MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2016 ME 19
Docket:   PUC-15-20
Argued:   November 3, 2015
Decided:  January 26, 2016

Panel:       SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


                                ED FRIEDMAN et al.

                                          v.

                      PUBLIC UTILITIES COMMISSION et al.

MEAD, J.

         [¶1] Ed Friedman and others (collectively, Friedman) appeal from an order

of the Maine Public Utilities Commission finding that Central Maine Power

Company’s (CMP) advanced metering infrastructure (AMI) system poses no

credible threat to the health and safety of CMP’s customers. On appeal, Friedman

contends that (1) the Commission applied an improper standard and burden of

proof; (2) the determination was not supported by substantial evidence in the

record; and (3) the two Commissioners serving on the panel outlined differing

rationales and therefore did not concur in the decision.            We affirm the

Commission’s decision.

                                 I. BACKGROUND

         [¶2] The facts of this case were thoroughly discussed in Friedman v. Public

Utilities Commission (Friedman I), 2012 ME 90, ¶ 2, 48 A.3d 794, wherein we
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noted that the genesis of this dispute was the Commission’s approval of CMP’s

AMI proposal in 2010. This project provided CMP customers with “smart meters”

and other related devices that allowed CMP to conduct automated and remote

meter readings and to communicate with customers’ meters.           In 2011, the

Commission initiated an investigation pursuant to 35-A M.R.S. § 1302(1) (2015)

after receiving multiple complaints regarding the safety of CMP’s smart meters.

Friedman I, 2012 ME 90, ¶¶ 2-3, 48 A.3d 794. Particularly, customers raised

concerns about the potential health effects of radiofrequency signals (RF) emitted

by smart meters.     Id. ¶ 2.   On May 19, 2011, and on June 22, 2011, the

Commission issued Parts I and II of its Opt-Out Order, respectively, mandating

that CMP provide alternatives for its customers who want to opt out of the smart

meter program. Id. ¶ 3. The Commission further ordered that customers who

wanted to opt out would be assessed both an initial and a monthly fee to continue

to opt out of the smart meter program. Id. ¶ 3 n.3. The Commission made no

finding regarding the safety of the smart meters. Id. ¶ 11.

      [¶3] In July 2011, Friedman, joined by others, filed a complaint pursuant to

35-A M.R.S. § 1302(1), contending that customers should not have to pay opt-out

fees and raising issues regarding the health effects of smart meters, among other

things. Friedman I, 2012 ME 90, ¶ 4, 48 A.3d 794. The Commission dismissed

the complaint because all of the issues raised had been “resolved” by the earlier
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investigation and subsequent Opt-Out Orders. Id. ¶ 5. Friedman filed a motion for

reconsideration. Id. After no decision was rendered on the motion, it was denied

by operation of law.     Id.   On October 31, 2011, Friedman appealed.        See

35-A M.R.S. § 1320 (2015).

      [¶4]   On July 12, 2012, we vacated the dismissal of Friedman’s initial

complaint because the Commission, in its Opt-Out Orders, explicitly declined to

make findings on the health and safety of CMP’s smart meters, and therefore had

failed to resolve that issue. Friedman I, 2012 ME 90, ¶¶ 9-11, 48 A.3d 794. We

remanded the case for a determination of whether smart meters pose a “credible

threat” to the health and safety of CMP’s customers. Id. ¶ 10.

      [¶5] On July 24, 2012, the Commission opened an investigation as a result

of our directive in Friedman I. See 35-A M.R.S. §§ 1302(1), 1303 (2015). Over

the course of the following two and a half years, the Commission conducted a

comprehensive investigation into the safety of smart meters, focusing on RF

emitted by smart meters and other related devices. During the investigation, the

Commission received and reviewed substantial quantities of evidence, including,

but not limited to, expert testimony, thousands of pages of peer-reviewed studies,

and reports and findings by both domestic and foreign regulatory bodies. The

Commission succinctly described its approach in assessing the safety of smart

meters, stating that
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      [a] safe utility practice standard should limit both short-term (acute)
      and long-term (chronic) risks to those risks that are reasonable in light
      of the context and purpose of the service and facility. Regulators
      should also consider the magnitude of the risk (the concentrations and
      strength of exposure), the probability of harm (certainty based on
      science, engineering and medical knowledge), and the availability of
      alternatives to the service or facility and mitigation techniques to
      reduce the magnitude and likelihood of possible harm. The utility and
      Commission need to consider a broad range of reasonable operational
      scenarios and exposure scenarios that will be experienced in
      considering what utility practices are safe and what risk mitigation is
      required to meet the safety mandate.

      [¶6] At the conclusion of its investigation, the two Commissioners serving

on the panel found that “AMI, including the use of smart meters, as implemented

and operated by CMP, does not present a credible threat of harm to the health and

safety of CMP’s customers and, based on the record of this proceeding is,

therefore, safe.” Friedman timely appealed. See 35-A M.R.S. § 1320.

                                 II. DISCUSSION

A.    Credible Threat Standard

      [¶7]   “Generally, decisions of the Commission are reviewed only to

determine whether the agency’s conclusions are unreasonable, unjust or unlawful

in light of the record.” Cent. Me. Power Co. v. Pub. Utils. Comm’n, 2014 ME 56,

¶ 18, 90 A.3d 451 (alterations omitted) (quotation marks omitted).                The

Commission must “ensure safe, reasonable and adequate service” pursuant to

35-A M.R.S. § 101 (2015). See also 35-A M.R.S. § 301 (2015). Consistent with
                                                                                   5

this duty, in Friedman I we mandated that the Commission determine whether

smart meters and their associated RF constitute a “credible threat” to the health and

safety of CMP customers. Friedman I, 2012 ME 90, ¶ 10, 48 A.3d 794. Friedman

argues that “ensure” means that any credible evidence of a risk precludes a finding

that smart meters are safe, and therefore the Commissioners impermissibly relaxed

the standard by allowing some potential for harm “in light of the context and

purpose of the service and facility . . . .”

       [¶8] Contrary to Friedman’s contention, and as the Commission noted, “[i]t

is one thing to make a finding that evidence is credible regarding potential harm

and quite another to find there is a legally credible threat of harm—that a credible

threat of harm is in fact credible: likely and probable to result in harm.” (Emphasis

added.) In other words, evidence of a hypothetical future risk is not sufficient to

preclude a finding that CMP satisfied its burden; rather, the threat of harm must be

probable and convincing.           The Commission, therefore, properly rejected

Friedman’s approach because it would require an impractically high threshold for

ensuring safety, and as a result would render nearly all utilities unsafe. The

Commission appropriately applied the credible threat standard such that it

evaluated “what threat or hazard constitutes an acceptably safe level of exposure,”

balancing the potential for harm against the usefulness and pervasiveness of the

technology at issue.
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      [¶9] Friedman also contends that the Commission improperly shifted the

burden of proof as a result of its interpretation of the standard. We need not reach

this issue because, as discussed infra, we conclude that substantial evidence in the

record supports the Commission’s determination that smart meters pose no

credible threat to the health and safety of CMP customers. See Pine Tree Tel. &

Tel. Co. v. Pub. Utils. Comm’n, 631 A.2d 57, 62 (Me. 1993) (stating that

“[b]ecause we find there is substantial evidence in the record to support the

Commission’s decision, we need not consider” an assertion regarding the

allocation of the burden of proof); Cent. Me. Power Co. v. Pub. Utils. Comm’n,

414 A.2d 1217, 1236 n.10 (Me. 1980) (“Since we decide that the

Commission’s . . . Orders were supported by sufficient evidence affirmatively of

record, we have no occasion to be embroiled in the controversy among the parties

as to who may have borne either the burden of coming forward with evidence or

the ultimate burden of proof.”).

B.    Substantial Evidence

      [¶10]   “We review decisions of the Commission deferentially, and will

disturb a decision only when the Commission abuses the discretion entrusted to it,

or fails to follow the mandate of the legislature, or to be bound by the prohibitions

of the constitution.”    Office of the Pub. Advocate v. Pub. Utils. Comm’n,

2015 ME 113, ¶ 15, 122 A.3d 959 (quotation marks omitted). “Our review of the
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Commission’s findings of fact is limited to only a determination whether they are

supported by substantial evidence. If so, there is no legal error and such findings

are final.” New England Tel. & Tel. Co. v. Pub. Utils. Comm’n, 390 A.2d 8, 36

(Me. 1978).

      [¶11] Friedman argues that the Commission’s finding that smart meters are

safe is not supported by substantial evidence in the record. Contrary to Friedman’s

contention, the record is replete with evidence supporting the Commission’s

eighty-two-page order finding that smart meters do not pose a credible threat to the

health and safety of CMP’s customers under reasonable operational scenarios.

Over the course of its comprehensive investigation, the Commission admitted and

reviewed over one-hundred peer-reviewed scientific studies, conducted several

technical proceedings where internationally renowned experts testified and were

cross-examined, and took administrative notice of several documents and exposure

regulations in the United States and beyond. As such, the Commission made its

finding based upon a wealth of evidence.

      [¶12] The evidence supporting the Commission’s finding includes data that

smart meters comply with RF exposure regulations promulgated by the FCC.

Trilliant, the manufacturer of CMP’s smart meters, had the meters tested pursuant

to FCC standards, and this testing showed that the smart meters complied with

FCC exposure limits even at the unrealistically close distance of twenty
8

centimeters from the meter. At average exposure three feet away from a smart

meter, the exposure levels are “five orders of magnitude (roughly 100,000 times)

lower than” the standards set forth by the FCC and the International Commission

on Non-Ionizing Radiation Protection. Trilliant also measured peak exposures at a

distance of three feet and found that the levels were “two orders of magnitude

below” the relevant standards. In addition, in response to concerns about banks of

smart meters—that is, meters grouped together—the FCC indicated that “based on

the practical separation distance and the need for orderly communications among

several devices, even multiple units or ‘banks’ of meters in the same location will

be compliant with the public exposure limits.” In assessing this evidence, the

Commission noted that compliance with FCC standards was not conclusive, but

considered it to be of value in making its safety determination.1

        [¶13]    The Commission’s determination is also supported by extensive

field-testing of smart meters.            The Maine Center for Disease Control and

Prevention, after reviewing studies and evidence submitted to it in 2010, concluded

that “[o]ur review of these agency assessments and studies do[es] not indicate any

consistent or convincing evidence to support a concern for health effects related to

the use of [RF] in the range of frequencies and power used by smart meters.”

    1
    CMP contends that the standards set forth by the FCC preempt the field of radiofrequency exposure.
We do not reach this issue because it is unnecessary in the context and on the record of this case.
                                                                                  9

Consistent with this conclusion, later studies by Exponent, on behalf of CMP; the

Office of the Public Advocate; and the Electric Power Research Institute all

suggested that smart meters comply with relevant RF exposure standards.

      [¶14] In addition to field-testing, the Commission also considered numerous

peer-reviewed studies, many of which focused on the effects of RF emissions from

cell phones, and concluded that “there have been no studies provided or cited that

even purport to indicate negative health effects from the much lower RF exposure

levels from smart meters.” The Commission acknowledged that there had been

some evidence presented of potential future risk posed generally by RF exposure,

but nonetheless concluded that the current state of the evidence was insufficient to

conclude that smart meters amount to a credible threat of harm. In light of all of

this evidence, along with a host of additional studies and information not discussed

in detail here, we conclude that the Commission’s determination is supported by

substantial evidence in the record.

C.    Commissioners’ Concurrence

      [¶15] Pursuant to 35-A M.R.S. § 108-A (2015), a majority of the appointed

Commissioners constitutes a quorum, and the decision of a quorum is the decision

of the Commission. It is undisputed that a majority of Commissioners—that is,

two out of three—were present and made a decision in this case.           However,

Friedman argues that the two Commissioners did not adequately concur in their
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decision because Commissioner Littell, he alleges, required an opt-out provision as

a necessary part of his safety finding, whereas Commissioner Vannoy did not.

       [¶16] Friedman relies on the following two statements in Commissioner

Littell’s Decision to support his assertion that the Commissioner predicated his

safety finding on an opt-out provision for CMP customers: (1) “I find it is not a

reasonable utility practice for CMP to fail to provide sufficient risk mitigation”;

and (2) “[b]ased on the evidence reviewed herein and provided accommodations

are made for those with medical treatment recommendations, CMP and analysis by

other governmental and standards organizations in the record have established the

relative safety of the AMI meters . . . .”

       [¶17] Other statements in the record, however, clearly dispel the notion that

Commissioner Littell’s concurrence was contingent on medical accommodations.

For instance, the Commission’s order explicitly states, under the heading

DECISION, which appears prior to the individual opinions of each Commissioner,

that

       [t]he concurring opinions below take a slightly different approach
       regarding customers with medical treatment recommendations to
       avoid the AMI meters. Commissioner Littell would have CMP
       provide an AMI meter with [the] transmitter off as part of the safety
       determination while Commissioner Vannoy would not impose the
       requirement. Both Commissioner Littell and Commissioner Vannoy
       concur that this difference in approach does not vitiate their
       concurrence regarding the safety of the AMI meters and network in
       use in Maine.
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(Emphasis added.) In very similar wording, the Commissioners reiterated that

their concurrence was not affected by the differing approaches.                See

Friedman et al., Request for Commission Investigation into Smart Meters and

Smart Meter Opt-Out, Nos. 2011-00262, 2012-00412, Order at 8 n.5 (Me. P.U.C.

December 19, 2014).           Consistent with this, in his individual opinion,

Commissioner Littell also states, “In addition to a finding of safety, I would

concurrently adopt the low-cost and limited precautionary measures described

below,” and further states, “I find . . . that low-cost and no-cost risk mitigation

measures are advisable.” (Emphasis added.) Thus, when viewed in the context of

the order as a whole, Commissioner Littell and Commissioner Vannoy

unequivocally concurred in their determination that the CMP smart meters do not

pose a credible threat to the health and safety of CMP customers.

      The entry is:

                      Judgment affirmed.
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On the briefs:

        Bruce A. McGlauflin, Esq., Petruccelli, Martin & Haddow,
        LLP, Portland, for appellants Ed Friedman et al.

        Jordan D. McColman, Esq., Leslie E. Raber, Esq., and Mitchell
        M. Tannenbaum, Esq., Maine Public Utilities Commission,
        Augusta, for appellee Maine Public Utilities Commission

        Kenneth W. Farber, Esq., Central Maine Power Company,
        Augusta, for appellee Central Maine Power Company


At oral argument:

        Bruce A. McGlauflin, Esq., for appellants Ed Friedman et al.

        Jordan D. McColman, Esq., for appellee Maine Public Utilities
        Commission

        Kenneth W. Farber, Esq., for appellee Central Maine Power
        Company



Maine Public Utilities Commission case number 2011-0262
FOR CLERK REFERENCE ONLY
