to measure from actual industry cost changes to so called recoverable cost of service data together these two air errors added about fifty percent lower resulted in about a fifty percent lower order we don't believe so your honor and living we talked about why we say that what first said with respect to the middle fifty middle age was that they had always intended to measure a normal cost normal cost changes in the not to say the opposite well i understand your karma let's let's follow the history through now we come to two thousand and fifteen or two thousand and ten the commission toyed with middle fifty middle aged they said well we we've you know we've looked at the millennia in the past we've been a little inconsistent but in this case we don't really have to consider that so necessary to use the middle eighty because the middle fifty gives us a very robust statistical sample with seventy six percent of the industry the middle fifty's providing us a robust sample in two thousand and fifteen the commission says something very different now they're saying the middle because the middle eighty is inherently flawed because by definition some of the companies in the middle age are going to be further from the median than the companies in the companies that are in the middle fifty said if there was an inherent flaw in the middle aged that the mere fact that some of the companies would be further from the median disqualified than the lady from the news that should have been apparent in makes well i understand you are that's what the commission is presenting its decision as and that's their point about why they're not knology to change the change is to go from a you know every period we analyze whether the middle fifty in the middle of the work for this particular period that's what they've done since two thousand and three to now they're saying there is a flaw in the middle laid that prevents us from using it and that flies incurable i mean in the middle is always going to have some data in it that's further from the median in the middle fish so it was the issue the commission would have had an issue with in their prior cases they haven't explained why it's different now in two thousand and fifteen why is it any more of a problem that those costs are necessarily more dispersed than it was put aside for a moment the question of change for a moment i know it's a big part of your argument but just for the moment and what is substantively or otherwise on reasonable about using the fifty rather than the eighty i think what substantively questionable your honor is we're trying commission has said from the outset we're trying to measure industry wide cost changes the middle fifty in this case only contain fifty six percent of the industry data the barrel miles that were moved that's not a particularly robust sample consider despite what the commission says it's certainly not the kind of sample they've looked for before they've said in their cases before more data if it's accurate is better they said they were we draw a line based on their own miles that are covered when they make an argument again put aside the change that the middle fifty's going to be a better or a valuation avoid war of the ally or us how can we second again and so you're back to the change and i understand why you're on that and that the change really is the heart of our argument your honor the commission has has in the past said two very important things two principles they apply here he said in two thousand and six the middle fifty middle eighty is a good way an effective way of excluding outliers and they said it more recently could that they want more data if it's accurate they haven't question the accuracy of the data in the middle eighty in this case you keep using the phrase and i understand why recent explanation but is it really is there a possibility of a reasoned explanation to get to the fifty well in two thousand and ten they gave a i think a plausible explanation of why they were only using the middle fifty they said well it contains a very broad sample seventy six percent of the barrel miles we were going to quibble about the difference between seventy six and eighty but now we're talking about the difference between fifty six percent which is barely more than half of the industry and eighty percent when there is no question that the data there's no question that's been raised by the commission about the data in the middle east being inaccurate in fact the commission recognize that the statistical distribution of the data in the middle eighty's was very predictable statistical patterns that generally supports the idea this is accurate data is not they are further from the median again if that was their rationale that would have applied equally in two thousand and three and two thousand and six they haven't explained what's different about that the second thing they said is well the shippers cave in and pointed out a lot of anomalies in the data but the commission in the earlier part of its decision didn't buy into the shippers point that that was anomalous data and in fact they pointed out that there was supposedly families are spread throughout the sample not only in the middle eighty but if there are many of those examples in the middle fift so again they haven't provided a neutral principle for saying why are we now backing off of our earlier thought that middle age to use a good sample because it has more act more data that is accurate in any kind of sample when you want middle fifty middle age and the commission said there will be a commission should not abandon its current methodology because the evidence of existence and proper treatment of outlier data were extensively addressed in prior commission proceedings and the methodology was specifically designed to take this matter into account use the commission uses the middle fifty percent to eighty percent of the relevant cause data thus ensuring that the index is not driven by statistical outliers that was a specific fact finding and the commission is saying the exact opposite thing which is that necessarily the middle he is driven by statistical outliers because it's further from the media that contains data that's further from the median and we don't think those two findings can be reconcile mission needs to explain why was that principle clearer in two thousand and six and suddenly one to be disregarded in two thousand and fifteen they could've made presumably specific fact findings about the middle middle aged middle fifty and said there's something wrong with this database we don't want to use it but they they specifically did not do that they did not find it to be an accurate they didn't even buy into the shippers argument that there were specific anomalies that they simply said this to spread out and in saying this to spread out that lives to leads to our concern that what's really going on here is they're saying it's because it's so dispersed it's going to lead to a higher index and indeed they specifically so you see them you see the current opinion is in effect saying we're going to use the middle fifty and west or some special reason not to use the middle fifty that's probably a good way of putting it your honor that they've kind of shifted the presumption from what they had in two thousand and six that the model was fifty eighty and there needed to be a good reason to your honor i think the commission says in his opinion that they have never ruled on this before they simply disregard view the evidence of what was in the two thousand six word because they say in their opinion we used fifty eight in the past but we never really addressed it we never really thought much about it well age all they said in that case was it's unnecessary on these specific facts to use the middle age they didn't say or imply that they were never going to use it again and here in twenty fifteen first time we're getting a decision saying there's an inherent flaw there's this basic mathematical flaw in the middle lady that we can't use it and that is a real reversal from what they said in two thousand and six and they not only haven't explained it they haven't even acknowledge that it's a reversal from what they said thousand and six and that's our pipeline cost experience is diverge dramatically looking at a pipeline cost change it's possible very possible for a pipeline undergoing a major expansion to have cost changes in the billions of dollars so that's why statistical the statistical outliers are excluded from that the pipeline index the whole point is just to capture the central tendency of the data which was recognized by the court in the original  case in general and is explained in the order of paragraph forty three but also in the footnotes to page two paragraph forty three which provides the basis for the commission's finding seems where you just said like a general principle that the eighty doesn't sufficiently exclude the our wires and their point is that that's new and that hasn't been excluding the outliers while also measuring appropriately but now what you just said is that the eighty does not do a great job of excluding the outliers and their point is  as you can tell by the questions the opposing counsel but they have a difficult questions to face too but their point is that that's a change or new or both right that's because they're reaching back to the two thousand and six order and ignoring the two thousand and ten order the index order immediately preceding this review in which the commission said that the middle including the middle eighty at the results in including more statistical outliers in the calculation of the index and for that reason and using only the middle fifty is the most appropriate method of trimming the data and getting only ordinary pipeline cost changes but they say that that was due to special circumstances explained by the commission and that and that order whereas here instead of identifying something special about what's going on in the market now that it's just a defaults rules probably too strong but presumption that the fifty's the right thing the it's not the right measurement and that's the way it's going to be going forward i hear that  those eighty three in a tie the commission is explaining why it's appropriate to use the bill fifty here and that is because first the middle fifty is a rep a robust sample of the central tendency of the pipelines in this case that's a footnote eighty five where the agency says it is not the case that the middle fifty percent represents a narrow or selective sector of the industry and later in the same paragraph explain that other with the barrel miles represented in this particular view represent about fifty six percent of industry barrel miles well first of all that's that's not an hour still active right sector of the industry we've used even fewer of our miles in the time yes but also the difference between the fifty six percent of barrel miles here and the seventy from thing percent in the last purview is attributable to a single oil pipeline and bridge lake had which was in the middle fifty in the last review but not in the middle fifty in the current revenue or so in that for duty three though there does seem to say why the middle specifically in correct or not suitable in that case now in your in your favor in the text of the order of does make a general comment pipelines in the middle eighty are more likely t cost changes so i guess that's the general principle that you would say the referring back to the front man eighty three those seem to refer to specifics that meet the middle eighty you know appropriate there that's right your hon you know the eighty three because i was my question so it's a no if nobody three deals with deals with specifics here then your point is that in the two fit twenty fifteen order the commission did both the general and the specific and generally pointed out that eighty and the two thousand and ten order of two thousand and ten index review of the right provides a rationale for why it's appropriate to use the middle fifty alone and it's if pla provides a nice summary because it says this is paragraph sixty one of the two thousand and ten order even when accurate data is recorded pipelines in the middle eighty as opposed to the middle fifty are more likely to have cost changes resulting from ten order generally understood that using an eighty percent figure is problematic because it includes to the outliers their risk that your opposing side would respond no really what was going on in twenty ten is that it dealt with specifics as to that data set and your point is a no one we refer back to two thousand and ten and we described it as a general matter if you look at paragraph sixty one we were actually right in describing it as a general matter that in fact twenty ten incorporated this general view that the high eighty percent figure is too wide because it has an undue capacity to introduce outliers that's right your honor and and based on our review of the record in this proceeding there's no reason to depart from the you're saying that they're doing the strain here right there's a general rule presumption that the fifty's going to be better and by the way in both two thousand and ten and here we've pointed out problems w and it is borne out in the twenty fifteen review and in addition it may be helpful to take a look at the discussion in the this section that addresses the shipper as being your data trimming because it's paragraph thirty four for example cheney a seven sixty four that's where some of the problems with these outlying lines is discussed and footnote sixty and sixty one we see that by using the middle fifty we take care of the the problems introduced by using some of these idiosyncratic pipelines that if you're in the middle eighty so that the commission is realizing that between jobs proposals or being a composite of the middle fifty and eighty and the proposal of looking at individual pipelines by just using the middle fifty we end up with a if i may to the extent it may be helpful gerri a fifty four has a chart this is a a chart appearing in the testimony of the associations expert larger group being with them this lighter colored bands which represents the middle eighty and you see when you go excuse me the middle class of the you can see that when you go beyond the middle fifty to the middle eighty that you're going to see more dispersion in the costs which bears out the commission's conclusion that the middle age includes more than in crowded cost and experience yeah that seems like it's almost mathematically guaranteed to be lies first of all i would highlight a lot of the language in the middle of paragraph forty three says however by definition cost at the top or bottom of the middle he percent deviate significantly from the cost experience of other cyclists that don't get on they say as middle the middle fifty percent more appropriately just the index levels for normal cost changes as opposed to the middle eighty percent which by definition includes  pipelines are relatively far removed from the median yes rather and then in paragraph forty seven forty three in this two thousand and fifteen they seemed to be following along with what they said in two thousand ten so that you know the question was how they really changed from two thousand and ten where they my question was were they mis characterizing this or what they said in two thousand and ten but when you trace the paragraphs back it doesn't work that way it's not our argument your honor that they are mischaracterizing what they said in two thousand our point is they made the same mistake in two thousand and ten to the extent they were not enhancing this a change this isn't a change well it's a change from their policy in the last position i think is you all should be used in the middle of the not the middle fifty because the middle eighty that excludes the outliers and is a more accurate representation of the more of what's going on pipeline and then these pipelines have a disproportionate effect because the commented on she uses a weighted average you know in conjunction with a simple average to measure the central to tennessee although the size of these pipelines makes their data particularly choosing the middle fifty over the middle eighty will be a lower index every time and that led to our concern that just as the mission did in the second there in the first index review were this report found that their methodology was designed to lead to a lower index