Justices grill attorneys over PUC decision on 'smart' meters

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PORTLAND — Justices responded skeptically Thursday morning to arguments on behalf of the Maine Public Utilities Commission as the Maine Supreme Judicial Court heard an appeal of a commission decision that allowed installation of wireless “smart” electric meters.

In a 40-minute hearing on an appeal brought by Bowdoinham resident Ed Friedman and 18 other plaintiffs, justices were asked to overturn the PUC’s rejection of a complaint filed last summer about health, safety and constitutional issues raised by the Central Maine Power Co. program.

The so-called “smart” meters transmit usage and other data via radio frequency waves sent through a grid of receivers and transmitters. CMP, using money from the American Recovery and Reinvestment Act, began installing them in its coverage area in late summer 2010.

Attorney Bruce A. McGlauflin, who represents the plaintiffs, said he hopes for a decision next month on whether the commission properly dismissed the complaint.

Friedman was more direct. “We would like to overturn the whole program,” he said.

At the outset of the hearing, McGlauflin was grilled by justices on why they, instead of a Superior Court judge, were hearing the appeal of the PUC decision. Chief Justice Leigh Sauffley also asked McGlauflin if the complaint rejected by the PUC last summer, after an earlier PUC decision requiring an opt-out program, presented new evidence.

McGlauflin conceded there was no new information in the complaint, but asserted the right of citizens to file an additional complaint while saying it was not a specific appeal of the earlier PUC decision.

The complaint rejected by the PUC last summer also argued that the opt-out plan, which charges customers extra fees for keeping conventional meters or having the wireless capability of new ones disabled, violates the Fourth Amendment of the U.S. Constitution because customers are paying fees to avoid the potential dangers and invasion of privacy the meters represent.

Friedman and McGlauflin said they were disappointed justices did not ask more about constitutional issues, but McGlauflin said the overall line of questioning was fine with him.

“They are very fair beating up on everybody,” he said.

PUC attorney Catherine Connors and CMP attorney Jordan McColman declined comment after the hearing. They faced even sharper questions from the justices on whether the PUC needed to be on the record regarding the safety of smart meters in order to fully protect consumers.

The attorneys argued the PUC relied on information from the Maine Center for Disease Control and Federal Communications Commission to establish there were no health concerns caused by smart meters.

But the lack of a specific declaration especially troubled Sauffley and Justice Jon D. Levy.

“What they could have added was their judgment,” Sauffley told Connors in regard to the PUC decision requiring the opt-out program for CMP customers.

Customers who want to keep their current meters must pay a one-time $40 fee and monthly $12 fee. Customers requesting a new meter with the wireless transmission capabilities disabled are assessed a one-time $20 fee and a $10.50 monthly charge.

Levy asked Connors and McColman how the PUC could reject the complaint from Friedman and others based on the idea it felt health questions were adequately resolved.

“I can’t find that in any of the orders,” he said.

Justice Ellen Gorman asked McColman directly if the PUC considered meters safe, and Sauffley remained unsatisfied with his answer that the commission relied on other information without making a specific determination.

“Does that not misapprehend commission duties?” she asked.

CMP has about 620,000 accounts in a coverage area extending from Kittery to mid-coast Maine and southern Oxford County bordering New Hampshire.

Shortly after the company began removing older meters in favor of wireless ones  in the Portland area, town councils in Scarborough and Cape Elizabeth passed moratoriums on the installations.

At that time, Scarborough resident Elisa Boxer-Cook and others filed complaints with the PUC about the meters and mandatory installations, which eventually led to creation of the opt-out program.

In Bath, councilors extended a moratorium on mass installations last December, requiring customer approval for any conversion to the smart meters.

When asked by Justice Andrew M. Mead if an opt-out program with no fees would satisfy Fourth Amendment violations, McGlauflin said it would to a degree, but argued the meters themselves are a form of trespassing by a monopoly.

Friedman and McGlauflin also said the opt-out program will not help residents of multi-unit buildings, because adjacent meters will still present health hazards.

The case, docket No. PUC-11-532, is Ed Friedman, et al. v. Maine Public Utilities Commission and Central Maine Power Co.

David Harry can be reached at 781-3661 ext. 110 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.

Portland City Hall reporter for The Forecaster. Baltimore native, lived in Maine since 1989. A journalist since 2005, covering much of Cumberland and York counties. I joined The Forecaster in 2012.