that question that's correct your honor but interconnected way provider is capable of determining the jurisdiction of customers calls that is is able to determine whether calls are interstate or intrastate that state jurisdiction is preserved in that instance and this court really reiterated that it did not decide the issue  and certainly that's not the vonage three court's holding but that that that that statement is is due to certain deference from this court i think it is certain should certainly give this court pause as it reviews the district court's decision which departs principles of the telecommunications act and consistent with f c c and eighth circuit authority the minnesota p u c is not preempted from exercising jurisdiction over fixed in or connected void the only fact material c says the f c c describes the basis of state regulatory jurisdiction under the telecommunications act as as being governed by whether it's it's common carrier s and if you have written court authority to the contrary i'd like to know that because it seems to me that that if true makes the question whether this is information service or our brief and if you look to the case we cite the boeing decision it's not due deference in this case because it's simply a little gaining position that the agency has taken it's not a decision that was promulgated as a rule making or a decision in a in an agency delegated authority to it's contrary to those decisions that those decision makers have made and respectfully your role in this in the federal system is to look to the decisions that those decision makers have made not the not the statements that it to section one fifty two of the act which clearly states that the f c c these authority is constrained to interstate services and expressly reserves state authority as to intrust state services it's undisputed on the record here today that charter phone is capable of determining the jurisdiction of customers calls that that's clear from the record no one disputes that and in fact it's clear from the record that the vast portions of that of that service and the states authority is reserved as to as to the interest a portion now if that much is unclear from the text of the act i would also refer the court to the statutory note that that congress passed are included with the act when the act was passed in one thousand nine hundred six which which plainly indicates that that state authority is is is reserved and that there no there is to be no implied preemption of state authority there is a statutory note that cited in our brief i believe it said in both the blue brief and the gray brief that congress included with the next twenty six act which which states congressional intent is in essence that state authority shall not be preempted that there shall not be implied preemption of state authority so that's an additional reason why state authority is proper in this case and why the reversed i don't have other points make other than to refer you to the preemption question and to this court's decisions that are relevant to that and the vonage three cases is the first of those and the second claim that a that a state tariff was preempted under the telecommunications act and judge garvey in iowa decided that he didn't need to reach the question of classification in order to determine that state jurisdiction was preserved and just last year this court affirmed that decision and reading between the lines i think it's clear that it's not it's not a requirement to classify a certain if this court reaches the classification question the first place that the court should turn is the definitions of the act and and the definitions under the act state that well first of all it's plainly settled law that interconnected void is telecommunications question is whether it's a telecommunications service and that turns on whether this service is offered to the public for a fee and on this record it's it's plain that charter phone is offered to the public for  so our definition argument which the district court glosses over and which the supreme court in brand x says is is the first place you turn in these debates should should be the framework of analysis now does it make any deponent and the marketing materials which are part of the record all plainly indicate that this is a service that that offers a transparent telecommunications path to consumers it talks about how you can make a complete calls you can talk all you want the federal suit joint board on universal service order which is cited in our green brief it indicates that the providers decision to bundle or or package a product in a certain manner doesn't classification if you look sue i think that's also echoed in another decision that cited in the blue briefs so there's plenty of f c c authority out there that supports our position supports the commission's assertion of jurisdiction over this this this telecommunications  that interconnected void is telecommunications and it would also imply that this court got the decision in loder wrong that that that the state should have been preempted because it was an information service so yes you  definitely i think look to the f c c authorities on those points and it's clear that bundling or packaging those sorts of decisions aren't aren't determinative of classification really what you're looking to is whether there is an offering of a telecommunications service to consumers and  to the service here falls within exceptions to that order the first of which is the internet working exception this is plainly a question about internet working where we have two disparate networks talking to each other  as a result it's accepted from treatment as an information service that protocol conversion doesn't affect the classification so to your point your honor no the protocol conversion here is not determinative and even  if it were if that were the rule if you universalize that rule you essentially eviscerate the definition of talking acacias service from the act because those conversions it's undisputed take place in all kinds of different contexts in telecommunications thank you i see my time is running i'll reserve the balance for thank you imposes the f c c brief which judge logan reference has made clear the stakes of this case minnesota's effort threatens to throw the national voice services market in the f c c as words into distant disarray by creating a patchwork of separate and potentially conflicting requirements for voip service and it threatens to stifle creation competition and innovation in emerging point technology fortunately as the district court correctly held the existing statutory and regulatory framework precludes that result charters voip service offers its customers the ability to connect over broadband with the tens of millions of users who access the phone through the public switch telephone network and it enables its customers to get advanced services that they use every day it does that judge ericsson by combining a net protocol processing function along with a basic transmission function in the words of the statute it is an offering of the capability for processing and transforming information via telecommunications under the f c c a longstanding approach which the supreme court affirmed in brand x that makes it an information service and not a telecommunications service and therefore minnesota's effort to impose these bur and public utility regulations are preempted now mr tweeting this morning started out with the idea that this court has already decided at the f c c has already decided that these regulations are pretty that that there is no preemption that the u s if were decided that that is not correct the vonage three order the judge lucan referenced in the last paragraph addressed this point expressly remember in that case although it was not the main argument the new york public utility commission argued that its regulation of fixed avoid service what we're talking about here was preempted and what this court said on page five eighty three it cited to the universal service order at paragraph fifty six and it said as a result of that order the number of questions and i think it's important to understand the basic framework here the statute defines information services as the offering of a capability for processing or transforming information via telecommunications that is what this service does it does it through the network it does it through the net protocol conversion and it combines that with telecommunications and support with the statute very complicated area but we do start with the words of the statute definition of telecommunications services regardless of the facilities used so why doesn't the specter boy service clearly fall under that definition it doesn't your honor because it is not earlier the statute is not offering telecommunications for a fee directly to the public in deciding that question the supreme court in brand x affirmed the f c c is basic approach which is articulated over and over including at page forty two of our brief in the decision that when a a provider combines both a processing function like the net protocol conversion along with a telecommunications function the basic transmission in an integrated functional offering that's an information service and it is the telecommunications service so the key language or honor is not regardless of the facilities used but rather the offering of the telecommunications what the f c c has done and what the what the supreme court affirmed in brand x was the f c c is interpretation was offering looks to the to what is the standalone product here it is a functionally integrated product how do we know that well as judge eriksson's question got to from the provider side from our side we have integrated these this is not a situation we agree that you can't just slap a voicemail function on a phone and say well we've integrated it and we bundle that but that's not what this is from our side of it we have it is it a unified offering where we give network protocol conversion along with telecommunications remember the statute defines an information service as information via telecommunications so telecommunications is a part of an information service so that's the first part of the answer but independently and reinforcing that the customer gets a functionally integrated product so what the customer gets among other things is a the ability to connect to users across the country tens of millions of users who use the public switch telephone network that is possible only because of the net protocol  conversion function and it gets access to the advanced features advanced features like robocall brockington events features like being able to get text of your voice message what your voice mail said the ability to see call all our idea on your television all of these advanced features are available because of this net processing function so whether one looks at it from the provider's perspective or the customer's perspective what there is is a functionally integrated   the question isn't whether the customer perceives a change in the information because of course the customer couldn't care less quite frankly about what the at what happens on charters network what customer cares about is the functionality that he or she receives and that functionality which is very much at the core of what the customer is getting it is the ability that what charter offers is not the ability to talk to other charter customers which is something for example like whatsapp or things of that nature where you have a close network what charter offers is the interconnected piece of voice right that you're able to talk to customers across the country who use the public switch telephone network and it offers the suite of advanced features that are enabled because of this net protocol conversion so the customer is very much aware of the functionality that he or she receives even if the customer isn't aware of well does it go from ip to t d m of course the customer doesn't know that but that's not the test the test is whether they receive that functionality and so i think it's very important that that the court understand that basic framework because and it's on page forty two of our brief order and what that says is a single entity offering an integrated service combining basic telecommunications transmission with certain handsome and specifically and then quotes the statute which includes network protocol can net protocol conversion offers only an information service and not a telecommunications service for purposes of the communications act if the telecommunications and information services are sufficiently intertwined that's the test that's what you have to decide judge yes you can as i think is very important judge ross i'm glad you  mentioned i want to come back to your question the answer to your question mr tweet is no you do not need to remain for the for the for the consideration of whether it is also whether all of these advanced features are functionally intertwined there were two independent bases for us to prevail the district court ruled for us on one and cited not to reach the other so if you were to rule against us of course you'd have to remain for consideration of the second but just to be clear what the two differences are the first one is whether the net protocol conversion is functionally intertwined with the transmission capability the answer to that is yes that is what the district court held that is an independent and sufficient ground for us to prevail the the the issue that the did not reach is whether features such as voice mail and call blocking and other things like that are also sufficiently intertwined that would be an independent basis that those that those information kind of services those advanced features are sufficiently intertwined that we would win even if the court didn't believe that the net protocol conversion and transmission were intertwined so i just want to be clear the answer to your question is your honor you would only remained for the court to reach the second issue if we lose the appeal today but you can affirm the district court judgment and you should defer to the district court judgment based on the based on what the district court decided now there was some i think it's important your honor not just to look at the statute but to look at the policies in this i think goes to c to have done that your honor of course the brief says what it says but here's how i read it i read the f c c to have not taken a position on the question that the district court decided but that the f c c weighed in to explain a number of very important things which i think get you a long way to affirming the district court first the f c c made clear that the policy justifications are strongly in charters favor and in the district courts favor the f c c said it is has long had a national policy of uniform and light touch regulation and that the imposition of fifty different state p u c regulations would create a patchwork which would interfere with competition stifle innovation and prevent the growth of these events services the f no i'm not going to answer you directly your honor i think the answer to the question is forty seven u s c one fifty three sub fifty one which says that the company shall be treated as a common carrier only to the extent that it is engaged in providing telecommunications services which is what the commission's brief quotes as i mentioned these are not telecommunications services and therefore there is not permissible  supreme court has never had a problem with that sort of preemption of things that have an impact on interstate commerce as the f c c suggests that this will and so i do think that it's very much that that section of the communications act has been  c held in the vonage case vonage to the f c c held that the regulation of information services was preempted to the extent they court inputs the extent the state tried to impose common carr regulations this court affirmed that on page five hundred eighty of the decision as a reasonable judgment this court has already weighed in on that question about whether the f c c has authority to preempt but the question i  as i look at their brief i guess i have a question whether you take it that the f c c was trying to assert that we should look specifically to the facts in a cabin this question on the facts presented in this case as opposed to any c has said the f c c hasn't taken a position but the f c c has given this court the authority the what it needs to decide on the basis of these facts that this is that is preempted because on these facts this is an information service and not a telecommunications service and thus those regs are preempted and what the commission has said to the court is that the kinds of policy concerns that the p u c has raised shouldn't bother the court that the f c c itself regulates to protect consumers that in fact the danger is having fifty different sets of regulations in place the that in fact even state regulation isn't entirely preempted the generally applicable consumer protections are in place and that indeed this is how you create parity among competitors right we compete the forty to forty five percent of the market is wireless which is not subject to this kind of common carrier regulation the nomadic voice which is another chunk of the market is not subject to this regulation and what the c has said is this is the way to continue the light touch regulator regulatory uniform national framework that has allowed voip services to thrive so your honor judge alex i think you're exactly right the f c c has given has don't has not said don't reach this in fact with the f c c has said is you need to decide we are not going to decide but here is the policy justification that you need here is an understanding of our orders which i think is very much like what's described in our brief but not in the state p c s brief that the non accounting safeguards order remains good law that the u s stef order to not decide the preemption question and that the basic regulatory framework remains in place and so i think that's what the commission has said and that's all this court needs to affirm the district court's decision it needs to go one step further than what the f c c has said it actually needs to decide on these facts not across the world not forever but on these facts at this time what is the whether this is a telecommunications service or an information service and for the reasons i said i think that is clearly an information service now but i know my time is short with the court's leave i'd love to touch briefly on the telecommunications management exception that my  think your honor first of all if the concern truly is regulatory parity then then charters framework should be rejected here the f c c has observed on a number of occasions that the fix interconnected voice is viewed by consumers as a substitute for plain old telephone service and carving out interconnected weight from from state regulation would would would make an unequal playing field and would would would subject those network functions happen that's precisely the commission's argument here as to classification that's absolutely correct that charter phone does not offer protocol conversion to consumers tarter phone offers telephone service to consumers and that's the critical distinction as far as what is offered here nothing in the record indicates that the charter offers protocol conversion in fact will record what about the argument that there are certain things that have to have happened there has to be a protocol conversion in order for to transform this piece of data this data now is capable of doing things other than just transmitting voice this data once in a transformed state is capable be moved in different directions doing different things you can send a video we can send a text message you can receive it text messages and that doesn't seem to be bundling that seems to be something else because it's really talking about what is the data capable of becoming once it's in this format those are accepted from from regulation accepted from are are not don't don't transform a service into something that falls outside the federal scheme that that set up under the act looking back on the case your honor there's no need to resolve the classification question out of the first instance the f c c has been clearly clear on this point the state the state authorities have jurisdiction to regulate intrastate services and the vast majority of the traffic on the service is intrastate the commission properly