PaPUC Approves PPL Smart Meter Plan

Today, September 3, 2015, the Pennsylvania Public Utility Commission (PUC) approved the Smart Meter Technology Procurement and Installation Plan submitted by PPL Electric Utilities Corporation (PPL).

The Commission voted 5-0 to approve an Order finalizing PPL’s plan for smart meter deployment, as required by Act 129 of 2008 (Act 129).

The Smart Meter Plan (SMP) approved today replaces PPL’s original SMP, which was filed with the PUC in August 2009. The Commission found that PPL’s original plan did not fully comply with Act 129, most significantly because technology that had initially been deployed was unable to provide customers with direct access to price and consumption information.  As a result, the Commission directed PPL to develop a plan that would fully comply with Act 129 and the additional requirements of the Commission’s SMP Implementation Order.

An updated PPL SMP, filed with the PUC on June 30, 2014, was the subject of extensive filings, briefs and hearings before the Commission’s Office of Administrative Law Judge, extending from July 2014 through June 2015. Today’s vote by the Commission finalizes approval of PPL’s updated SMP.

Act 129 of 2008 required electric distribution companies (EDCs) with more than 100,000 customers to furnish smart meter technology both upon request and in new building construction, and to have a full deployment schedule not to exceed 15 years.

The Act defined smart meter technology as that capable of bidirectional communication that records electricity usage on at least an hourly basis, including related electric distribution system upgrades to enable the technology.

The Act also directed that smart meter technology must provide customers with direct access to – and use of – price and consumption information, such as hourly consumption; the ability to support time-of-use rates and real-time price programs; and automatic control of electric consumption by the customer.

If you or your business have questions about utility service, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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A Brief Overview of Constitutional Litigation

By Allen Thompson, Esq.

I talk to a lot of people about the U.S. Constitution, the rights guaranteed by it, and whether a governmental entity or agent has violated those rights.  The courts, over the last two centuries or so, have built up doctrines and analyses to determine whether the government has violated an individual’s rights.  While much of the analysis has evolved to protect the governmental entities and those working for them from liability, this means that there is a lot more to a civil rights case than alleging “my rights were violated” and pointing to the Bill of Rights.  Generally, courts have justified this limitation in order to promote an “active” and “efficient” government that can act without stopping to think about liability at each step.  Regardless of one’s feelings about the justification, that analysis is what the courts will use, and will ultimately determine whether your civil rights claim is viable.

Below is a brief outline of some of the more important issues that will arise during a civil rights case.  The outline is meant as just that: an outline.  It is not an all-encompassing guide to litigation under 42 U.S.C. Section 1983 (which provides the mechanism by which a constitutional claim is brought before the court).  This is meant only to familiarize the reader with the terms and general analysis that the courts will use and hopefully answer some basic questions you may have.  As always, if you believe your rights have been violated, I encourage you to call for an appointment, so that an attorney can analyze the specific facts of your case.

  1. State action

A successful 1983 claim is going to require state action (other civil rights claims, like discrimination, are generally brought under Title VII, which statutorily authorizes suit).  This means that the entity violating your rights is going to be a city, county, township, etc., or an employee of one of the above entities.  Sometimes, a nominally private entity can be considered a state entity.  For example, a private medical care company operating the medical facilities at a prison can be considered a government entity, as it is performing a government function.  On the other hand, a truly private entity, such a movie theater, retail store, or restaurant, can limit your actions, even actions covered by the Constitution.  Thus, a movie theater can lawfully prohibit the carrying of firearms, even if you have an LTCF, and a retail store can prevent you from speaking out about an issue on its property, despite the First Amendment.  Federal statutes cover some issues such as religion and speech restrictions by employers, but generally speaking, they aren’t 1983 actions.

  1. Immunities

The biggest hurdle in Section 1983 litigation usually involves government immunities.  There are several types of immunities that governments have: Sovereign, qualified, absolute, and what is called Monell liability.

Sovereign immunity applies to the state and state agencies, and prevents the state from being sued for monetary damages.  Individual state employees, however, can be sued in their individual capacity, but the claim must meet a certain threshold, generally finding that the individual acted far outside the scope of their normal employment.

Qualified immunity applies to individuals who are employed by the government.  Here, there are two basic issues that the court must resolve.

One issue involves whether the individual had notice that the action would violate a constitutional right.  For example, searching a house without a search warrant and no consent would generally be considered a violation of the Fourth Amendment (although, as with everything, there are some exceptions).  However, searches of cell phones have recently been before the courts, to determine whether the search of a cell phone during an otherwise legal stop is constitutional.  On newer issues, such as these, the courts can find that the actions violated your rights, but that the law wasn’t clearly defined such that the officer would have known he or she was violating your rights.  In that instance, the individual agents are likely to be dismissed on grounds of qualified immunity.

The other issue is whether the government agent acted reasonably.  This is entirely fact dependent.  Often, this requires the use of an expert in the field to give a deposition and/or testify at trial.  Here, the court can also find that your rights were violated, but that the agent, at the time of the actions, was acting reasonably under the circumstances.

Absolute immunity is generally only applied to District Attorneys and Judges, although some courts (like the Third Circuit) has applied that immunity to Child and Youth Service workers as well, although in a more limited fashion.  This means that you cannot sue the agent for his or her actions.  If the actions are entirely out of the scope of employment, there might be a separate cause of action, but generally not a 1983 action.

Finally, there’s Monell liability.  Monell is the seminal Section 1983 case and sets the parameters for when a government entity is liable.  In order for a city, township, county, etc. to be liable, the actions of the government entity itself must have caused the damages.  This is very different from general civil liability.  If you go to a retail store and you slip on a spill that was supposed to be cleaned up by an employee, but was not, then the store may be liable.  When suing the government, the plaintiff must show that the policies – or lack of suitable policies – caused the damage.  To analogize back to the retail store, under the Monell theory, the store’s manual must have stated that spills are not to be cleaned up, or entirely neglected to mention spill protocol, in order to be liable.  Thus, actions of government agents, not matter how unconstitutional, do not automatically create liability for the government entity.

  1. Damages

Finally, there must be some sort of damages.  This is generally true of all lawsuits, but especially so here.  If you have no identifiable damages, then you will very likely get what are referred to as “nominal damages.”  This means that the court can ultimately find in your favor, but award you a dollar or less.

As stated above, this is merely a guideline to familiarize the reader about Section 1983 lawsuits and perhaps answer some basic questions.  Each case is unique, and the facts and nuances of each case should be analyzed by an attorney with experience in federal civil rights litigation.  If you think you have a case, or are unsure, I encourage you to call and set up an appointment.

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FTC Can Regulate Cybersecurity

courtroomAugust 24, 2015, the United States Court of Appeals for the Third Circuit has issued a ruling in the Federal Trade Commission’s (FTC) favor in FTC v Wyndham 3d Cir (08/24/2015) (PDF) against organizations that employ poor IT security practices. The ruling was part of a lawsuit between the FTC and hotel chain Wyndham. This court decision affirms the FTC’s role as a digital watchdog with real-life teeth.

Federal Trade Commission Chairwoman Edith Ramirez issued the following statement in response to the ruling by the U.S. Court of Appeals for the Third Circuit, regarding the FTC’s case against Wyndham Hotels and Resorts for allegedly failing to reasonably protect consumers’ personal information:

Today’s Third Circuit Court of Appeals decision reaffirms the FTC’s authority to hold companies accountable for failing to safeguard consumer data. It is not only appropriate, but critical, that the FTC has the ability to take action on behalf of consumers when companies fail to take reasonable steps to secure sensitive consumer information.”

This decision affirms a federal district court ruling, which upheld the FTC’s authority to bring data security cases under the provision of Section 5 of the FTC Act that outlaws unfair acts or practices in or affecting commerce.

ftc_logo_430The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them.

The FTC sued the hospitality company and three subsidiaries, alleging that data security failures led to three data breaches at Wyndham hotels in less than two years. According to the complaint, those failures resulted in millions of dollars of fraudulent charges on consumers’ credit and debit cards – and the transfer of hundreds of thousands of consumers’ account information to a website registered in Russia.

In 2014, a federal District Court in New Jersey denied Wyndham’s motion to dismiss the FTC action. The Third Circuit agreed to hear an immediate appeal on two issues: “whether the FTC has authority to regulate cybersecurity under the unfairness prong of § 45(a); and, if so, whether Wyndham had fair notice its specific cybersecurity practices could fall short of that provision.”

If you are concerned about data security – and you should be – you’ll want to read the entire opinion. But the long and the short of it is that the Third Circuit upheld the District Court’s ruling that the FTC could use the prohibition on unfair practices in section 5 of the FTC Act to challenge the alleged data security lapses outlined in the complaint. The Court also rejected Wyndham’s fair notice argument.

Of course, the case is still pending before the District Court, but the Third Circuit ruling affirms important principles for how the FTC Act applies in the data security arena.

The decision is a must-read for business executives too.  The costs of not reasonably safeguarding confidential information continue to rise, underscoring the necessity for cybersecurity planning.

If you or your business have concerns regarding cybersecurity and the preservation of confidential information, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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Child Custody and Jurisdiction

“It is procedure that marks much of the difference between rule by law and rule by fiat.”

Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971)

“The history of procedure is a series of attempts to solve the problems created by the..preceding generation’s procedural reforms.”  

Judith Resnick, Precluding Appeals, 70 Cornell L.R. 603, 624 (1985)

“Procedure” – the ever-lurking maze of rules and requirements that serve as the backdrop for most all litigation can be a most unforgiving proposition.  This is because Procedure dictates and determines so many things – from where to file, when to file, who may file, etc.  Procedure, more than any other component of Law can make a would-be winning argument a losing cause, and vice versa, all without a shot being fired in anger.  Litigants frequently prevail or perish in litigation, not on the merits of their respective arguments but on the basis of their formal compliance with the “rules of engagement”.  Civil Procedure, effectively, are those “rules of engagement”, and the attorney ignores them or is ignorant of them at his own peril.

Jurisdiction is a specific aspect of Civil Procedure.  In a nutshell, Jurisdiction describes the power or authority of given court to entertain a particular dispute.  For the sake of simplicity, suffice it to say that Jurisdiction may turn on (among numerous factors) limited functions of the court in question, location of the court relative location/residence of the parties, and whether a party to litigation received adequate notice so as to justify his or her being hauled into court.  Jurisdiction is perhaps the bedrock principle in American Civil Procedure, as some of the most vintage of cases have ensconced the principle: No Jurisdiction = No Power of Judgment.  See e.g. International Shoe Co. v. Washington326 U.S. 310 (1945)(personal jurisdiction requires, at least, minimal contacts, with forum state).

In the context of Child Custody disputes, traditional rules of Jurisdiction have been enhanced and universally codified by the Uniform Child Custody Jurisdiction and Enforcement Act.  Currently, the Act has been adopted in its entirety by all states except Massachusetts.  Pennsylvania’s adoption of the UCCJEA is reflected by Commonwealth statutes.  See 23 Pa.C.S. §§ 5401-5482.  The Act was promulgated for several reasons, not least of all to redress the practice of disputant parents leaving one state and moving to another, without knowledge or consent of the other parent to evade the force of the prior state’s duly entered Orders regarding custody. Of equal importance, the UCCJEA was set forth to resolve “full faith and comity” issues where sister-courts in different jurisdictions would purport to exercise jurisdiction over a single child custody dispute, the UCCJEA was constructed to stipulate default preference in the event of such jurisdictional overlap.

Among the UCCJEA’s most important resolutions to jurisdictional chaos heretofore caused by parents behaving badly, is definition of the “home state”.  Essentially, the “home state” in custody is the state where the custody action originates (i.e. where custody was first filed and litigated.  Additionally, the UCCJEA provides that “home state” Jurisdiction automatically continues despite the relocation of the child/children in question for at least 6 months after relocation.  Conversely, the UCCJEA provides that after 6 months unbroken residency in a new state (other than the state in which the custody action originated) the new state is presumed to become the home state.  Interestingly also, the UCCJEA provides that any competent court (i.e. such court which has subject matter jurisdiction) may take jurisdiction.

Through the UCCJEA, appropriate Jurisdiction is met only through application of Procedural Law – under the UCCJEA there is little to no room for approximation or conjecture about Jurisdiction. To illustrate this point – Explanatory Comments to the UCCJEA state that parties may not informally “agree” to Jurisdiction where the Law does not formally create it.  Relatedly, even where a court would, arguably, have jurisdiction it may nevertheless decline jurisdiction where it determines that a more appropriate forum exists elsewhere.  See UCCJEA Sec. 207 (Inconvenient Forum).  The UCCJEA is also calibrated to enable courts to punish bad-faith conduct of disputants in a custody action who would seek to relocate to forum-shop or to otherwise avoid the force of a prior Order.  See UCCJEA Sec. 208 (Jurisdiction Declined by Reason of Conduct).

I don’t presume to be able to competently summarize all (or even most) of the aspects of the UCCJEA here – its provisions are many, its history fairly complex, and the sheer number of scenarios concerning jurisdictional-dispute which it contemplates, are dizzying.  I hope though that the foregoing enables at least a basic appreciation for the significance of the UCCJEA and for “Procedure” in Child Custody, in general.  To supplement this entry, consider viewing some other online resources regarding the Act: https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf ; http://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf

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Consumer Alert: Bad Advertisements may Infect Your Computer

Consumer Alert: Bad ads may Infect Your Computer – You need to understand something about poisoned ads on websites which might infect your computer. Here is the situation in a nutshell: Advertisers do not sell their ads to websites one at a time. Websites that want to make money sell their advertising space to an ad network. Advertisers sign contracts with that ad network which then displays the ads on the participating websites. The ad network sits in the middle between the advertisers and the websites and manages the traffic and the payments.

There is the problem. Cybercriminals fool the ad network into thinking they are a legitimate advertiser, but the ads which are displayed on major websites are poisoned. If you browse to a page with a poisoned ad on it, that is enough to run the risk your PC will be encrypted with ransomware, which may cost $500 or more to get your files back if you don’t have a good recent backup.

So here are a few things you can do about this. First, disable Adobe Flash on your computer – or at least set the Adobe Flash plug-in to “click-to-play” mode – which blocks the automatic infections. Second, keep up-to-date with all security patches and install them as soon as they come out. Third, download and install Ad Blocker plug-ins for your browser, these prevent the ads from being displayed in your browser to start with. These ad blockers are getting very popular, hundreds of millions of people use them.

In a computer network, you could do two things:

  1. Get rid of Flash all together, we see this happen a lot, or
  2. Deploy ad blockers using group policy, here is a forum post at the AdBlock Plus site where it is explained how this can be done. I use Adblock Plus in Chrome and Internet Explorer. Link:
    https://adblockplus.org/forum/viewtopic.php?t=29880

Concerns about cybersecurity or recovering from a ransomware or other cyber attack?  Contact attorney Jeffrey A. Franklin.

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Consumer Alert: “Notice of Potential Compliance Violation” by the “Business Compliance Division”

Don’t be a victim, watch out for a misleading “Notice of Potential Compliance Violation” from the “Business Compliance Division,” says Prince Law Offices, P.C. attorney Jeffrey A. Franklin.

The mailing appears to be an official government document, but it is not.

Several businesses have reported receiving the postcard, which directs the recipient to call 1-855-530-2615 to avoid potential fees and penalties. The card bears a symbol with a scale and two hands shaking.

The address of the Business Compliance Division on a recent postcard states its address as 3915 Union Deposit Rd #921, Harrisburg, PA  17109.  This is the address of a store with private mail boxes.  Reports of similar letters and cards from other states have also been reported.

When the business owner calls the number, he is told to pay a one-time fee of $70 to apply for a Certificate of Good Standing or something similar.

Businesses should exercise caution before providing information or payment to Business Compliance Division, or any other entity that makes misleading claims or requests.

A certificate of existence/good standing/subsistence is proof that a domestic corporation or domestic limited liability company is in existence.  A good standing certificate is available to anyone for ordering through the state.  In Pennsylvania, it is called a subsistence certificate and is available online for $40 from https://www.corporations.pa.gov/Search/CorpSearch.

If you have questions about business documents, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C. or your state’s corporation bureau or attorney general.

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PJM and Gas Pipelines Coordinate to Fuel Electric Power Plants

PJM Interconnection and several large interstate natural gas pipelines that provide fuel for electric generators in the PJM footprint, which includes Pennsylvania, have signed a memorandum of understanding spelling out coordination efforts to promote reliability. They have agreed to work more closely with each other to improve operational planning and address growing interdependence between the electric and natural gas industries.

“This agreement sets the stage for greater coordination between electric generators and the natural gas pipeline industry” said Mike Kormos, PJM Chief Operations Officer.  “As electricity-generating facilities increasingly turn to natural gas, it is important that we all communicate clearly to assure reliable service.”

PJM Interconnection – a regional transmission organization that coordinates wholesale electricity for 13 states and the District of Columbia – and several large natural gas pipelines that provide fuel for electric power generators in the PJM footprint have agreed to work more closely with each other to improve operational planning and address growing interdependence between the electric and natural gas industries.  “These individual pipeline companies and PJM are to be commended for taking the initiative to create a process to promote greater transparency and shared knowledge. Continued dialogue will result in more informed decisions by the PJM market participants that operate and rely upon gas-fired electric generators,” said Don Santa, president and CEO of the Interstate Natural Gas Association of America. The intent of the agreement is to provide a better understanding of the needs of gas-fired generators and work toward providing reliable and flexible solutions that promote adequate natural gas pipeline capacity.

In addition to the PJM Interconnection, parties to the coordination effort include Dominion Cove Point LNG, LP; Dominion Transmission, Inc.; Columbia Gas Transmission LLC; National Fuel Gas Supply Corporation; Natural Gas Pipeline Company of America; Tennessee Gas Pipeline Company, L.L.C.; Texas Eastern Transmission, LP; Texas Gas Transmission, LLC; and Transcontinental Gas Pipe Line Company, LLC. The parties are also in consultation with the Independent Market Monitor, Monitoring Analytics. As permitted by the Federal Energy Regulatory Commission Order No. 787, PJM and the participating pipeline companies plan to share certain non-public information to promote reliable service and improved operational planning for both the electric grid and the interstate natural gas pipeline network. The initial effort will continue through June 2016, and will be evaluated for next steps. The parties expect to communicate their progress and any insights that emerge from this continued dialogue to the FERC and other interested stakeholders.

Contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C. for more information or assistance with electric and gas matters.

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