Section 196.52. Relations with affiliated interests; definition; contracts with affiliates filed and subject to commission control.

 

(1)  In this section, “person" includes but is not limited to trustees, lessees, holders of beneficial equitable interest, voluntary associations, receivers, partnerships and corporations; and “affiliated interests" means, with respect to a public utility:

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

(b) Any person in any chain of successive ownership of 5 percent or more of voting securities of the public utility.

(c) Every 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 public utility or by any person in any chain of successive ownership of 5 percent or more of voting securities of the public utility.

(d) Any person who is an officer or director of the public utility or of any corporation in any chain of successive ownership of 5 percent or more of voting securities of the public utility.

(e) Any corporation operating a public utility, a railroad, or a servicing organization for furnishing supervisory, construction, engineering, accounting, legal and similar services to public utilities or railroads, which has one or more officers or one or more directors in common with the public utility, and any other corporation which has directors in common with the public utility if the number of such directors of the corporation is more than one-third of the total number of the public utility's directors.

(f) Any person whom the commission determines as a matter of fact after investigation and hearing to be actually exercising any substantial influence over the policies and actions of the public utility even if such influence is not based upon stockholding, stockholders, directors or officers as specified under pars. (a) to (e) .

(g) Any other person whom the commission determines as a matter of fact after investigation and hearing to be actually exercising substantial influence over the policies and actions of the public utility in conjunction with one or more other persons with whom they are related by ownership, by blood or adoption or by action in concert that together they are affiliated with such public utility for the purpose of this section, even though no one of them alone is so affiliated under pars. (a) to (f) .

(h) Any subsidiary of the public utility. In this paragraph, “subsidiary" means any person 5 percent or more of the securities of which are directly or indirectly owned by a public utility.

(3)  

(a) In this subsection, “contract or arrangement" means a contract or arrangement providing for the furnishing of management, supervisory, construction, engineering, accounting, legal, financial or similar services and any contract or arrangement for the purchase, sale, lease or exchange of any property, right, or thing, or for the furnishing of any service, property, right, or thing, other than management, supervisory, construction, engineering, accounting, legal, financial or similar services, but “contract or arrangement" does not include a contract or arrangement under which a transmission utility, as defined in s. 196.485 (1) (i) , sells or transfers securities, as defined in s. 196.485 (1) (fe) , that have been issued by a transmission company, as defined in s. 196.485 (1) (ge) . Except as provided under par. (b) , unless and until the commission gives its written approval, any contract or arrangement is not valid or effective if the contract or arrangement is made between a public utility and an affiliated interest after June 7, 1931. Every public utility shall file with the commission a verified copy of any contract or arrangement, a verified summary of any unwritten contract or arrangement, and any contract or arrangement, written or unwritten, which was in effect on June 7, 1931. The commission shall approve a contract or arrangement made or entered into after June 7, 1931, only if it shall clearly appear and be established upon investigation that it is reasonable and consistent with the public interest. The commission may not approve any contract or arrangement unless satisfactory proof is submitted to the commission of the cost to the affiliated interest of rendering the services or of furnishing the property or service to each public utility or of the cost to the public utility of rendering the services or of furnishing the property or service to each affiliated interest. No proof is satisfactory under this paragraph unless it includes the original (or verified copies) of the relevant cost records and other relevant accounts of the affiliated interest, or an abstract of the records and accounts or a summary taken from the records and accounts if the commission deems the abstract or summary adequate. The accounts shall be properly identified and duly authenticated. The commission, where reasonable, may approve or disapprove a contract or arrangement without submission of the cost records or accounts.

(b)

1. The requirement for written approval under par. (a) shall not apply to any contract or arrangement if the amount of consideration involved is not in excess of the threshold amount under subd. 1m. or 5 percent of the equity of the public utility, whichever is smaller. The requirement under par. (a) also does not apply to contracts or arrangements with joint local water authorities under s. 66.0823 . Regularly recurring payments under a general or continuing arrangement which aggregate a greater annual amount may not be broken down into a series of transactions to come within the exemption under this paragraph. Any transaction exempted under this paragraph shall be valid or effective without commission approval under this section.

1m. The threshold amount under subd. 1. is $250,000, except that in 2014 and biennially thereafter, the commission shall adjust such threshold amount to reflect adjustments to the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, and disseminate the adjusted threshold on the commission's Web site.

2. In any proceeding involving the rates or practices of the public utility, the commission may exclude from the accounts of the public utility any payment or compensation made pursuant to a transaction exempted under this paragraph unless the public utility establishes the reasonableness of the payment or compensation.

(c) If the value of a contract or arrangement between an affiliated interest and a public utility exceeds $1,000,000, the commission:

1. May not waive the requirement of the submission of cost records or accounts under par. (a) ;

2. Shall review the accounts of the affiliated interest as they relate to the contract or arrangement prior to the commission approving or disapproving the contract or arrangement under par. (a) ; and

3. May determine the extent of cost records and accounts which it deems adequate to meet the requirements for submission and review under subds. 1. and 2.

(d)

1. If a hearing is held on an application under this subsection, the commission shall take final action on the application within 180 days after the commission issues a notice of hearing on the application. The chairperson of the commission may extend the time period for an additional 180 days for good cause. If the commission fails to take final action within the initial 180-day period, or the extended 180-day time period, the commission is considered to have approved the application.

2. If a hearing is not held on an application under this subsection, the commission shall take final action on the application within 90 days after the commission issues a notice opening a docket on the application. The chairperson of the commission may extend the time period for an additional 90 days for good cause. If the commission fails to take final action within the initial 90-day period, or the extended 90-day time period, the commission is considered to have approved the application.

(4)  

(a) In any proceeding, whether upon the commission's own motion or upon application or complaint, involving the rates or practices of any public utility, the commission may exclude from the accounts of the public utility any payment or compensation to or from an affiliated interest for any services rendered or property or service furnished under an existing contract or arrangement with an affiliated interest under sub. (3) (a) unless the public utility establishes the reasonableness of the payment or compensation.

(b) The commission shall disallow the payment or compensation described in par. (a) , in whole or in part, in the absence of satisfactory proof that the payment or compensation is reasonable in amount.

(c) The commission may not approve or allow any payment or compensation described in par. (a) , in whole or in part, unless satisfactory proof is submitted to the commission of the cost to the affiliated interest of rendering the service or furnishing the property or service to each public utility or of the cost to the public utility of rendering the service or furnishing the property or service to each affiliated interest.

(d) No proof shall be satisfactory under this subsection unless it includes the original or verified copies of the relevant cost records and other relevant accounts of the affiliated interest, or an abstract of the records and accounts or a summary taken from the records and accounts if the commission deems the abstract or summary adequate. The accounts shall be properly identified and duly authenticated. The commission, where reasonable, may approve or disapprove a contract or arrangement without submission of the cost records or accounts.

(5)  The commission shall have continuing supervisory control over the terms and conditions of contracts and arrangements under this section as necessary to protect and promote the public interest. The commission shall have the same jurisdiction over the modifications or amendment of contracts or arrangements as it has over original contracts or arrangements. Commission approval of a contract or arrangement under this section shall not preclude disallowance or disapproval of a payment under the contract or arrangement if upon actual experience under the contract or arrangement it appears that the payments provided for or made were or are unreasonable. Every order of the commission approving a contract or arrangement shall be expressly conditioned upon the reserved power of the commission to revise and amend the terms and conditions of the contract or arrangement to protect and promote the public interest.

(6)  If the commission finds upon investigation that a public utility is giving effect to a contract or arrangement without the commission's approval under this section, the commission shall issue a summary order directing that public utility to cease and desist from making any payments, receiving compensation, providing any service or otherwise giving any effect to the contract or arrangement until the contract or arrangement receives the approval of the commission. The circuit court of Dane County may enforce the order to cease and desist by appropriate process, including the issuance of a preliminary injunction, upon the suit of the commission.

(7)  If the commission finds upon investigation that a public utility is making a payment to, providing a service to or receiving compensation from an affiliated interest, although the payment, service or compensation has been disallowed and disapproved by the commission in a proceeding involving the public utility's rates or practices, the commission shall issue a summary order directing the public utility to cease and desist from making the payment, providing the service or receiving the compensation. The circuit court of Dane County may enforce the order to cease and desist by appropriate process, including the issuance of a preliminary injunction, upon the suit of the commission.

(8)  Nothing in this section prevents a public utility from investing equity capital which is in excess of the level of equity that the commission has determined to be appropriate for the utility's capital structure in a subsidiary without commission approval.

(9)  

(a) In this subsection:

1. “Electric generating equipment" means any of the following:

a. An electric generator.

b. A machine that drives an electric generator, including an engine, turbine, water wheel, or wind mill.

c. Equipment that converts a fuel or source of energy into energy that powers a machine that drives an electric generator, including a boiler, but not including a nuclear reactor.

d. A fuel or photovoltaic cell.

2. “Electric generating facility" means electric generating equipment and associated facilities that, together, constitute a complete facility for the generation of electricity.

3. “Leased generation contract" means a contract or arrangement or set of contracts or arrangements under which an affiliated interest of a public utility agrees with the public utility to construct or improve an electric generating facility and to lease to the public utility land and the facility for operation by the public utility.

(b) The commission may approve a leased generation contract under sub. (3) only if all of the following apply:

1. The commission has not issued a certificate under s. 196.49 or a certificate of public convenience and necessity under s. 196.491 (3) before January 1, 2002, for any construction or improvement that is subject to the leased generation contract.

2. Construction or improvement of the electric generating facility that is subject to the leased generation contract commences on or after January 1, 2002.

3. Except as provided in s. 196.795 (5) (k) 3. , no electric generating facility, electric generating equipment, or associated facilities, held or used by the public utility for the provision of electric service, is transferred to the affiliated interest.

4. The estimated gross cost of the construction or improvement that is subject to the leased generation contract is at least $10,000,000.

5. The construction or improvement is not to a nuclear-powered facility.

6. Any real property that the public utility transfers to the affiliated interest for the purpose of implementing the leased generation contract is transferred at book value, which is determined on the basis of the regulated books of account at the time of the transfer.

7. If the public utility transfers real property to the affiliated interest for the purpose of implementing the leased generation contract, the leased generation contract provides for transferring that real property back to the public utility, on the same terms and conditions as the original transfer, if the commission determines that the construction or improvement that is subject to the leased generation contract has not been completed.

8. The leased generation contract provides that, upon termination of the contract, all of the following apply:

a. The public utility shall have the option, subject to commission approval, to extend the contract, or purchase the electric generating facility or the improvements to an electric generating facility, at fair market value as determined by a valuation process that is conducted by an independent 3rd party and that is specified in the contract.

b. If the public utility exercises the option specified in subd. 8. a. , the affiliated interest may require the public utility to extend the contract, rather than purchase the facilities or improvements, if the affiliated interest demonstrates to the commission that the extension avoids material adverse tax consequences and that the extension provides terms and conditions that are economically equivalent to a purchase.

9. For any gas-fired electric generating facility that is constructed under the leased generation contract, the term of the lease is 20 years or more.

10. For any coal-fired electric generating facility that is constructed under the leased generation contract, the term of the lease is 25 years or more.

11. The leased generation contract does not take effect until the date on which the affiliated interest commences construction or improvement of the electric generating facility, except that, if the leased generation contract relates to the construction or improvement of more than one electric generating facility, the leased generation contract does not take effect with respect to the construction or improvement of an individual electric generating facility until the date on which the affiliated interest commences construction or improvement on that electric generating facility.

(c) Except as provided in par. (d) , the commission may not increase or decrease the retail revenue requirements of a public utility on the basis of any income, expense, gain, or loss that is received or incurred by an affiliated interest of the public utility and that arises from the ownership of an electric generating facility or an improvement to an electric generating facility by an affiliated interest under a leased generation contract.

(d) The commission shall allow a public utility that has entered into a leased generation contract that has been approved by the commission under sub. (3) to recover fully in its retail rates that portion of any payments under the leased generation contract that the commission allocates to the public utility's retail electric service, and that portion of all other costs that is prudently incurred in the public utility's operation and maintenance of the electric generating facility or improvement that is subject to the leased generation contract and that the commission allocates to the public utility's retail electric service.

(e) Notwithstanding sub. (5) , the commission may not modify or terminate a leased generation contract approved under sub. (3) except as specified in the leased generation contract or the commission's order approving the leased generation contract.

(f) The commission shall maintain jurisdiction to ensure that the construction or improvement under a leased generation contract approved under sub. (3) is completed as provided in the leased generation contract.

(g) Nothing in this subsection prohibits a cooperative association organized under ch. 185 , a municipal utility, as defined in s. 196.377 (2) (a) 3. , or a municipal electric company, as defined in s. 66.0825 (3) (d) , from acquiring an interest in an electric generating facility that is constructed pursuant to a leased generation contract or from acquiring an interest in land on which such an electric generating facility is located.

1981 c. 390 ; 1983 a. 53 , 538 ; 1985 a. 297 ; 1993 a. 496 ; 1995 a. 225 ; 1997 a. 184 ; 1999 a. 9 ; 1999 a. 150 s. 672 ; 1999 a. 162 ; 2001 a. 16 ; 2005 a. 253 ; 2011 a. 22 , 155 ; 2015 a. 299 . Cross-reference: See also chs. PSC 100 and 113 , Wis. adm. code.