Chapter 196

196.795 Note NOTE: This section was created by 1985 Act 79. Section 1 of that Act is entitled “Findings and purpose.”

196.795 Annotation The sub. (5) (L) requirement that a public utility holding company must be incorporated in Wisconsin violates the interstate commerce clause of the U. S. constitution. Alliant Energy Corporation v. Bie, 330 F.3d 904 (2003).

196.795 Annotation Subs. (3) and (6m) (b) do not violate the interstate commerce clause of the U. S. constitution. Alliant Energy Corporation v. Bie, 330 F.3d 904 (2003).

196.796 196.796 Real estate activities.

196.796(1) (1) In this section:

196.796(1)(a) (a) “Brownfields facility or site” means any abandoned, idle or underused industrial or commercial facility or site, the use, expansion or redevelopment of which is adversely affected by actual environmental contamination.

196.796(1)(b) (b)

196.796(1)(b)1. 1. “Commercial construction” means the act of building any structure, or that part of any structure, that is not used as a home, residence or sleeping place by one or more persons maintaining a common household to the exclusion of all others.

196.796(1)(b)2. 2. “Commercial construction” does not include any of the following:

196.796(1)(b)2.a. a. Any repair, maintenance, installation or construction of a structure owned or used by or for a public utility, or for a customer of a public utility, if the repair, maintenance, installation or construction is related to furnishing heat, light, water or power to the customer.

196.796(1)(b)2.b. b. Any construction related to the evaluation, control or remediation of hazardous substances; solid, liquid or gaseous wastes; soils; air; or water.

196.796(1)(b)2.c. c. Any construction performed in order to comply with federal, state or local environmental laws, regulations, orders or rules.

196.796(1)(c) (c) “Economic development” means development that is designed to promote job growth or retention, expand the property tax base or improve the overall economic vitality of a municipality, as defined in s. 30.01 (4), or region.

196.796(1)(d) (d) “Engage” means to actively participate in the daily operations or daily business decisions of an entity. “Engage” does not include taking an action necessary to protect an ownership interest in an entity.

196.796(1)(dg) (dg) “Entity” has the meaning given in s. 180.0103 (8).

196.796(1)(dr) (dr) “Financial support” includes investments, loans and grants.

196.796(1)(e) (e) “Holding company system” has the meaning given in s. 196.795 (1) (i).

196.796(1)(f) (f) “Improvements” means any valuable addition made to land, including excavations, gradings, foundations, structures, buildings, streets, parking lots, sidewalks, sewers, septic systems and drainage facilities. “Improvements” does not include any repair, maintenance, installation or construction of structures or facilities owned or used by or for a public utility, or by or for a customer of a public utility, if the repair, maintenance, installation or construction is related to furnishing heat, light, water or power to the customer.

196.796(1)(g) (g) “Nonutility affiliate” means a subsidiary of a public utility or a company in a holding company system that is not a public utility. “Nonutility affiliate” does not include a passively held company.

196.796(1)(gm) (gm) “Passively held company” means an entity that satisfies each of the following:

196.796(1)(gm)1. 1. Less than 50 percent of the ownership interest of the entity is directly or indirectly owned in any chain of successive ownership by a public utility or nonutility affiliate.

196.796(1)(gm)2. 2. The entity engages in property management for a 3rd party, real estate practice, residential real estate development or residential or commercial construction.

196.796(1)(h) (h) “Property management” means any activity associated with the care or maintenance of land or improvements, including business planning and budgeting, accounting, lease administration, tenant relations and retention, security, maintenance of common areas, rent collections, financial reporting, service contract administration and inspections.

196.796(1)(hm) (hm) “Public utility” means every corporation, company, individual or association and their lessees, trustees, or receivers appointed by any court or state or federal agency, that may own, operate, manage, or control all or any part of a plant or equipment, within the state, for the production, transmission, delivery, or furnishing of electricity directly to or for the public, except that “public utility” does not include any municipal utility or municipal electric company, as defined in s. 66.0825 (3) (d), or any cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to its members only.

196.796(1)(i) (i) “Real estate practice” has the meaning given in s. 452.01 (6).

196.796(1)(j) (j) “Residential construction” means the act of building any structure, or that part of any structure that is used as a home, residence or sleeping place by one or more persons maintaining a common household to the exclusion of all others.

196.796(1)(k) (k) “Residential real estate development” means the act of dividing or subdividing any parcel of land for residential construction or making improvements to facilitate or allow residential construction.

196.796(1)(L) (L) “Third party” means any person other than a public utility or nonutility affiliate.

196.796(2) (2) Prohibited activities. Except as provided in sub. (4), a public utility or nonutility affiliate may not do any of the following in this state:

196.796(2)(a) (a) Engage in real estate practice.

196.796(2)(b) (b) Engage in residential real estate development.

196.796(2)(c) (c) Engage in property management for a 3rd party.

196.796(2)(d) (d) Engage in residential or commercial construction.

196.796(3) (3) Permitted activities.

196.796(3)(a) (a) Subsection (2) does not prohibit a public utility or nonutility affiliate from doing any of the following:

196.796(3)(a)1. 1. Repairing, maintaining, installing or constructing a structure that is owned or used by or for a public utility or nonutility affiliate, or for a customer of a public utility if the repair, maintenance, installation or construction is related to furnishing heat, light, water or power to the customer.

196.796(3)(a)2. 2. Engaging in construction that is specifically related to the evaluation, control or remediation of hazardous substances; solid, liquid or gaseous wastes; soils; air; or water.

196.796(3)(a)3. 3. Engaging in construction that is performed in order to comply with federal, state or local environmental laws, regulations, orders or rules.

196.796(3)(a)4. 4. Consulting or making other financial or business arrangements with one or more 3rd parties who will engage in commercial construction.

196.796(3)(a)5. 5. Consulting or making other financial or business arrangements with one or more 3rd parties who will engage in residential construction or residential real estate development, except that if a public utility or nonutility affiliate contracts for the development of more than one residential construction project or residential real estate development, the public utility or nonutility affiliate may not enter into an exclusive arrangement with a 3rd party for all such residential construction or residential real estate development.

196.796(3)(a)6. 6. Acquiring or disposing of property or interests in property if the acquisition or disposition is related to the operation of a public utility and the acquisition or disposition satisfies one of the following:

196.796(3)(a)6.a. a. The acquisition or disposition is conducted under a contract with a 3rd party that is engaged in real estate practice.

196.796(3)(a)6.b. b. The acquisition or disposition is conducted by an individual engaged in real estate practice or employed by a public utility.

196.796(3)(a)7. 7. Owning a passively held company.

196.796(3)(b) (b) Subsection (2) does not prohibit a public utility that is not subject to the requirements of s. 196.795, or the nonutility subsidiary of such a public utility, from doing any of the following:

196.796(3)(b)1. 1. Engaging in commercial or residential real estate development or construction on property owned or acquired by the public utility or nonutility subsidiary for a public utility purpose if the total annual revenues from the development or construction do not exceed 3 percent of the total operating revenues of the public utility in any year.

196.796(3)(b)2. 2. Providing financial support for the purpose of economic development to 3rd parties that are engaged in an activity specified in sub. (2) (a) to (d). The public utility or nonutility subsidiary may profit directly from that activity only through receipt of profits that are incidental to the economic development project or interest earned on a loan.

196.796(4) (4) Exceptions.

196.796(4)(a) (a) A nonutility affiliate that has engaged in residential construction prior to, or is engaged in residential construction on, October 29, 1999, may directly or indirectly own in any chain of successive ownership 50 percent or more of the ownership interest of an entity that hires a 3rd party to engage in residential construction or commercial construction that is incidental to residential construction, except that the nonutility affiliate may not actively participate in the daily operations or daily business decisions of the entity.

196.796(4)(b) (b) A public utility or nonutility affiliate may engage in residential real estate development at a brownfields facility or site.

196.796(5) (5) Private cause of action. Any public utility or nonutility affiliate that does, causes or permits to be done any action prohibited under this section or fails to comply with any requirement specified in this section is liable to any person injured thereby in the amount of damages sustained in consequence of the prohibited action or failure to comply.

196.796 History History: 1999 a. 9; 2003 a. 320.

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. 201 shall require authorization under ch. 201 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(2) (2) Nothing in this section shall be construed to affect or limit the operation of ss. 197.01 to 197.10 or of ss. 62.69, 66.0621 and 66.0801 to 66.0827.

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.

196.80 History History: 1977 c. 29; 1983 a. 53; 1993 a. 496; 1997 a. 140; 1999 a. 150 ss. 647, 672.

196.807 196.807 Energy affiliate and utility employees.

196.807(1) (1) Definitions. In this section:

196.807(1)(a) (a) “Affiliate or utility” means a nonutility affiliate, holding company system, public utility or cooperative association organized under ch. 185 or 193.

196.807(1)(b) (b) “Energy unit” means a unit in this state that is engaged in activities related to the production, generation, transmission or distribution of electricity, gas or steam or the recovery of energy from waste materials.

196.807(1)(c) (c) “Holding company system” has the meaning given in s. 196.795 (1) (i).

196.807(1)(d) (d) “Nonutility affiliate” has the meaning given in s. 196.795 (1) (j).

196.807(1)(e) (e) “Public utility affiliate” has the meaning given in s. 196.795 (1) (L).

196.807(1)(f) (f) “Sell an energy unit” means to sell, offer by lease, or otherwise transfer ownership or control of the energy unit.

196.807(1)(fg) (fg) “Transmission company” has the meaning given in s. 196.485 (1) (ge).

196.807(1)(fr) (fr) “Transmission utility” has the meaning given in s. 196.485 (1) (i).

196.807(1)(g) (g) “Unit” means a division, department or other operational business unit of an affiliate or utility.

196.807(2) (2) Offer of employment.

196.807(2)(a) (a) Except as provided in par. (b), a person may not sell an energy unit unless the terms of the transfer require the person to which the energy unit is transferred to offer employment to the nonsupervisory employees who are employed with the energy unit immediately prior to the transfer and who are necessary for the operation and maintenance of the energy unit.

196.807(2)(b) (b)

196.807(2)(b)1. 1. A public utility affiliate may not sell an energy unit to a nonutility affiliate in the same holding company system unless the terms of the transfer require the nonutility affiliate to offer employment to all of the nonsupervisory employees who are employed with the energy unit immediately prior to the transfer.

196.807(2)(b)2. 2. A transmission company to which an energy unit is sold by a transmission utility shall, beginning on the expiration of the 3-year period specified in s. 196.485 (3m) (a) 1. b. or, if applicable, the expiration of any extension of such 3-year period, offer employment to the nonsupervisory employees who are employed with the energy unit immediately prior to the transfer and who are necessary for the operation and maintenance of the energy unit.

196.807(3) (3) Employment terms and conditions.

196.807(3)(a) (a) Except as provided in par. (b), the employment that is offered under sub. (2) shall satisfy each of the following during the 30-month period beginning immediately after the transfer:

196.807(3)(a)1. 1. Wage rates shall be no less than the wage rates in effect immediately prior to the transfer.

196.807(3)(a)2. 2. Fringe benefits shall be substantially equivalent to the fringe benefits in effect immediately prior to the transfer.

196.807(3)(a)3. 3. Terms and conditions of employment, other than wage rates and fringe benefits, shall be substantially equivalent to the terms and conditions in effect immediately prior to the transfer.

196.807(3)(b) (b) A collective bargaining agreement may modify or waive a requirement specified in par. (a).

196.807(4) (4) Commission approval. Except for a cooperative association, as defined in s. 196.491 (1) (bm), or a transmission utility that sells an energy unit to a transmission company, no person may sell an energy unit unless the commission determines that the person has satisfied subs. (2) and (3).

196.807 History History: 1999 a. 9; 2005 a. 441.

196.81 196.81 Abandonment; commission approval required.