PolitiFact Florida: Utility group says Amendment 1 protects seniors, but measure offers no new regulations

Published Nov. 7, 2016

Organizers for a proposed constitutional amendment about electricity generated by solar power have told voters their proposal would safeguard consumers — especially seniors.

Consumers for Smart Solar, the utility-backed group behind Amendment 1, has spent millions to promote the measure in commercials, mailers and web ads.

"Amendment 1 protects Florida seniors from scams and rip-offs," claimed one ad on YouTube.

When we looked into it, we found Amendment 1 doesn't provide any new protections.

Supporters of the Amendment 1 campaign say the constitutional change promotes solar while protecting consumers. Critics have derided the amendment, accusing organizers of obscuring their true, backdoor intention of helping established utilities control Florida's solar market and punish electric consumers for using solar panels.

On its own, Amendment 1 doesn't protect seniors, or anyone else.

All the wording says is that current consumer protections can remain in place. Along with saying people may still buy solar panels and install them, the measure reads:

"State and local governments shall retain their abilities to protect consumer rights and public health, safety and welfare, and to ensure that consumers who do not choose to install solar are not required to subsidize the costs of backup power and electric grid access to those who do."

The second half concerns the future of net metering, in which solar customers sell excess electricity back to the utilities. Net metering is currently overseen by Florida Public Service Commission rules.

But the first half essentially says the amendment will not preclude any current or future state law or regulation. No legal protections would change.

"This provision makes clear that regardless of what course Florida takes with solar energy now or in the future, government will not relinquish its responsibility to protect consumers," a Consumers for Smart Solar spokeswoman told us.

The Florida Department of Agriculture and Consumer Services did not give any examples when we asked them how solar customers may currently be protected. The attorney general's office said consumers with specific problems can file a complaint under the Florida Deceptive and Unfair Trade Practices Act. The office reviews each complaint for appropriate action.

Here's where Consumers for Smart Solar's argument that the measure protects seniors from scams comes in.

The group cited an August 2016 letter to the Federal Trade Commission from Public Citizen, a left-leaning consumer advocacy group. The letter said Public Citizen hoped the FTC would consider new regulations on "arrangements in which consumers lease their solar system from a corporate third party."

Florida is one of five states that does not allow property owners to have a third-party installer put solar panels on their roofs and sell the power back. In those deals, customers sign a lease for a period of time, usually a number of years, agreeing to buy power from the solar company.

Florida customers are still allowed to lease the panels themselves, as long as they don't sell the excess electricity to anyone, such as a landlord selling power to tenants.

Consumers for Smart Solar pointed to Arizona, where solar companies bilked older customers who did not fully understand their lease agreements.

But it is not clear how this applies to Florida, because those kinds of deals are not allowed in this state. State law makes it so that someone generating electricity with solar panels cannot sell it to anyone but utility companies.

The net metering clause matters here, too, because third-party companies in other states depend on the money they would get from selling electricity to utilities. The amendment would conceivably make that business model unworkable, were third-party sales ever allowed.

Florida's two largest utilities, Florida Power & Light and Duke Energy, have said they want to see Florida's net metering law changed to impose new fees on customer-owned solar users.

More than one legal expert told us it's ambiguous at best to say Amendment 1 offers protections. That's up to state and local officials, who already have laws and regulations in place. Seniors aren't specifically mentioned anywhere in the amendment's wording.

"The only defined user of electricity in the amendment is 'consumer,'" said Lance Long, a law professor at Stetson University. "I think it is misleading to suggest that it does have a particular concern for seniors. It seems more in the genre of 'scare tactic' rather than accurate information."

If there were no amendment at all, the effect on consumer laws and regulations would be the same.

This talking point may lead many voters, especially seniors, to think the amendment somehow offers new safeguards for solar customers, but it doesn't. We rate the statement False.

Edited for print.