together these ten districts provide emergency communication services to twenty percent of the people of tennessee the parties are sharply divided on the factual issues in the law notice those are my words those were the words of the trial court on the second page of his opinion before he nevertheless proceeded to grant summary judgment about south we agree that there sharply divided issues of fact but there's one fact that is not  because it has been admitted by bell south through its expert in every district in every month before the first suit was filed bell south fail to bill thousands of lines the nine one one charges that the law the expert produced in their own pages at your word mission and mission focuses on the number of lines that were not build yes in fact bell south disputes its experts conclusion that the lines should have been remarkable situation but i'd like to explore that a little further in light of the district court's approach to the concept of interpretive disputes how many months in total were unbilled and what kind of loans those were and other disputed issues should have been resolved by a trial jury not by the trial judge and we also agree that there are dramatically different views of the law chief among those is the position that bell south asserts but you're bring you right that's exactly right but a bank contend that there is no remedy period there is no party that can bring the suit there's no scent of our claim that can be brought so if you understand bell south position it is that the law set up the districts required the district districts to provide the service set up the funding mechanism but there is no way to enforce  clear as a stance in fact that for example no you implied cause of action claim the tennessee supreme court ruled just this last april in the case that involves the american heritage apartments i don't know what are the standards are they hard to to go mate are the easy to me and what american heritage department said is that an implied cause of action will readily be found when there are three things that are present when the party who's bringing it bringing it is an intended beneficiary and it's just batchelor said certainly the districts are an intended beneficiary of that law second that is an indication of intent by the legislature that such a suit be permitted and there are at least three of those indications including the one whose recognize an american heritage and that is simply the districts because they are municipal governments and were set up as municipal governments have the right to sue and be sued and in fact difference john or in alabama the state legislature so are set up a special kind of district to provide not a one services here in tennessee or in tennessee excuse me not here in tennessee the legislature specifically chose to designate these entities as municipal corporations and for one hundred years tennessee law has recognized the whether it's expression he stated or not a tennessee municipality has the right to soon be sued so it's the same effect done a different way but exactly the same effect and the third standard is under that was recognized by the brown decision in the american heritage is simply that a right to bring a private cause of action is not inconsistent with the purpose or is consistent with a purpose of the here the legislature said that the viability of the nine one one service in tennessee is of the highest priority for the health and safety of the citizens and certainly the ability to some mechanism to enforce the not on charges that were set up to to sue the users i e the customers for not paying the nine one one charge but there's no particular provision saying that they can sue the providers the two sections would need to be read together to understand th so you're exactly right your honor that there must be a default user before they can be an action under one tim and here the issue is the bill says simply didn't bill them so they never became liable for the charges and they cannot be sued under one tin or any other theory for that matter about the way that suit could be brought by the bell south or by the district she's in for a moment if you would please go back to intended beneficiaries your s after brown actually the federal death is right you know that the intended beneficiary element is part of from court t v s it comes out of that case it was adopted by the brown earlier case that we refer to in our reply brief the district has a duty and an obligation to set up and run but not on one service in the county for which it has been established and it cannot do that without the funding is there any other provision any provision in the statute that deals with or permits any other funding source or mechanism the statute permits local governments to contribute toward the number one districts and in some cases the local governments do but in every one of the ten districts that are before you the charges from the nine one one choice or the phase from the number one charges are the vast majority of their budgets and in fact bell south has been the largest telephone company in each of those districts so bell south refusal to bill has had the greatest impact upon the ability of those districts to fulfill their obligations and i'd like to speak a moment only interpreted disputes issue that was used by the district as a way to avoid reaching several of the causes of action but particularly the false claims that cause of action the district court held that bell south's failure to bill was excused by what it referred to as quote interpret about some of the lines that belcher south chose not to bill and emphasize some of the lines because there were only four types of lines that bell south articulated interpreted disputes about many more lines were not built the district court required the appellant's to meet a standard that it is unknown to the law in relation to that interpretive disputes issue requiring them to prove at the summary judgment stage that bell south interpretations were quote so unreasonable that the agreements could not have been made in good oversees does run but oversees the cd law with the tennessee attorney general with other courts that have considered the issue with its own employees who told their superiors the bell south was not obeying the law with its competitors who were  fact bell south uninterpreted disputes with itself because it started out billing no one charges on several types of lines and then changed its mind and in a springfield even says it has interpretive disputes with its own with its own expert your honor a jury reasonably could or could find that bell south was not reasonable in the interpretations it applied for those were the types of lines the jury will also we believe fine but there are many other types of lines as to which bell south never articulated an yarn one is bell south had a system where it would set up a special code for wives it called it zero rated you socks and it would set up a code that when a sales person been able to get discovery from bell south to find out exactly that's exactly why your honor thank you very much thank your honour's i'd like to start by correcting something about what our position is our position is not that there was no remedy our position is that these remedies were the wrong ones who could sue the districts had a number of options and i point you to page fifty four it's a two zero eight three seven of the record where the district court notes that as the districts themselves recognized in two thousand and six williamson county sought to go to the tennessee regulatory authority to enforce excuse me the tennessee regulatory authorities rules which at that time required telephone companies to pursue or to to provide audits to districts these districts never availed themselves of that remedy these districts could have filed a suit for declaratory ruling because like the federal declaratory judgment act the georgia i'm sorry the tennessee declaratory judgment act allows you to proceed even if you lack a right of action so under our theory there were remedies there  damages remedies because bell south is not the taxpayer now i'd also step back and note that affirming the court's judgment here does not require adopting our theory of the law because the district court allowed these districts to proceed on six damages actions the false claims act to declare the claim that they're pursuing here on appeal and for others two that were lumped together that they have abandoned on appeal what the district court found is that they couldn't after eighteen months of discovery and judge bachelor there was no fifty six d opposition to our summary judgment motion no claim that summary judgment couldn't be granted because additional discovery was required the district court properly canvas the record made all factual inferences he assumed we made false statements we disputed that it was no so procedurally get me straight there were cross motions for summary judge that's correct  ok but the other remedies there there might be a rationale for why telephones so called telephone companies cannot be sued for damages there might be a public policy rash now do you can you cite that there is such a thing the statute sets up a system where end users the citizens of these districts are supposed to pay for the nine one system and i pod if you know which of your honor's asked this but the statute does indeed have additional funding mechanisms the districts in these twenty five provisions are obligated to operate these nine one centers they don't actually have to tax their citizens through their phone bills they can just tax their citizens through property taxes if that's true it is why wouldn't the districts be intended beneficiary because the districts have duties we have duties to we have to go in if they do decide to go than our route we have to bill and collect and make good faith is the distro found efforts to do that and the statute provides us compensation for that effort the mere fact that the statute says to the districts in the alternative from using your own direct taxation of your citizens you can indirectly them through phone bills that's not a benefit of the type recognize under court the actual brown as the kind of benefit that banks you a bit able to have a right of action and the brown case also i note says that merely being intended beneficiary is sufficient is not sufficient you need the others so let's look at the others too we have a legislature that knows how to create rights of actions and in a statute where the legislature gave an express right of action there is and how customers but the bone of contention is that we're talking about the south's not billing and so you're not dealing with billed to customers so two points your honor first the statute actually says that the right of action is to recover any crop or service charge and the customer's obligation to pay i would think could be argued and they just haven't chosen to do this because the argue to exist independent of whether it's built the obligation was they know they were supposed to pay there's the audit right that they never invoked and again how would the customers know they were supposed to pay if they're not being billed the district could send them a notice of the charge but i think the more important answer your honor is that under the brown test in the  trick the for there to be no implication that the legislature intended additional rights of action that it didn't think to write down that there needs to be a right of action squarely on point the fact that the legislature went out of its way to create a right of action is in itself evidence and that the legislature thought about what rights of action should exist made decisions about what rights of actions should exist and didn't create a right of action that says telephone companies if you for some reason don't bill perhaps because this antiquated statute hasn't kept up with the current realities of to left any and so there's a disagreement reasonable ones and it turns out to breaks against you and not in your favor then you are on the hawk or we are caught between two extremes are we are really the intermediary the functionary we don't want to overbill or it fi ass and brown standards apply to implying public right of action or are they mostly applying to implying a private right of x so typically or honor the they come up in the context of private parties claiming a right to sue under a statute and the american heritage case my colleague mentioned is just such a case the entity being sued there was the public entity there was no reliance on the sewer be sue cause there to let the public entity do the suing but i would think that the court fiasco supplies with even greater force in the context of a public body after all the legislature i would think can be expected to take care of and ensure that the statue works to the benefit of its own but maybe the legislature thought that the put in that the districts could sue customers to customers which seems like a bizarre thing so so why would the legislature choose to put in this very picky union remedy of being able to sue customers and not the bigger remedy of putting in the ability to sue bell south one reason could be well they explicitly didn't want to do that you could maybe have legislative history or something or another reason could be they thought of course they can sue the supplier but this is our area of suing the customer needs to be made explicit your honor again the statute is very clear whose responsibility is to pay and there's not a word in the statute nor in the legislative history that suggests that in the event no billing occurs and again whether it's for any reason at all that bell south is therefore effectively made jointly and severally liable with the customers that's an unusual regime  it's not one that you find in nine one statutes around the country so to suggest and under caucus course the burden is on the district to identify the source of a right of action and to vote so the question that i sort of raised in the beginning nobody on the other side counsel on the other side was not taking advantage of that suggestion why not certify this to the state or the state supreme court since it is a matter of tennessee law trying to figure out what the tennessee legislature intended here because it does seem to come down to that intent factor in the court be asked slash brown sure your honor so i think certification be inconsistent with this court's preceden spin on those factors so i don't think this is the kind of case that requires certification under the court's precedents this court also encourages parties where there's a certifiable issue to raise it at the district court level and not wait until they have lost  i know that in georgia they're raising and i i understand that but just from a timing perspective the timing the district court thought the standard the test was the one he was familiar with judge collier applied it consistently with federal and state case in there really isn't this is important there is literally no stand case from tennessee that the other side cites and is ever cited in the course of this case in which a damages action was implied against a there's just no implied there's nothing the closest they come is this american heritage case and that is radically different that's an administrative review case that's a customer also the issue of the false claims act the tennessee false claims act issue which is my understanding is there are virtually no cases maybe ten there are very few tennessee false claims that cases but the tennessee courts have said it's ok to look to federal law if i can turn to that my time remaining the district court didn't resolve any factual dispute the district court said viewing the facts in the light most favorable to the district all they had were series of interpretive disputes involving an ambiguous statute as to which bell south had reasonable interpretations didn't require them to prove anything you suck issue which affected the de minimus number of lines and bell south corrected it is the evidence shows within months of it coming to their attention that's undisputed in the record the only other example given in the opening brief there's one  the only other example is where the record shows that a bell south employee wrote the wrong number down on a bid proposal and the hamilton county witness who was responsible for picking the winner of that bid testified that it would be ridiculous to think that that error affected the choice of winning part that's the third one in the reply brief that actually involved a wireless company that's not a defendant here by bell south wireless affiliate so that big chart that takes up so much space in the opening of the of the brief that is based on and i brought it up here our expert it's at page one nine nine three three of the district court record who's not an attorney saying this anon attorney i'm not a piling on the legal question of whether bell south owes this money or not but for purposes of my analysis i am going to assume i'm going to assume that bell south should have built and that's where those lines come from and once and this is the multiplex line dispute and once bell south changes its multiplex billing as you can see in the chart those lines disappear in fact sometimes they turn positive that are expert calculated that we were actually collecting more from our customers than we should have there is no ten's of millions of dollars of unaccounted for lines that are not covered by the interpretive disputes that were front and center and the focus of the litigation in front of the district court it's just not reality i think i've covered disputes and that's where the district are found no need to issue a declaratory ruling because they've been mooted going forward and it creates a new and i think this is important it been a street of claims process that can involve a telephone company being held liable for under collections but not through lawsuits not through damages actions not through county by county litigation but through the same taxing process i'm scooting back if i could please to procedural posture of the case in the summary judgment and counsel does argue that we could never get what we wanted i mean were there discovery disputes and were were the plate districts prevented from depositions gigabytes in gigabytes of data our expert went through in this data was available to them our expert went through and reconstructed months and months of building from the ground to back up i'm not aware of any discovery dispute that was presented to the court where the court held that we should have given over didn't we have an that's just not a thing you're on it's not that if the court has no questions i'd probably out of time anyway your honor if i could address judge cook's question first there was a very strong dispute over the access of the districts that they asked of the simple question of how many lines did bill itself have every month business lines residential l multiplex lines and that motion to compel was not granted he was held in abeyance by the magistrate judge because there were by then there was by then a scheduling order down the set forth briefing schedules for dispositive motions but the court said clearly in her order and i apologize i can't give you the exact side in the record but the court clearly said in her wonder that if the matter continued that it would be really addressed and bell south would be required to provide additional they're continuing complaints about discovery the district moved for something only what right now you know your honor there were many just the disputes about discovery there were many disputes about discovery that was the only one of the got to a motion to prevail the district did found most for summary judgment of the do show duty climbs and on the request for declaratory judgment that we have made you know a real quickly if i could address two points first of all the remedy issue i would among the for in the legislative history and that makes clear why they did they did it because they recognized that the districts head legs litigation pending but they did not want to preempt that they approved the going forward in order to recover the in the time since we talked there have been dozens of nine one one calls have been made to the district's call centers in that time those calls been answered in emergency aid has been dispatched because of the funding mechanism that was set up and that other side of bell south competitors have abated and the bell south has abated only when it wanted to about a bill sounds on expert has admitted that there were thousands of lines that were on bill made it in two places that are there are set forth in our in our briefing one is on page thirteen of our of our of our reply brief in which we have a table  which the district in which the bell south expert admits that in december two thousand and ten alone there were thirty two thousand lines that weren't bill and then the next two pages over on page fifteen is the chart that shows in fact that in every month for every district before the first lawsuit was filed bell south did not bill thousands of lines yawners this court has recognized a principle that is as old as the law itself that those who commit wrongs cannot act with impunity the school has applied the proposition that was approved by the michigan supreme court which stated when a statute provides a beneficial right with no civil remedy for its securities the common law on its own hook provides a remedy those fulfilling the law's pledge of no wrong without a remedy the end this is a simple case it's a  case about a company that chose not to obey the law even would that disobedience harm something is critical is that on one system it's a simple case in the rim of these that are straightforward and they don't involve audit rights that frankly bell south still continues to continue to existed but they don't and i would i would refer you to pages eleven and twelve of our reply brief and the footnote there that makes clear that bell south was supposed to during a five