class action case and telecommunications class action case the district court after finding that stein's operative second amended class action complaint properly allege facts that if proven would amount to violations of section two fifty one of the telecommunications act nevertheless dismissed stein's telecommunications act claim holding that the duties allegedly breached by defendants were not only to its competitors and not to consumers like starting we believe that was there and as to stein's and i  claims two weeks before trial the district court granted summary judgment holding that the intervening supreme court case of law office of arising communications be lawful as of courtesy tranquil mandated dismissal we believe that that was there as well and i'd like to address those concerns if i may with respect to the telecommunications act claim as stated the just record already found and it was dismissed on a rule twelve b six stages of the complaint adequate pleaded violations at least alleged violations of section two for the violations well the violations when the incumbent negotiates a connection agreement with you know the competitors what happens is that that understood well the obligation doesn't go away section two fifty two in fact which is the statutory provision that allows an incumbent to negotiate an interconnection agree makes clear that while you can negotiate different standards those obligations still remain the whole honor is that an agreement under section two fifty two cannot run counter to the obligations of section two fifty one certainly difference to you with regard to language well without regard to the standards merely means that the federal communications commission can evidence on the record from their own declarant that for several months during the class period the defendants failed to supply even one court requested co location arrangement on time for the terms of that agreement but i'd like to i'd like to that's not a trial then you're not you know violation of the statute well actually we are because because under under the defendant's reading once one specific bill signs on the dotted line on an agreement they would have you believe that the statute is totally indifferent want to bring that action consumers can bring it it's sort of a private attorney general no it's not a private attorney general because you still have to show that you were injured and our position here is that the injury to the competitor and the injury to the consumer distinct the competitor when it when it doesn't receive what it bargained for may lose profits and sales but the consumer who does it is not allowed to avail himself of competition that would have presumably taken place if the interconnection was complied with it's the same thing happens in one and i trust context any at trus case always claims that the monopolist destroyed competitors in competition but the consumer nevertheless was also allowed to sue because while the competitors lost sale explain to me because i think this is important because that you've got to give some meaning to the inner connection agreement that's right and what i'm saying is that what section two fifty one provides in the context where you have a section two fifty two agreement section two fifty one sa if you have an agreement you can violate it yes in the absence of section two zero six and two and seven the competitor would always have a breach of contract cause of action we're not disputing that but the mere fact that now a competitor has a breach of contract cause of action does required well the the recourse of the competitor is to sue under a breach of contract and also under section two zero six and two zero seven the consumer doesn't have the contract because it's not a party to it but what we're saying is that section two fifty one the if they claim a breach of the interconnection agreement yes in fact in fact the contract unless there's unless the contract explicitly forbids it for instance the contract that they privately negotiate with pacific not my stake in lieu of suing under to a six or seven we agree to submit to arbitration that doesn't bind consumers you can't be balanced to arbitrate when you haven't signed an arbitration agreement and our point is simply the mere fact that there's a private contract between pacific bell and a competitor does that take away a right of a consumer under section two  the agreement can't render the obligation their core obligations under section two fifty one nugatory that's that's what i meant to say now clearly under the merits of our case on the telco i claimed we would have to show that they in fact violated the agreements that they enter into agreements and that they violated so we would look to the contract for the merits of the claim that is was there a violation the question is what gets us into court in the first place and that's section two hundred seven which gives us that private right of action now the question is how do we know that that's the case other than by simply reciting section two hundred seven what we know that because if we look for three sections down from section two fifty two section two fifty five congress also mandated obligations on i like that so that you have to make your services available to people with disabilities mandate a very specific way in which you had to do it but that same section section two fifty five says that nothing here amounts to a private right of action for concern for people to enforce this violations of the section which means that when congress  wanted to exclude certain sections within that chapter from the ambit of section two hundred seven it knew how to do so and did so explicitly it didn't do that in section two fifty one in two fifty two it didn't say that once an interconnection agreement  no section two hundred seventy may not be used and any person otherwise having a private right of action under section two hundred seventy is now no longer has that right it did that in section two fifty five it didn't do that in section two fifty one or two fifty two the mere fact that dealt chose to agree privately with a t n t or with sprint or with whomever that they would be an alternative dispute resolution mechanism as to those two parties cannot be read to mean that other parties that are injured and that never signed on to that agreement  what we have here however and what we introduced before the district court is that aside from those duties under the ninety six act s b c separately entered into voluntary negotiations with competitors and with the f c c in the hopes of obtaining approval for merger with america and as part of those negotiations it agreed to provide colocation independently of the ninety six that it agreed to provide lou provisioning and look qualification information and our position is those are now voluntary agreements we supplant the obligations under sections to fifty wanted to fifty two rather s p c in america is voluntarily offering to negotiate with any interested see like amendments to an inner connection agreement and so forth it says for instance that we explained t c's counsel talking about the carrier to carrier promotions proposed by s b c didn't are voluntary and also that quote as a result of recent discussions with the f c c common carrier merger reviews that s b c in america are expected to propose the following voluntary conditions those are all voluntary conditions that is s b c made a business calculus that the merger that it sought with ameritech was financially more important to it than what it would have to give up by obligat require but with respect to your honor's question the bigger issue is let's say that it did negotiate these merger conditions voluntarily sort of enticing the f c c and competitors to side with them so we have that and let's say that it later breached these let's assume we never had the ninety six act i think it's fairly clear that if you make a bargain with the government under which you say if i follow these conditions you'll agree with me that we're competitive and that there's no monopolisation and then you breach those that there is a cause of action alleged for monopolization now we have the ninety six act and we superimpose that the question is what's the effect of that well the effect of that is that what they're saying as well because these obligations or voluntary commitments are also obligations under the ninety six and the mere fact that we violated them cannot and cannot make us live longer than i trust laws in effect we're immune from and i trust liability for i'm violating any of these commitments because they're also found under the ninety began and ended with the ninety six act obligations here what we're saying is that those obligations also arose independently under the voluntary merger concessions that the pacific bell made which are themselves characterized by them as voluntary when i was trying to respond to and explaining to as to the question raised by judge prizes so what happens to happen now that we do have the ninety six act what's the effect what they're saying is even if we violated our voluntary merger conditions it doesn't matter because those are obligations that we have anyway under the ninety six act and so we can't be found liable well that's an immunity argument that's saying that so long as the voluntary obligations that we undertook and breached allegedly are also found in the ninety six fact then we can't be held liable under the and i trust laws but trico held the exact opposite it held that there was a say and i trust savings clause in the telco act itself section six zero one be you know nothing found here and shall modify superimpose or impede and i trust liability in so many words the fact of the matter is that if they would have been held liable under the and i just was for violating their voluntary merger conditions that they proposed before the ninety six act and the mere fact that the ninety six  conduct that was later changed that's exactly what we're making here i mean the term voluntary was not one that we plucked it's how they described their concessions we are voluntarily in order to entice you the as you said you have to you have to superimpose the ninety six that well we have to look at the effect that the superimposition of the ninety six act has on that my point is that drinkers supply is the answer that because it says the mere fact that those duties are also encompassed within the ninety six act doesn't immunize you from and i trust liability if  to enforce the duties of wood under section two fifty one because those are not free standing duties they are triggered only by a request from a competing carrier and are subject to  could bring a suit under section two hundred seven to enforce statutory duties without regard to the contract that they're governed by and his position i guess is that that makes sense because the interconnection agreement is cannot be contrary to or any different from the statutory requirements but that's simply not the law section two fifty two makes clear that when the  negotiated interconnection agreement is presented to the state commission for approval it's been a voluntarily negotiated agreement voluntary in the sense that they reached agreement without having to go to arbitration it's still compelled by the statute and section two fifty one see one that the state commission may reject it only if it discriminates against other carriers or if it's not consistent with the public interest it doesn't require that the interconnection  position as it is that a consumer could never bring to fifty one claim i think that's right even if there were no interconnection agreement if there were no interconnection agreement and it's hard for me to imagine how that could happen because that is the get implemented that is the structure of the statute but if there were no interconnection agreement then the analysis would have to be a little different it would be sort of our second point which is that just under the principles that have developed over derivative nature of the injury the nature of the statutory rights that are at issue whether there is a group of parties who are situated and motivated to bring claims for all of those reasons which we elaborate in our brief and which are fairly broad and they are they are in the antitrust right of action provision section for the clayton act is equally broad and the weak oh right of action is equally broad and the telecommunications section  supreme court has made it clear in considering all of these broad right of action provisions that in your alley haitian which is what the claims position here as in your allegation of some injury is not enough to confer upon a person right of action to enforce this language we still have to go through the well what happens in the situation then where where there was no voluntary interconnection agreement but it's super imposed by the public utilities commission for example certain what happens in that situation even in that and even in that circumstance well in that circumstance we're back within the second circuit reasoning and drink zero and that you have an inner connection agreement that then defines the duties  that the carrier that the i like must comply with and again i think it's important to emphasize that the logic of their position is that even the competitors could bring a lawsuit understood section to a seven to fifty one violations that are being alleged by the plaintiffs are with very specific alleged duties that you don't find in the broadly worded language of the statute those duties are implemented by the interconnection agreement just don't find in the broad language of the statute which is why we think it's just inappropriate to talk about consumers suing for violations of the statute without regard to interconnection agreements and i think it's telling our  the long standing principles of the courts of recognizing construing all of these rights of action with regard to enforcing third party rights it's significant here that the none of these obligations exist in the absence of a request from  competing carrier it shouldn't it shouldn't be surprising that consumers are are not part of this enforcement scheme because consumers have no right to trigger these duties in the first place absent a request from a competing carrier to provide the services that are at issue here the colocation in the provision of loops in the qualification information absent a request from a competitor those duties are towed there only triggered by requests from  competitors and it makes sense then and those then they become embodied in an interconnection agreement it makes sense that those duties then would be enforced under the inner connection agreement by the competitor and not apart from that and some sued in federal court now the the another reason why all of this makes sense your honour's is that the telecommunications act is really an extraordinary statute in that the supreme court has recognized and used exactly that word extraordinary and imposing something brand new that had never existed before between bringing new competent competition in the market but not chilling innovation and investment by those who are already in the market and this overlaying a whole regime of consumer litigation on top of the competitors and horsemen of the interconnection agreements and the f c c and the state regulatory agencies and for some of those same obligations would be contrary to and disrupt this statutory scheme let me just briefly comment on section two fifty incumbent and a competitor the two enforcement mechanisms that we believe exist are the competitors lawsuits and the regulatory enforcement action the regulators what act as on behalf of consumers i must confess i don't know whether there's a you know a statutorily perscribe vehicle by which a consumer can register a complaint and try to prompt the regulatory agency to take action but if it is clear that the regulatory agencies do take action i mean that's what quickly enough and it was a follow on sort of consumer action that the second circuit held was inappropriate so there i think it's it's very clear that these issues are going to go unredressed the competitors in a private right of action but not consumers when we're speaking of the duties of under two fifty one which are only triggered by a competing carrier's request yes your honor that is correct and let me  two fifty one because it's a contract that's part of the answer that the second circuit gave the other part of the answer is even without regard to what the second circuit said the  supreme court in construing these kinds of rights of action has made clear that the mere even with that kind of language any person injured needs to the supreme court has made clear that that not every claim of customers don't have rights to sue under the it didn't nobody really got into the question of what kind of a violation this is do they make out a proper violation is there a cause of action for this particular tape of action it was just a general ruling that there's no standing whatever and i know this because i never did consider whether the specific act alleged are the type of acts for which recovery is committed i proceeded up here on the assumption that there was a violation of two fifty one well just as the second circuit did in the trunk ok's what the district court did as it looked at the structure of the statute and it said that that these duties we can assume they were violated course we dispute they were but we will soon that there violated the duties that are being alleged here whether it's to provide colocation on particular timeframes you know in particular officers or whether it's to provide loops on a particular timeframe those are duties that are implemented under the statute unavoidably through an interconnection agreement i mean that's the way the statute works if you read section two fifty one c three it says the obligation is to provide unbundle network elements which is what we're talking about here in accordance with the terms of an interconnection agreement i mean that's how the statute is implemented and so the just by the very nature of these allegations are allegations  skiing we had a course of dealing that it originated between the ski company and highlands keep company completely apart from any regulatory scheme any regulatory compulsion and it was a whol uncoerced course of dealing and the supreme court you know in aspen skiing and finding the fact that support and i trust liability the term an asian of that course of dealing help that emphasize th only providing lou qualification information to competitors as required by the statute and the other part is that the supreme court said that tranquil differed in a more fundamental way from aspen skiing because  the business of providing loop qualification information or loops or co location to its competitors so there is no discrimination between companies saying well we'll deal with everybody but not you because you're our competitor that's that is point number one there we're seeing being the court emphasize that when you have a voluntary uncoerced course of dealing that can be presumed to be efficient and an optimal distribution pattern in the eyes of the defendant itself we have nothing like that your honor and for and explained how i paragraphs eighty one and eighty two of our second amended complaint so i think and as judge reinhart pointed out the district court's own opinion found that the allegations of proven amounted to violations of know i think that the actual language is that the allegations if proven amount to clearly state violations of section two fifty one she didn't pass on the truth of those allegations obviously she couldn't it was a complaint  let me also address going back to the inner play between the the inner connection agreement and section two fifty one yes it's true that section two fifty one requires carriers upon being demanded to do so to enter into a contract the question is whether telco act requires in or the carrier to also honor that contract and the answer is of course it does it would be an empty statute if it said you have to sign the contract but then you're free to violate the statute is silent as to whether you need to honor act all the time they're simply saying treat section two fifty one differently and what we say is that when congress wish to treat a particular section differently and you have to do so as evidenced by section two fifty five thank you