the word yeah getting charged up to six times the medicare a reimbursement write let me ask a preliminary question that may be my only question but if we agree with the tenth circu cannot apply in this court because you have the watch and decision which is an end by your station i've read watson it doesn't can it it's it has some it has some has some relevant language but eagle med facts from these facts such that if we even if we agree with their preemption analysis it's not control rowlings are wrong word it's not persuasive as to that's my question  absolutely i mean i'll hit that and all because they go mad merciless hardwired in them to go mad but i've read it and i've read the texas decision and i've read the montana decision and i thought that was the that was the landscape i'm just clarify i think it is the preemption language and the court the end bank this court sitting in bank said and i quote from that decision the watson decision but the preemption clause and our quote here should be understood in light of its purpose to promote competition any industry and we strongly submit to this panel that that and bank decision is binding on this  the facts of the type of climate is different i agree i agree with that but what it does it sets the standard for figuring out when you apply peril on deregulation act preemption under and where does the preemption promote competition i won a prize winning policy impact of policy considerations at the margin and then there's the question of whether policy can require you to disregard the core line deregulation act replaced suffocating ca b regulation with with f t c type supervisory regulation of unfair practices and on can unfair and and i competitive practices that is not an re an unregulated marketplace your honor because it doesn't have a private right of action just like the federal trade commission act well but it's not the lack of regulation your honor there's a question whether congress even contemplated air ambulances and that sort of thing when it came to their land deregulation act that was elias twenty eight j they got sent to the coort thing is when you drop right down into it there's no question that there is not a new forcible contract year with never an agreement on price and you can't have an enforceable contract without price that fits right inside w this court to look at watson carefully you make sure that you are sure you read the case but it's trying to lay out how do you fight and where that line is drawn and all sorts of instances there's one case charges on the back yet would you get on an airplane judge and flat a little rock trusting ery back to be fair with you when you landed that is the air ambulance situation it is different from commercial airliners you pull into a gas station and the gas is fifteen dollars a gallon you're in form bar you know hey i get it for three bucks down the street you go down the road you got disciple sick people that don't have a clue and then it's all up to the unfettered discretion in fact contract that lacks an essential term and there's one other thing that judge of their day and talking about the argument questions differently than a district judge in the eighth circuit does the ninth circuit disregard for preemption has been reversed time and time again but that still a defend his position lames patients are obligated to pay the ex post facto bill charge to which they never agreed without any change of redress defendant essential terms price is an essential term it is also of the thing that they can show you in committed fraud but because they know if i told that fella its goal cost you thirty or fifty thousand dollars to get from here to there forty one miles thirty thousand dollars because this is a last one four hundred one percent of all the air carriers in this country that are transport statistics to you in our brief counsel if you want to reserve some time you might have better reserve thank you for being the court your honors my name is joshua fox and i'm here on behalf of the apple e ere event during my kind before the court i tend to address when judge marshall was correct in dismissing all three of plaintiff's claims under the airline deregulation act and if time permits  address all our alternative argument which is the case can be dismissed on the express written agreement the a da their line deregulation act was passed in one nine hundred seventy eight and it includes an express preemption provision that preempt all state laws no matter the form honor so air carrier is defined in four zero one zero two you have to trace the air air carrier definition all the way back but it includes interstate air transportation which is the  passenger if you look at the other definitions in the act itself you will see that when they define things like interest state air transportation they may limit it to thirty passenger transportation if you actually look at the legislative history of the airline deregulation not in any depth you will see a long dialogue about whether air taxi should be included in the definition of air carrier air taxis are the type of certificate air ambulance have and the congress came to the conclusion that despite the that congress very much intended all air carriers to be included in this definition of air carrier and when you're talking about it would promote competition yes so it would promote competition but also so that it would as morale is pointed out so that there wouldn't be a hodgepodge regulations across the states relating to the price rider service of an air carrier this question asked to air you back and the numerous other air ambulances have been answered at least ten times by federal district courts or or circuit courts finding that a it should be pointed out that plaintiffs argument related to this which is a non textual policy argument and it's the only argument that applies to it claims two and three in their complaint it's a non textual argument federal regulation governs what can be charged hority to the department of transportation to regulate monopoly power to regulate unfair and deceptive trade practices and to punish and to change the market if need be including revoking  any kind of of authority so it would remain is available to someone in the position of the appellate they can they can complain to the department of transportation and the trans department of transportation has to take it from there congress has chosen that says the department intervened in a case like this so your honor the department hasn't intervened in a case like this that well i guess there is intervention going on in in cases across the country right now where the department is opining related to this and saying that we are an air carrier and department may be typical of departments their captives of their industry their cat captive of their industry so your hon think this goes back to the question of is there an ability to carve out a public policy exception a non textual public policy exception to the a b a and this court answered that question in watson so the standard is t puerto rico standard when you have a clear expressed preemption provision and in the paragraph just above the one that counsel cited the watson on bank opinion this court clearly said that puerto rico is the standard the only carvel that pla appellant's argument isn't so much that there needs to be regulation of what you charged in his case but that there was no price ever agreed to there was no you're not seeking to is not seeking to have a price imposed but simply to say that there was no agreement to pay a price so your honor i think that goes to counsel's other argument which is that if it's under the mullins exception but only claim number one it doesn't go to claim number two or claim number three and i just want to be clear i believe that counsel really makes two arguments a policy argument that area ambulances should be carved out of the a da which applies to all three claims and then one argument as to claim one which is that disputes within the wall is exception addressing the wall and six option it should be clear made clear that rowland's only applies when you're looking at the four corners of the contract as data manufacturing out of this court has told us and that is not when you look closely applying this complaint and specifically the paragraph under complaint no cause of action number one it starts with because defendants do not disclose price that would be a arkansas law state policy decision that does not fit within the wall and succession wellens is very clear about what fits within the exception if it is specifically about a claim that they're violating they're violating their own contract that's correct it's not a voluntary undertaking and instead no contract therefore we get a remedy from somewhere else that's correct your honor it's so if that remedy has to come from another source which  manufacturing i think doesn't very good job of showing that when it comes down to it prints all the claims except for one will remaining claim as to the ten dollars fee it actually carve down that ten dollar fee question and said in footnote three and just above the the relevant language that you can't say that it's an unconscionable rate you can't say that the rates wrong except this ties into something that struck me as peculiar in your brief were you in the recitation of all of the constraints that your client and other air evacuation carriers have to deal with you cite the arkansas administrative code as imposing simply enforcing a federal obligation so there's really three components to that answer here or to the answer to that question your honor the first is that the airline deregulation act the preemption provision applies to economic regulation we're not arguing that there is some ability for in the emergency situation for there to be some state laws that apply additionally there some argument although some doesn't apply that there's an impala requirement that we transport patients here there's an arkansas law law that requires if we lift off and we go we cannot deny the patient by because they do not have the ability to play pay that is good public policy that is also something that we you know we take on as a responsibility as a company that we're not going to turn somebody away and put them in that situation simply because they don't have the right insurance medicare medicaid at this point in time don't play anywhere near cost which creates a huge gap and the ph i opinion which is that of the third court of appeals in texas had a full economic record and coming to the conclusion on playing us first argument this public policy argument that it's not permitted to go deeper than what congress said in the act it actually did look at the full record and dropped in a footnote that there are competitive market ests that there is a limit to the scope of preemption that you otherwise vigorously deny so there is some limit to preemption i don't know where that line is drawn but and i mean this is this is economic you have to you have to carry someone whether or not you can they can pay so there's a line between health and safety in the economic piece and i don't know where that launch drawn we certainly haven't made a claim in any way that that was preempted whether we could make a claim as  to whether that law is printed i don't know but we haven't made a claim as to that law being preempted in any form or fashion well if the if they can require them to carry someone who who who can't pay why can't they require you to pay someone to to care to transport someone without requiring them to sign a piece of paper that says you'll pay whatever we tell you when you get there so your honor can you repeat i'm having trouble we have someone who can't pay and then we have someone who wouldn't who wouldn't do it if they knew what it would what it cost arkansas can say you have to carry someone that that can't pay end your way around that is to is to stick a piece of paper and one there and one there on the gurney and sign here that says you'll put you agree to pay whatever we say at the end so i understand your question oh so arkansas less says we have to transport it doesn't say we can't bill so we can bill even the patient that has no ability to pay in any form or fashion we can buy a bill the patient that has medicare and we're only going to receive the medicare amount in other words the states are not permitted to that we we can have an agreement the state just cannot impose under walang an outside force into that agreement that's not a voluntary undertaking it's it should be noted your honor but all  that there has been allegation that we sued mr farrel or that we turned him into a credit reporting agency or that we turned him in to a consumer protection company the reason for that is that's not our company's policy that's not what we do now  fact that we sent him an invoice and that we had negotiations and discussions with him about what his insurance didn't pay keep in mind as insurance only paid a thousand dollars on the transport that doesn't mean that arkansas law to your question a minute ago about whether or not we had to transport it doesn't prevent us from sending the invoice we may not be able to collect from mr farrell or from other people it's whether arkansas law prevents us from even attempting to do that collection in any form or fashion and it should be noted that there are have been at least ten district courts in this country that have applied the preemption provision to air ambulances in the a d a s to air ambulances including the schneider  case that's the oklahoma case your honor which is up on the to the tenth circuit right now on on similar issues and in fact the exact same issue was argued in that case by council after the fact that there should be no contract at all and i want to finalize with this your honor that there are three part test to the idea of whether we're an air carrier do the laws relate to the price right or service of an air carrier and are they of the force an effect of law and all three of those are clearly met as judge marshall said and there's no room for the woolens exception as to claim number one because you would have to insert an arkansas state policy for one we don't even think exists or  arkansas law but if it did exist you would have to insert it and it wouldn't be a voluntary undertaking and therefore it preemption should apply and for those reasons would like you to affirm such moment in your view if you did sue to collect made the case i don't know anything about instead answering the question so the the answer to the question is it would depend on whether the defense is inserting a state policy to the question or not if it's inserting a state public policy into the equation it would if it it's simply a it's simply a state the state of aspect of state maybe common law and the contract of adhesion is not and is not enforceable if that means we had no agreement at all that i think that would fit within the to the collection suit it up all your alternative ground and then you go into state court and say ok you always home ever many thousand and the defense is that's on collect that that's on enforceable i not is that defense preempted so i think the answer is no your honor but i think i would have to actually see the exact facts of the case i think the answer case so that's not an allegation in this case no no known but you want to ask you want us to say that contract it whatever it is that piece of paper that mr farrell signed is an enforceable contract in which he says i agree to pay what you charge me yes all right we and we buy into your and therefore on enforceable or on collectible whether or not an agreement exist i think fits within the wall and exception by itself if you insert a state policy to to to avoid it i think in data manufacturing the are the specific statement that this court made was if you say that there were the prices were unconscionable or if you say that the the the that the agreement should be void for public policy that preemption applies that's that's that's data manufacturing and that's within woolens exception so i think it would depend specifically on the facts and allegations and whether state policy was being inserted here playing a says in order for there to be an agreement public disclosure of price had to happen first and if you look closely at the five thousand foot level that is exactly morality where the state a g s were saying you have to disclose certain things about your prices in order for you to be able advertised it was reading the briefs was it william vanderbilt that the one case that has the actual economic record which is the ph i case sort of the third court of appeals actually said that there is competitive market forces and there is a reality in this business with the way that medicare medicaid to set up there's a transfer of beenz and cost and it's not public be damned by any stretch i know and i'm to the office every morning in sioux falls well five or six times a day when i drive past it's a very hospital and several times a year i see the helicopter taking off and coming back and you wonder about the tragedy involved and about two miles west sanford has a hospital and i see their helicopter going is out that talk competition we're talking about or not yes your honor that is the competition and what extent it lowers the cost we don't known because anyway well there were a columnist in that case and there was discussion about exactly what the impact is of that cost the court ultimately said that that's not appropriate analysis under the  everything they hang at owns in a footnote and there's no white and no whatever new entry hearing they may have had in that administrative case will say there's no evidence in this case because we're all twelve b six the other thing i want to mention kind of science we submit respectfully there is no regulation but back to the federal trade commission act you'd make the same argument there out of mo but the fact that the federal trade commission can has full power to regulate on fair and and i competitive wrexham practices but there's no private right of action means that there's there's complete power to go out and kick and steal because because i can't sue him i'm sure i'm so in your main the department of transportation i'm saying that the department of transportation's regulatory authority here strikes me very much like section five of the federal trade commission asked not and let me tell you one mr spiral then and and the and the people who wanted to bring private actions have complained the live to the moon for decades because only the federal trade commission regulates unfair and i competitive action practice