facts are relatively straightforward and you'll bear with me a moment slaven in relatively simple form if you have actually that's the funniest thing i've heard that i can picts the facilities that are involved in this controversy missouri river and lincoln electric have access to generation in by the missouri river in it two thousand and fourteen the western area told missouri river that it would terminate transmission service on under  provide what it became a member of the southwest power and in two thousand and fifteen the federal energy regulatory commission last the area in the southwest power pool footprint the core of the spewed in this case pertains to whether missouri river should end up paying transmission service that it receives on the red portion of the line was able to evaluate its costs and for joining the pool we use that term also in our briefs uses it as decision it's prominent in the first crease and appears on the is the power pools website to encompass both ownership of becoming a transmission owner as well as recovering in transmission present as it happens being a transmission o has no particular bearing on being a transmission customer eyes as the pool and the risk of power pointed out in its brief notwithstanding some customer being served by the power it was now being charged marginal alyssa's and congestion charges and our belief is earthly is that they should have been exempt because they we're now taking new services but we're taking the same services that we previously took under the agreement for ninety six and there were provisions in that agreement that provided for how costs would be recovered  ages would be managed in congestion and never conducted the moguls here in alice analysis that this court approved in wisconsin help the other thing but they just never did the other thing is explain how they made that selection and they did they just said we really like extrinsic it is assumed we're going to use and that's the defense that was melted in the in the commission's grief to this court as well there's so it membership is not a relevant factor  on the facts had changed by the time the commission got to make the decision that affected us and the commission knew that we were put into the pool as to collision that said we were required to take service that  was necessary for us to take service from poole so i don't understand the commission's logic but that's the logic if the court doesn't have any other provisions that's about what i intended to straightforward here the commission reasonably into a line between existing members of the southwest power pool at the time congestion and marginal loss charges of war c'est members of will and perspective nonmembers like missouri river that joins the power pole after those charges were assessed and that distinction is rooted in several factors first it is rooted in the commission's own precedent in the dairyland orders it is rooted in the expressed terms of the twenty thirteen carve out visions related to this proceeding that expressly reject carve out treatment for missouri river it is rooted in equitable considerations that missouri river pay its fair share of costs of administering the south with article transmission service and it is also consistent with the commission's longstanding policy of reducing carve outs over time in favor of uniform rid of ministration under regional transmission missouri river to pay these charges and takes out was horrible conditions service the commission made very clear in the rehearing order paragraphs forty three fifty that's the operative legal distinction is not about whether there is some choice in fact it matters who is doing who is compelling the entity to pay those charges and invariably and the commission stated that it is the distinction is based on the fact that original transmission owners that joined a newly formed regional transmission organization were subject to new market rules that were effectively foisted upon them by the regional transmission organization and that separated those entities from prospected non members of that organization that jointly it matters who would who is forcing them to make that choice the original transmission organization or other entities here in the commission makes this clear in re her hearing where paragraph fifty the any compulsion arms or a river to take transmission service was by its business partners to the original transmission organization telling its members we're now going to implement tariff changes that are going to force you to pay charges that you did not contemplate when you join the organization and it outside party coming in after those te changes are in effect saying we're going to join you but we're going to have a veto over that wills that you apply to us that's effectively what missouri river is is attempting to do here and it also makes  this court were to mandate that the commission reverse its policy missouri river would be the only entity of its kind that joins the southwest power pool after these charges took effect under the interim marketplace that would receive this exemption and there are costs to that decision that would mean that other entities in the pool that similarly benefit from southwest pool transmission service would have to absorb those those additional costs of operating the system that that when he hardly even a party to a grandfather agreement that continues to pay a rate under that grandfather agreement benefits from a new service that that includes benefits beyond the limited mandate of those grandfather agreements then there is no entitle and to a carve out that the benefit is from having an expanded network as missouri river now enjoys it is now part of a much larger transmission organization that was prior to integration in two thousand and fifteen and this court just two years ago in its decision state corporation kansas recognizes minutes increase reliability and hands deficiency and cost savings of three hundred thirty four million dollars over ten years for for all those members of the pool who take transmission service at missouri river does that finding naps were for a new service and therefore there was there's no entitlement to a carve out not only was there no entitlement to a carve out but there was no mobile sierra problem now first of all to take a step back really what this non public utilities so really the only question is was there any modification because the commission itself has said we don't modify we don't think we can modify it because we don't enter stiction none not are such a contract and there was no modification river there's no contract that that decision found there was no contract abrogation where the pain is were treated to a new service that could not be provided under the limited mandate of the grandfather agreement so there's there simply do it and furthermore missouri river mentions actually relies on this course decision in wisconsin public power where the court affirms th commission's decision to carve out certain grandfather pre meds in the midwest operator regional transmission organization but there was a distinct situation where there was a direct clash between the scheduling terms of the grandfathered agreements and the that was necessary there is no clash here in fact missouri river itself acknowledges that it is continuing to perform under the one hundred seventy seven contract it continues to pay the costs of infrastructure for infrastructure upgrades and ask you to go back to missouri river needed to take service from the south was powerful because it is now integrated into the one everyone was taking southwest power pool full service but the key here is that we're talking about apples and oranges  bit the nine hundred seventy seven contract is a contract for infrastructure upgrades the rate that's paid on an annual basis is for me it's an operation operating expenses that was not a transmission service contract transmission service was provided to server by the integrated system and that service was never really bothered in under under the southwest altera so effectively missouri river is attempting to bootstrap a contract that is unrelated to transmission service as a way to get an exemption from congestion merging law has that was that not done for lincoln well lincoln was linked to same contract was the same contract your honor but that was a negotiated settlement that was ultimately uncontested and missouri river could have contested that settlement they were part of that proceeding but they didn't and they had intervened and the they didn't protest the settlement so we don't actually know what went on behind closed doors to determine that link electric would get an exemption but i but the point at the end of the day is is there a were compelled to join well so there's there's a distinction between being compelled to join an organization and being compelled to take  transmission service as a transmission customer we don't ask that question and they said there was no difference is that correct or not correct well they're applying it there is a difference our customers something for the same charges yes they are  yours so there isn't any difference there's no difference well there is a difference because they actually receive additional benefits from membership they receive hedges against their ingestion marginal loss charges that allow them to defray those costs so there's a reason why i don't i can speculate on why they would want to be members but at the end of the day that choice issue doesn't come down to whether you had a choice to become a member another choice you can transmission customer or not it is a question of whether they were existing member being  your honor the advantage to become the transmission owner is just to be clear when the transmission owner joins a pool and it's putting a trans business always under the pools control if the transmission or service load the transmission also is  d and was presumably they wouldn't be here zero it varies year to year year on i think i think some regulated cities would rather be shielded complete different completely from certain costs rather than run the risk that their congestion henge i'd be too little but left for this there is a difference between being transmission service customer and being a transmission on the chargers that are in dispute are only assessed on the transmission service contract he did to give you some perspective whether the contract is with a member or it is transmission service contract is only with the customer the separate co given control over the operation of your facilities to two pools it's not a change in ownership who is a management organization  to put in perspective the two hundred seventy two megawatt reservation that's in issue in this case and it's the only issue in this case represents roughly zero point five percent of the peak load of the of the power pools system it's not a direct comparison because that's what i do calculation but it's the one that's problem to him and the record and he with the integrated system joins the pool it was represented to the commission that that representative three hundred forty four million dollar savings to the existing pool members not to mention any benefits of gravity to people who were transmission service providers and the decision was made by the power pool and the first two to allow this integration and to say that the first had no role in this is to ignore the first role in the regulation