i am james name shown appearing on behalf of tele source this is a case where one provider of telecommunications services played by the rules and the other did not we ask that this court successfully won very high frequency public coast frequencies in the auction radio link had applied but did not bid and ultimately last however just a few months later managed to acquire the very same frequencies under a different procedure but those frequencies were in the the v p c range the issue that we would like to focus on for purposes of the merits of this case is that the p c frequencies were indeed in classified by that f c c as commercial mobile radio a citation to rule twenty point nine of the folk unifications commission and under that rule if a licensee such as radio link at the time holds spectrum in the p p c rang the spectrum in licensed a p p o x to one to include spectrum in the lower one hundred fifty seven megahertz band which is p c spectrum if you hold that spectrum and you propose to provide private service which is fine under the rules of the commission as being not interconnected and not offered to the public on an indiscriminate basis they say that's exactly what they did let's take them at their word for that if they did that they violated rule twenty point nine which says that if you are in place and see particular particular paragraph he says if you are licensee holding spectrum in very high frequency public coast that spectrum you have to overcome a presumption that you're operating on a c m r s basis and in fact you have to petition the commission for permission to convert let me help you move along i with with with all due respect that was in answer to a different question the question was whether there was interference with ongoing operations and there was no interference was an a correct answer was no interference with ongoing operations the point was that our court as to harm that your client suffered they certainly played it they were not got they never got to the point to this but the reason that the harm did occur was and this was presented it was that total source had attempted to develop its spectrum with other parties the other party said we can't do business with you there's already traffic being carried on those on this week and sees how can you possibly do business because those radio who's doing it and that's consequential harm that can be reached the weight ok and in fact the discourse in theory is completely supportable and quickly addresses because if you have been cut off and doing your own business the other party's business and what they get from it is at least be but let me move on to the question of sanction we also believe that the there was evidence of interconnected service and indiscriminate offering at least to a specialized demonstrate a reasonable expectation after information and belief at the time of the filing of the second amended complaint that there would be evidence to support those assertions and that should be enough to warrant reversal of the sanctions award because the sufficiency now more to the point if you look at the say she is award we believe that it is interact contravention of the language of rule paragraph b is in the active voice paragraph c is in the passive voice if after an opportunity to respond the court determines that rule of and b has been violated the court may impose  the second part overlap or reject your argument that you make in the first that is in the latter paragraph it says attorney or party not and party so that you can then sanctions against a party without b it was always said that this particular order imposed violation of the same actions until the source as a responsible party or is responsible for the violation but the problem is the way that the order imposed sanctions there was no party that could have violated the rule under paragraph b paragraph he says like presenting to the court an attorney or unrepresented party saying though certainly circumstances were that could happen but this is not one of them because you see this particular party was represented in this particular party through council meet these representations i think it may be ignoring party and it doesn't say that the certification has to be by the attorney who represented party that second part of the restriction so it has to be the attorney and because it has to be the attorney this court had to find the district court to find a violation by one of those two that this report forswore that and said there is no nothing they did nothing wrong therefore you mean they meaning the local attorney yes the attorney did nothing wrong well yes there are cases i mean we all went through this where our practice where the attorney local attorney is hired all of the decisions are made by the home office and what you're saying is that this attorney is only following the directions of what happens the home office and the home office actually is the one that does the conduct which the judge then wants to penalize that you can't do it in this case because there is a lawyer in the hole in the courtroom who's working it as the reference lawyer what i wish to emphasize  only be triggered where the court has found a specific violation of paragraph b but that paragraph b violation which acts in the past in the active voice could not have happened because it was neither a turning nor not represented party and more to the point paragraph three the assertions did have support at least on information and belief basis it cannot be that you can cite some you can make assertions on an information and belief basis only to and ledge didn't generically that the service was operated from or offered for profit they allege generically that the system was interconnected with the public switch network and they allege generically that service was offered on an undifferentiated basis to the public or substantial potentially the language definition that's correct your honor and what and what the district court found is that that was sufficient to satisfy the formal requirements of the complaint and therefore got to that the ultimate decision was on a summary judgment motion where the where the just court properly looked at the record to see whether the plaintiff had put forth any specific evidence sufficient to  rebut the factual showing by the defendant in this case radio link that the services were not being offered as a common carrier and the court properly found that there was nothing in the around it because they can't show that radio link was a common carrier so they say well because this license was designated for c m r s service then if you weren't using it for that purpose then you were acting improperly and therefore we had to treat you as a common jury or even if you weren't there's a bunch of problems with that one of the most obvious ones is that the argument the tell source is making in essence is that radio link acted illegally by not doing something that was illegal and we follow through that they focus on a rule twenty point nine that says that these frequencies were supposed to be used for private for commercial service not for private but what they ignore is that the license that was issued by the f c c was p for private now the court this court in the first set of appeals said with that that that was not dispositive on the issue of what was being what services were being offered but it certainly is telling because that establishes parameters of what radio link was allowed to do under its license issued by the f c c it was it was allowed and permitted only to offer private mobile services if radio link had done what source says it should have done it would have been affirmatively acting unlawfully and this court cannot it's just it's just circular the court cannot find that because the radio link didn't do something that was and it was not raised at the in the trial proceedings on ri man it only resurfaced again once we once we get to appeal well that's what i'm trying to understand was this taken care of in the earlier feel we think it was to be at page one thousand five of the opinion telus source argues that radio link must be deemed to be a common carrier because he was using the v p c frequencies which the c designated for use only by courier so mobile services we reject this to taller g as explained above the definition of commercial mobile services does not turn on the nature of the frequencies being used but rather on whether the service service being provided meet certain criteria so that's it your honor and then they try to come back and repackage it by using different epithets while it's illegal even so we we give you are you agree one hundred percent your honor and what happens and what's going on on this appeal is having failed in their effort to do what the this court said they had the opportunity to try to do now case is that the court initially ordered sanctions against a law firm and then based upon the case law at the time that the award against the law firm was set aside as an abus discretion because there was no individual lawyer sanction on on remain on the court without sanctioning the lawyer sanctioned the principle and i might add that case the case is in an interesting one and it brings us to the point that was being made by your adversary if i understand your position you go to subsection c one and you say there who can be sanctioned and it says law firm or a party that violated the rule or responsible for the violation and then you want to use lowball but in lowball their low ball it was a finding that the party was the catalyst for the for of less litigation where i've been looking i can't find anything in the record that shows that there was evidence of this place before the district court where the district court could unequivocally supports that type of finding and but he did he make did he make a finding on the conduct he certainly hearty he found that is that the in the party was responsible that's what that's what his order was all about and what we know from from i'm just looking at the record but what what facts did he rely on did he indicate what facts he relied upon to show as in lowball that there was a catalyst for the frivolous litigation by the party that mr havens the principle of tellus source was directly involved and the court will recall that when we filed the motion the first response that we got was advice of counsel i'm not responsible i relied on my lawyer based that that the district court required the plaintiff to turn over the communications with counsel and the communication showed that this was entirely client driven the lawyer said well ok this is the roadmap these are these are the elements that you must meet and we can do this if you have support if you have factual support that puts it back to the to the plane but more and more than that your honor if the court one of the reasons that quite frankly we didn't attack any of the lawyers is because there was never a lawyer involved in the case long enough to be responsible every time something would happen they would change counsel take the same lawyer this is not the same lawyers  stage it's been different lawyers and what happened is that in the midst of the of the summary judgment proceedings there was a change in counsel and during that period mr havens was essentially representing himself i mean he he would what he would do is he would prepare these lengthy detail documents there was a declaration that's clear so he's got a you've got evidence in the record that there has to be finding there was ever finding by the these are the circumstances under which you go if you're going to if you're going to penalize somebody money i can imagine you wouldn't have findings in the record so let me let me if i might will represented party or lawyer of the that is he will argue you can't do that because over in b it says that you can only sanction an attorney or an unrepresented party well for the vault of the official comment to the rule says that the sanctions may be imposed against the party the attorney or both or the attorney of the party or bo were were otherwise if the rule were as well as source wants it to be then that the pan pacific and lowball case cannot stand you know so i think that that is is is the answer to that and that's the point your honor i don't disagree i mean as i said before the order says what it says and i'm looking at it too and i don't see specific findings to that effect but that seems to be a matter more form than substance if the this this in making the award the word should be affirmed and there is nothing in specifically in ruhleben that requires findings of any sort and there's nothing in the pan pacific and lowball case that requires specific findings on this particular issue that is the sanctions against the represented party as opposed to the council it's just that normally we find findings especially when therefore there was there was no no discussion no record was made no findings no objection to there being no findings that's correct your honor and certainly no one no one no one and on tellus sources side said that this is this order is improper response argument emphasizes something that the motion that was filed was not the motion that had been presented to tell the source in the first place that motion that draft motion which was required under rule eleven  said we're going to take aim at the second a minute complaint we're going to take aim at you lawyers and we're going to take aim entire point of the twenty one day say harbor provision of subsection v c help me again understand why it's different ok it leaves out the lawyers yes and you're saying that's wrong because now creates a conflict of interest a lawyer doesn't want to predate the nine hundred three amendments entirely because it refers to the signature and if you read that case carefully you will see that the client who was involved was reachable under two theories one was  suggesting i know your overtime but help me if you count on this one put into one side the fact that we're no longer after the lawyers so when the motion is made again ok i really want my sanctions what else is different this material that should make a difference i think it makes a difference for them to emphasize look at all this all the stuff they didn't do after the fall filed a complaint because all of a sudden it in place and it changes original motion was supposed to be about was did you have enough did you have enough to plead at least on information and belief that there was one interconnected much later fifteen months later that adds more to it and all the sudden they're no longer on the hook for it first of all it's now all about all the stuff that came after the filing of the complaint as opposed to the decision as i read what comes