Section 105.23. Notice of price offered to meet competition.

  Except as provided in s. ATCP 105.009 (5) (c) :

(1)   Time of notice. A person who purports to justify a motor fuel selling price by giving notice to the department under s. 100.30 (7) , Stats., shall send that notice on the same day that the person lowers the price of motor fuel to that price. The person shall send the notice before the actual close of the person's motor fuel selling business at the relevant location on that day or, if that business remains open for 24 hours a day, before the time at which the business day ends for accounting purposes.

(2)   Method of giving notice. A person giving notice to the department under s. 100.30 (7) , Stats., shall give that notice in writing. The person shall give the written notice in one of the following ways:

(a) Electronically, by transmitting a facsimile to a receiving number specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice.

(b) Electronically, by transmitting an e-mail message to an e-mail address specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice.

(c) By United States mail, to a post office box number specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if it is postmarked by midnight of the day on which the person is required to give the notice.

(d) By commercial courier delivery to the department's headquarters. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the commercial courier takes custody of the notice by midnight of the day on which the person is required to give the notice.

(e) By personal delivery to the department's headquarters. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if it is delivered to the department's headquarters by 4:30 p.m. of the day on which the person is required to give the notice.

(3)   Notice contents. A person giving notice under s. 100.30 (7) , Stats., shall include all of the following in that notice:

(a) The person's name, including any trade name under which the person sells motor fuel at the price which the notice purports to justify.

(b) The address and telephone number of each business location at which the person is offering motor fuel at the price which the notice purports to justify.

(c) The motor fuel selling price which the notice purports to justify, the effective date and time that the person established that selling price, and the identity and grade of motor fuel to which that selling price applies.

(d) The name of the competitor whose price the person is purporting to meet, and the address at which that competitor is offering that price.

(e) The competitor's price which the person is purporting to meet, the relevant dates on which the competitor offered that price, and the identity and grade of motor fuel to which that price applies.

(4)   Falsified notice. A person giving notice under this section may not falsify any of the information contained in that notice. The person may not claim that a competitor offered a motor fuel selling price on a specified date at a specified address if the competitor was not open for business on that date at that address.

History: Cr., Register, May, 1999, No. 521 , eff. 6-1-99; cr. (intro.), Register, March, 2000, No. 531 , eff. 4-1-00.

Note

Section 100.30 (7) , Stats., only requires sellers of motor vehicle fuel to file a notice on the day that they lower their price to meet a competitor's price. It is not necessary for a seller to provide notice on a day they did not change their price, even if they are selling motor vehicle fuel below cost in order to meet competition. The department recommends that sellers maintain daily price surveys [see s. ATCP 105.009 (3) ], especially for days that they are selling motor vehicle fuel below cost, as defined in s. 100.30 (2) , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 Section 100.30 , Stats., prohibits sales of motor fuel below "cost" as defined in the statute. A seller may claim, as a defense, that the seller sold motor fuel below cost in order to meet the existing price of a competitor. Under s. 100.30 (7) , Stats., a seller who wishes to establish a presumptive "meeting competition" defense must notify the department of the below-cost selling price on the day the seller offers that price to meet a competitor's price. The seller must give notice "in the form and manner required by the department." Section ATCP 105.23 spells out the "form and manner" in which a seller must give the required notice. Section ATCP 105.23 does not affect or replace s. ATCP 105.009 . Microsoft Windows NT 6.1.7601 Service Pack 1