Central Maine Power Co. v. PUC

• Court: Maine Supreme Court
• Writing for the Court: CLIFFORD, J.
• Citation: Central Maine Power Co. v. PUC, 734 A.2d 1120, 1999 ME 119 (Me. 1999)
• Decision Date: 29 July 1999
• Parties: CENTRAL MAINE POWER CO. v. PUBLIC UTILITIES COMMISSION.

734 A.2d 1120

1999 ME 119

CENTRAL MAINE POWER CO. v. PUBLIC UTILITIES COMMISSION.

Supreme Judicial Court of Maine.

Argued December 1, 1998.

Decided July 29, 1999.

Catherine R. Connors (orally), William D. Hewitt, Pierce Atwood, Portland, for appellant.

Andrew Ketterer, Attorney General, Elizabeth J. Wyman, Asst. Atty. Gen., (orally), Joanne B. Steneck, Public Utilities Commission, Augusta, for appellee.

Eric J. Bryant, Maine Public Advocate, Beth Nagusky, Independent Energy Producers of Maine, Augusta, Eric J. Uhl, Moon, Moss, McGill, Hayes & Shapiro, P.A., Portland, for Maine Civil Liberties Union, amici curiae.

Before CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

CLIFFORD, J.

[¶ 1] Central Maine Power Company (CMP) appeals the Public Utilities Commission's promulgation of a rule (Commission Rule) requiring electric transmission and distribution (T & D) facilities to file with the Commission any educational materials the T & D facilities plan to distribute to the public in regard to retail access to electricity generation services. CMP contends, inter alia, that: (1) the Commission Rule regulates noncommercial core speech; (2) the Commission Rule's section 6(B) pre-dissemination submission requirement constitutes an unconstitutional prior restraint on core speech; and (3) the Commission Rule's section 7 inclusion and correction requirements constitute unconstitutional content-based restrictions on core speech. Although we find no constitutional infirmity in section 7 of the Commission Rule, we agree that the pre-dissemination submission requirement of section 6(B) of the Commission Rule is an unconstitutional prior restraint on core speech and accordingly, we vacate that section of the Commission Rule.

I. RESTRUCTURING AND RETAIL ACCESS

[¶ 2] As have many other states, the Maine Legislature enacted legislation restructuring the state's electricity industry. See P.L.1997, c. 316; see also 35-A M.R.S.A. §§ 3201-3217 (Supp.1998). Beginning on March 1, 2000, Maine citizens will have the right to purchase electricity generation services from the competitive electricity generation provider of their choice. See § 3202(1). Under the current system, Maine residents purchase electricity from integrated, noncompetitive, regulated public utilities. Pursuant to the recent legislation, these investorowned electric utilities are required to divest all assets relating to the generation of electricity. See § 3204(1). They will maintain their transmission and distribution assets, however, and will remain regulated as T & D facilities. The independent electricity generation providers will be licensed by the Commission, but otherwise will not be subject to regulation as public utilities. See §§ 3202(2), 3203(1), (2), (5). After March 1, 2000, T & D facilities "may not own, have a financial interest in or otherwise control generation or generation-related assets[,]" except "to the extent that the [C]ommission finds that ownership, interest or control is necessary for the utility to perform its obligations as a transmission and distribution utility in an efficient manner." See § 3204(5), (6).

[¶ 3] The deregulated system does contemplate affiliations between competitive electricity generation providers and T & D facilities.¹ The statute, however, does not permit a T & D facility to "engage in joint advertising or marketing programs of any sort with its affiliated competitive provider" or "promote or market any product or service offered by its affiliated competitive provider." See § 3205(3)(J) (further prohibiting T & D facilities from promoting affiliated competitive electricity providers in any manner).

[¶ 4] The Legislature gave the Commission the express statutory authority to oversee the transition to the new deregulated system. The statute requires the Commission to establish rules regarding "consumer protection standards and standards to protect and promote market competition in order to protect retail consumers of electricity from fraud and other unfair and deceptive business practices." See § 3203(6). Particularly, the statute requires the Commission to adopt rules implementing an education program to inform consumers about the deregulation process. See § 3213(2).

[¶ 5] On November 3, 1997, the Commission issued a Notice of Rulemaking that set out the proposed Rule establishing a consumer education program, explained each section of the Rule, established a time and place for a public hearing, and identified the procedure for public comment. The notice stated that "the consumer education program is designed to facilitate informed decision making by consumers and to provide an objective and credible source of information to consumers." The costs of education programs undertaken by T & D facilities pursuant to the Commission guidelines may be recoverable through increases in current electricity rates, see proposed Commission Rule § 6(A). In December, CMP submitted comments to the proposed Commission Rule. CMP wrote, "Although CMP is willing to work with the Commission to educate the public on retail access issues, CMP is concerned by the substantial restraints that the proposed rule would impose on an electric utility's First Amendment rights to free speech."

[¶ 6] The Commission conducted a public hearing on the proposed Rule on January 30, 1998. The Commission responded to some stated concerns, provisionally adopted the Rule, and then submitted the Rule to the Legislature for review and approval pursuant to 35-A M.R.S.A. § 3213(2)(C) and 5 M.R.S.A. §§ 8071-8074 (Pamph.1998). The Legislature authorized the final adoption of the Rule with only two minor changes. See Resolves 1997, c. 99. CMP filed this appeal pursuant to 35-A M.R.S.A. § 1320 (1988).

[¶ 7] The following sections of the Commission Rule are the subject of this appeal:

§ 6 UTILITY-SPONSORED EDUCATIONAL ACTIVITIES

A. Ratemaking Treatment. The costs of utility-sponsored educational activities shall not be included in electric or transmission and distribution utility rates unless the utility demonstrates in a ratemaking proceeding that expenditures for utility-sponsored educational activities are reasonable in amount, reasonably effective, necessary and in the public interest.

B. Informational Filings. Electric and transmission and distribution utilities shall file with the Commission, for informational purposes only, any materials that are part of or related to utility-sponsored educational activities. The materials shall be filed, whenever possible, at least three weeks before the commencement of the activity of which the materials are a part or to which the materials relate.

C. Investigation. The Commission may investigate any utility-sponsored educational activity if it finds after a summary investigation that there are sufficient grounds to investigate whether the activity is misleading, deceptive or inaccurate.

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.

§ 7 DISSEMINATION OF INFORMATION

The Commission may require that electric and transmission and distribution utilities disseminate information produced as part of the Commission's consumer education program. Information required to be disseminated by the utility may include correction of any utility-sponsored education activity to the extent such correction is required by the Commission as a result of an investigation, undertaken pursuant to section 6(C).

II. THE FIRST AMENDMENT RIGHT TO FREE SPEECH

[¶ 8] The First Amendment to the United States Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, provides that "Congress shall make no law... abridging the freedom of speech, or of the press...."² U.S. Const. amends. I, XIV; see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The United States Supreme Court has interpreted the First Amendment as preventing governments from proscribing speech or expressive conduct solely on the basis of disapproval of the ideas expressed.³ See R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Freedom from content-based regulation, however, is not absolute. Obscenity and speech tending to incite immediate breach of the peace do not enjoy any First Amendment protection. See, e.g., Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Commercial speech is entitled to a form of intermediate constitutional protection. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562-65, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Only "core speech" or "pure speech" is entitled to strict constitutional protection.⁴ See, e.g., R.A.V., 505 U.S. at 395, 112 S.Ct. 2538.

A. COMMERCIAL SPEECH v. CORE SPEECH

[¶ 9] Commercial speech is "expression related solely to the economic interests of the speaker and its audience," Central Hudson Gas & Elec.,447 U.S. at 561,100 S.Ct. 2343, speech that relates to a particular product or service, see Friedman v. Rogers, 440 U.S. 1, 10, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), or speech that "propose[s] a commercial transaction," Board of Trustees of State Univ. v. Fox, 492 U.S. 469, 473-74, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)). On the other hand, core speech, enjoying the fullest constitutional protection, involves "discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes[,]" Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), speech...