Chapter 196

196.74 Cross-reference Cross-reference: See also ch. PSC 114, Wis. adm. code.

196.745 196.745 Construction and operation; safety; commission orders.

196.745(1) (1) 

196.745(1)(a) (a) A person who owns, operates, manages or controls any facility for the production, transmission or distribution of gas shall construct, operate and maintain the facility in a reasonably adequate and safe manner. Except as provided in par. (b), the commission may issue orders or rules, after holding a hearing, requiring the construction and operation of the facility to be safe, and may revise the orders or rules as required to promote public safety. Except as provided under par. (b), upon complaint to the commission that a facility is unsafe, the commission may proceed under s. 196.26 or 196.28 (1). Sections 196.26 and 196.28 (1), as they apply to a public utility, apply to a person under this subsection. After holding a hearing the commission shall order any alteration in construction, maintenance or operation required in the interest of public safety.

196.745(1)(b) (b) Paragraph (a) does not authorize the commission to do any of the following:

196.745(1)(b)1. 1. Issue an order or rule regarding the construction and operation of, or proceed under s. 196.26 or 196.28 (1) against, a propane gas distribution system that is not a public utility.

196.745(1)(b)2. 2. Unless specifically authorized by the federal department of transportation, proceed against an interstate pipeline company under s. 196.26 or 196.28 (1).

196.745(1)(b)3. 3. Issue an order or rule requiring prior approval for the construction of a facility for the production, transmission or distribution of gas.

196.745(2) (2) 

196.745(2)(a) (a) Any person violating sub. (1) (a), or any order or rule issued under sub. (1) (a), shall forfeit an amount not exceeding the maximum applicable penalty under 49 CFR 190. The commission shall remit all forfeitures paid under this paragraph to the secretary of administration for deposit in the school fund.

196.745(2)(b) (b) The commission may compromise any forfeiture assessed under par. (a).

196.745(2)(c) (c) The commission shall consider the following in determining the amount of a forfeiture or whether a compromise is appropriate under this section:

196.745(2)(c)1. 1. The appropriateness of the forfeiture to the size of the business violating sub. (1) (a).

196.745(2)(c)2. 2. The gravity of the violation.

196.745(2)(c)3. 3. Any good faith attempt to achieve compliance after notification of the violation.

196.745(3) (3) The commission may seek injunctive relief for a violation of sub. (1) (a) or any order or rule issued under sub. (1) (a). The commission shall notify any person against whom the commission contemplates taking an action. The commission shall allow the person to present his or her views and shall give the person a reasonable opportunity to achieve compliance unless the person knowingly and willfully violates sub. (1) (a) or any order or rule issued under sub. (1) (a). The failure of the commission to give notice and opportunity to comply shall not preclude the granting of appropriate relief. The circuit court for Dane County has jurisdiction under s. 196.44 (3) to enforce sub. (1) (a) and to grant injunctive relief under this section.

196.745(4) (4) Any person may demand a jury trial when charged with contempt of court because he or she has violated an injunction issued under sub. (3). Chapter 785 is applicable to contempt proceedings for the violation, unless ch. 785 conflicts with the right to a jury trial.

196.745 History History: 1977 c. 29 s. 1656 (43); 1977 c. 273; 1979 c. 32; 1983 a. 53; 1989 a. 49; 1993 a. 142; 1995 a. 430; 2023 a. 242.

196.745 Cross-reference Cross-reference: See also ch. PSC 135, Wis. adm. code.

196.76 196.76 Other rights of action; penalties cumulative. This chapter and ch. 197 shall not have the effect of releasing or waiving any right of action by the state or by any person for any right, penalty or forfeiture which arises under any law of this state. All penalties and forfeitures accruing under this chapter and ch. 197 shall be cumulative. A suit for recovery of one penalty or forfeiture may not bar the recovery of any other penalty.

196.76 History History: 1981 c. 390; 1983 a. 53.

196.78 196.78 Voluntary dissolution. No corporation or limited liability company owning or operating a public utility may be dissolved unless the commission consents. The commission may consent only after hearing. The commission shall give at least 30 days’ notice to each municipality in which the public utility is operated and an opportunity to be heard to each municipality and to the stockholders in the corporation or members of a limited liability company.

196.78 History History: 1983 a. 53; 1993 a. 112.

196.79 196.79 Reorganization subject to commission approval. The reorganization of any public utility shall be subject to the supervision and control of the commission. No reorganization may take effect without the written approval of the commission. The commission may not approve any plan of reorganization unless the applicant for approval establishes that the plan of reorganization is consistent with the public interest.

196.79 History History: 1977 c. 29; 1983 a. 53; 1993 a. 496; 2011 a. 22.

196.795 196.795 Public utility holding companies.

196.795(1) (1) Definitions. In this section:

196.795(1)(a) (a) “Affiliated interest” has the meaning given under s. 196.52 (1).

196.795(1)(b) (b) “Appliance” means any equipment used directly for cooking, drying, water tempering, space heating, space cooling or space ventilation. “Appliance” does not include equipment or devices which monitor or control the primary energy supply or source for any equipment used directly for cooking, drying, water tempering, space heating, space cooling or space ventilation.

196.795(1)(c) (c) “Beneficial owner” means, with respect to a security, any person who in any way has the unconditional power to vote or receive the economic gains or losses of the security. “Beneficial owner” does not mean, with respect to a security, any person, including but not limited to any of the following, holding the security for another person:

196.795(1)(c)1. 1. The trustee of a qualified employee plan.

196.795(1)(c)2. 2. The trustee of a stock purchase plan or a dividend reinvestment plan.

196.795(1)(c)3. 3. A pledgee.

196.795(1)(c)4. 4. A nominee.

196.795(1)(c)5. 5. A broker or an agent.

196.795(1)(c)6. 6. An underwriter for the first 40 days following acquisition of securities from an issuer if the securities are held in the underwriter’s own account.

196.795(1)(e) (e) “Commercial building” means any building which is used primarily for carrying out any business, including but not limited to a nonprofit business, and any building which is used primarily for the manufacture or production of products, raw materials or agricultural commodities.

196.795(1)(f) (f) “Company” means any partnership, corporation, joint-stock company, business trust or organized group of persons, whether incorporated or not, and any receiver, trustee or other liquidator of a partnership, association, joint-stock company, business trust or organized group of persons. “Company” does not include a municipality or other political subdivision.

196.795(1)(g) (g) “Form a holding company” means any of the following:

196.795(1)(g)1. 1. As a beneficial owner, to take, hold or acquire 5 percent or more of the outstanding voting securities of a public utility, other than a transmission company, with the unconditional power to vote those securities.

196.795(1)(g)2. 2. To exchange or convert 50 percent or more of the outstanding voting securities of a public utility, other than a municipality or other political subdivision or a transmission company, for or into the voting securities of a company organized, created, appointed or formed by or at the direction of the public utility or of a subsidiary of such company.

196.795(1)(h) (h)

196.795(1)(h)1. 1. “Holding company” means any of the following:

196.795(1)(h)1.a. a. Any company which, in any chain of successive ownership, directly or indirectly as a beneficial owner, owns, controls or holds 5 percent or more of the outstanding voting securities of a public utility, with the unconditional power to vote such securities.

196.795(1)(h)1.b. b. Any person which the commission determines, after investigation and hearing, directly or indirectly, exercises, alone or under an arrangement or understanding with one or more persons, such a controlling interest over the management or policies of a public utility as to make it necessary or appropriate in the public interest or for the protection of the utility’s consumers or investors that such person be subject to this section.

196.795(1)(h)2. 2. “Holding company,” except for purposes of sub. (11) (b), does not mean any company that owns, operates, manages, or controls a telecommunications utility, unless such company also owns, operates, manages, or controls a public utility that is not a telecommunications utility.

196.795(1)(h)3. 3. “Holding company” does not include a transmission company.

196.795(1)(i) (i) “Holding company system” means a holding company and any public utility with which the holding company is an affiliated interest and any company which is an affiliated interest with such public utility and any other company more than 5 percent of whose ownership interest is owned directly or indirectly in any chain of successive ownership by such public utility or by such company which is an affiliated interest with such public utility.

196.795(1)(j) (j) “Nonutility affiliate” means a company in a holding company system which is not a public utility.

196.795(1)(k) (k) “Person” means an individual or company.

196.795(1)(L) (L) “Public utility affiliate” means a company which is in a holding company system and which is a public utility.

196.795(1)(Lm) (Lm) “Public utility affiliate employee” means any individual who is in the regular employ of a public utility affiliate, except any officer or director and any officer’s or director’s incidental supporting staff and except such personnel as is required by the public utility affiliate’s organizational structure to perform such functions as accounting consolidation.

196.795(1)(m) (m) “Sell at retail” means to sell an appliance to a person who is the consumer or user of the appliance.

196.795(1)(o) (o) “Subsidiary” has the meaning given under s. 180.1130 (12).

196.795(1)(p) (p) “Transmission company” has the meaning given in s. 196.485 (1) (ge).

196.795(2) (2) Holding company formation.

196.795(2)(a) (a) No person may form a holding company unless the person has received a certificate of approval from the commission under this subsection.

196.795(2)(b) (b) An application for a certificate of approval to form a holding company is complete if it contains all of the following information:

196.795(2)(b)1. 1. The names and corporate relationships of all companies which will be in the holding company system with the applicant when the applicant forms the holding company and the name of the applicant and any parent or subsidiary corporation of the applicant.

196.795(2)(b)2. 2. A description of how the applicant plans to form the holding company including, if available at the time of application:

196.795(2)(b)2.a. a. Copies of the organizational documents associated with the holding company formation, including articles of incorporation or amendments to the articles of incorporation of all companies which will be in the holding company system with the applicant when the applicant forms the holding company.

196.795(2)(b)2.b. b. Copies of any filings, including securities filings, related to the formation of the holding company made with any agency of this state or the federal government.

196.795(2)(b)3. 3. The costs and fees attributable to the formation of the holding company.

196.795(2)(b)4. 4. The method by which management, personnel, property, income, losses, costs and expenses will be allocated within the holding company system between public utility affiliates and nonutility affiliates.

196.795(2)(b)5. 5. A copy of any proposed agreement between a public utility affiliate and any person with which it will be an affiliated interest at the time the holding company is formed.

196.795(2)(b)6. 6. An identification of all public utility assets or information in existence at the time of formation of the holding company, such as customer lists, which the applicant plans to transfer to or permit a nonutility affiliate, with which it is in the holding company system, to use. The identification shall include a description of the proposed terms and conditions under which the assets or information will be transferred or used.

196.795(2)(b)7. 7. A copy of a financial forecast showing the capital requirements of every public utility affiliate which at the time of the formation of the holding company will be within the holding company system. The financial forecast shall include for each public utility affiliate on an annual basis for l0 years following the year of application:

196.795(2)(b)7.a. a. Projected capital requirements.

196.795(2)(b)7.b. b. Sources of capital.

196.795(2)(b)7.c. c. An itemization of major capital expenditures.

196.795(2)(b)7.d. d. Projected capital structure.

196.795(2)(b)7.e. e. An estimated amount of retained earnings available for nonutility purposes.

196.795(2)(b)7.f. f. The assumptions underlying the information included in the financial forecast under subd. 7. a. to e.

196.795(2)(c) (c) No later than 30 days after the commission receives an application for a certificate of approval to form a holding company under this subsection, the commission shall determine whether such application is complete as specified under par. (b). If the commission determines that the application is complete, the commission shall docket the application for a determination under this paragraph. If the commission determines the application to be incomplete, the commission shall notify the applicant in writing of its determination, identify any part of the application which the commission has determined to be incomplete and state the reasons for such determination. An applicant may supplement and refile an application which the commission has determined to be incomplete under this paragraph. There is no limit on the number of times an applicant may refile an application under this paragraph prior to a determination under par. (e). If the commission fails to make a determination regarding the completeness of an application within 30 days after the application has been filed, the application shall be deemed to be complete.

196.795(2)(d) (d) The commission shall hold a hearing concerning an application for a certificate of approval to form a holding company under this subsection. The hearing may not be a hearing under s. 227.42 or 227.44.

196.795(2)(e) (e) No later than 120 days after an application has been docketed under par. (c), the commission shall issue its findings of fact, conclusions of law and special order approving or rejecting the application. The commission shall issue a certificate of approval to form a holding company unless it finds that the formation of the holding company would materially harm the interests of utility consumers or investors. The commission, in issuing a certificate of approval under this subsection, may only impose terms, limitations or conditions on such approval which are consistent with and necessary to satisfy the requirements of sub. (5) (b) to (s).

196.795(2)(f) (f) At any time subsequent to the time the commission approves the formation of a holding company under par. (e), the commission may, after notice and opportunity for hearing, modify any term, limitation or condition imposed under par. (e) or add any limitation, term or condition under par. (e). Any term, limitation or condition modified or added under this paragraph shall be consistent with and necessary to satisfy the requirements of sub. (5) (b) to (s).

196.795(3) (3) Takeovers. No person may take, hold or acquire, directly or indirectly, more than 10 percent of the outstanding voting securities of a holding company, with the unconditional power to vote those securities, unless the commission has determined, after investigation and an opportunity for hearing, that the taking, holding or acquiring is in the best interests of utility consumers, investors and the public. This subsection does not apply to the taking, holding or acquiring of the voting securities of any holding company existing before November 28, 1985, if such holding company is a company which provides public utility service.

196.795(4) (4) Capital impairment. If the commission finds that the capital of any public utility affiliate will be impaired by the payment of a dividend, the commission may, after an investigation and opportunity for hearing, order the public utility affiliate to limit or cease the payment of dividends to the holding company until the potential for impairment is eliminated.

196.795(5) (5) Regulation of holding company systems.

196.795(5)(a) (a) No holding company which is not a public utility and no nonutility affiliate is subject to any regulatory power of the commission except under this section, ss. 196.52, 196.525 and 196.84 and except under ch. 201 if the commission has made a determination under sub. (7) (a) which makes such holding company a public service corporation, as defined under s. 201.01 (2).

196.795(5)(b) (b) The commission has full access to any book, record, document or other information relating to a holding company system to the extent that such information is relevant to the performance of the commission’s duties under ch. 201, this chapter or any other statute applicable to the public utility affiliate. The commission may require a holding company to keep any record or document which is necessary for the commission to perform its duties under this section and which is consistent with generally accepted accounting and record-keeping practices of the particular type of business involved. Any information obtained under this paragraph is subject to sub. (9), when applicable.

196.795(5)(c) (c) No public utility affiliate may lend money to any holding company which is not a public utility or to any nonutility affiliate with which it is in the holding company system.

196.795(5)(d) (d) No public utility affiliate may guarantee the obligations of any nonutility affiliate with which it is in a holding company system.

196.795(5)(dm) (dm) No public utility affiliate may provide utility service to any consumer of such public utility service or to any nonutility affiliate with which the public utility affiliate is in a holding company system except on the same terms or conditions that it provides such utility service to consumers in the same class.

196.795(5)(dr) (dr) No public utility affiliate may provide any nonutility product or service in a manner or at a price that unfairly discriminates against any competing provider of the product or service.

196.795(5)(f) (f) No nonutility activity of any holding company or nonutility affiliate may be subsidized materially by the consumers of any public utility affiliate with which the holding company or nonutility affiliate is in the holding company system. No public utility activity of any holding company or public utility affiliate may be subsidized materially by the nonutility activities of the holding company or any of its nonutility affiliates.

196.795(5)(g) (g) No holding company system may be operated in any way which materially impairs the credit, ability to acquire capital on reasonable terms or ability to provide safe, reasonable, reliable and adequate utility service of any public utility affiliate in the holding company system.

196.795(5)(h) (h) No public utility affiliate may transfer to any company with which it is in a holding company any confidential public utility information, including but not limited to customer lists, which will be transferred or used for any nonutility purpose by any holding company or nonutility affiliate unless the public utility affiliate has applied for and received the written approval of the commission for the transfer. The commission shall condition approval of such a transfer upon the applicant’s providing adequate notice of the availability of such information to the public and making the information available to any person at a cost not to exceed the cost of reproduction. The commission may not approve any transfer which would foster unfair or discriminatory business practices, or which would destroy or hamper competition through conduct which violates ch. 133 or any other applicable state or federal antitrust law.