Chapter 196

196.26 History History: 1981 c. 148; 1983 a. 53; 1985 a. 297; 1989 a. 344; 1993 a. 496; 1995 a. 409; 1997 a. 218, 229; 1999 a. 32, 53, 186; 2001 a. 16; 2005 a. 441; 2011 a. 22.

196.26 Cross-reference Cross-reference: See also ch. PSC 2 and s. PSC 2.11, Wis. adm. code.

196.28 196.28 Summary investigations.

196.28(1) (1) If the commission believes that any rate or charge is unreasonable or unjustly discriminatory or that any service is inadequate or cannot be obtained or that an investigation of any matter relating to any public utility should for any reason be made, the commission on its own motion summarily may investigate with or without notice.

196.28(2) (2) If, after an investigation under sub. (1), the commission determines that sufficient grounds exist to warrant a hearing on the matters investigated, the commission shall set a time and place for a hearing. A hearing under this section shall be conducted as a hearing under s. 196.26.

196.28(3) (3) Notice of the time and place for a hearing under sub. (2) shall be given to the public utility and to such other interested persons as the commission considers necessary. After the notice has been given, proceedings shall be had and conducted in reference to the matter investigated as if a complaint specified in s. 196.26 (1) (a) had been filed with the commission relative to the matter investigated. The same order or orders may be made in reference to the matter as if the investigation had been made on complaint under s. 196.26.

196.28(4) (4) This section does not apply to rates, tolls or charges of a telecommunications cooperative, an unincorporated telecommunications cooperative association, or a small telecommunications utility except as provided in s. 196.205.

196.28 History History: 1977 c. 29 s. 1654 (10) (c); 1983 a. 53 ss. 39, 41; 1989 a. 344; 1993 a. 496; 1997 a. 218, 229; 1999 a. 32; 2001 a. 16; 2005 a. 441; 2011 a. 22.

196.28 Annotation The PSC’s decision not to investigate under ss. 196.28 and 196.29 [now s. 196.28 (2) and (3)] was a nonreviewable, discretionary determination. Reviewable decisions are defined. Wisconsin Environmental Decade, Inc. v. PSC, 93 Wis. 2d 650, 287 N.W.2d 737 (1980).

196.30 196.30 Utilities may complain. Any public utility may file a complaint with the commission on any matter affecting its own product or service.

196.30 History History: 1983 a. 53.

196.30 Cross-reference Cross-reference: See also ch. PSC 2 and s. PSC 2.11, Wis. adm. code.

196.31 196.31 Intervenor financing.

196.31(1) (1) Except as provided in sub. (2m), in any proceeding before the commission, the commission shall compensate any participant in the proceeding who is not a public utility, for some or all of the reasonable costs of participation in the proceeding if the commission finds that:

196.31(1)(a) (a) The participation is necessary to provide for the record an adequate presentation of a significant position in which the participant has a substantial interest, and that an adequate presentation would not occur without a grant of compensation; or

196.31(1)(b) (b) The participation has provided a significant contribution to the record and has caused a significant financial hardship to the participant.

196.31(1m) (1m) The commission shall compensate any consumer group or consumer representative for all reasonable costs of participating in a hearing under s. 196.198.

196.31(2) (2) Compensation granted under this section shall be paid from the appropriation under s. 20.155 (1) (j) and shall be assessed under s. 196.85 (1), except that, if the commission finds that the participation for which compensation is granted relates more to a general issue of utility regulation rather than to an issue arising from a single proceeding, the cost of the compensation may be assessed under s. 196.85 (2). Any payment by a public utility for compensation under this section assessed under s. 196.85 (1) or (2) shall be credited to the appropriation under s. 20.155 (1) (j).

196.31(2m) (2m) The commission may grant no more than $100,000 annually in compensation under this section to the consumer advocate, as defined in s. 196.315 (2) (a).

196.31(3) (3) The commission shall adopt rules to implement this section.

196.31 History History: 1983 a. 27; 1985 a. 297; 1989 a. 56 s. 259; 1993 a. 496; 1999 a. 9; 2009 a. 383; 2011 a. 22, 32; 2021 a. 24.

196.31 Cross-reference Cross-reference: See also ch. PSC 3, Wis. adm. code.

196.315 196.315 Consumer advocate funding.

196.315(1) (1) Legislative statement of intent and purpose. It is in the public interest that there be an independent, nonpartisan consumer advocate for residential, small commercial, and small industrial energy utility customers of this state and that the advocate be sufficiently funded by those customers to allow for the representation and protection of their interests before the commission and other venues. All actions by the advocate funded under this section shall be directed toward such duty.

196.315(2) (2) Definitions. In this section:

196.315(2)(a) (a) “Consumer advocate” means the body created under s. 199.04 (1), dissolved under s. 199.17, and reorganized as a nonstock, nonprofit corporation under ch. 181.

196.315(2)(b) (b) “Energy utility” means an investor-owned electric or natural gas public utility.

196.315(2)(c) (c) “Municipal utility” has the meaning given in s. 196.377 (2) (a) 3.

196.315(3) (3) Funding.

196.315(3)(a) (a) Annually, within 60 days after a budget under sub. (5) is approved, each energy utility shall pay to the consumer advocate the amount specified under sub. (5) (e). In any year, the total of all amounts required to be paid by energy utilities to the consumer advocate under this subsection may not exceed $900,000.

196.315(3)(b) (b) The funds provided under par. (a) may not be used for any of the following:

196.315(3)(b)1. 1. Lobbying, as defined in s. 13.62 (10).

196.315(3)(b)2. 2. Defraying the cost of participating in proceedings involving the rates or practices of municipal utilities and no other public utilities.

196.315(3)(c) (c) The consumer advocate shall retain all relevant records supporting its expenditure of funds provided under par. (a) for 3 years after receipt of the funds and shall grant the commission access to the records upon request.

196.315(4) (4) Cost recovery.

196.315(4)(a) (a) Rate-making orders. The commission shall ensure in rate-making orders that an energy utility recovers from its residential, small commercial, and small industrial customers the amounts the energy utility pays under sub. (3) (a).

196.315(4)(b) (b) Accounting. The commission shall apply escrow accounting treatment to expenditures required under this section.

196.315(5) (5) Budget review; approval.

196.315(5)(a) (a) The commission shall review the budgeting and expenditure of funds provided to the consumer advocate under sub. (3) (a).

196.315(5)(b) (b) Annually, by a date specified by the commission, the consumer advocate shall file for the commission’s approval an annual budget as approved by the consumer advocate’s board of directors. The commission may request additional information from the consumer advocate related to the budget, and may consider any relevant factors, including existing operating reserves and actual costs in prior years compared to the budgets approved by the commission.

196.315(5)(c) (c) The commission shall approve a budget filed under this subsection if the commission determines it is consistent with sub. (1) and covers the reasonable annual costs of the consumer advocate, including salaries, benefits, overhead expenses, the maintenance of an operating reserve, and any other cost directly or indirectly related to representing and protecting the interests of residential, small commercial, and small industrial energy utility customers. The commission may approve the budget with such conditions and modifications as the commission determines are necessary.

196.315(5)(d) (d) If the commission fails to take final action under par. (c) within 60 days after a budget is filed with the commission, the commission is considered to have approved the budget that was submitted by the consumer advocate.

196.315(5)(e) (e) Subject to sub. (3) (a), the total amount of the approved budget shall be paid to the consumer advocate by the energy utilities. Each energy utility’s share of the total amount shall be based on the energy utility’s proportionate share of the total number of residential, small commercial, and small industrial customer meters reported by energy utilities under s. 196.07 (1).

196.315 History History: 2021 a. 24.

196.32 196.32 Witness fees and mileage.

196.32(1) (1) Any witness who appears before the commission or its agent, by order, shall receive for the applicable attendance the fees provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid under s. 885.07, upon the presentation of proper vouchers sworn to by such witnesses and approved by the chairperson of the commission. Fees paid under this section shall be charged to the appropriation for the commission under s. 20.155 (1) (g).

196.32(2) (2) No witness subpoenaed at the instance of parties other than the commission may be compensated under this section unless the commission certifies that the testimony of the witness was material to the matter investigated.

196.32 History History: 1983 a. 53.

196.33 196.33 Depositions. The commission or any party in any investigation or hearing may cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in circuit courts. Any expense incurred or authorized by the commission in taking a deposition shall be charged to the appropriation for the commission under s. 20.155 (1) (g).

196.33 History History: 1983 a. 53.

196.34 196.34 Commission records. The commission shall keep a complete record of its proceedings before the commission or its agent in any formal investigation or hearing.

196.34 History History: 1983 a. 53; 1995 a. 27.

196.36 196.36 Transcripts and tapes.

196.36(1) (1) Transcripts. The commission shall receive into evidence a transcribed copy of the evidence and proceedings, or any specific part of the evidence and proceedings, on any investigation or hearing taken by a stenographer if the stenographer certifies that the copy is a true and correct transcript of all the testimony or of the testimony of a particular witness, or of any other specific part of the investigation or hearing, that the transcript was carefully compared by the stenographer with his or her original notes, and that the copy is a correct statement of the evidence presented and proceedings held in the investigation or hearing. The certified copy shall have the same effect as if the stenographer were present and testified to the correctness of the copy.

196.36(1m) (1m) Transcripts from tapes. The commission shall receive into evidence a transcribed copy of an audiotape or videotape of the evidence and proceedings, or any specific part of the evidence and proceedings, of any investigation or hearing that is recorded if the transcriber certifies that the copy is a true and correct transcription from the audiotape or videotape of all the testimony or of the testimony of a particular witness, or of any other specific part of the investigation or hearing and that the copy is a correct statement of the evidence presented and proceedings held in the investigation or hearing. The certified copy shall have the same effect as if the transcriber were present and testified to the correctness of the copy.

196.36(1r) (1r) Production expenses. The commission may require any party to an investigation or hearing to bear the expense of producing a transcript, audiotape or videotape that is related to the investigation or hearing.

196.36(2) (2) Copies. Upon request, the commission shall furnish a copy of a transcript under this section to any party to the investigation or hearing from which the transcript is taken and shall furnish a copy of an audiotape or videotape to any party to the investigation or hearing from which the audiotape or videotape is taken. The commission may charge a reasonable price for the transcript or tape.

196.36 History History: 1983 a. 53; 1995 a. 27; 1997 a. 27.

196.36 Cross-reference Cross-reference: See also ch. PSC 113 and s. PSC 2.29, Wis. adm. code.

196.37 196.37 Lawful rates; reasonable service.

196.37(1) (1) If, after an investigation under this chapter or ch. 197, the commission finds rates, tolls, charges, schedules or joint rates to be unjust, unreasonable, insufficient or unjustly discriminatory or preferential or otherwise unreasonable or unlawful, the commission shall determine and order reasonable rates, tolls, charges, schedules or joint rates to be imposed, observed and followed in the future.

196.37(2) (2) If the commission finds that any measurement, regulation, practice, act or service is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise unreasonable or unlawful, or that any service is inadequate, or that any service which reasonably can be demanded cannot be obtained, the commission shall determine and make any just and reasonable order relating to a measurement, regulation, practice, act or service to be furnished, imposed, observed and followed in the future.

196.37(3) (3) Any public utility to which an order under this section applies shall make such changes in schedules on file under s. 196.19 to make the schedules conform to the order. The public utility may not make any subsequent change in rates, tolls or charges without the approval of the commission.

196.37(4) (4) This section does not apply to rates, tolls or charges of a telecommunications cooperative, an unincorporated telecommunications cooperative association, or a small telecommunications utility except as provided in s. 196.205.

196.37(5) (5) It is not unreasonable or unjustly discriminatory for a municipal public utility to adopt application, deposit, disconnection, or collection rules and practices that distinguish between customers based upon whether the customer owns or leases the property that is receiving utility service where the possibility exists for any unpaid bills of a tenant to become a lien on the property that is receiving utility service.

196.37(6) (6) A water public utility may fund all or a portion of the cost of providing financial assistance under s. 196.372 using revenue collected from charges applied to retail customers receiving service from the water public utility in the same city, village, or town in which the property for which the financial assistance is provided is located.

196.37 History History: 1981 c. 390; 1983 a. 53 ss. 47, 50; 1989 a. 344; 1993 a. 496; 1995 a. 409; 2005 a. 441; 2011 a. 22; 2013 a. 274; 2017 a. 137.

196.37 Cross-reference Cross-reference: See also ch. PSC 110, Wis. adm. code.

196.37 Annotation In the absence of statutory authority, the PSC may not fix rates to be applied retroactively. Algoma, Eagle River, New Holstein, Stratford, Sturgeon Bay & Two Rivers v. PSC, 91 Wis. 2d 252, 283 N.W.2d 261 (Ct. App. 1978).

196.37 Annotation Allowing a utility to charge present ratepayers for a storm damage casualty loss that occurred in a prior year did not constitute retroactive rate making. Wisconsin Environmental Decade, Inc. v. PSC, 98 Wis. 2d 682, 298 N.W.2d 205 (Ct. App. 1980).

196.37 Annotation The PSC has authority to shift the cost of excess generating capacity to shareholders if the excess capacity was imprudently acquired or is not useful in serving the public, but there must be a reasoned determination that ratepayers should not bear the cost. Madison Gas & Electric Co. v. PSC, 109 Wis. 2d 127, 325 N.W.2d 339 (1982).

196.37 Annotation A utility’s failure to pay taxes under protest may constitute “imprudence” and may reasonably affect a rate-setting decision. Wisconsin Public Service Corporation v. PSC, 156 Wis. 2d 611, 457 N.W.2d 502 (Ct. App. 1990).

196.37 Annotation The PSC has authority to order a utility to refund compensation collected in violation of filed tariffs. GTE North Inc. v. PSC, 176 Wis. 2d 559, 500 N.W.2d 284 (1993).

196.37 Annotation The PSC’s imposition of a penalty for imprudent administration of a coal acquisition contract was impermissible retroactive rate-making. Wisconsin Power & Light v. PSC, 181 Wis. 2d 385, 511 N.W.2d 291 (1994).

196.37 Annotation Sub. (1) is not implicated when a refund is ordered for reasons other than the PSC’s determination that rates for services already provided were not reasonable. Sub. (2) authorizes the PSC to order a refund of a rate that the utility believed was included in a tariff, but the PSC concluded was not, and of a rate that the utility believed was properly filed with the PSC but the PSC concluded was not. CenturyTel of the Midwest-Kendall, Inc. v. PSC, 2002 WI App 236, 257 Wis. 2d 837, 653 N.W.2d 130, 02-0053.

196.37 Annotation Once a rate or practice is determined to be unlawful, or once a charge is determined to be a practice that is unlawful, it is subject to the remedial authority of sub. (2). Under CenturyTel, sub. (2) provides the PSC authority to order a refund. Wisconsin Bell, Inc. v. Public Service Commission, 2004 WI App 8, 269 Wis. 2d 409, 675 N.W.2d 242, 02-3163.

196.371 196.371 Rate-making principles for electric generation facilities.

196.371(1) (1) Definition. In this section, “certificate” means a certificate issued under s. 196.49 (3) or 196.491 (3).

196.371(2) (2) Application. A public utility that proposes to purchase an electric generating facility or that applies for a certificate for the construction of an electric generating facility may apply to the commission for an order specifying in advance the rate-making principles that the commission shall apply to the public utility’s recovery of the capital costs of the facility, including the purchase price and any necessary modifications or improvements to the facility at the time of the purchase, in future rate-making proceedings. In applying for an order under this section, a public utility shall describe the public utility’s proposal for the recovery of such costs, including all of the following:

196.371(2)(a) (a) The economic useful life of the facility.

196.371(2)(b) (b) The proposed return on equity and rate of return for the facility.

196.371(2)(c) (c) The proposed financing mechanisms for the facility.

196.371(2)(d) (d) The proposed method for determining the costs that may be recovered in rates.

196.371(2)(e) (e) Any other proposals or information regarding the recovery of the costs that the public utility determines are necessary for providing certainty to the public utility, investors, and ratepayers in future rate-making proceedings.

196.371(2)(f) (f) Any other information specified by the commission.

196.371(3) (3) Procedure.

196.371(3)(a) (a) The commission shall conduct a hearing on an application for an order under this section. The commission may hold the hearing in conjunction with a hearing, if any, on the application for the certificate or the commission may hold a separate hearing on the application for the order. If the public utility has applied for a certificate for the facility, the commission shall determine whether to deny an application for an order or to issue an order no later than the date that the commission takes final action on the application for the certificate. If the public utility has not applied for a certificate, the commission shall determine whether to deny an application for an order or to issue an order no later than 180 days after the commission determines that the application for the order is complete using the method and deadlines specified under s. 196.491 (3) (a) 2. The commission may issue an order if the commission determines that the order will provide a sufficient degree of certainty to the public utility, investors, and ratepayers with respect to future recovery of the facility’s capital costs and that the order is otherwise in the public interest.

196.371(3)(am) (am) The commission shall specify in an order under this section a deadline at least 60 days after the date of issuance of the order for the public utility to notify the commission in writing about whether the public utility accepts or waives acceptance of the order. If the public utility does not make the notification by the deadline specified in the order, the public utility is considered to have waived acceptance of the order.

196.371(3)(b) (b) If the public utility accepts the order, then, in all future rate-making proceedings regarding the public utility, the order shall be binding on the commission in its treatment of the recovery of the capital costs of the facility that is subject to the order and the commission may not consider the order or the effects of the order in its treatment of the recovery of any other cost of the public utility.