correct which occurred in some counties are the problem is with respect to the well the argument of theirs it's a collateral attack is an argument that time ran on the time in which you had to appeal to this court thousand three the argument is that that issue should have presented as a petition for rehearing of these facilities of renewal with respect to the more civility again the agency's position is that it lisa court caryn larsen for the respondent the energy regulatory commission chief judge harlan is correct that the practical consequence of millan's position is that that is that invalidation would result and invalidation of entirety of the facilities agreement for the period prior to the filing and what do you say to their argument that san diego gas laws of san diego gas is distinguishable cindy a go was a waiver case the court was examining whether her correctly denied waiver in that case and the consequence in that case the denial waiver was such that san diego was stuck with only an effective date that first gave was if the language of the contract in that case limited the result in that case so it had that sandiego has no bearing on the case at hand here you may ask why  don't seem to really address the question of whether they can challenge the enforceability of the sillies agreement intervener says that they can't what is first position on whether they can challenge enforceability of  violations of two zero five and that remedy is the time value refund remedy and natural predicate of that remedy is is that the contract for the period prior to the filing is valid the regulatory force of a contract arises before and survives in the absence of the filing of the contract ms position here is the same position that the court rejected in borough plan stale the idea that a contract has no binding force on the language of section two zero five d restrictor preface of the notice requirement provides that unless the commission otherwise orders that's one grant of discretion under section two of five  c the language of the statute provides that under such rules and regulations as the mission may perscribe every public utility shall file with the commission with in such time and in such form as the commission may designate the court the ninth circuit in montana consumer counsel found that this this language in section two of five provides over all flexibility for first to make exceptions to its filing and notice requirements  agency agreement proceeding and that was incorrect because furka made the determination regarding the justice of reasonable innocent the raids in the facility order sylvie's agreement order that separate proceedings and that's the order in the agency agreement proceeding millon did not challenge the validity of the agency agreement in that proceeding it did not check on its request for rehearing of the agency order in the agency order the commission except it the agency agreement on their requests for a hearing of that order they did not raise that issue thursday all there is in their request for hearing of the agency agreement order is a footnote in the background section that just is just insufficient to meet the statutory prerequisites to have jurisdiction here to raise that issue for the footnote is at j five twenty one and all it says it gets in the background section it says religious discussion of the agency agreement should not be construed as acceptance binding notwithstanding their failing their violations of section two hundred five of the federal power act and as with respect to even the mobile sierra club and the supreme court commission it's our opinion that certainly they can or the merits but we believe that that issue was decided festively in the september seventeenth facilities agreement order that the  should have any bearing on that question and i don't think it would be it's a valid distinction and that's so for a couple reasons first of all remember when you're dealing with a prior notice board you're dealing with a situation where you have assigned valid contract between two parties freely interview to talk about fraud not talk with anything like that we have that number one and number two you have ribbons that are just and reasonable rates well what possible valid reason would there be for one party dollars and approach and say that the you know whether or not the party wants to pay under a valid petrik that's just unreasonable but that's the controlling factor and basically you're saying that the parties are modifying the statute by their own conduct in other ok thank you we'll take the matter on th