rule discriminatory and anti competitive in order allowed incumbent roco of change carriers in charge for a call that competitive local exchange carriers not the rate would be subject to the benchmark well under my nd argument i want your honor because i both know that nd argument you can't beat application of the benchmark you rule was benchmark or mirror those right now we have to meet and i have years later the commission saying that why voice as a competitor it wrong didn't properly because that's where i think the least he has a difference with your interpretation so it if you if you as a tandem switch  or challenge was in fifteen days it's game set match however the agency makes an argument but i think we have to credit rates that they they wish in them rely on those filings being made perhaps in the dead of night for absent the interview or whatever and then him the commission all terrorists to violate specific commission rules they rely on e t n t services vs which was an agency decision in two thousand and fifteen  wrong and i'm not saying you are going let's say you are wrong on the classification issue and the f c c needs to do something about it they don't have an opportunity to cement seriously do that in fifteen days what what remedies do they have to protect the consuming public from g o g her outrageous behavior at the hands of telecommunications firms they have other th have really and so the commission is not without the ability to declare that rain i'm just and i'm reasonable it just i don't conclusively free right excuse me if the commission's right about the raids and you're wrong and what do we do if the commission is right about the rain and i'm wrong which i strongly believe i am not i don't know  honor the rules in this case are technical but the agency's decision is straightforward the benchmark rule requires competitive carriers like why voice to match income is raised for the same service now the different rule the stepdown rule requires income this case the f c c held the why voice must match the incumbents rate when it provides the same service defined by the rule meaning that if the incumbent is required to step down where it owns both the but that's wrong for two reasons st of all a bit level three decision didn't address the benchmark will was the commission why here nd of all the level three decision held simply that a price cap carrier must step down its rate when it commonly owns the facilities that the service is defined by so whatever price cap carrier under level three dollars cans or a call to any of the lyric carrier regardless of its regulatory cost cation seven to apply only when the incoming vice captain eri or owns both of the facilities that the service is defined by and your owners asked a question about isn't this a case about how the services are and that's exactly right the service will with the commission held in this war is that the benchmark rule applies the stepdown exactly the same terms and the price cap carriers are subject to it so if us if if y voice as a competitive carrier hands off a call to an affiliated carrier regardless of its classification wife was he subject to the step down or is not is not is not why voice is only subject to the step down the commission's rules define affiliated as ten percent or higher interest so it could be any interest down to ten percent and the record doesn't reflect the various levels of doesn't doesn't the commission didn't engage in analysis of of different levels of filiation but the level three were in the world of this before you are limited to a situation where it's com s decision really turns on the rules definition of service based on this common ownership heard whether it's ultimately lawful or not i think there's no question it can be in here was deemed lawful there's no days it's affective in dean the lawful and unless we are willing to override the clear implication of advance rates and that's what the commission did here regarding the benchmark rule it's sad in a fact the benchmark rule is that conclusively presumed lawful rape and carriers competit respectfully disagree your honor and the reason for that is that this is circuits based a number of cases involving the dea and law provision and both of those cases involve terror us that were legal when file s later turned out to subsequent developments to result in over earnings for the carriers they filed and the commission interpreted the statute pointed to the common law dichotomy between legal and lawful raids a common law rates could be lawful when legal with finals but then could turn out later to be unlawful based on the agency's decision but under current law when a eight when a rate as here was prescribed in advance there was there was absolutely no distinction so if a carrier for instance files a rate that doesn't violate any prescriptions but states a rate of return that's based on a carrier estimate it's projection of what what its earnings may be in the future and then later it turns out so early more that it anticipated because projections deemed lawful provision were protected from refund liability and we think that that's a cancelled out of that is in the your honor i don't think it's necessary for you to follow the d c circuit its rationale because again the these are its decisions and didn't address the issue here which is one of st impression which is what happens i on the plane are reading those two statutes is there a conflict your honor there's no conflict if the court is asked the commission's reading harmonizes to by providing the lawful if the court is arse wide was interpretation under which carriers can file any term rate or condition regardless of whether the f c c has printed it in advance regardless of how that if it did so blatantly illegal it should be really easy for the agency to ferret that out and not to become law i understand your point certainly your honor but the commission explaining the congress but it doesn't negate the wording of the statute i certainly understand your point but we believe it's more reasonable and rational to infer that congress didn't repeal by implication  unfortunately the situation that this case presents requires further digging one can simply take the dean walk a provision on its own terms without reference to other provisions of the statute and i that now because the commission have prohibited  right now i don't think i don't i don't think your your argument is is correct i think you're reading a part of the war that applies to a circumstance different than this one but the f c c is my colleague rather than the regulatory classification of this are many a thing either