presented by the core complaint the p a p c has the authority under pennsylvania law to resolve plaintiffs between pennsylvania public utilities pennsylvania residents that is our great deal of ink spilled over how that interaction is to work and in this particular circumstance we can look directly to paragraph seventy nine of the i s p remained water in two thousand and two thousand and one that explains how that is to function and the f c c explained if you have an got expired agreement you don't have an agreement you're going back to another carrier to try to establish a new agreement if you've got this issue you disagree over whether or not you have honesty down traffic how much it is where  you go you go to the states and the state commissions can adjudicate whether it is i speed down to how much it is and what the appropriate rates are going to be for that traffic and the the discretion at least in this in this instance what the the the f c c is attracted to states because this is special traffic we're going to establish a rate cap and if you had an agreement that was under the rate caf you want to sta this case we made factual findings some of the traffic was v o i p traffic some of it may have been interstate we cleared that all up we figured out how much was ice began and we looked at the federal rate we applied  very clear if states have already established zero rate that's ok if you are somewhere in between also ok can't go over the cap and we in pennsylvania decided right so that that is we didn't engage in an analysis of what should be done in terms of rate making in america that was part of when we initially challenge that rate it was the f c c there's they have the authority to set that range and we are effectively doing their bidding and not setting some independent ra of this has to do with what happened in the ninth circuit with the f c c amicus brief and how that played out and that's the best guidance that we have and their california pac west they're arguing that hey this only applies in i like to see like relations under two fifty and the answer that was absolutely not it applies to everyone all lex the traffic is the issue not the carriers not the status of the parties it's the traffic special treatment for this traffic and they were very clear that it explained that the section two fifty proceeding was only one way to address these disputes it wasn't the only way they wanted the states to deal with this particular traffic in a way that like it is being raised that jurisdictional questions are not going to his yes and that really wasn't they didn't reach that issue that was they did not get to that core issue of whether the f c c has spoken to that specific issue and it's our mind that you know yes it would be nice and neat if we had that ribbon on top of the package and we admit we don't have that ribbon we had eight years worth of orders that established a procedure that the state should follow and we followed it so and it was the concern with inconsistency with the ice between orders not with the states acting as the f c c wanted them to act it was it was conflict it was not that we were doing their bidding flowing into the top of page a letter that they're sent to the extent that we have preempted the states in this context we have preempted in frances tent state regulation of i s p traffic insistent and that that really is kind of the heat piece or that is the p a p c acting in a way that's inconsistent with what the f c c has told us to do and the answer here is no we're not they've established that rate cap to federal law as part of its own adjudications and this case kind of brings us we're not we didn't make up anything we didn't interpret federal law and some new way this is clearly we did what the f c c wanted us to do in a very straightforward way thank you thank you  zero nine when we filed our complaint it just seemed on many ways the most logical place to file the case so i'm not aware that there's any specific benefit to go into the p u c rather than the f c c you know why the decision was made to file with the rulings as posed by all three of these courts the issue is one of conflicts not field preemption and just to go through them in global maps one the first circuit upheld the message use its commission order that approved it carrier petition to charge what are called intrastate originating access charges for eyes to traffic and this ruling arguably conflicted with the remainder in two ways first the state commission ordered the terminating party to compensate the originating party whereas the i c remained order contemplated great caps on terminating traffic and never contemplated charges for originating traffic at all and secondly the state commission in global naps approved per minute rates for  that the first circuit approved the massachusetts commission's initiatives which are far more extensive than anything the pennsylvania commission did in this case because the court said quote the question before us is whether the f c c intended in the i dispute remained order to exercise its jurisdiction over the precise issue here to the exclusion of state regulation the first circuit concluded that there was no conflict because the f c c had never clearly preempted stay commission's ability to the section two fifty two and the question of sovereign immunity sovereign immunity thank you very much so section two fifty two is very different from section two fifty one section two fifty two congress set forth a very detailed scheme for how state commissions would have a specific role in implementing what are called interconnection agreements between incumbent carriers and competitive carriers and that is a very specific role and within the confines of that section two fifty two i think it's clear the congress did not intend for states to have any other any other authority or any other role other than the extensive role that was being given to them into fifty to structured very differently from two fifty two to fifty one sets forth general duties to which carriers of different kinds must you including section two fifty one b five which says that all local exchange carriers including eighteen thousand corps should enter into reciprocal compensation arrangements now two fifty one says to fifty one d says how this is is should be implemented and it says that the f c c should implement regulations to implement section two fifty one and then it says states may also issue regulations rules so long as those are consistent not only with section two fifty one but also with the f rules implementing that section so i think that the key distinction with the m c i case from two thousand and one is section fifty one we're not we're not in a two section section two fifty two world here in this case  just i'm going back to the question of jurisdiction and this in global knives what's called global naps to even i was issued in the seniors over have swore on the second circuit spoke directly to the issue of subject matter jurisdiction and it said quote the implement disputes over identification and composition tries to traffic this is going very well documented in the section two fifty two context by looks and see what's just because it's a very common dispute that's where most of the activity for lack of a better we're trying to protect a type of turf if you will and they're willing to let the state p u c these deal with issues as long as they don't go above the  amounts that are set as rates by the by the federal government in this case the f c c i think that's that's not quite right your honor and i think that the reason for that is that the core of eighteenth use argument here is that the fifty one which is a statute so the jurisdictional question here is statutory and that's it's within the night circuits competency and so within the composition of this court it's not something that the f c c needs to weigh in on with an amicus brief because the case from one thousand nine hundred ninety all matters that are within the scope of the one thousand nine hundred six act have been federalized and the state commissions have only the power that has been delegated back to them by the f c c or by  subject to f c c jurisdiction without the ex f c c actually exercising that jurisdiction but allowing itself to others to partner with it so long as they carry out f c c policies in effect for question being section two fifty one two fifty one sets out duties of incumbent carriers in section two fifty one c and specifically requires incoming carriers to negotiate and arbitrate an interconnection agreement with competitors now it sets out general requirements for all local exchange carriers in section two fifty one b and it did not require that competitive carriers enter into interconnection agreements with other competitors now the p c in this case their orders effectively think the first way we discussed at least in part which is federal law to fifty one to fifty two provide that only an incumbent carrier can be required to enter into an interconnection agreement with another carrier and that's essentially what the p c did in this his re quired two competitive carriers to enter into a contract with each other and it decided what the rate should be just as if it were arbitrating a contract between an incumbent and a competitive carrier so so in that sense the p c s orders really did violate section two partner with it in order to carry out f c c policy principles rates etc certainly your honor but i think in this case a what we're dealing with here is setting a rate for interstate traffic and this is the sort of thing go exactly at the f c c rate or go below it is that a problem it is a problem your honor because the communications act has always assigned the rate making for interstate traffic to the f exclusively that's been decided in many court cases are cited in our brief it's been decided by the f c c the f c c has said we have exclusive jurisdiction to set the rate for interstate traffic and that somebody else implement that case but a key issue in that case was the nature of the authority that had been given to the state commission and this court following the seventh circuit and following the authority that the supreme court had had set forth found that the authority that state commissions had well i think your honor in the ninth circuit that decision was easy to to make it was clear that the state commission had acted in a way that expressly violated the expressed preemption principles and  rates as between two competitive carriers that's that's into fifty one c that specifically only duty of incumbent carriers you know how far along the f c c is in connection with the process of determining the f c c has taken opening recent reply brief so the briefing period is closed they have no statutory time frame to issue a ruling but what is typical you think there's something likely to come out and early twenty fifteen i would suggest not your honor for this reason the f c c is two thousand and eleven connect america fund order world that there is going to be a transition to a bill and keep arrangement what that means is no more reciprocal compensation for  traffic that goes to a local exchange carriers so within seven or so years all of this is going to go away including all of the ice he found traffic there's no question that in the future corps is not going to be able to try to recover this even from an incumbent carrier like fries so so all of this is going away in addition to the fact that dial up internet traffic is just going away as a result of technological advancements so i think this is probably about issue here isn't all that significant terms of players two hundred fifty thousand is that right yes yes so i would suggest that the f c c is probably not likely to to answer that question anytime soon but i'm reading terrell cards there i don't know that  second way is that the f c c has been clear for competitive carriers in order to recover interstate charges you have to have either a tariff or a contract to section forty seven u s c two o three requires carriers to  initially but allowed them to recover for years back for traffic that had been terminated for years before when they hadn't sent any bills haiti with and they had no tariff or contract in place so the p c orders violated section two of three and two a one  compensation arrangement so the p c orders also violated section two fifty one five the p c orders also violated the federal doctrine of retroactive great making because there was no rate between these carriers in two thousand that and finally the p c orders violated federal law at forty seven u s c four fifteen which is the to your statute of limitations because they imposed a for your section limitations so i think the p c orders actually conflict with commission a court would not be able to recover any charges here and that's that's not true as we've said a carrier in order to recover interstate charges for interstate traffic needs to file either tariff or contract can't recover here in the p c didn't say that so i think that was that was the obvious advantage here for them and speaking of course access tariff i think jurisdictionally it's helpful to think of this traffic light long distance traffic because if you have a carrier that sends a long distance call to a long distance carrier in pennsylvania and that long distance carrier takes it out of state the p c can't set a rate for that traffic even though it starts in pennsylvania and it goes it's handed off to a long distance carrier in pennsylvania because the f c c looks at the end to end analysis it looks to the full scope of the call the call travels across state lines it's an interstate distinction that the f c c has exclusive jurisdiction over interstate traffic unless that's delegated to a state commission and there's been no delegation here so that is that is the gist of our argument i think i've mentioned the fact that on the no delegation point if the f c c had delegated authority to to the state commission through the ice he remained order it would have not said in its letter to this court that it had never spoken to the issue in its rules interesting question about what's going on here and we can look at this in the context of the m c i case you say ok states you can do whatever the act says and at the f c c is direction of how they're interpreting that well here they interpreted the act for the special converged traffic that's their term because it's an interstate service that happens over a local call it's conversion that's why we have special rules to deal with it this is how you deal with it so we're doing what they asked us to do according to their directions entirely consistent with m c i we're not off the reservation at at at all this two fifty one issue with reciprocal compensation is the f c c has been very clear this traffic is under that regime see lex have an obligation to engage in these agreements now this argument that it is making is kind of it's fantastic and i mean that in because they're saying court had an obligation as a complement for had an obligation to form a contract with us if they want payment and we have no obligation to return that favor and therefore we get out from underneath this and th we certainly weren't there between two thousand and four and two thousand and nine when this particular case addressed you know where traffic is is coming before us we're pressing it we're not talking about the future we're talking about the past and to a certain extent it seems that they're really attacking the f c c as authority to establish their regime to deal with this traffic it's a collateral attack on what the f c c did and you know just be renamed water series of cases and that's what they're upset going to zero probably makes it less less interesting to them so the those would be my quick thoughts on that the tariff requirement there's nothing in the i c remained order about a tariff commission certified lax local exchange carriers with an interstate component of internet access hanging off the end of the call and the f c c did find an icepick traffic is quote well i'm not quoting the f interstate means quote the f c c has authority to preempt state regulation of telecommunications where it's not possible to separate the interstate and interstate aspects and where the commission concludes that a federal regulation is necessary to further valid federal regulatory objective and in that case the circuit said quote there is no dispute in this case that the f c c has the power to preempt states from steps in standards and requiring reports relating to special access the fighting issue