Chapter 196

196.795(5)(i)2. 2. May not attribute to that public utility affiliate any tax benefit or other benefit or tax liability or other liability resulting from the operations of the holding company or of any subsidiary of the holding company; and

196.795(5)(i)3. 3. May not attribute to the holding company or to any subsidiary of the holding company any tax benefit or other benefit or tax liability or other liability resulting from the operations of that public utility affiliate.

196.795(5)(j) (j) Every public utility affiliate is subject to every law, regulation and precedent applicable to the regulation of public utilities.

196.795(5)(k) (k)

196.795(5)(k)1. 1. Except as provided under subd. 2. or 3., no public utility affiliate may transfer, sell, or lease to any nonutility affiliate with which it is in a holding company system any real property which, on or after November 28, 1985, is held or used for provision of utility service except by public sale or offering to the highest qualified bidder.

196.795(5)(k)2. 2. A public utility affiliate may lease or rent office space to a holding company or any nonutility affiliate with which it is in a holding company system at not less than fair market value. A public utility affiliate may transfer real property which is contiguous to and used by the public utility affiliate for providing public access to a federally licensed hydroelectric project to a nonutility affiliate.

196.795(5)(k)3. 3. For the purpose of implementing a leased generation contract, as defined in s. 196.52 (9) (a) 3., that is approved under s. 196.52 (3), a public utility affiliate may transfer to a nonutility affiliate, at book value determined on the basis of the regulated books of account at the time of the transfer, any of the following:

196.795(5)(k)3.a. a. Land that is held or used for the provision of utility service.

196.795(5)(k)3.b. b. Electric generating equipment or associated facilities that are located on the land on which an electric generating facility subject to a leased generation contract is to be constructed, and that are part of an electric generating facility on that land that is no longer used or useful for the provision of utility service and that has been retired from the provision of utility service.

196.795(5)(L) (L) Any holding company which is incorporated shall be incorporated under ch. 180.

196.795 Note NOTE: Par. (L) was held to be unconstitutional by the U.S. 7th Circuit Court of Appeals in Alliant Energy Corporation v. Bie, 330 F.3d 904 (2003).

196.795(5)(m) (m)

196.795(5)(m)1. 1. No holding company system may take any action to terminate its interest in a public utility affiliate without notice to and approval of the commission. If the commission grants approval, it may impose conditions with respect to the division and allocation of plant, equipment, resources and any other asset necessary to protect the interests of utility consumers and investors and the public.

196.795(5)(m)2. 2. If a holding company system terminates its interest under subd. 1. in all public utility affiliates with which it is in a holding company system, no company remaining in the holding company system is subject to any regulatory power of the commission.

196.795(5)(n) (n) A public utility affiliate may not engage in any combined advertising, directly or indirectly, with any nonutility affiliate with which it is in a holding company system within this state except for purposes of corporate identification and noncompetitive purposes.

196.795(5)(o) (o) The assets of every company in a holding company system shall be as recorded on the books of accounting record of the company, net of any applicable valuation accounts, including but not limited to accumulated depreciation and allowance for uncollectible accounts, as of the end of the prior year.

196.795(5)(q) (q)

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 employees or by the employees 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 employee’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 employee’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 employee’s services at the fair market value of the employee’s service and that the nonutility affiliate’s use of the employee’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 employees 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 employee’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 employees and the total number of employees 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(6m) (6m) Asset cap.

196.795(6m)(a) (a) Definitions. In this subsection:

196.795(6m)(a)1. 1. “Contributor public utility affiliate” means a public utility affiliate that has contributed its transmission facilities to the transmission company under s. 196.485 (5) (b).

196.795(6m)(a)2. 2. “Eligible asset” means an asset of a nonutility affiliate that is used for any of the following:

196.795(6m)(a)2.a. a. Producing, generating, transmitting, delivering, selling or furnishing gas, oil, electricity or steam energy.

196.795(6m)(a)2.b. b. Providing an energy management, conservation or efficiency product or service or a demand-side management product or service.

196.795(6m)(a)2.c. c. Providing an energy customer service, including metering or billing.

196.795(6m)(a)2.d. d. Recovering or producing energy from waste materials.

196.795(6m)(a)2.e. e. Processing waste materials.

196.795(6m)(a)2.f. f. Manufacturing, distributing or selling products for filtration, pumping water or other fluids, processing or heating water, handling fluids or other related activities.

196.795(6m)(a)2.g. g. Providing a telecommunications service, as defined in s. 196.01 (9m).

196.795(6m)(a)2.h. h. Providing an environmental engineering service.

196.795(6m)(a)3. 3. “Foreign affiliate” means a person that is engaged in the production, transmission, delivery or furnishing of heat, light, power or natural gas either directly or indirectly to or for use of the public in another state, that is incorporated under the laws of another state, that is an affiliated interest, as defined in s. 196.52 (1), of a public utility and that is operated on an integrated system basis, as determined by the commission, with the public utility.

196.795(6m)(a)4. 4. “Generation assets” means assets that are classified as electric generation assets on the books of account of a public utility, as determined by the commission.

196.795(6m)(a)5. 5. “Reliability council area” means the geographic area that, on December 31, 1997, was served by the Mid-America Interconnected Network, Inc., Mid-Continent Area Power Pool, East Central Area Reliability Coordination Agreement or Southwest Power Pool reliability council of the North American Electric Reliability Council.

196.795(6m)(a)6. 6. “Wholesale merchant plant” means a wholesale merchant plant, as defined in s. 196.491 (1) (w), except that its location is not limited to this state, that is located in the reliability council area and that is owned, operated or controlled by an affiliated interest of a public utility.

196.795(6m)(b) (b) In general.

196.795(6m)(b)1. 1. The sum of the assets of all nonutility affiliates in a holding company system of any holding company formed on or after November 28, 1985, may not exceed the sum of the following:

196.795(6m)(b)1.a. a. Twenty-five percent of the assets of all public utility affiliates in the holding company system engaged in the generation, transmission or distribution of electric power.

196.795(6m)(b)1.b. b. A percentage of the assets, as determined by the commission, which may be more, but may not be less, than 25 percent of all public utility affiliates in the holding company system engaged in providing utility service other than the generation, transmission or distribution of electric power.

196.795(6m)(b)1.c. c. For any public utility affiliate which is in the holding company system and which engages in the provision of more than one type of utility service, a percentage of assets equal to the amount of the public utility affiliate’s assets devoted to public utility service, other than the generation, transmission and distribution of electric power, multiplied by a percentage, as determined by the commission, which may be more, but may not be less, than 25 percent, plus 25 percent of all remaining assets of such public utility affiliate.

196.795(6m)(b)2. 2. For purposes of subd. 1., the assets of each nonutility affiliate shall be determined by doing all of the following:

196.795(6m)(b)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(6m)(b)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(6m)(b)2.c. c. Subtracting the amount derived under subd. 2. b. from the amount derived under subd. 2. a.

196.795(6m)(b)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 percent of the maximum amount allowed under subd. 1.

196.795(6m)(b)4. 4. If the commission establishes a percentage of assets under subd. 1. b. or c. which is greater than 25 percent, 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(6m)(c) (c) Wholesale merchant plants. The assets of a wholesale merchant plant shall not be included in the sum of the assets of a public utility affiliate under par. (b) 1. a., b., or c. and shall not be included in a nonutility affiliate’s total assets under par. (b) 2. a. if the requirements specified in s. 196.491 (3m) (a) 1. and 2. are satisfied or if the wholesale merchant plant qualifies for the exemption under s. 196.491 (3m) (e).

196.795(6m)(d) (d) Foreign affiliates. The assets of a foreign affiliate shall be included in the sum of the assets of a public utility affiliate under par. (b) 1. a., b. or c. and shall not be included in a nonutility affiliate’s total assets under par. (b) 2. a.

196.795(6m)(e) (e) Contributor public utility affiliates.

196.795(6m)(e)1. 1. The eligible assets of a nonutility affiliate in a holding company system that includes each of the contributor public utility affiliates in the holding company system shall not be included in the sum of the assets of the public utility affiliates under par. (b) 1. a., b. or c. and shall not be included in the nonutility affiliate’s total assets under par. (b) 2. a.

196.795(6m)(e)2. 2. For purposes of subd. 1., all of the assets of a nonutility affiliate shall be considered eligible assets if each of the following is satisfied:

196.795(6m)(e)2.a. a. The bylaws of the nonutility affiliate or a resolution adopted by its board of directors specifies that the business of the nonutility affiliate is limited to activities involving eligible assets.

196.795(6m)(e)2.b. b. Substantially all of the assets of the nonutility affiliate are eligible assets.

196.795(6m)(e)3. 3. The net book value of transmission facility assets that a contributor public utility affiliate has contributed to a transmission company under s. 196.485 (5) (b) shall be included in the sum of the assets of the public utility affiliate under par. (b) 1. a., b. and c. In determining net book value under this subdivision, accumulated depreciation shall be calculated as if the contributor public utility affiliate had not contributed the assets.

196.795(6m)(e)4. 4. The net book value of generation assets that a contributor public utility affiliate has transferred to a person that is not affiliated with the public utility affiliate pursuant to the order of the commission, a court or a federal regulatory agency shall be included in the sum of the assets of the public utility affiliate under par. (b) 1. a., b. and c. In determining net book value under this subdivision, accumulated depreciation shall be calculated as if the contributor public utility affiliate had not transferred the assets.

196.795(7) (7) Commission investigations.

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, except for the nonutility affiliates of a holding company that were affiliates of a holding company that was formed before November 28, 1985, 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.a. a. Any public utility affiliate.

196.795(7)(a)1.b. b. Any public utility or member of a cooperative association organized under ch. 185 which reports or has reported information to the commission under the rules promulgated under s. 196.491 (2) (ag).

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) (8) Exemptions.

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).