first amendment freedom and in forcing the separation of powers this case involves both very important issues to be decided yes t c has exceeded in this seven is the courts not the commission and further this is a summary judgment case they didn't know who reviewed by this court as a matter of law there is no deference so you have the f c c coming and c will tell you this had nothing to do about content this had to do about whether or not a user was generating those profiles and the statements by the company that it was user generated content not so look at if you will the statement of undisputed material facts that the commission relies upon in this case for getting summary judgment it's that you denham eighty seven through ninet those are paragraphs thirty three thirty seven talks about images child manages statements this case was driven by content the government did not like the contents of a public explain why i did that because i thought you were making an argument that it was motivated by hostility to the content it was nothing in the face of this isn't as you just said indicates that it was i so just what is wrong with the decision as written agree that the complaint generically talks about expressly or implicitly however the case was always presented as express representation case and i will cite to the briefing of the complaint what record evidence is there to counter the two statements i just gave you which you have just admitted were true that there was a reference to both and implied misrepresentation both in the company and in the real thing you can not stand there and represent that those things are not part of the in the motion papers by the commission i submit it's not on page eighteen of the motion for judgment of summary judgment they specifically state other element of materiality which is an essential element that they have to prove implied misrepresentation case i've just told you it's present in the case the commission is very clear and its findings now if you want to convince us that there is anything other than a notice argument you're making you better get to why you think the commission findings implied misrepresentation are erroneous i rely in the brief for that your honor but i would not want to unsavory you may disagree with the business model you may miss i disagree with the content but that doesn't give the government the right to stop speech to stop business and if you look at the order which requires him by quiet for ten years to report all affiliations anything to do any other business he's involved with not limited to this type of industry this type of conduct any business paragraph six of the order specifically talks about for ten the remedy here are i believe in this case would be limited if there if i did not prevail in convincing for overturning the with respect to the finding of the charging of monies that have to be specific to the two specific memberships that have to be limited to that or would have to be specific to the conduct that had been alleged here with respect to the the statements of the creation of a website that talked about user generation of content but to require my client to talk and tell the government for ten years of every affiliation whatever that even means it's on the find in the order any affiliation any in future  compliance reporting is similarly overbroad your honour's it is if a section section three further further with respect to section one it's worded that that shall not misrepresent if you listen to the slightest misrepresent or sister and others and misrepresenting the source of any content on a website including personal information the benefits of joining any service that means that in any website where where there is information pulled from the public to me and put on a website which is not unlawful that there would have to be some disclosure to the government i can say off the top of my head but i believe that the supreme court's guidance on this with respect to the way that the f t c mustn't be narrowly tailored in its injunctive relief would govern this court would permit this court to say perhaps about that the order of its injunction issue has to be narrowing tailored has been limited to the case at issue to future violations from which the case derived that this generic you know everything you ever want to touch again i understand fencing in but to you know fence in from any affiliation any business activity it's just a process for you after you get an order from the f t c to contest it by asking for a narrower medi order i know you didn't do that but is there no mechanism for doing that you know we did we address we tried to present them with an alternative set of orders that you wanted them to adopt no we did not we contested the scope of the order but my understanding is that you were assuming that there was some remedial order because let's say you accept that you lost them the fine is you just challenging the remedial order and is enough not only what you do but if we're just at that stage we don't have an alternative n order for us so it's a little bit hard to target know where you want us to be shooting towards right my understanding is we did address that issue on the summary disposition stage and the commission actually agree with me in part on the relief that was requested by the commission of originally and parroted back i didn't see that i don't think in the rules is now rules that govern these procedures at this ability to seek reconsideration of the commissions were the order is binding we moved i'm i'm kind of figuring out where this is going to end up with your honor's will take care of that but it my sense is that the commission who do what it thinks it can do and then make me go seek and judge honour's and they please the court i'm brad grossman with the federal trade commission the undisputed facts in this case show that mr fanning and his company l l c falsely represented that real users created the eighty five million profiles and jerked out and falsely promised that for thirty dollars membership fee consumers could dispute unwanted information profiles i'd like to start by addressing mr karr's question mr karr's discussion  a material fact remains for this for this proceeding so this court should review the commission's findings under summary decision just as it would under rule fifty six with one  station should the commission should the court find that the facts in this matter are undisputed at that point we would submit that the commission's interpretation of the advertisements in this case should receive some deference in light of the commission sustained expertise and interpret in the meeting of an advertisement and determining whether those advertisements are material yes or is this name different do they really yes but again i prefer the court to colgate palmolive and to remove or trying those decisions find that the commission has wide latitude in deciding what type of injunctive relief to post and i also refer this court to the american home products case in the third by a private party it does your honor and the reason for those notification and monitoring provisions is to record keeping provisions is to allow the commission to actually monitor whether mr fanning is in fact complying with the order so for example mr frank's counsel mentions the idea of the question of affiliation and by design that is a broad reporting requirement because the f t c needs to know what business is mr fanning is involved in and one  look further than the records of this case where mr fanning claims he was merely an advisor to jerk l l c despite overwhelming evidence that mr fanning in fact spearheaded the entire company and deposit it is this is a sense of the  if mr thinning wants to become a waiter in a restaurant yes to tell you that right it would be the the order is targeting business activities so the counter so yes yes if you if you had to become the next name off of iran in the first needs to do you know out have this reporting which you have limiting language which is their compliance out there notifications obligations about any change in their business is limited to circumstances that may affect compliance obligations arising under this water which seems like a reasonable limitation there is no such limitation on the compliance monitoring john fanning so even just reading the two together it would seem that he is obligated to notify the commission of a change in business even when it would not effect the compliance obligation  was engaged in and i also have found edition a precedent your honor for similar monitoring provisions i'm sorry notification provisions there's daniel chapter one one forty nine f t c s fifteen eighty one  the twenty year period of compliance applies to two things the notification of a change in affiliation and the twenty years also applies to the record keeping requirements with regard to the reporting of business affiliations that requirement only applies for ten years to mr fanning and white perhaps of the concerns that this court has recognized but we would still emphasize it is very important for the commission to know all the business activities in which mr fanning has engaged in light of th removed he took eighty five million profiles from facebook and represented that those are those that those that those profiles were generated by real users and then he charged consumers desperate consumers thirty dollars to dispute information in their profiles and then never actually provided the service and ignored consumer complaints how much money did he  i'm sorry when the company there there are sealed documents that are not in the appendix that reflect that dozens of consumers actually actually purchase the service i point out the consumer harm is not a prerequisite for  for the offense here but yes there are evidence of dozens of consumers but i'd also point out that mr fanning hasn't submitted hasn't produced any documents in this litigation representing he had no material under his possession custody or control so we don't have a comprehensive  several of the district court cases that i cited your honor our cases that were and they were not appeals from f t c administrative orders they were federal district court orders in cases brought under fifteen us of fifty three be seeking permanent