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 
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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 
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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.
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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