of the trial court and granted summary judgment as to two specific issues and to remain and back to the trial court to allow those issues for which there are genuine issues of material fact to be presented to the trier of fact  trial these two issues specifically deal with consumer protection act and inc respects the first is statutory and the level of proof that have been presented in the case the second  issue deals with primarily all of the evidence regarding the telephone call themselves why why should we not treat your clients having or more appropriately forfeited complicated and complex machine plane its failure to provide expert testimony instead of metal to the c c p a claim how was that a development of the argument i thought that your argument at that level in the district court was essentially that you didn't have a beef with the f c c this interpretation but that that you were view me either equipment machinery or the capacity to have that even if it's not used but i thought you were attacking that you're not attacking that and this is the case we are attacking the fact that there's no evidence  explicitly raised but they were implicitly grace i mean i guess i thought i thought maybe he can or whatever you want but i thought you were going to argue that as you did in your briefing n at its core a trial court in deciding in pushing for summary judgment still needs to make an independent finding of fact based on the evidence before it and that the record evidence in this case is wasn't tell after you lost that fight that they we started to see some set of motions a motion to say wait for the d c circuit a motion for a jury instruction asking for a jury instruction to put a legal in the strategy in the legal strategy an argument you were making at the summary judge state you are in looking at the record there were two elements and two pieces of evidence that were for the  we will still address story with race for the first time on appeal in exceptional circumstances and we reach a discretion exercise on the facts of the individual cases to determine what questions may be taken up and these are all for the first time or appeal independent duty to think of the argument that you didn't make a bet it sounds like that's what you're saying that this record is going to be dependent duty to think of an argument you didn't make based on the record and then make a judgment on that  sequential random number generation and we have a data manual that doesn't talk about mendham it's a question of the generation of you don't make the argument how is the district court to know what is a material fact and what isn't it's the argument of consul that makes fa southern district of florida with the trial court rejected and the court just concluded it really slipped over whether that we didn't go to the issue of whether with a random a sequential number generator it just moved to the next step what is that the battleground the r indeed this is america said he'll not just because the arguments were waived may not have been raised but they were arguments that were different completely contrary to what is no ok now help me understand if there is a difference between a direct challenge to the lawfulness of the regulation under the os act as to which requirement and therefore they didn't view it as a as a direct attack on the regulations so much as a fight about how the rate might apply that if that's go past that because we're saying well this is not a head on attack on the f c c it's interpretation it is a statement that the way the f c c interpret it just doesn't fit this fact pattern to reinstill i'm trying to get so i say if you were inclined to go there you could but they just they just made a totally different argument page one run seventy four of the appendix they say that either it has to have random sequential number it would be clarification the assertion and again this is assuming we got past or future that even if you accept the twenty fifteen clear for cation from the f c c this discussion about capacity cetera is something which necessarily needs you could even need to have somebody come in and say the platinum system here actually has that capacity and they didn't do that but just didn't do that they had no evidence if we got to that argument why is that not a perfectly sound position to take that there needs to be something which puts the case in a summary judgment posture where the district  reasonable juror could look at this record and see it any other way than that the way that the plaintiff sees if it walks like a didn't say that don't you have to prove that in order to get somebody to do it they have some work or evidence of for the district court for to say that if c c ruling fits this thing this black box this mercury dialing list ok is there any other evidence in the record or is that really i know you think that's all you need but is there a we also record to support what the mercury dollar is an auto d that and district court they argued that a machine with qualify as an e t s either because it has a random sequential number generator or if it can dial off of us without a number generation that is  one seventy four at the bottom of the page and i'll read to you in other words this court must term whether the dialer has the capacity to run store or produce tell from numbers using a random was quite sure number generator but i don't think that there is any confusion maybe it's sort of the immigrants learning the language for the first time at some point and going back and looking at all the stuff in me but i just don't think that the statutes are clear and i think turl even if you're wrong on that it's your position it doesn't matter even if i'm wrong in that it doesn't matter the body language illiteracy of the twenty fifteen order as it relates to the statute is it's just not an issue that's that we must take six days passed nobody challenged that under the statute says all right and and if we thought differently about receipt and what would your answer  the trial court rejected it defended the argument that the finot own phone records which only do only talk about an initiation of a call and speak to nothing as to the receipt of any call in fact that would satisfy the requirements as it's called is noted in c e o another place of intrusion of privacy to almost all had all gone just a second because i'm not sure we're using the word received in the same way i want to make sure we are you just said if you received the call because it goes for one i was sort of thinking received in the terms of take the call but you're saying if it rings through that's received if it even if you don't pick up if it poses were rings that's your view of what within its discretion in under and reading the record to say if you've placed one hundred forty six calls because that's not what congress said well when he says so congress i mean i suppose one could assume that the mercury dialing system is so terrible that it tries somebody hundred forty six times and it never manages to make the phone on the other end ring well perhaps a district court looking at a record of one hundred forty six calls in a specifically says call your residential telephone line you initiate a call congress specifically says and change the language i'm talking about a cellular telephone let me make a call i could throw a rock at a window and not hit the window doesn't mean i didn't throw the  a even when it gets down to its core components is there must be something and it's a lot congress intended on the other rant so are you saying that all the all he needed to do on the other side was put it in the affidavit that you know my phone rang