decide in this case whether they should have granted right we can only decide whether they should have for abuse because they say groceries to the car applies to what i consider you're not asking us in the first instance to do the discretionary job of the i c c is otherwise entitled to do it that is correct i mean we i refuse the second argument we make is because they have so abdicated their responsibility by failing even to consider it the court should go ahead but we are but our parents are they didn't look at something they should have and so now i should not only look at it but decided in the first instance a very discretionary type decision i an appellate court judge should decide that fair enough that as you know that was the second argument the principal argument which is we never even got a hearing i mean and that and that is our principal argument on appeal to the government argue last time around that if you wanted a mitigation of this penalty the way to go was to file this very motion that you had not yet at that point file because we had not filed it because the i c c didn't have jurisdiction to consider it in indeed if you look at their supplemental brief you're misunderstanding my question it's helpful don't fight it the question was isn't it true that the god only came to court last time and told us that there's a proper way for you to seek a rescission or bring remitted to a reduction and that would be for you to file this motion below which at that point you hadn't yet filed but now you've gone ahead and filed and done exactly what they told you was the proper process for you to proceed under that is correct i was just getting to the next point in case you're concerned as to why we haven't filed but i wasn't ok but these certainly they couldn't have been any clearer in their supplemental brief on page four and for and also on page proceed correct if that is exactly they told the court that's what we should do we did what we're supposed to do it's a rule that they've had on the books for a very long time that in fact if you see anything in that prior opinion that happen to come out of order not to the consent order my mrs well look i understand your confusion because that's the although that's the language they used if you look at that magnus case where the i p c actually used this rule what they did is they go back and they when the consent order or is it the civil penalty where i know we going after the civil penalty obviously the money is why why we're here but it isn't we actually are seeking a vacation would be effectively both because the underlying consent order is based on the having to do with the so called infringing contact which can no longer be any more once this court affirmed in the mandate issued as to the the in the which a company had a consent order they can do the x x same thing and needless to say there was then and forstmann action the i t c imposed i think a one point five million dollars penalty in that case and that came up on penalize before because there's no money in the bank you know it would be the approach that if your argument here is actually think of you know your question takes me to a place where i can't quite on the tip of my tongue remember the supreme court case that just came down this past year of whether or not i believe it was state of ohio could just keep a penalty even though the conviction was overturned on appeal and i think it was a while and they said oh we can just keep it you know and the answer from the supreme court was no you can't th that clear last time they have a right to penalize you for violating the order even if it turns out the water maybe sure enough been imposed there was an order imposed your client chose to violate that order there is a right to penalize do you have first time around i usually take that into account and it affects how long you're going to be punished for it so i guess what i'm wondering you seem to be going to your rejecting judge rayna's what i said what i think is a very logical approach to this case and  it's because you're trying to get all can't you just be happy with some meaning can't you be happy with a remitted to her or decision to get your response to him be we asked for eliminating it all there in the alternative at least remitting it reducing it and yes perhaps my client could still be punished for breaking the court order but it turns out the order should have been in place that also maybe the punishment should be mitigated can't that be your answer to him instead of no not on our  the issue before us as i understand it is extremely limited and it's simply whether or not the commission correctly said that circuit is and you decided this you can't even give you a hearing or consider your arguments and all and then the i d c would consider it and you said that was the appropriate way to proceed at that point in time there was no such motion one filed by anyone so how could we have decided the propriety of the very method you said was the way they us to do they asked us to conclude that the subsequent invalidation therefore required the civil penalty to be eliminated entirely and we said no it doesn't require that but you will argue that really make a motion to have the civil penalty modified in light of the changed circumstances the invalidation that's what you suggested to us was the appropriate course of action and i can tell you right now as i sit here i didn't mean to foreclose has as a matter of its discretion to modify a civil penalty in light of a motion for modification where did i decide that issue because the i d c in one sentence says race judicata not pointing to any portion of the opinion  automatically was a matter of law i would i would say the commissions i mean some of the court's prior opinion answer the question broadly what effect if any and you answered against t v unfortunately for them that there was no retroactive effect for any future event i don't see that i  authorize yes they're arguing the commission is not authorized to in fact in in force of consent or her with regard to an invalid patent i mean i think that is exactly the point judge cross made a second ago which is their argument which previously was as a matter of law we can't be asking you're not arguing as a matter of law they can't they're availing themselves of the motion practice which is set out in a regular action that allows them to seek rescission you see there is no change circumstance to change circumstance it seems to me is that they did not previously have on file any motion requesting rescission so this court when you have jurisdiction to resolve it and i never would have resulted in the first instance that night he has the question to do that that was none of that was before this court lot of fight all the way back to what they all share which they decided to get this issue was before the board in the original appeal three years ago i think the court understands our position which was obviously there was no discussion in the prior appeal of the i t c rule we simply took the path for they were they said we could take if this court actually affirmed the inability of the pad there's an i t c rule it