oath three try county telephone association inc vs federal communications commission and united states of america mr adam shot for the  the concerns let us see is permitted to expand universal services or by hundreds of millions of dollars to purposes unintended by congress furthermore this case also concerns whether the f c c is permitted to make these changes fifty four communications act does not using universal service or for disaster relief efforts i can i ask to cast a question about that this doesn't happen and i want to be clear so that when the next disaster occurs we know exactly what your position is if a fire destroys all telecommunications in wyoming and montana you can get nothing out of the you know universal service fund to replace that or to repair it on emergency or other basis is that reasonable services in response rates why does it doesn't have the word both in it but it should have access to telecommunications and information services that are reasonably comparable and  available at rates that are reason but if you don't have any service at all and you don't have access to services i'm not sure what reading could mean that providing access if otherwise you get no access isn't covered by or what but but you don't get any rates if you don't get any services at all so if you don't have access at all the statute provides including low income consumers and those in rural insular high cost areas should have access to telecommunications and information services including i'm sorry that are reasonable compared to those services provided and that are available at rates that are reasonable but comparable so  both comparable and rates so if puerto rico has no access and wyoming does have access that's not comparable as a no it's not your honor but in order to make sure that you're ensur access you must also be considering whether or not the services are being offered actually terrible rates in the st question where they get services at all you yes you are but as soon as you consider whether or not to get services you also got to make sure have to consider rates that was under certain extreme circumstances where subsidization would be so large i would describe the whole program they were just talking about rates period yes correct your honor they were united states and you know and in the box term if it's just it's just going to require a lot of funding and over the long term that there's no predictability of weapon x just pass a cost you know how much money spent and needs to go to this and the fact your your conclusion about disasters were just what language in the statute does it i said it's there's a judge gone point out to should have access should have access to telecommunications information services should have access to what went in there says to they can't use the money to provide access to people who lose it because of a hurricane dispose instead of puerto rico having a hurricane they had lost their service because of provider telephone company in puerto rico with including the consequences of a disaster than your argument about joint board there is no argument about the joint board that right that is correct or are you one way that would be your argument there season was a sufficiently in it and real emergency to justify this dissension of public input before issuing another sixty four million dollars in relief to the  things are one is that access had not yet been reestablished and nd another hurricane season was coming yes you see how much greater of an emergency there ever would be  honor i believe it needs to be sufficiently and there needs to be a clear and concrete emergency exits and her concern to the islands every year you know i have to wait and so you have to wait until either the weather service knows for sure that it's going to puerto rico or wait until after it hits and the disaster occurs in a circumstance where they are ready not having full access because of the situations do you think event that funds can be used where an area has access and then it is lost not because of the hurricane it's just  lost and so they don't have access anymore as b three contemplates can funds ever be used there i mean it's kind of a very in a way there's garland was suggesting because you clearly have no access if it's lost now you are focusing on it was a hurricane let's make it tell me anything that would be permissible once a service is lost in other words they had access and now they don't in whatever area you want to put it can funds if you give me an example like when it is the studies in that area are too expensive to operate to insure some kind of reasonably comparable service and oh no no you just stating the statute i want to situation they had access that was fine no issues and then something happens i want to know whether you think there can ever be this scenario where something happens and now they don't have that access and don't make it a hurricane the services they offer suddenly jacks everything way up so you effectively have a disaster so access is no longer any good that's good enough yes there are whereas a hurricane which comes in and essentially does the same thing unexpected it's except it's a hurricane it's not a business charging new and higher exorbitant rates that's not ok and there's a loss of access i don't get that i don't know how will all i'm trying to figure out is how you make the distinction you just made so no i don't have access because the business is the people who ply services business they are now doing a number on us and we simply can't manage it so we're in a distressed situation and we need help as opposed to a situation where our current hurricane comes in and does a disaster on us and we need help and you say in the form a situation business related and real and it's a true disaster it's ok but in a hurricane it's not i don't get it hurricanes are so unpredictable well the business pulling a number where suddenly it's all of these different ports of supplies furnishing services etc are no longer what they were unexpected but it's there now and there's no you want to change my hypothetical i'm trying to give you a situation where access was fine before and something now happens other than a hurricane and his people need help and you're saying no hurricanes different than any other thing i can imagine what was your a follow up i'm still not for judge hale nd question imagine there's only one carrier it's a row area there's only one carrier nobody else is willing to go without more money or make it a supplier where they get more money happens when you have a hurricane just like the either the carrier is gone or the supplier of the carrier is gone or the hurricane comes you no longer can furnish a service and we are struggling to try and understand how you distinguishing one from the other to i think judge edward you said they would have to have a fair degree of certainty that a hurricane was on the way but if you look at the commission's explanation of for its good cause it wasn't all dependent on a new hurricane it said it said it said given the emergency situation and the devastation to communications networks caused by the hurricane the sooner they get more money the sooner services can be restored they're just saying this is an emergency in puerto rico we really need another hurricane to justify good cause here it's hurricane mir it was a once in a to life once in a century storm the cause devastating damage even after months of recovery even after months of recovery efforts the majority of citizens in puerto rico still like access to service th quality reliable communication services in all regions of the united states and like to spend a little time explaining why in the agency's view that was a reasonable the decision here too i particular circumstances facing these territories after devastating hurricanes it was a reasonable implementation of section two hundred and fifty four dollars to decide to subsidize communications infrastructure in these regions that would be resilient to future storms if you don't mind i had to put you on another topic but i'd do have another interest here for just a moment this is on the issue raised by opposing counsel about why was a rule fifty four point seven waived and why wasn't there forbearance as there was in the had to do with things that did have to be waived and forborne like the life line and other roles and that and this particular kind of issue about whether covers hurricanes clear i wouldn't rule out that that discussion pertained also to the high cost programme although the you're quite right that the main relief in that order concerned other aspects of the universal service programs but but i would know for the court's attention that forbearance in even in the petri no order was an alternative approach to commit the commission st in that context clarified that this was permissible under section two hundred and fifty four even trying to best the spenders that were perhaps unnecessary even in katrina but but certainly for the reasons you suggested judge harlin were unnecessary here and the commission also war and waived fifty four point seven a but that wasn't necessary in the context of this case i'm sorry to interrupt your train of argument go ahead no that's quite all right of course what i wanted to emphasize or push back on a little bit here is the characterization of trying county that the commission had agreed to subsidize disaster relief using their catchphrase writ large what the commission was doing here was not funding construction of roads or hospitals or emergency food rations the commission was subsidizing the kinds of facilities that are necessary to provide access to critical communication services i don't i don't unless opposing counsel says otherwise i didn't understand them to mean food or roads i understood them to mean to telecommunications services and i understood them to simply be arguing that you can't do that in a disaster that's all likely wrong but i don't think that they were suggesting that you were providing roads at it to mean that that understanding of their argument judge garland then i think i was also hearing in several of the questions from the court the point that the statute doesn't anywhere include a carve out for when services are unavailable because of natural disaster and i think that's quite right so the can the commission here was serving its core function of applying the principles set forth into committee for be to the political or circumstances in these particular territories and it concluded that here the best way to ensure access and continued access to these services was to fund up front the kinds of facilities that would be resilient in the event of future storms the territory's the record shown or unusually prone to storms of course there are lines so if you have the amount of money provide the amount of money provided in the stage one order your honor they do want answered to i don't think there's a challenge to the amount of money in stage two except to say i heard counsel say today and it's part of the briefs that the money was so large that this is and this is going to explode the universal service fund they can't be sustained and i in response to that i argument as to say one only that the commission did not adequately explain the amount of money it shows which was the sixty four million two hundred thousand that it warded in emergency relief on a one time basis that argument we have at the threshold objection that as to this issue and all of the other issues in the case besides the question of the commission such a jury authority that try county does not have standing to challenge have a court we are going to get to that i promise but  what do you understand what is the explanation for the amount of stage one has to stage one the commission made what was a high level determination based on what it saw our as far as progress toward restoration from the initial immediate distribution of relief which was of a little over sixty five million dollars that given that progress of roughly equivalent amount of money should enable carriers to complete the remaining restaurants restoration work in a roughly equivalent amount of time and i think in the circumstances here that explanation was adequate there was a real urgency to repairing these networks and the commission necessarily couldn't know for certain how much it would cost this was one time interim relief  neither trey county nor anyone else has pointed to any evidence that the commission ignored or any reason to think that this number was grossly off based and in addition the commission leave carriers with a blank check it put in place safeguards it specifically delineated the permitted uses of these signs that required carriers to give certifications before and after receiving the funds it directed that me ok so now if we could return to the what should be our st question which is the standing argument you argue that tri county doesn't have standing to challenge the stage one order right yes you're and that's because the money  cash reserves right yes is it not true that if the f c c had not you it's a double negative if the f c c had not used its cash reserves to pay for the stage one order it could have used them to maybe not maybe they wouldn't get in but that doesn't seem likely that if they had the full amount of money already in excess that there would be less of a contribution required thereafter in all the next quarter i supply for funds and part a portion of the sage one funds in the agency well set aside an allotment from that pool of money for a particular carrier but then the carrier didn't ultimately qualify as  eligible telecommunications carrier and therefore it couldn't receive the funds what the commission said it would do in those circumstances or that it was reserving the right to do was redirect that provider's allocation toward other universal service purposes such as increasing the funding available for long term rebuilding of voices broadband networks in the territories and so the commission was thinking that it might well increase the size of the long term on the stage to fund or it could have put that money toward other universal service from tribulations so i don't like but it could only put it towards the uses that are authorized by the statute and if it already had the money for those uses it couldn't just as it's not like it's unlimited how much they can and that the f c c can increase contributions it has to be based on a need for the money doesn't  needs perhaps your honor and i don't want to belabor the point i just want to say with respect to this amount of cash reserve it was created by a system of uniform contributions that was a time limited program and in the ordinary you know the way the universal service program has run historically before the two thousand and eleven reforms and how it it has it continues to operate today and collections are  made based on projected demand one quarter out so this is just an unusual circumstance where there was this cash reserve and it was created by the commission in this time for a time limited period carriage for special needs that arose during that period that are so i still don't see how that has any effect on the standing argument if you have you do have the money for whatever reason the money was there and that would reduce the amount of money needed for expenditures no matter how many further expenditures i think you need it's you still have to subtract the amount that you already have and that suggests you don't need a new contribution for that amount whatever it is i i think i think that that's not the way this would have operated necessarily i can see that it's possible it would have operated that way and that is just because try counties contributions and the contribution factor for this program was fixed for the period through the end of two thousand and eighteen and then it and that was the period of time in during which the commission contemplated using these cash reserves so i don't think tri county has a savage a substantial likelihood that had there been no need for the funds during that period the commission would necessarily have rolled them over to reduce the contribution factor in future to future quarters but i maintain that you at any rate the commissions stage one order should survive on the merits and i'm happy to address merits questions you may have and there where the in the discussion of notice i just say i would agree jeff garlin with your point that this was not an emergency of the commissions making and i think judge didn't recognize that the commission in paragraph twenty four of the stage one order made it clear that it was responding to an acute problem that which try kelly does not dispute that communities in these regions lacked access to critical applied because further delay would prevent people from having access to these necessary services and i don't think it undermines the commission's analysis on that point that it also recognized that a hearing hurricane season was approaching but the paragraph does say in the end a new character hurricane season was approaching it isn't the case that the commission rested solely on that point if you thank you casey submitted