196.85 Payment of commission's expenditures.

(1)

(a) If the commission in a proceeding upon its own motion, on complaint, or upon an application to it deems it necessary in order to carry out the duties imposed upon it by law to investigate the books, accounts, practices, and activities of, or make appraisals of the property of any public utility, power district, or sewerage system or to render any engineering or accounting services to any public utility, power district, or sewerage system, the public utility, power district, or sewerage system shall pay the expenses attributable to the investigation, including the cost of litigation, appraisal, or service. The commission shall mail a bill for the expenses to the public utility, power district, or sewerage system either at the conclusion of the investigation, appraisal, or services, or during its progress. The bill constitutes notice of the assessment and demand of payment. The public utility, power district, or sewerage system shall, within 30 days after the mailing of the bill, pay to the commission the amount of the special expense for which it is billed. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (1) (g).

(b) Except as provided in sub. (1m) (a), the total amount in any one calendar year for which any public utility, power district, or sewerage system is liable under this subsection, by reason of costs incurred by the commission within the calendar year, including charges under s. 201.10 (3), may not exceed four-fifths of one percent of its gross operating revenues derived from intrastate operations in the last preceding calendar year.

(c) Nothing in this subsection shall prevent the commission from rendering bills in one calendar year for costs incurred within a previous year.

(d) For the purpose of calculating the costs of investigations, appraisals, and other services under this subsection, 90 percent of the costs determined shall be costs of the commission and 10 percent of the costs determined shall be costs of state government operations.

(1m)

(a) For the purpose of direct assessment under sub. (1) of expenses incurred by the commission in connection with its activities under s. 196.491, the term “public utility" includes electric utilities, as defined in s. 196.491 (1) (d). Subsection (1) (b) does not apply to assessments for the commission's activities under s. 196.491 related to the construction of wholesale merchant plants.

(b) For the purpose of direct assessment under sub. (1) of expenses incurred by the commission in connection with its activities under s. 196.04 (2) or (4), the term “public utility" includes a video service provider.

(c) For the purpose of direct assessment under sub. (1) of expenses incurred by the commission in connection with its activities under s. 66.0821 (5) (a) or 200.59 (5) (a) that are initiated under s. 281.49 (11) (d), the term “sewerage system" includes a licensed disposer as defined in s. 281.49 (1) (b).

(d) For the purpose of direct assessment under sub. (1) of expenses incurred by the commission in connection with its activities under s. 182.017, the term “public utility" includes a company, as defined in s. 182.017 (1g) (b).

(f) For the purpose of direct assessment under sub. (1) of expenses incurred by the commission in proceedings under s. 32.02 (13), the term “public utility" includes a business entity specified in s. 32.02 (13).

(2) The commission shall annually, within 90 days of the commencement of each fiscal year, calculate the total of its expenditures during the prior fiscal year which are reasonably attributable to the performance of its duties relating to public utilities, sewerage systems and power districts under this chapter and chs. 66, 198 and 201 and expenditures of the state for state government operations to support the performance of such duties. For purposes of such calculation, 90 percent of the expenditures so determined shall be expenditures of the commission and 10 percent of the expenditures so determined shall be expenditures for state government operations. The commission shall deduct from this total all amounts chargeable to public utilities, sewerage systems and power districts under sub. (1) and s. 201.10 (3). The commission shall assess a sum equal to the remainder plus 10 percent of the remainder to the public utilities and power districts in proportion to their respective gross operating revenues during the last calendar year, derived from intrastate operations. If, at the time of payment, the prior year's expenditures made under this section exceeded the payment made under this section in the prior year, the commission shall charge the remainder to the public utilities and power districts in proportion to their gross operating revenues during the last calendar year. If, at the time of payment it is determined that the prior year's expenditures made under this section were less than the payment made under this section in the prior year, the commission shall credit the difference to the current year's payment. The assessment shall be paid within 30 days after the bill has been mailed to the public utilities and power districts. The bill constitutes notice of the assessment and demand of payment. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (1) (g).

(2e) Annually, the commission shall assess a joint local water authority for the commission's costs under s. 66.0823 (8) directly attributable to that joint local water authority. The commission shall bill the joint local water authority for the amount of the assessment.

(3) If any public utility, sewerage system, joint local water authority, or power district is billed under sub. (1), (2), or (2e) and fails to pay the bill within 30 days or fails to file objections to the bill with the commission, as provided in sub. (4), the commission shall transmit to the secretary of administration a certified copy of the bill, together with notice of failure to pay the bill, and on the same day the commission shall mail by registered mail to the public utility, sewerage system, joint local water authority, or power district a copy of the notice that it has transmitted to the state treasurer. Within 10 days after receipt of the notice and certified copy of the bill, the secretary of administration shall levy the amount stated on the bill to be due, with interest, by distress and sale of any property, including stocks, securities, bank accounts, evidences of debt, and accounts receivable belonging to the delinquent public utility, sewerage system, joint local water authority, or power district. The levy by distress and sale shall be governed by s. 74.10, 1985 stats., except that it shall be made by the secretary of administration and that goods and chattels anywhere within the state may be levied upon.

(4)

(a) Within 30 days after the date of the mailing of any bill under sub. (1), (2), or (2e), the public utility, sewerage system, joint local water authority, or power district that has been billed may file with the commission objections setting out in detail the grounds upon which the objector regards the bill to be excessive, erroneous, unlawful, or invalid. The commission, after notice to the objector, shall hold a hearing upon the objections, from 5 to 10 days after providing the notice. If after the hearing the commission finds any part of the bill to be excessive, erroneous, unlawful, or invalid, it shall record its findings upon its minutes and transmit to the objector by registered mail an amended bill, in accordance with the findings. The amended bill shall have the same force and effect under this section as an original bill rendered under sub. (1), (2), or (2e).

(b) If after such hearing the commission finds the entire bill unlawful or invalid it shall notify the objector by registered mail of such determination, in which case said original bill shall be deemed null and void.

(c) If after such hearing the commission finds that the bill as rendered is neither excessive, erroneous, unlawful or invalid either in whole or in part it shall record such findings upon its minutes, and transmit to the objector by registered mail notice of such finding.

(d) If any bill against which objections have been filed is not paid within 10 days after notice of a finding that the objections have been overruled and disallowed by the commission has been mailed to the objector as provided in this subsection, the commission shall give notice of the delinquency to the secretary of administration and to the objector, in the manner provided in sub. (3). The secretary of administration shall then proceed to collect the amount of the delinquent bill as provided in sub. (3). If an amended bill is not paid within 10 days after a copy of the amended bill is mailed to the objector by registered mail, the commission shall notify the secretary of administration and the objector as in the case of delinquency in the payment of an original bill. The secretary of administration shall then proceed to collect the amount of the amended bill as provided in the case of an original bill.

(5) No suit or proceeding may be maintained in any court to restrain or delay the collection or payment of any bill rendered under sub. (1), (2), or (2e). Every public utility, sewerage system, joint local water authority, or power district that is billed shall pay the amount of the bill, and after payment may in the manner provided under this section, at any time within 2 years from the date the payment was made, sue the state to recover the amount paid plus interest from the date of payment, upon the ground that the assessment was excessive, erroneous, unlawful, or invalid in whole or in part. If the court finds that any part of the bill for which payment was made was excessive, erroneous, unlawful, or invalid, the secretary of administration shall make a refund to the claimant as directed by the court. The refund shall be charged to the appropriations to the commission.

(6) No action for recovery of any amount paid pursuant to this section shall be maintained in any court unless objections have been filed with the commission as herein provided. In any action for recovery of any payments made under this section the claimant shall be entitled to raise every relevant issue of law, but the commission's findings of fact made pursuant to this section shall be prima facie evidence of the facts therein stated.

(7) The following shall be deemed to be findings of fact of the commission, within the meaning of this section:

(a) Determinations of fact expressed in bills rendered pursuant to this section.

(b) Determinations of fact set out in those minutes of the commission which record the action of the commission in passing upon said bills, and in passing upon objections thereto.

(8) The procedure by this section providing for determining the lawfulness of bills and the recovery back of payments made pursuant to such bills shall be exclusive of all other remedies and procedures.

History: 1971 c. 40 s. 93; 1971 c. 125; 1973 c. 243 s. 82; 1975 c. 68; 1977 c. 29 ss. 1359, 1360, 1654 (10) (f); 1977 c. 203, 418; 1979 c. 171; 1981 c. 390; 1987 a. 378; 1991 a. 269; 1993 a. 496; 1997 a. 27, 140, 184, 229, 254; 1999 a. 32, 53; 1999 a. 150 ss. 648, 649, 672; 1999 a. 186; 2001 a. 16, 30; 2003 a. 33; 2005 a. 347; 2007 a. 42; 2013 a. 151; 2015 a. 278, 299; s. 35.17 corrections in (7).

NOTE: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.

Revenue from “intrastate operations" under sub. (2) includes revenue from interstate telecommunications originating within the state. MCI Telecommunications Corp. v. State, 209 Wis. 2d 310, 562 N.W.2d 594 (1997), 95-0915.