the lawyer for a sandwich isles communications which we frequently refer to as s i c p the only issue on this appeal is subject matter jurisdiction over a public utilities claim that that regulatory rate effected a taking of the public utilities property without just compensation the law  well established that a public utility has the right constitutional right to make such a claim after the regulatory process is over the rate has been set the effect of the is well established that that damages claim under a taking serry can be asserted once the rate has been implemented but i haven't seen anything that you've cited that says that is the as arbitrary and capricious but i don't see anything that says that there's a free standing claim that that gives you a right to damages reflect that the regulatory taking is affected where the utility is denied it's a reasonable return on the investment that it's made that certainly is the  premise of the claim that we have made that we made in the in the court of federal claims i suppose what i would say is that the court of federal claims denied us on the basis of jurisdiction the ability to make our claim if if the court of federal claims is going to rule that there is no claim there is no right to make such a claim i would think points to forty seven u s c two as one of the basis for for its determination i look at section forty two it seems to me that that it's pretty  evident that this section is intended to to resolve or it relates to disputes with the federal commission and can you explain to me why for two does not apply certainly your honor for two covers the regulatory process to establish the rates with every public utility including i look at it speaks to the right of appeal and that seems to be outside of the regulatory process your honor i respectfully submit i don't believe it is the same process includes a right to appeal the read in this is true in the in the public utility cases in general that there is an entire it covers numerous other f c c proceedings but the whole concept here is that there the t he claim is something that happens after the two orders of the of the commission why wouldn't that same concept apply under for it to a because this is a regulatory taking based on the setting of reeds rather than the cancellation of  action by terminating the license where here this is something that happens later after the total effect of the regula has been celt and been understood more importantly though the appeal that's provided for here the case law is unanimous that you can't make it t you and isn't that exactly what you're saying here is that they applied this rate and that therefore that's why you weren't able to to continue to benefit from the monies that you previously received  school i would distinguish pulled in on the basis simply on the fact that it did not involve the taking and again what we have with taking claim is that appeals from the f c c actions on these rape cases have expressed what he said repeatedly that taking claim is premature at that time so we couldn't have made it there so i'll go on my clients assets are in foreclosure a number of them have already been sold a marshal sale the others are the subject of an order of a of a for  judicial sale that's apparently going to take place at some time in the future if i see went through the whole rate making process and was unsuccessful and is now at the point where it is it's only available remedy is to pursue its claim for a seeking as i was discussing earlier this is not different from any other public utility me just ask you what is your response to the government's argument that no matter what happens there's no property interest in having a particular benefit  rate i understand the question thank you the rate that a public utility that serves referral customers receives is both the subsidy and  that it's allowed to charge its customers to come together the the reasonable investment back expectations are under which the property is purchased the assets are purchase d become because of the federal the federal communication commission authorization and direction by the equipment in order to service the customers so that the the fact that in this case some of the rate is provided by a means other than payment by the customers does not make a difference in the terms of analysis of our cl moreover i would point out that is something that the court of federal claims would be taking up after we have after a request for damages under the take is cos by way of a damages calculation it would have the authority to to review review the claim and if for example there was a situation where a carrier thought a labor and was was so your argument that there's no property interest in a particular rate or property interest and high cost subsidies that's really a merits argument isn't it i mean how does that come into every public utility case there is a rate setting process the function of the resetting process is to try to find a reasonable rate and that's no different in this case the f c c provides that process through various means to try to find a reasonable rate but in every public utility situation the if the process doesn't work for some reason and does not generate a sufficient return on investment there is a right to make a takings claim a right under the constitution i submit to you that nothing in the in the hobbs act or in the communication act shows an intent to deny a public utility the right that the case  i believe again i believe that would be true of every public utility case in some sense ms rose's claim that we are objecting to the rate that was s c order sitting a rate has some appeal but there you go just put put the rate get put that word aside for a minute we dealing here with the commission order or decision your honor as i say it's possible to view it that way but that's not if that were the way that that it was that it was properly viewed no public utility would have a right to make a takings claim when they've been denied a return on their investment and that's clearly not the law if i see is no different than the other public utilities that have been held to have the right to make taking claims following the entire process and following the point where the total effect contractual or physical well again public utilities have to invest in equipment in order to service their customers they're required to part of a part of be approved as a public utility by the f c c mandates that the public utility purchase the assets in order to provide the service s i c p did that and its cl rate that it was provided did not give it sufficient revenue to to provide a return on those a the honorable court is adjourned until tomorrow morning at ten a