196.795(5)(p)2.
2. For purposes of
subd. 1., the assets of each nonutility affiliate shall be determined by doing all of the following:
196.795(5)(p)2.a.
a. Subtracting from the nonutility affiliate's total assets the amount of the nonutility affiliate's investment in other utility and nonutility affiliates with which the nonutility affiliate is in a holding company system.
196.795(5)(p)2.b.
b. Multiplying the amount derived under
subd. 2. a. by the quotient of the amount of the direct ownership interest in such nonutility affiliate owned by persons who are not with the nonutility affiliate in the holding company system, if such ownership by such persons is greater than one-half of the total ownership interest in such nonutility affiliate, divided by the total ownership interest in such nonutility affiliate.
196.795(5)(p)3.
3. Within 36 months after it is formed, a holding company formed on or after November 28, 1985, may not have nonutility affiliate assets exceeding 40% of the maximum amount allowed under
subd. 1.
196.795(5)(p)4.
4. If the commission establishes a percentage of assets under
subd. 1. b. or
c. which is greater than 25%, any subsequent reduction of such percentage by the commission may not take effect until the last day of the 12th month following issuance of the order establishing the reduction or until a later date which the commission sets and which the commission determines to be reasonable after considering the size of the reduction and which is no later than 36 months following issuance of the order establishing the reduction.
196.795(5)(q)1.1. No nonutility affiliate or joint venture or partnership with a nonutility affiliate as a member or partner may, in the service territory of a public utility affiliate with which it is in a holding company system, sell at retail, lease, install, maintain or service any appliance that uses as its primary energy source energy supplied by that public utility affiliate under rates and tariffs approved by the commission, if the appliance is, or is intended to be, located in any building used primarily for residential occupancy or in any commercial building unless the building is owned or operated by the holding company or by its nonutility affiliates or unless the commission determines, after notice and hearing, that the selling at retail, leasing, installing, maintaining or servicing of the appliance will not do any of the following:
196.795(5)(q)1.a.
a. So as to violate
ch. 133 or any other applicable state or federal antitrust law, lessen competition or tend to create a monopoly, restrain trade or constitute an unfair business practice.
196.795(5)(q)1.b.
b. Make use of any customer list, other confidential information, logo or trademark obtained from a public utility affiliate in a manner unfair to competitors.
196.795(5)(q)2.
2. Except as provided under
subd. 3., no public utility affiliate or its subsidiary or joint venture or partnership having a utility affiliate or its subsidiary as a member or partner may, in the service territory of the public utility affiliate, sell at retail, lease, install, maintain or service any appliance that uses as its primary energy source energy supplied by that public utility affiliate under rates and tariffs approved by the commission, unless the appliance is located in facilities owned or operated by that public utility affiliate or its subsidiary or unless the appliance is sold, leased, installed, maintained or serviced:
196.795(5)(q)2.a.
a. In response to circumstances which reasonably appear to the public utility affiliate or its subsidiary to endanger human health or life or property;
196.795(5)(q)2.b.
b. Under any appliance sale or service plan or program in effect on March 1, 1985; or
196.795(5)(q)2.c.
c. Under any energy conservation or other program which a state law, state agency, federal law or federal agency requires the public utility or public utility affiliate to perform.
196.795(5)(q)3.
3. Notwithstanding
subd. 2., a public utility affiliate or its subsidiary may sell, lease, install, maintain or service an appliance which is in its public utility service territory and which uses as its primary energy source energy supplied by the public utility affiliate under rates and tariffs approved by the commission if:
196.795(5)(q)3.a.
a. The installation, maintenance or service of the appliance is performed by an independent contractor which is not in the holding company system of the public utility affiliate and which is regularly engaged in, qualified and, if required by any state or local governmental unit, licensed to perform heating, ventilation, air conditioning, electrical or plumbing work; or
196.795(5)(q)3.b.
b. The commission determines, after notice and hearing, that the sale, lease, installation, maintenance or service of the appliance, if conducted by the public utility affiliate's employes or by the employes of the public utility affiliate's subsidiary, will not, so as to violate
ch. 133 or any other applicable state or federal antitrust law, lessen competition, tend to create a monopoly, restrain trade or constitute an unfair business practice.
196.795(5)(q)4.
4. No nonutility affiliate may sell at wholesale to any person any appliance, except a swimming pool or spa heater, for delivery in this state unless the nonutility affiliate is engaged in the production, manufacture, fabrication or assembly of any component part of the appliance.
196.795(5)(r)
(r) No public utility affiliate may permit the use of any public utility affiliate employe's services by any nonutility affiliate with which it is in a holding company system except by contract or arrangement. Any such contract or arrangement made or entered into on or after November 28, 1985, for the use of any public utility affiliate employe's services by a nonutility affiliate shall have prior written approval of the commission before it is effective. The commission shall approve such contract or arrangement if it is established upon investigation that the nonutility affiliate will compensate the public utility affiliate for the use of the employe's services at the fair market value of the employe's service and that the nonutility affiliate's use of the employe's services will not result in unjust discrimination against, or have an anticompetitive impact on, any competitor of the nonutility affiliate. The commission may not approve any such contract or arrangement if it determines that the potential burden of administering such contract or arrangement is greater than the potential benefits to the public utility affiliate's customers or if it determines that the public utility affiliate has not minimized the use of such employes by nonutility affiliates in the holding company system. Any contract or arrangement in effect on November 28, 1985, for the continued or future use of any public utility affiliate employe's services by a nonutility affiliate approved under
s. 196.52 shall be resubmitted for approval by the commission under this paragraph within 90 days after November 28, 1985. Such contract or arrangement, if approved by the commission, shall take effect within 60 days after the date of approval.
196.795(5)(s)
(s) In this paragraph, "property" means any equipment, facilities, property or other nonmonetary item of value except real property and utility service which is provided by the public utility affiliate on the same terms or conditions to all consumers in the same class. No public utility affiliate may sell, lease, transfer to or exchange with any nonutility affiliate with which it is in a holding company system any property except by contract or arrangement. Any such contract or arrangement made or entered into on or after November 28, 1985, for the sale, use, transfer or exchange of any public utility affiliate's property by a nonutility affiliate shall have the prior written approval of the commission before it is effective. The commission shall approve such contract or arrangement if it is established upon investigation that the nonutility affiliate will compensate the public utility affiliate for selling, leasing, transferring to or exchanging with the nonutility affiliate any property at the fair market value of the property and that the nonutility affiliate's acquisition or lease of the property will not result in unjust discrimination against, or have an anticompetitive impact on, any competitor of the nonutility affiliate. The commission may not approve any such contract or arrangement if it determines that the potential burden of administering such contract or arrangement is greater than the potential benefits to the public utility affiliate's customers or if it determines that the public utility affiliate has not minimized selling, leasing, transferring to or exchanging with nonutility affiliates in the holding company system such property. Any contract or arrangement which is in effect on November 28, 1985, for a public utility affiliate to sell, lease, transfer to or exchange with a nonutility affiliate, on a continuing basis or in the future, the public utility affiliate's property and which is approved under
s. 196.52 shall be resubmitted for approval by the commission under this paragraph within 90 days after November 28, 1985. Such contract or arrangement, if approved by the commission, shall take effect within 60 days after approval.
196.795(6)
(6) Reporting requirements. No more than 10 business days after a holding company forms, organizes or acquires a nonutility affiliate, the holding company shall notify the commission of the formation, organization or acquisition and shall provide the commission with the following information:
196.795(6)(a)
(a) The name, identification of officers and corporate relationship of the nonutility affiliate to the holding company and utility affiliate.
196.795(6)(b)
(b) A copy of any proposed agreement or arrangement between the nonutility affiliate and the public utility affiliate.
196.795(6)(c)
(c) A brief description of the nature of the business of the nonutility affiliate, including its most recent public annual financial statement.
196.795(6)(d)
(d) As of the last day of the calendar year immediately preceding the date of the notification under this subsection, the total amount of assets held by the nonutility affiliate, the amount of such assets located within this state, the total number of employes and the total number of employes located in this state. The holding company shall report the information required under this paragraph to the commission annually no later than March 31. The information shall be available to the public upon filing.
196.795(7)(a)(a) No sooner than the first day of the 36th month after the formation of a holding company and at least once every 3 years thereafter, the commission shall investigate the impact of the operation of every holding company system formed on or after November 28, 1985, on every public utility affiliate in the holding company system and shall determine whether each nonutility affiliate does, or can reasonably be expected to do, at least one of the following:
196.795(7)(a)1.
1. Substantially retain, substantially attract or substantially promote business activity or employment or provide capital to businesses being formed or operating within the wholesale or retail service territory, within or outside this state, of:
196.795(7)(a)1.b.
b. Any public utility or member of a cooperative association organized under
ch. 185 which files or has filed a plan under
s. 196.491 (2).
196.795(7)(a)2.
2. Increase or promote energy conservation or develop, produce or sell renewable energy products or equipment.
196.795(7)(a)3.
3. Conduct a business that is functionally related to the provision of utility service or to the development or acquisition of energy resources.
196.795(7)(a)4.
4. Develop or operate commercial or industrial parks in the wholesale or retail service territory of any public utility affiliate.
196.795(7)(am)
(am) Funds utilized by a nonutility affiliate for any of the following may not be considered by the commission in making any determination under
par. (a):
196.795(7)(am)1.
1. The purchase or sale of securities or other appropriate cash management practices.
196.795(7)(am)2.
2. The establishment and maintenance of cash accounts in banks or other financial institutions.
196.795(7)(ar)
(ar) Three years after the formation of a holding company under this section, the commission shall report its findings under
par. (a) to the chief clerk of each house of the legislature, for distribution to the legislature under
s. 13.172 (2). Thereafter the commission shall, based on its existing investigative findings, rate reviews and other relevant information, submit to the chief clerk of each house of the legislature, for distribution to the legislature under
s. 13.172 (2), a report on the impact of the holding company, including the benefits and adverse effects on every public utility affiliate in the holding company system and on the investors and consumers of such public utility affiliates, at least once every 2 years. The report shall include any recommendations for legislation relating to the regulation of any part of a holding company system.
196.795(7)(b)
(b) The commission, on its own motion, or, at its discretion, upon the complaint of any person, may, after reasonable notice and an opportunity for hearing, conduct an investigation to determine if any practice of a holding company system violates any provision of
sub. (5) (b) to
(s) or any limitation, term or condition imposed under
sub. (2) (e) or
(f). If the commission finds after investigation, notice and opportunity for hearing that any practice of any company in a holding company system violates any provision of
sub. (5) (b) to
(s) or any term, limitation or condition imposed under
sub. (2) (e) or
(f), the commission, by order or otherwise, shall direct the company to modify or cease the practice. Such order is reviewable under
ch. 227. The circuit court of Dane county, by appropriate process including the issuance of a preliminary injunction by suit of the commission, may enforce an order to cease or modify a practice under this paragraph.
196.795(7)(c)
(c) The commission, after investigation and a hearing, may order a holding company to terminate its interest in a public utility affiliate on terms adequate to protect the interests of utility investors and consumers and the public, if the commission finds that, based upon clear and convincing evidence, termination of the interest is necessary to protect the interests of utility investors in a financially healthy utility and consumers in reasonably adequate utility service at a just and reasonable price. The circuit court of Dane county may enforce by appropriate process an order establishing a plan of reorganization to terminate a holding company system's interest in a public utility affiliate. Any such order of the commission issued under this paragraph may be reviewed under
ch. 227.
196.795(8)(a)(a) This section does not apply to any holding company which was organized or created before November 28, 1985, and which was not organized or created by or at the direction of a public utility.
196.795(8)(b)
(b) This section does not apply to any telecommunications utility.
196.795(9)
(9) Protection of business information. If the commission obtains business information from a holding company system which, if disclosed to the public, would put any nonutility affiliate in the holding company system at a material competitive disadvantage, the information is not subject to
s. 19.35 and the commission shall protect such information from public disclosure as if it were a trade secret as defined in
s. 134.90 (1) (c).
196.795(9m)
(9m) Private cause of action. Any company in a holding company system which does, causes or permits to be done any prohibited action under
sub. (5) (c) to
(dr),
(f),
(h),
(k),
(n),
(q),
(r) or
(s), or fails to comply with any term, limitation or condition imposed under
sub. (2) (e) or
(f) consistent with
sub. (5) (c) to
(dr),
(f),
(h),
(k),
(n),
(q),
(r) or
(s), is liable to any person injured thereby in treble the amount of damages sustained in consequence of the prohibited action or failure to act.
196.795(10)
(10) Commission intervenor authority. The commission may intervene on behalf of this state in any proceeding before any state or federal agency or court before which an application or issue related to this section is pending. The commission may enter into any binding settlement related to any proceeding in which the commission has intervened and may exercise any power or right necessary to accomplish the intervention.
196.795(10m)
(10m) Small business protection. In this subsection, "small business" means a business which has had less than $5,000,000 in gross annual sales in the most recent calendar year or fiscal year and which has less than 150 employes. The commission shall provide assistance, monitoring and advocacy in protecting small business interests under
s. 196.795 in any action or proceedings before the commission.
196.795(11)(a)(a) This section may not be deemed to diminish the commission's control and regulation over the operations and assets of any public utility.
196.795(11)(b)
(b) This section shall be deemed to legalize and confirm the formation, prior to November 28, 1985, of any holding company, which is not itself a public utility, and shall be deemed to legalize and confirm the operations and issuances of securities of the holding company, except that nothing in this section shall be deemed to prevent the commission from imposing reasonable terms, limitations or conditions on any holding company which are consistent with and necessary to satisfy the requirements of
sub. (5) (b) to
(o) and
(q) to
(s) or which relate to future investments by the holding company unless the holding company owns, operates, manages or controls a telecommunications utility and does not also own, operate, manage or control a public utility which is not a telecommunications utility.
196.795 Note
NOTE: This section was created by
1985 Act 79. Section 1 of that Act is entitled "Findings and purpose."
196.80
196.80
Consolidation or merger of utilities. 196.80(1g)
(1g) In this section, "public utility" does not include a telecommunications utility.
196.80(1m)
(1m) With the consent and approval of the commission but not otherwise a public utility may:
196.80(1m)(a)
(a) Merge or consolidate with one or more other public utilities.
196.80(1m)(b)
(b) Acquire the stock of any other public utility or any part thereof.
196.80(1m)(d)
(d) Consolidate or merge with any Wisconsin corporation if substantially all of the assets of the corporation consist of the entire stock of the public utility. The total of the resulting securities outstanding of the possessor corporation which have not been authorized previously under
ch. 184 shall require authorization under
ch. 184 as a condition precedent to the merger or consolidation.
196.80(1m)(e)
(e) Sell, acquire, lease or rent any public utility plant or property constituting an operating unit or system.
196.80(3)
(3) The interested public utility shall make an application for the approval and consent of the commission under this section. The application shall contain a concise statement of the proposed action, the reasons for the action and any other information required by the commission. If an application is filed, the commission shall investigate the application. The investigation may be with or without public hearing. If the commission conducts a public hearing, the hearing shall be upon such notice as the commission may require. If the commission finds that the proposed action is consistent with the public interest, it shall give its consent and approval in writing. In reaching its determination the commission shall take into consideration the reasonable value of the property and assets of the corporation to be acquired or merged.
196.80(5)
(5) Any transaction required under this section to be submitted to the commission for its consent and approval shall be void unless the commission gives its consent and approval to the transaction in writing.
196.80(6)
(6) Nothing in this section may be construed to limit any authority conferred by statute upon the commission before June 27, 1935.
196.805
196.805
Consolidation or merger of telecommunications utilities. 196.805(1)(1)
Notice. A telecommunications utility shall provide the commission with adequate notice of any consolidation, merger or acquisition listed in
sub. (2) not more than 10 business days after the completion of the consolidation, merger or acquisition. The commission shall retain continuing supervisory jurisdiction over the telecommunications utility, as necessary to enforce
ss. 196.204 and
196.219.
196.805(2)
(2) Applicability. This section applies to any of the following actions of a telecommunications utility:
196.805(2)(a)
(a) Merger or consolidation with one or more other public utilities.
196.805(2)(b)
(b) Acquisition of 5% or more of the stock of any other public utility.
196.805(2)(c)
(c) Consolidation or merger with any Wisconsin corporation if substantially all of the assets of the corporation consist of the entire stock of the public utility.
196.805(2)(d)
(d) Sale, acquisition, lease or rental of any telecommunications utility plant or property constituting an operating unit or system.
196.805(2)(e)
(e) Acquisition of the majority of the stock of a telecommunications utility by other than a public utility.
196.805 History
History: 1993 a. 496.
196.81
196.81
Abandonment; commission approval required. 196.81(1)(1) No public utility may abandon or discontinue any line or extension or service thereon without first securing the approval of the commission. In granting its approval, the commission may impose any term, condition or requirement it deems necessary to protect the public interest. If a public utility abandons or discontinues a line or extension or service thereon upon receiving commission approval, the public utility shall be deemed to have waived any objection to any term, condition or requirement imposed by the commission in granting the approval.
196.81(2)
(2) The commission may not approve a request by an electric or telecommunications utility to abandon a right-of-way, unless the commission requires the public utility to remove any pole at ground level from the right-of-way and any other structure which extends more than 3 feet above ground level and which belongs to the utility at the time of abandonment. If the commission approves a request under this section it shall require any part of the abandoned right-of-way which is in a rural area and which was obtained by the utility by condemnation to be disposed of by the utility within 3 years from the date of approval. The commission may rescind the disposal requirement if the utility applies for rescission within 6 months prior to the end of the 3-year period and if the commission finds that the requirement would subject the utility to undue hardship.
196.81(3)
(3) This section does not apply to a service discontinuance by a telecommunications utility.
196.84
196.84
Commission's holding company and nonutility affiliate regulation costs. Under rules promulgated by the commission, a holding company, as defined in
s. 196.795 (1) (h) or a nonutility affiliate, as defined under
s. 196.795 (1) (j), shall compensate the commission for the cost of any increase in regulation of any public utility affiliate, as defined under
s. 196.795 (1) (L), which is with the holding company or nonutility affiliate in a holding company system as defined in
s. 196.795 (1) (i), if the commission determines that the increase is reasonably required in order for the commission to implement and enforce
s. 196.795. Such compensation may not be recovered directly or indirectly from any public utility affiliate. The commission shall assess such compensation using the procedure prescribed in
s. 196.85, except that no advance payment of a remainder assessment under
s. 196.85 (2) may be required for the first 2 fiscal years after November 28, 1985. No assessment may be made under this section against any holding company or nonutility affiliate for any time worked by any person under
s. 196.795 (10m) if the time is properly assessable for utility regulation under
s. 196.85. For the purpose of calculating cost increases under this section, 90% of the cost increases determined shall be costs of the commission and 10% of the cost increases determined shall be costs of state government operations.
196.84 History
History: 1985 a. 79;
1991 a. 269.
196.85
196.85
Payment of commission's expenditures by utilities. 196.85(1)(1) If the commission in a proceeding upon its own motion, on complaint, or upon an application to it deems it necessary in order to carry out the duties imposed upon it by law to investigate the books, accounts, practices and activities of, or make appraisals of the property of any public utility, power district or sewerage system or to render any engineering or accounting services to any public utility, power district or sewerage system, the public utility, power district or sewerage system shall pay the expenses attributable to the investigation, including the cost of litigation, appraisal or service. The commission shall mail a bill for the expenses to the public utility, power district or sewerage system either at the conclusion of the investigation, appraisal or services, or during its progress. The bill constitutes notice of the assessment and demand of payment. The public utility, power district or sewerage system shall, within 30 days after the mailing of the bill pay to the commission the amount of the special expense for which it is billed. Ninety percent of the payment shall be credited to the appropriation account under
s. 20.155 (1) (g). The total amount in any one calendar year for which any public utility, power district or sewerage system is liable, by reason of costs incurred by the commission within the calendar year, including charges under
s. 184.10 (3), may not exceed four-fifths of one percent of its gross operating revenues derived from intrastate operations in the last preceding calendar year. Nothing in this subsection shall prevent the commission from rendering bills in one calendar year for costs incurred within a previous year. For the purpose of calculating the costs of investigations, appraisals and other services under this subsection, 90% of the costs determined shall be costs of the commission and 10% of the costs determined shall be costs of state government operations.
196.85(1m)
(1m) For the purpose of direct assessment under
sub. (1) of expenses incurred by the commission in connection with its activities under
s. 196.491, the term "public utility" includes electric utilities as defined in
s. 196.491 (1) (d).
196.85(2)
(2) The commission shall annually, within 90 days of the commencement of each fiscal year, calculate the total of its expenditures during the prior fiscal year which are reasonably attributable to the performance of its duties relating to public utilities, sewerage systems and power districts under this chapter and
chs. 66,
184 and
198 and expenditures of the state for state government operations to support the performance of such duties. For purposes of such calculation, 90% of the expenditures so determined shall be expenditures of the commission and 10% of the expenditures so determined shall be expenditures for state government operations. The commission shall deduct from this total all amounts chargeable to public utilities, sewerage systems and power districts under
sub. (1) and
s. 184.10 (3). The commission shall assess a sum equal to the remainder plus 10% of the remainder to the public utilities and power districts in proportion to their respective gross operating revenues during the last calendar year, derived from intrastate operations. If, at the time of payment, the prior year's expenditures made under this section exceeded the payment made under this section in the prior year, the commission shall charge the remainder to the public utilities and power districts in proportion to their gross operating revenues during the last calendar year. If, at the time of payment it is determined that the prior year's expenditures made under this section were less than the payment made under this section in the prior year, the commission shall credit the difference to the current year's payment. The assessment shall be paid within 30 days after the bill has been mailed to the public utilities and power districts. The bill constitutes notice of the assessment and demand of payment. Ninety percent of the payment shall be credited to the appropriation account under
s. 20.155 (1) (g).
196.85(2m)
(2m) Annually, the commission shall assess telecommunications utilities for the cost of one attorney position in the department of justice to provide services relating to telecommunications matters and for the cost of supplies, services and equipment related to that position. The amounts received under this subsection shall be credited to the appropriation under
s. 20.455 (1) (kt). This subsection does not apply after June 30, 1999.
196.85(3)
(3) If any public utility, sewerage system or power district is billed under
sub. (1) or
(2) and fails to pay the bill within 30 days or fails to file objections to the bill with the commission, as provided in this subsection, the commission shall transmit to the state treasurer a certified copy of the bill, together with notice of failure to pay the bill, and on the same day the commission shall mail by registered mail to the public utility, sewerage system or power district a copy of the notice which it has transmitted to the state treasurer. Within 10 days after the receipt of notice and certified copy of the bill the state treasurer shall levy the amount stated on the bill to be due, with interest, by distress and sale of any property, including stocks, securities, bank accounts, evidences of debt, and accounts receivable belonging to the delinquent public utility, sewerage system or power district. The levy by distress and sale shall be governed by s.
74.10, 1985 stats., except that it shall be made by the state treasurer and that goods and chattels anywhere within the state may be levied upon.
196.85(4)(a)(a) Within 30 days after the date of the mailing of any bill under
subs. (1) and
(2) the public utility, sewerage system or power district that has been billed may file with the commission objections setting out in detail the grounds upon which the objector regards the bill to be excessive, erroneous, unlawful or invalid. The commission, after notice to the objector, shall hold a hearing upon the objections, from 5 to 10 days after providing the notice. If after the hearing the commission finds any part of the bill to be excessive, erroneous, unlawful or invalid it shall record its findings upon its minutes and transmit to the objector by registered mail an amended bill, in accordance with the findings. The amended bill shall have the same force and effect under this section as an original bill rendered under
subs. (1) and
(2).
196.85(4)(b)
(b) If after such hearing the commission finds the entire bill unlawful or invalid it shall notify the objector by registered mail of such determination, in which case said original bill shall be deemed null and void.
196.85(4)(c)
(c) If after such hearing the commission finds that the bill as rendered is neither excessive, erroneous, unlawful or invalid either in whole or in part it shall record such findings upon its minutes, and transmit to the objector by registered mail notice of such finding.
