Chapter 196

196.39 Annotation The PSC cannot order a change in rates by order, without notice and hearing, on the ground that the order is only a clarification of an earlier order. Mid-Plains Telephone, Inc. v. PSC 56 Wis. 2d 780, 202 N.W.2d 907 (1973).

196.395 196.395 Test, conditional, emergency and supplemental orders; order conditions.

196.395(1) (1) The commission may issue an order calling for a test of actual results under requirements prescribed by the order, during which test period the commission may retain jurisdiction of the subject matter. The commission may issue conditional, temporary, emergency and supplemental orders. If an order is issued upon certain stated conditions, any party acting upon any part of the order shall be deemed to have accepted and waived all objections to any condition contained in the order.

196.395(2) (2) As a condition of any order, the commission may not require a public utility to lobby on a legislative issue or to take a specific position on a legislative issue.

196.395 History History: 1983 a. 53; 2011 a. 155.

196.395 Annotation Temporary and emergency rates may be appropriately and widely used by the public service commission when justified by the circumstances. Friends of the Earth v. PSC, 78 Wis. 2d 388, 254 N.W.2d 299 (1977).

196.40 196.40 Orders and determinations; time of taking effect. Every order or determination of the commission shall take effect the day after the order or determination has been filed and served by personal delivery, mail, electronic mail, or any other method that the commission determines is likely to reach the parties or their attorneys, to all parties to the proceeding in which the order or determination was made or to their attorneys, unless the commission specifies a different date upon which the order or determination shall be effective. After the effective date every order or determination shall be on its face lawful and reasonable unless a court determines otherwise under s. 227.57.

196.40 History History: 1983 a. 53; 1985 a. 182 s. 57; 2011 a. 155.

196.41 196.41 Court review. Any order or determination of the commission may be reviewed under ch. 227.

196.41 History History: 1983 a. 53.

196.41 Annotation Statutory guidelines set forth in s. 227.52 allow only for an administrative decision to be reviewed, which the courts have defined as a decision that is supported by a record and based upon findings of fact and conclusions of law. However, this section permits judicial review of orders and determinations under ch. 227. Therefore, the Public Service Commission’s (PSC) order denying a petition for rehearing in this case was subject to judicial review. Regardless, the PSC’s process regarding the rehearing petition met the definition of an administrative decision subject to review under s. 227.52. Town of Holland v. Public Service Commission, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.

196.43 196.43 Injunction procedure.

196.43(1) (1) No injunction may be issued in any proceeding for review under ch. 227 of an order of the commission, suspending or staying the order except upon application to the circuit court or presiding judge thereof, notice to the commission and any other party, and hearing. No injunction which delays or prevents an order of the commission from becoming effective may be issued in any other proceeding or action in any court unless the parties to the proceeding before the commission in which the order was made are also parties to the proceeding or action before the court.

196.43(2) (2) No injunction may be issued in any proceeding for review under ch. 227, or in any other proceeding or action, suspending or staying any order of the commission or having the effect of delaying or preventing any order of the commission from becoming effective, unless at least 2 sureties enter into an undertaking on behalf of the petitioner or plaintiff. The court or presiding judge of the court shall direct that the sum of the undertaking be enough to effect payment of any damage which the opposite party may sustain by the delay or prevention of the order of the commission from becoming effective, and to such further effect as the judge or court in its discretion directs. No order or judgment in any proceeding or action may be stayed upon appellate court review unless the petitioner or plaintiff enters into the undertaking under this subsection in addition to any undertaking required under s. 808.07.

196.43(3) (3) No injunction may be issued in any proceeding for review under ch. 227 of an order of the commission under s. 196.199 (3) (a) 2., suspending or staying the order, unless the court finds that the person seeking review of the order is likely to succeed on the merits and suffer irreparable harm without the suspension or stay and that the suspension or stay is in the public interest.

196.43 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 187 s. 135; 1983 a. 53; 1997 a. 218.

196.44 196.44 Law enforcement.

196.44(1) (1) Duty of commission. The commission shall inquire into the neglect or violation of the laws of this state by public utilities, or by their officers, agents or employees or by persons operating public utilities, and shall enforce all laws relating to public utilities, and report all violations to the attorney general.

196.44(2) (2) Duties of attorney general and district attorneys. Upon request of the commission, the attorney general or the district attorney of the proper county shall aid in any investigation, hearing or trial had under this chapter, and shall institute and prosecute all necessary actions or proceedings for the enforcement of all laws relating to public utilities or telecommunications providers, and for the punishment of all violations.

196.44(3) (3) Actions, character, venue. Any forfeiture, fine or other penalty under this chapter may be recovered as a forfeiture in a civil action brought in the name of the state in the circuit court of Dane County or in the county that would be the proper place of trial under s. 801.50.

196.44 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 29 ss. 1337, 1654 (10) (c), 1656 (43); 1977 c. 272; Stats. 1977 s. 196.44; 1981 c. 390 s. 252; 1983 a. 53; 1993 a. 496; 1997 a. 218; 1999 a. 9; 2001 a. 105.

196.48 196.48 Incriminating evidence. No person may be excused from testifying or from producing books, accounts and papers in any proceeding based upon or growing out of any violation of chs. 195 to 197, on the ground or for the reason that the testimony or evidence may tend to incriminate or subject the person to penalty or forfeiture. A person who testifies under this section may not be:

196.48(1) (1) 

196.48(1)(a) (a) Prosecuted or subjected to any penalty or forfeiture for testifying or producing evidence.

196.48(1)(b) (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085.

196.48(2) (2) Exempted from prosecution or punishment for perjury in testifying.

196.48 History History: 1977 c. 273; 1981 c. 390; 1983 a. 53; 1989 a. 122.

196.485 196.485 Transmission system requirements.

196.485(1) (1) Definitions. In this section:

196.485(1)(a) (a) “Affiliated interest of a person” means any of the following:

196.485(1)(a)1. 1. Any person owning or holding directly or indirectly 5 percent or more of the voting securities of the person.

196.485(1)(a)2. 2. Any person in any chain of successive ownership of 5 percent or more of voting securities of the person.

196.485(1)(a)3. 3. Any corporation 5 percent or more of whose voting securities is owned by any person owning 5 percent or more of the voting securities of the person or by any person in any chain of successive ownership of 5 percent or more of the voting securities of the person.

196.485(1)(a)4. 4. Any person who is an officer or director of the person or of any corporation in any chain of successive ownership of 5 percent or more of the voting securities of the person.

196.485(1)(a)5. 5. Any corporation operating a servicing organization for furnishing supervisory, construction, engineering, accounting, legal or similar services to the person, which corporation has one or more officers or one or more directors in common with the person, and any other corporation which has directors in common with the person if the number of directors of the corporation is more than one-third of the total number of the person’s directors.

196.485(1)(a)6. 6. Any subsidiary of the person.

196.485(1)(am) (am) “Contribute a transmission facility” means to divest a person’s interest in the transmission facility and to transfer ownership of the transmission facility, and associated deferred tax reserves and deferred investment tax credits to the extent permitted by law, to another person.

196.485(1)(b) (b) “Cooperative” means a cooperative association organized under ch. 185.

196.485(1)(be) (be) “Director” means, with respect to a transmission company organized as a corporation under ch. 180, a member of the board of directors of the transmission company.

196.485(1)(bs) (bs) “Electric utility” means any of the following:

196.485(1)(bs)1. 1. A public utility that is involved in the generation, transmission, distribution or sale of electric energy.

196.485(1)(bs)2. 2. A retail or wholesale electric cooperative.

196.485(1)(c) (c) “Federal agency” means, with respect to a transmission utility that is a cooperative, the rural utilities service and, with respect to a transmission utility that is a public utility, the federal energy regulatory commission.

196.485(1)(d) (d) “Independent system operator” means an independent system operator that requires the approval of a federal agency to operate transmission facilities in this state or a region.

196.485(1)(dm) (dm) “Independent transmission owner”:

196.485(1)(dm)1m. 1m. Means a person that satisfies each of the following:

196.485(1)(dm)1m.a. a. The person does not own electric generation facilities or does not sell electric generation capacity or energy in a market within 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.

196.485(1)(dm)1m.b. b. The person is not an affiliated interest of a person specified in subd. 1m. a.

196.485(1)(dm)2. 2. Does not include the transmission company.

196.485(1)(do) (do) “Land right” means any right in real property, including fee simple ownership or a right-of-way or easement, that has been acquired for a transmission facility that is located or intended to be located on the real property.

196.485(1)(dq) (dq) “Manager” means, with respect to a transmission company organized as a limited liability company under ch. 183, the representatives of the security holders that are elected or appointed under sub. (3m) (c).

196.485(1)(dr) (dr) “Merger enforcement policy” means the enforcement policy of the federal department of justice and the federal trade commission regarding horizontal acquisitions and mergers that are subject to 15 USC 1, 18 or 45.

196.485(1)(ds) (ds) “Midwest independent system operator” means the independent system operator the establishment of which the federal energy regulatory commission has conditionally authorized in an order issued on September 16, 1998, or the successor to such independent system operator.

196.485(1)(dt) (dt) “Nontransmission utility security holder” means a security holder that is not a transmission utility security holder.

196.485(1)(dv) (dv) “Organizational start-up date” means, with respect to a transmission company that is organized as a limited liability company under ch. 183, the date on which the articles of organization become effective under s. 183.0207 or, with respect to a transmission company that is organized as a corporation under ch. 180, the date on which the articles of incorporation become effective under s. 180.0123.

196.485(1)(e) (e) “Region” means an interstate geographic area that includes any portion of this state.

196.485(1)(em) (em) “Retail electric cooperative” means a cooperative that provides retail electric service to its members.

196.485(1)(f) (f) “Rural utilities service” means the agency in the federal department of agriculture that is the successor to the rural electrification administration.

196.485(1)(fe) (fe) “Security” means, with respect to a transmission company organized as a corporation under ch. 180, a share, as defined in s. 180.0103 (15), and, with respect to a transmission company organized as a limited liability company under ch. 183, a transferable interest, as defined in s. 183.0102 (24).

196.485(1)(fm) (fm) “Subsidiary” means any person, 5 percent or more of the securities of which are directly or indirectly owned by another person.

196.485(1)(g) (g) “Transmission area” means the area of the state that, on January 1, 1997, was served by the Mid-America Interconnected Network, Inc., reliability council of the North American Electric Reliability Council.

196.485(1)(ge) (ge) “Transmission company” means a corporation organized under ch. 180 or a limited liability company organized under ch. 183 that has as its sole purpose the planning, constructing, operating, maintaining and expanding of transmission facilities, and the providing of transmission service, to provide for an adequate and reliable transmission system that meets the needs of all users that are dependent on the transmission system and that supports effective competition in energy markets without favoring any market participant.

196.485(1)(gm) (gm) “Transmission dependent utility” means an electric utility that is not a transmission utility and that is dependent on the transmission system of another person for delivering electricity to the electric utility’s customers.

196.485(1)(h) (h) “Transmission facility” means any pipe, pipeline, duct, wire, line, conduit, pole, tower, equipment or other structure used for the transmission of electric power as determined by the public service commission on the basis of factors for identifying a transmission facility that are specified in the orders of the federal energy regulatory commission under 16 USC 824d and 824e.

196.485(1)(i) (i) “Transmission utility” means a cooperative or public utility that owns a transmission facility in this state and that provides transmission service in this state.

196.485(1)(j) (j) “Transmission utility security holder” means a person that is a security holder of a transmission company, is an investor-owned transmission utility in the transmission area and has contributed its transmission facilities to the transmission company.

196.485(1)(k) (k) “Wholesale electric cooperative” means a cooperative that provides wholesale electric service to its members.

196.485(1m) (1m) Duty to provide transmission service.

196.485(1m)(a) (a) The duty of any electric utility that has contributed its transmission facilities to the transmission company to finance, construct, maintain or operate a transmission facility shall terminate on the date, as determined by the commission under sub. (2) (d), that the transmission company begins operations.

196.485(1m)(b) (b) After beginning operations, the transmission company shall, except for transmission service provided by an electric utility that has not transferred its transmission facilities to the transmission company, have the exclusive duty to provide transmission service in those areas in which transmission facilities have been contributed. The duty under this paragraph shall terminate on the date, as determined by the commission under sub. (2) (d), that the Midwest independent system operator begins operations, except that the duty shall revert to the transmission company if the transmission company withdraws from the Midwest independent system operator under sub. (3m) (b) 3. If the transmission company makes such a withdrawal, the transmission company shall assume any power or duty granted by state law before the withdrawal to the Midwest independent system operator.

196.485(1m)(c) (c) After beginning operations, the Midwest independent system operator shall, except for transmission service provided by an electric utility that has not transferred control over its transmission facilities to the Midwest independent system operator, and except as provided in par. (b), have the exclusive duty to provide transmission service in the transmission area and shall ensure that each transmission facility in the transmission area that is under its operational control is planned, constructed, operated, maintained and controlled as part of a single transmission system.

196.485(2) (2) Commission powers and duties.

196.485(2)(a) (a) By June 30, 2000, if a transmission utility has not transferred control over its transmission facilities to an independent system operator that is approved by the applicable federal agency or divested, with approval of the applicable federal agency and, for a public utility, the commission, its interest in its transmission facilities to an independent transmission owner, the commission shall, subject to pars. (am) and (ar), order the transmission utility to apply to the applicable federal agency to do one of the following:

196.485(2)(a)1. 1. Transfer control of the transmission utility’s transmission facilities to an independent system operator that has received the approval of the federal agency to operate in a region.

196.485(2)(a)2. 2. If the federal agency has not approved an independent system operator specified in subd. 1., transfer control over the transmission utility’s transmission facilities to an independent system operator that is intended to operate in a region.

196.485(2)(a)3. 3. If the transmission utility does not, or is not able to, to the satisfaction of the commission, transfer its transmission facilities to an independent system operator specified in subd. 2., divest the transmission utility’s interest in its transmission facilities to an independent transmission owner.

196.485(2)(am) (am) The commission may waive the requirement to issue an order against a transmission utility under par. (a) if each of the following is satisfied:

196.485(2)(am)1. 1. The transmission utility has filed an application with the applicable federal agency for approval to transfer control of its transmission facilities to an independent system operator or to divest its interest in its transmission facilities to an independent transmission owner.

196.485(2)(am)2. 2. The commission finds that the waiver is reasonably expected to result in a more expeditious transfer of control to an independent system operator or divestment of interest to an independent transmission owner than would result under an order issued under par. (a). In making a finding under this subdivision, the commission shall consider the need for a reasonably prompt transition period for the transfer of control or divestment of interest that ensures, to the maximum extent practicable, the continued reliability of the electric transmission system in this state.

196.485(2)(ar) (ar) The commission shall waive the requirement to issue an order against a transmission utility under par. (a) if the transmission utility shows, to the satisfaction of the commission, that a transfer of its transmission facilities to the Midwest independent system operator may have the effect of jeopardizing the tax-exempt status of the transmission utility or its securities under the Internal Revenue Code. A waiver under this paragraph shall be in effect until the commission determines that the proposed transfer does not have the effect described in this paragraph.

196.485(2)(b) (b) By June 30, 2000, the commission shall, except as provided in par. (bm), order each transmission utility in this state that is a public utility to identify and separately account for the cost of retail transmission service and to take all retail transmission service from an independent system operator or independent transmission owner.

196.485(2)(bm) (bm) The commission may issue an order under par. (b) after June 30, 2000, if the commission determines that a later date is necessary due to circumstances beyond the control of a transmission utility, including regulatory delays at the commission or applicable federal agency.

196.485(2)(bx) (bx) If the Midwest system operator fails to commence operations or ceases operations, the requirements of this section that apply to the Midwest independent system operator shall apply to any other independent system operator or regional transmission organization that is authorized under federal law to operate in this state. The commission shall require that any transfer of transmission facilities to such independent system operator or regional transmission organization satisfies the requirements of this section.

196.485(2)(c) (c) The commission has jurisdiction to do all things necessary and convenient to enforce the requirements of this section.

196.485(2)(d) (d) The commission shall determine each of the following:

196.485(2)(d)1. 1. The date on which the transmission company begins operations.

196.485(2)(d)2. 2. Whether the Midwest independent system operator has begun operations and the date on which such operations have begun.

196.485(3) (3) Independent system operator and independent transmission owner duties.

196.485(3)(a) (a) If an independent system operator that has control over transmission facilities in this state determines that there is a need for additional transmission facilities in this state, the independent system operator shall order any transmission utility that has transferred control over transmission facilities to the independent system operator to, subject to the requirements of ss. 196.49 and 196.491 (3), expand the portion of the electric transmission system that is in this state and under the control of the independent system operator or construct additional transmission facilities in that portion of the transmission system. An independent system operator may issue an order under this paragraph only if a transmission utility that is subject to the order is reasonably compensated for the costs incurred in complying with the order.