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CMP v. PUC - continued

		2.  THE CORRECTION REQUIREMENTS

	[¶22]  We have concluded that section 6(B)'s requirement that T&D
facilities submit their educational materials to the Commission prior to
dissemination is invalid.  Section 6(C) of the Commission Rule, however,
permits the Commission to hold a public hearing after dissemination and to
order the T&D facility to correct materials the Commission finds to be
misleading, deceptive, or inaccurate.  Section 7 reaffirms that a T&D facility
must disseminate the corrected materials to their consumers.  CMP
contends that these correction requirements unconstitutionally restrict the
free speech rights of T&D facilities.  We are unpersuaded by that contention.
	[¶23]  The correction requirements of section 6(C) remedy harm,
rather than suppress speech, and thus avoid the constitutional infirmities of
the prior restraint set out in section 6(B).  Furthermore, the Commission
has a compelling interest in "work[ing] with [T&D facilities] to ensure
consumers get information that is objective, accurate, and consistent with
[the Commission's consumer education] program messages[,]" given "the
potential for a high degree of customer confusion that can result from retail
competition[.]" See Pacific Gas, 475 U.S. at 19.   The requirement that the
T&D facility correct any information that is misleading, inaccurate, or
deceptive is narrowly tailored to serve this interest.  This requirement is
narrowly focused only on materials that are misleading or deceptive. 
Although the Commission could disseminate its own materials to clarify
misleading, inaccurate, or deceptive statements by a T&D facility as the
transition to deregulation occurs, such action could increase consumer
confusion as the consumers receive different messages from different
sources.  Because the requirement that a T&D facility correct misleading,
inaccurate, or deceptive materials after those materials have been
disseminated serves to remedy harm, rather than suppress speech, in a
manner that is narrowly tailored to achieve a compelling government
interest, the requirement is constitutional.
III. EQUAL PROTECTION GUARANTEES
	[¶24]  The Fourteenth Amendment to the United States Constitution
provides that "[n]o State shall make or enforce any law which shall  . . . deny
to any person within its jurisdiction the equal protection of the laws."{12} 
U.S. Const. amend. XIV.  CMP contends that competitive electricity
generation providers and nonelectric utilities, unlike T&D facilities, are
permitted to disseminate educational materials regarding deregulation
without prior submission to the Commission and without fear of correction
or forced inclusion of Commission materials.  This disparate treatment,
according to CMP, violates equal protection guarantees.
	[¶25]  The Supreme Court has interpreted the Federal Equal
Protection Clause to mean that "all persons similarly circumstanced shall be
treated alike," reasoning that "[t]he Constitution does not require things
which are different in fact or opinion to be treated in law as though they
were the same."  See Plyler v. Doe, 457 U.S. 202, 216 (1982) (citations
omitted).  The entities to which CMP refers as being treated differently are
not similarly situated entities.  After deregulation, T&D facilities will remain
regulated public utilities that fall within the ambit of the Commission's
regulatory authority.  Competitive providers of electricity generation services
must by licensed by the Commission, but thereafter will not be directly
regulated as public utilities.  Furthermore, non-electric utilities such as gas
utilities are not directly implicated by the deregulation of the electricity
generation industry.  Thus, the Equal Protection Clause is not implicated by
the distinctions in the Commission Rule. 
	The entry is:
Section 6(B) of the Public Utilities Commission
Rule is vacated.  Remanded to the Public
Utilities Commission.

Attorneys for appellant: Catherine R. Connors, Esq., (orally) William D. Hewitt, Esq. Pierce Atwood One Monument Square Portland, ME 04101-1110 Attorneys for appellee: Andrew Ketterer, Attorney General Elizabeth J. Wyman, Asst. Atty. Gen., (orally) 6 State House Station Augusta, ME 04333-0006 and Joanne B. Steneck Public Utilites Commission 18 State House Station Augusta, ME 04333-0018 Attorneys for amici curiae: Eric J. Bryant, Esq. Maine Public Advocate 112 State House Station Augusta, ME 04333-0112 Beth Nagusky, Esq. Independent Energy Producers of Maine P O Box 743 Augusta, ME 04332-0743 Eric J. Uhl, Esq. Moon, Moss, McGill, Hayes & Shapiro, P.A. P O Box 7250 Portland, ME 04112-7250 (for Maine Civil Liberties Union)
FOOTNOTES******************************** {1} . Section 3205(1)(A) defines an "affiliated competitive provider" as "a competitive electricity provider whose relationship with a large investor-owned transmission and distribution utility qualifies it as an affiliated interest." An "affiliated interest" is defined as: (1) Any person who owns directly, indirectly or through a chain of successive ownership, 10% or more of the voting securities of a public utility; (2) Any person, 10% or more of whose voting securities are owned, directly or indirectly, by an affiliated interest as defined in subparagraph (1); (3) Any person, 10% or more of whose voting securities are owned directly or indirectly, by a public utility; (4) Any person, or group of persons acting in concert, which the [C]ommission may determine, after investigation and hearing, exercises substantial influence over the policies and actions of a public utility provided that the person or group of persons beneficially owns more than 3% of the public utility's voting securities; (5) Any public utility of which any person defined in subparagraphs (1) to (4) is an affiliated interest. 35­p;A M.R.S.A. § 707(1)(A)(1), (4) (1988). {2} . The Maine Constitution likewise reads, "Every citizen may freely speak, write and publish sentiments on any subject, being responsible for the abuse of this liberty; no laws shall be passed regulating or restraining the freedom of the press . . . ." Me. Const. art. I, § 4. With respect to free speech rights, "[t]he Maine Constitution is no less restrictive than the Federal Constitution." State v. Janisczak, 579 A.2d 736, 740 (Me. 1990). {3} . The Supreme Court has upheld reasonable time, place, or manner restrictions, but only if those restrictions "are justified without reference to the content of the regulated speech . . . ." See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citations omitted). We have also recognized the distinction between content-based restrictions and reasonable time, place, and manner restrictions. See Janisczak, 579 A.2d at 739 n.6. Because the Commission will require the T&D facilities to change the content of the education materials with which the Commission disagrees, the parties agree the restrictions are content-based. {4} . In recent Supreme Court cases, several justices, writing in concurrence, have suggested that the lower constitutional standard for commercial speech is inappropriate in circumstances when the state imposes a complete ban on information for paternalistic reasons. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 523, 526 (1996) (Thomas, J. concurring). Those concerns have not been raised in this case. {5} . The speech of heavily regulated monopolies likewise is protected by the First Amendment. See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 534 n.1 (1980). {6} . Prior to the enactment of the Commission Rule, CMP designed a brochure to answer consumer questions about deregulation. The materials educate the public about deregulation. They do reference CMP's affiliates generally, but not by name. In response to the question, "Can I decide to continue purchasing power from CMP?," the brochure states, "Customer[s] may be able to purchase electricity from an affiliate of CMP but Maine's law prohibits a CMP marketing affiliate from selling more than 33% of the kilowatt hours sold in its current service territory. If 33% is reached, you will have to find another supplier." In response to the question, "Who will be selling electricity?," the brochure states, "New, unregulated energy companies associated with CMP and Bangor Hydro can offer electricity to you, as long as they don't provide more than 33% of the electricity sold in their current territories." Those are the only two references to affiliates of CMP. Given the overall educational value of these materials, it would be difficult to characterize them as commercial speech. See Pacific Gas & Elec. Co. v. PUC, 475 U.S. 1, 8-9 (1986) (electric company newsletter that included energy saving tips, stories about wildlife conservation, recipes, and billing information received full constitutional protection because newsletter extends well beyond speech that proposes business transaction and discusses matters of public concern). {7} . The Commission contends that the prior restraint doctrine is inapplicable to regulated utilities. The Supreme Court has not directly applied the prior restraint doctrine in a regulated utility context. In Central Hudson Gas and Electric, the Supreme Court invalidated the Public Service Commission order banning advertising that promotes the use of electricity. See 447 U.S. at 569-570. The Supreme Court, however, noted that the Public Service Commission "might consider a system of previewing advertising campaigns to insure that they will not defeat conservation policy." Id. at 571 n.13. We read this not as a suggestion that there is an exception to the prior restraint doctrine for highly regulated industries, but rather as being based on the commercial nature of the speech because, as the court explained, "commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it." Id. {8} . After the three week period, a T&D facility is free to disseminate its materials, even if a public hearing is pending. In circumstances when a public hearing cannot be concluded within the three week period, the T&D will have disseminated the materials prior to any determination by the Commission that the content of the materials must be changed. Requiring the T&D facility to change the contents of its material after dissemination is technically subsequent punishment, not a prior restraint. Still, the T&D facility will have been forced to postpone its publication during that three week period. The ultimate ability to disseminate the desired communication does not change the fact that there is a period of time during which the T&D facility would be denied the ability to exercise its free speech rights. {9} . CMP suggests that civil penalties totaling up to $1,000 may be available for failure to comply with Commission requirements. See 35-A M.R.S.A. § 1508 (1988). The Commission notes, however, that the general penalty provisions of Title 35-A are not applicable to violations of this Rule and were not even mentioned during the promulgation of the Rule. {10} . CMP also contends that the language of section 6(B) of the Commission Rule is unconstitutionally vague. Because we strike the language as an unconstitutional prior restraint on core speech, we do not address this issue. {11} . Section 6(C) of the Commission Rule provides, "If after a public hearing, the Commission finds that the utility-sponsored activity is misleading, deceptive or inaccurate, it may by order require the utility to cease the activity and provide corrections of that activity." {12} . Similarly, article I, section 6-A of the Maine Constitution states that "[n]o person shall be . . . denied the equal protection of the laws. . . ." The equal protection guarantees of these provisions are coextensive. See Beaulieu v. City of Lewiston, 440 A.2d 334, 338 n.4 (Me. 1982).

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