they were adopted nearly two years ago and remain in effect today as this court held in one thousand nine hundred eighty against pacific bell the proper time for a party to obtain traditional review of an order under the telecommunications a six is when the state commission makes an operational or binding decision which the california commission unquestionably has done here moreover arise in california stop first immediate hardship honor the allegation in the complaint paragraph forty four that the rate order was causing us to lose customers and that the true up would not be affected effective must be accepted as true and i seven u s one sixty seven at once seventy two where the court made clear that the courts must accept allegations of the complaint regarding hardship in determining right this these are two other cases are discussed at page thirty five give agencies the final word on whether their actions comply with the law if our opponents were right and effective rates to never be reviewed as long as they are called interim  would have carte launched to sets rates in whatever way pleases them in contravention of federal law the only way to prevent that is through judicial review to ensure that an agency  within the limits of its delegated authority now with the course for mission i would like to address head on the us west against m f s case upon which our opponents placed principle reliance and that case in applicable cheer for three principal reasons number one there was no claim of hardship in us west us west did not contend that deferred review would cause it to suffer hardship on the contrary u both with respect to hardship and also with respect to the fitness of the particular claims that us west was alleging in that case arising however contends that it suffers hardship from the herd review including that's as we discussed that allegation which was clearly made in paragraph forty four of the complaint must be accepted as true at this stage of the proceedings and makes this case fundamentally very first of all the true up is limited this t p you see has said the only thing the truck will cover is the difference between the permanent rights when they were eventually set and the interim rights it is not intended to provide compensation for all of the other harms that we suffer for example it's going to cost varieties customers are not automatically going to come back to us when these rates are changed the wholesale rates are changed we also need to spend money to market to these customers to get them back that is not part of the throw up moreover there's a difference between the wholesale right the only difference between the new host rights and the old interim wholesale rights there's yet another difference between those wholesale rights and the retail rights that horizon would otherwise charge of its customers and that margin is not made up for by the trought but the key point your honor is that at this stage of the case in which we are testing basis of allegations our motion for summary judgment was not directed to rightness if our summary judgment motion was not well taken your honor if we fail to present evidence sufficient to justify a judgment then the remedy for the district court was to deny our motion not to answer judgment for the defendants that was the problem the court took an extra step to respond to answering judgment for the other side without allowing us to present evidence that would oppose the eighteenth he concluded that you don't have to go through the further administrative process of an application for a rehearing before obtaining judicial review so to horizons does not need to go through and even wednesday or administrative process worthiness yes sir and we specifically allege that in paragraph forty four of the complaint you are paid sixteen you know let me ask the second question credit worthiness can be hedged by the purchase of credit insurance mark can you recover the cost of the insurance in your through there's no provision for that in the commission's order the truck only covers the difference between the permanent r and the interim right so therefore there are two elements here that will not be covered according to your argument in the true one is a loss of customers a difficult issue to prove but nonetheless you have the burden of proof on after that's your  of credit worthiness or credit insurance because who knows if after the permanent order is entered the person who has to pay that increased rate if things be increased well be in evidence i might say to the court that there's really no dispute in this case that the rate order is called us to lose customers that is the whole purpose of lowering right so of self that's a big deal i mean right precisely your honor the magnitude of the customer lost while relevant is not dispositive even if we're only losing a very small number of customers any customers that we lose constitutes hardship and we would invite the court's attention to the mid coast case from the d c circuit cited at page thirty one of our opening break which makes it very clear that if you have a rate even if it's an interim right that is subject to respond as it was in midcoast and that rate causes decision assuming that no hearings were held in the administrative process the decision would be expected late summer of this year however no just if the decision is made to hold a hearing and that's something that will be decided later on in the spring then the act if i could make one other point about us which which i think is quite important and i see my time is running down we said there was no allegation of hardship we've set a complex with eighteen c but the third point critical point is that there is no limiting principle these absurd results we say u s west must be read in light of the facts of that case and the allegations of that case and if it's read categorically as they suggest these absurd results would ensue and those would be damaging not only to incumbents like verizon which as i say it's concerned about this case because of the precedent that a potentially sets that could give other state commissions the ability to violate the law but also it would thank your honor if you would also if an agency could avoid you just to review a great just by calling the interim then there's a whole variety of other actions that other government agencies could take that like allies would be immunized from review just to give one example the office of thrift supervision put interim capital standards for banks that prohibit inclusion of goodwill contrary to federal law but promised to adopt permanent standards that it intends to apply retroactively this is not and has no never been the law agency actions that this case a stronger case for a finding of on right now and that is that in this case the two up is a certainty whereas in us west that was something that was up in the air the court noted that there was a near possibility of a true up but as to the and in that course in that case this court repeated what he said over and over again which is district court factual findings on jurisdictional issues have to be accepted unless clearly erroneous it brightens view of what allegations need to be accepted for purposes of provide evidence in support of that i think shift the burden away from brighton and in fact to the district court as a as a pleading my other question are the allegations deemed to be true for conjecture but again in the in the gardner case the supreme court case there are a number of steps that need to be taken to comply with the regulations that certain goods have to be registered and had the company had to purchase new equipment had to perform scientific testing indisputably has to offer these network elements to its competitors at some price the only question is that what price and so they don't need to alter their behavior at all in order to do that typically arise in the context of closed administrative proceedings and arising is well aware of that the idea that they were  any harm and will correct any harm relatively soon so i will leave my remaining time to my colleague court please the court my name is kim with me i'm the attorney for the california public utilities commission we agree with counsel's arguments regarding the rightness issue in this case and i think that it should be dismissed under us west then i don't know that that i believe if the rising does have such damages it certainly could have come to the commission and to the district court now asked for a stay of the of this commission's decision it could have presented evidence at that point before the commission before he even went to court and never did that and never provided any an information or evidence to the commission that was losing cut it would lose customers or that it would otherwise suffer irreparable harm which is something that the commission would look at if as to when the commission is going to issue a decision as they stated there is a revised schedule out where the proposed decision is expected in june of this year there are no hearings require and any delay in this proceeding has not then due to lack of diligence on the commission's part arisan itself jointly and by itself has asked for several extensions in this case to make filings they originally were not reviewable they were not right even though it was uncertain whether the primer the commission was going to issue a true up or not so there was just no there was just an uncertainty there here is very certain the commission is undergoing proceedings right now procedure that decision is on the commission's agenda for the end of this month so it's a very simple simple process is a very quick straightforward process it is in motion it's not something that's indefinite and i would also say that  claims that there's there's no limit or there's no limiting principle as to us west i would disagree even the district court said that we don't need to look at a case for example where the rates on their face are unreasonable as an example of the one cent great or their example that we're just spinning a roulette wheel we don't we don't agree that even in the us wants it there's absolutely no limiting limiting principle here  facts of this case that it does fall squarely within the limits of us west and and these right breaks are not right and we would also object to going back to district court to have this piecemeal review of rights that are interim and  subject to change possibly tomorrow and that are going to be replaced they are going to be replaced probably was in this year no longer you keep talking about what's going to happen tomorrow and what's come out  no actually but i believe there was a judicial notice requested by rise in of the schedule that's currently in place as far as the commission issuing its decision in the summer to vote tomorrow to change prices right i think that it can face a situation as a district court did on the fact that the permanent proceeding is underway that the commission does have a schedule in place to protect these rights years we are bound to offer our network at these prices that is causing a loss of customers that is not just skewed it the immediacy of the harm here distinguishes this case from the cases upon which our opponents rely where the allegation was that harm might occur in the future that's different harm is occurring now that's clear the issue is whether the future action that the commission promises to take to revise those r forty four of the complaint to the portion that was not read to you by opposing counsel but was also raised in the district court in the summary judgment motion that you are paid to one by the key point is that once we have alleged hardship in the form of lost customers which we clearly did it was not derived burden to prove that the remedy that was being promised would not be fully effective in curing our harm that was their burden to prove that the remedy that they were a question that we had to present evidence on in this regard he was clear air for the district courts to answer judgment and just to clarify your honor there never was a motion either under twelve b one or for summary judgment by the defendant it was just our motion the district court didn't agree with our motion and still sponsoring answer judgments for the other side rejecting or ignoring our request are we clear requests in the summary judgment reply for the opportunity to present evidence i finally wanted to address refly counsel's mention that in us west he was uncertain whether or not the commission would adopt a true up whereas here in this case they said that they will adopt the true up that used extremely important and s doesn't go to the essence of our claim our climate even if they do do a true up it is unlawful for them they lack authority to put rights into effect now that violates federal law based simply on a promise that at some point in the future they're going to correct those errors through a true  is even if we have a true up and it is the true us and through us it doesn't it isn't going to compensate you for the damages you claim from loss of customers and bankruptcy risk precisely thank you and i sort of