief concludes with final comments stating that technology has advanced beyond the law, that suffering citizens cannot wait for the law to catch up, and that the Commission has a Constitutional duty to allow relief at this time. She reiterates that the Commission has a Constitutional requirement to hear the merits of the Complaint and that if it does not, due process will be denied. She claims that if the Commission allows dismissal of the cause that it will establish the fact that no one hurt by smart meters has a venue in Oklahoma. (Lamb's Brief, Page 11) Iv, ANALYSIS Oklahoma law is clear and well established with regard to the jurisdiction of the Commission. The Oklahoma Corporation Commission derives its jurisdiction or authority to regulate and control transportation and transmission companies doing business in Oklahoma from Article Ix, Section 18 of the Oklahoma Constitution. 3 The Commission's authority over such entities is paramount, subject only to the superior authority of the Oklahoma Legislature. 4 Further, the Constitution grants the Commission the powers and authority of a court of record. 5 The Constitution also allows that the Oklahoma Legislature can vest additional powers in the Commission, not inconsistent with the Constitution. 6 As allowed by the Constitution, the Commission's authority was expressly delineated by the Oklahoma Legislature as to public utilities. 7 Public utilities were also defined by the Legislature. 8 Obviously, OG&E is subject to the Commission's regulatory jurisdiction. 3 "The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies...." Okla. Const., Art. IX, "The authority of the Commission (subject to review on appeal as hereinafter provided) to prescribe rates, charges, and classifications of traffic, for transportation and transmission companies, shall, subject to regulation by law, be paramount; but its authority to prescribe any other rules, regulations or requirements for corporations or other persons shall be subject to the superior authority of the Legislature to legislate thereon by general laws...." Okla. Const., Art. IX, "In all matters pertaining to the public visitation, regulation, or control of corporations, and within the jurisdiction of the Commission, it shall have the powers and authority of a court ofrecord...." Okla. Const., Art. IX, "The Commission may be vested with such additional powers, and charged with such other duties (not inconsistent with this Constitution) as may be prescribed by law, in connection with the visitation, regulation, or control of corporations, or with the prescribing and enforcing of rates and charges to be observed in the conduct of any business where the State has the right to prescribe the rates and charges in connection therewith.... " Okla. Const., Art. IX, "The Commission shall have general supervision over all public utilities, with power to fix and establish rates and to prescribe and promulgate rules, requirements and regulations, affecting their services, operation, and the management and conduct of their business...." 17 O.S Public utility is defined as: "(t)he term 'public utility'..., shall be taken to mean and include every corporation, association, company..., that now or hereafter may own, operate, or manage any plant or equipment, or any part thereof, directly or indirectly, for public use, or may supply any commodity to be furnished to the public. ( c) For the production, transmission, delivery or furnishing electric current for light, heat or power...." 17 O.S. 151.

10 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 10 of 12 Numerous cases have been adjudicated over the years, the results of which have refined, honed and detailed what power is granted the Commission pursuant to the Constitution and Statutes. The cases relevant to the issues at hand provide as follows: "Among the many powers and duties given the Commission, it is required to exercise the authority of the state to supervise, regulate and control public service corporations, and to that end it has been clothed with legislative, executive and judicial powers." 9 However, the Commission is a tribunal of limited jurisdiction and only has the authority that is granted it as expressly stated or is necessary by implication within the Oklahoma Constitution. 10 Further, its power to regulate is not unfettered. It must be exercised only as to the authority granted within the Constitution and existing Despite its having judicial powers and the authority of a court of record, it has been determined that the Commission is not a court of general jurisdiction. It cannot enter money judgments against a party, nor does the Commission have jurisdiction over a case involving liability of a public utility for tortuous and wanton acts of negligence resulting in damages beyond its expertise. 12 Likewise, it does not have the authority to declare a statute invalid. That power resides solely in the judicial department. 13 Finally, interference with utility internal management decisions is not within the realm of Commission authority. 14 The Oklahoma Supreme Court has said that "(a)lthough the Corporation Commission has general supervision over all public utilities, the Constitution does not clothe it with the general power of internal management and control incident to ownership. The Commission has the power to supervise and regulate the public duties and obligations of such utilities but is not empowered to substitute its judgment for that of the utilities concerning their internal management and control." 15 Also, that "(t)he Constitution simply does not confer upon the Corporation Commission, either expressly or by necessary implication, the power to regulate, supervise and control the internal management and control of a public utility... (to prohibit construction of a proposed project) Southwestern Bell Telephone Co. v. Oklahoma Corp. Com'n, 1994 OK 38 5, 873 P.2d 1001, cert den., 513 U. S State ex rel. Edmondson v. Oklahoma Corp. Com'n, 1998 OK 118, 971 P.2d 868; Public Service Co. of Oklahoma v. State of Oklahoma ex rel. Corp. Com'n, ex rel. Loving, 1996 OK 43, 918 P.2d 733; Southwestern Light & Power Co. v. Elk City, 1940 OK 458, 111 P.2d 820, 188 Okla. 540; Application of Spartan Airlines, 1947 OK 314, 185 P.2d 925, 199 Okla. 305; Application of Central Airlines, 1947 OK 312, 185 P.2d 919, 199 Okla. 300; State ex rel. Edmondson v. Oklahoma Corp. Com'n, 1998 OK 118, 971 P.2d Id. 12 Fent v. Oklahoma Natural Gas Co., Div. of Oneok, Inc., 1990 OK CIV APP 70, 804 P.2d (cert. denied); Lear Petroleum Corp. v. Seneca Oil Co., 1970 OK 15, 590 P.2d 670; Continental Tel. Co. of Oklahoma v. Hunter, 1970 OK P.2d Dow Jones & Company, Inc. v. State ex rel., Oklahoma Tax Com'n, 1990 OK 6, 787 P.2d Oklahoma Gas & Electric Co. v. Corporation Com'n, 1975 OK 15, 543 P.2d 546; Public Service Co. of Oklahoma v. State, 1982 OK P.2d 465; Public Service Co. of Oklahoma v. Oklahoma Corp. Comm., 1996 OK P.2d 733; Public Service Co. v. State ex rel. Corporation Comm., 1997 OK 145, 948 P.2d Oklahoma Gas & Electric Co. v. Corporation Comn, 1975 OK 15 30, 543 P.2d d., 32.

11 Cause No. CS ; Complaint of Lamb - OG&E Respondent Page 11 of 12 Most of the arguments expressed by Lamb address the alleged health effects of smart meters and do not address the issue of jurisdiction. Those will not be addressed herein other than to note that those issues already are being explored by the FCC as admitted by Lamb in the summary of arguments section above. 17 Others were withdrawn or modified in her subsequent pleadings. With regard to the issue of jurisdiction, the Complainant asserts that the reading of the Constitution allows broad jurisdiction of the Commission asserting a public interest argument. OG&E and Staff assert that the Commission's jurisdiction is limited and that this cause should be dismissed. Practically all published cases that deal with the jurisdiction of the Commission contract the Commission's authority rather than expand it as is suggested by Lamb. A plain reading of the Constitution and the related statutes which together grant the Commission its authority to regulate public utilities might cause the reader to assume that the Commission has the jurisdiction and power to grant some of the relief requested by Lamb. However, when one reads that authority together with the cases that have interpreted the Constitution and statutes it becomes clear that the Commission does not have the jurisdiction to do what is asked of it by Lamb. The Commission cannot invade management discretion as to how OG&E creates or acquires electricity or the plant it utilizes to deliver the same. The Commission cannot declare statutes to be unconstitutional. The Commission cannot override the authority of the FCC as to the safety standards of smart meters. All of these statements are clearly supported by the caselaw set forth immediately above. With regard to Lamb's assertion that she has no recourse other than hearings before the Commission, that is not correct. With regard to her allegations that OG&E is purposely irradiating her and causing damage to her health, a District Court action would be the proper forum. With regard to her concerns about the safety standards of the RF emanating from smart meters, the current proceeding before the FCC is the proper forum. The Commission is not the proper venue for either of those complaints. I am not unsympathetic to the health difficulties of which Lamb suffers. It is obvious that these are not contrived based on her description of them in her pleadings, the comments made by the public immediately after the hearing on the Motion as well as the numerous studies referred to in the pleadings. However, the Commission only has certain powers and authority as previously discussed. It can only do what it can do pursuant to its Constitutional and statutory authority. It cannot do what Lamb asks. I find that the arguments made by Lamb are not persuasive, the arguments of OG&E as well as Staffs Statement of Position are persuasive, and the Motion to Dismiss should be granted and this cause dismissed as set forth in my recommendation to the Commission below. 17 Federal Communication Commission; Docket Nos.: ET Docket No and ET Docket No : FCC

12 Cause No. CS ; Complaint of Lamb - OG&E Respondet Page 12 of 12 Therefore, based upon all of the above, I recommend that the Commission adopt the following Findings of Fact and Conclusions of Law and accept the Recommendation that follows. V. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Commission finds it has jurisdiction in this cause to hear and determine the issues presented herein pursuant to Article IX, Section 18 of the Oklahoma Constitution and 17 O.S. 2 and 151 etseq. 2. The Commission further finds that proper notice of the hearing on the Motion was given by the filing of the Notice of Hearing, and by service upon all parties, as required by OAC 165: The Commission further finds that it does not have jurisdiction to grant the relief requested in Lamb's Complaint as originally filed or as amended by her in subsequent pleadings in accordance with the reasoning set forth in the analysis section of this Report of the Administrative Law Judge. 4. The Commission further finds that because it does not have jurisdiction to grant the relief requested in the Complaint of Lamb as originally filed or as amended by her in subsequent pleadings that it should sustain OG&E's Motion to Dismiss. VI. RECOMMENDATION The ALJ recommends the Commission accept the above recommended Findings of Fact and Conclusions of Law as its own and sustain the Motion to Dismiss of OG&E and that this cause should be dismissed. Respectfully submitted this 2 7 'i" day of February, JYLES /4z: Ai44rative Law Judge