Federal judge won't dismiss 'smart meter' lawsuit against CMP - Press Herald

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A federal judge has ruled against an effort to dismiss a lawsuit challenging Central Maine Power’s opt-out fees for its “smart meter” program.

A Bowdoinham man with an incurable form of lymphoma filed a lawsuit contending that CMP is violating his rights under the Americans with Disabilities Act by insisting that he pay $40 upfront and $15.71 a month to replace his digital smart meter with an analog version.

Ed Friedman refused to pay the additional fees, and when he rebuffed the company’s demand that he pay $665.55 in accumulated charges and late fees in 2016, CMP cut off his power. Friedman filed his lawsuit last July.

CMP sought to have the suit dismissed, saying among other arguments that the Maine Public Utilities Commission has already ruled that the smart meters are safe.

But federal District Court Judge Jon Levy this week denied CMP’s motion to dismiss and ruled that the case can proceed.

In his ruling, Levy mentioned the argument from Friedman’s lawyers comparing CMP’s fees to charging people in wheelchairs to use a ramp to get into a public building.

“The fee would not be discriminatory under the ADA when charged to a person who could just as easily use the stairs; but imposing the fee on a person in a wheelchair would be discriminatory because that person cannot use the stairs and thus lacks the choice,” Levy wrote.

Smart meters have now mostly replaced analog meters, which required meter readers to check them on a regular basis to determine a customer’s electricity use. CMP said the new meters are more accurate than analog meters because they constantly monitor electricity use and send the information to the utility on a regular basis.

According to the company, the smart meter’s low-power radio, which transmits energy usage data, is similar to devices used to send signals in wireless internet systems, laptop computers and baby monitors.

But critics allege that they aren’t safe, and Friedman’s lawsuit argues that his doctors believe regular exposure to a smart meter could exacerbate the progression of his lymphoma and worsen his symptoms, including “fatigue, cognitive difficulty and memory issues.”

His lawyers argue that Friedman’s decision to use an analog meter isn’t a choice but instead is something he must have to safely access CMP’s electricity service.

In his decision, Levy noted CMP lawyers’ argument that the PUC investigated smart meters for two years and determined that they posed no “credible threat to the health and safety of CMP customers and … (are) therefore, safe.”

But, Levy said, that investigation didn’t look at how exposure to smart meter signals might affect a particular medical condition and, “instead, the question in that proceeding was whether the smart meter program was safe for CMP’s customers at large.”

Levy also concluded that the PUC’s finding didn’t address whether CMP should be required to waive the fees under certain circumstances, and that the lawsuit could help answer that question.

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