Ed Friedman v. Public Utilities Commission, 132 A.3d 183

CMP installed an advanced metering infrastructure (AMI) "smart meter" program approved by the Maine PUC in 2010; customers raised health concerns about radiofrequency (RF) emissions.
The PUC issued opt-out orders (2011) requiring CMP to offer alternatives and fees, but explicitly declined to rule on safety.
Friedman and others filed a complaint under 35-A M.R.S. § 1302(1) challenging safety and opt-out fees; the PUC initially dismissed the complaint and the dismissal was vacated by the Maine Supreme Judicial Court in Friedman I (2012), which remanded for a determination whether smart meters pose a "credible threat" to health and safety.
The PUC conducted a multi-year investigation, admitting over 100 peer-reviewed studies, expert testimony, field tests, and regulatory materials, focusing on RF exposure from meters.
The two Commissioners on the deciding panel concluded that CMP’s AMI, as implemented, does not present a credible threat to customer health or safety and is therefore safe.
Friedman appealed, arguing improper standard/burden, lack of substantial evidence, and lack of concurrence among Commissioners; the court affirmed the PUC.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper standard for "credible threat"	Friedman: any credible evidence of risk defeats safety; PUC must "ensure" no credible risk	PUC: "credible threat" means likely/probable harm, not mere hypothetical or speculative evidence; balance risk against utility context	Court: PUC applied correct standard — threat must be probable and convincing, not hypothetical
Burden of proof allocation	Friedman: PUC shifted/relaxed burden by its standard interpretation	PUC: standard reasonable; allocation need not be reached if record supports decision	Court: Declined to decide burden issue because substantial evidence supports PUC’s determination
Sufficiency of evidence (substantial evidence)	Friedman: record lacks substantial evidence to support safety finding	PUC/CMP: extensive record (peer-reviewed studies, field tests, FCC compliance, expert testimony) supports safety	Court: Substantial evidence supports PUC’s finding that smart meters do not pose a credible threat
Commissioners’ concurrence	Friedman: Commissioners did not truly concur because Littell conditioned concurrence on opt-out/medical accommodations	PUC: Both Commissioners explicitly stated concurrence despite differing remedial views	Court: Commissioners sufficiently concurred; differing approaches did not vitiate concurrence

Friedman v. Pub. Utils. Comm’n, 48 A.3d 794 (Me. 2012) (remanding for determination whether smart meters present a "credible threat")
Cent. Me. Power Co. v. Pub. Utils. Comm’n, 90 A.3d 451 (Me. 2014) (deferential review of PUC decisions for reasonableness)
Office of the Pub. Advocate v. Pub. Utils. Comm’n, 122 A.3d 959 (Me. 2015) (standards for reviewing agency discretion and statutory compliance)
Pine Tree Tel. & Tel. Co. v. Pub. Utils. Comm’n, 631 A.2d 57 (Me. 1993) (if substantial evidence exists, court need not resolve burden allocation disputes)
Cent. Me. Power Co. v. Pub. Utils. Comm’n, 414 A.2d 1217 (Me. 1980) (same principle regarding burden when record supports agency order)
New England Tel. & Tel. Co. v. Pub. Utils. Comm’n, 390 A.2d 8 (Me. 1978) (findings of fact upheld if supported by substantial evidence)