Summary
The Maine Supreme Judicial Court reviewed the dismissal of a complaint challenging Central Maine Power’s use of wireless smart meters and related opt-out fees. The court held that the Maine Public Utilities Commission improperly treated the complaint’s health and safety concerns as resolved, because the Commission had previously declined to determine whether smart-meter technology was safe. It vacated the dismissal as to the health and safety claims against Central Maine Power and affirmed the dismissal of the privacy, trespass, Fourth Amendment, and constitutional claims directed at the Commission.
Topics
Practice areas
Questions Presented
- Whether the Commission abused its discretion by dismissing the portion of the complaint against CMP concerning the health and safety effects of radio-frequency radiation from smart meters.
- Whether the Commission properly dismissed the portions of the complaint against CMP concerning privacy, trespass, property rights, and Fourth Amendment concerns.
- Whether 35-A M.R.S. § 1302 authorizes a complaint against the Commission itself asserting constitutional violations arising from prior Commission orders.
Holdings
- The Commission erred by treating the health and safety issues as resolved by the prior opt-out investigation when it had expressly declined to determine whether smart-meter technology was safe. Because the Commission had not resolved those issues, it could not conclude that CMP had taken adequate steps to remove the cause of the complaint or that the opt-out charges were not unreasonable or unjustly discriminatory.
- The Commission did not abuse its discretion in dismissing those portions of the complaint because the issues had previously been addressed and resolved during the opt-out investigation and related proceedings, and CMP's implementation of the opt-out orders removed the cause of those aspects of the complaint.
- Section 1302 authorizes complaints against public utilities, not against the Commission itself, and is not a proper mechanism for asserting constitutional violations arising from an earlier final Commission decision.
Key quotations
“The Commission’s previous decisions demonstrate that it may have considered, to a limited extent, the health and safety issues Friedman raised, but it did not resolve those issues.” (48 A.3d at 800)
“Having never determined whether smart-meter technology is safe, the Commission is in no position to conclude in this proceeding that requiring customers who elect either of the opt-out alternatives to pay a fee is not “unreasonable or unjustly discriminatory,” 35-A M.R.S. § 1302(1), such that a complaint raising those issues should be summarily dismissed.” (48 A.3d at 801)
Factual background
The Maine Public Utilities Commission approved CMP's advanced metering infrastructure project, including wireless smart meters. Customers raised concerns about radio-frequency radiation, privacy, electronic trespass, property rights, and the absence of an opt-out option. The Commission's subsequent opt-out orders provided customers with alternatives to standard wireless meters and imposed charges, but the Commission expressly declined to determine the merits of the health and safety concerns. Friedman and other customers later challenged the opt-out charges and sought further investigation.
Procedural history
The Commission approved Central Maine Power's advanced metering infrastructure project and later conducted an opt-out investigation, issuing orders requiring CMP to provide alternatives to standard wireless smart meters and imposing charges for those alternatives. Friedman and other customers then filed a complaint under 35-A M.R.S. § 1302, which the Commission dismissed in August 2011 without a hearing. Their motion for reconsideration was denied by operation of law, and they appealed.
Remand instructions
The matter was remanded to the Maine Public Utilities Commission for further proceedings consistent with the opinion concerning the portions of the complaint against CMP addressing health and safety issues. The dismissal was affirmed in all other respects.