communications act and so on the first point in this sort of a lot of minutiae here i think it's helpful to to understand why it matters that these calls information services i think it's helpful to look at the chronology  consumers at that point the f c c made a determination the f c c said when a company offers a service that uses a computer to process data and that service also requires that company to hook into the local phone lines at that point eighteen t s phone lines that service would be exempt from paying the ordinary tariff access charges that you'd takes this concept of an enhanced service provider gives it a new name calls it now and information service and enhancers you come to an information source and that concept goes into the statutory t compensation regimes for paying to hook into those local phone lines those are all frozen in place and the frozen in place until the f c c comes along and comes up with another another machine  o section two fifty one jeep preserves this rule the enhancers is provider exemption which says that enhanced services now called information services are exempt from the ordinary access charges  court knows this case involves avoid calling a voice calling is essentially making a phone call that begins on the internet your phone is essentially connected to the internet and the phone call begins  an information service or a tech telecommunications service the r c c has never said why it didn't do that so as a formal matter we don't know i think the most likely at that point the f c c makes it pros specht of determination about how companies are going to page other for this kind of stuff but it says again it doesn't say why but it says we're not making a retrospective determination says it probably eight times in that in this order in this two thousand and eleven connect america fund order so what's the f c c doing well i think with the f c c is doing is it's saying look we've done our job we have resolved the money issues going forward and we do i have anything to do with the money issues going backward it's politically fraught where political organisation we're going to go to the courts and the courts have a statute and they can sort of do it they will  new they have to do with computers they're supposed to be competitive and so they have to see says look the regime the old regime this this tariff to access regime where you pay to hook into these local to these local networks it's not a great machine you pay way more than the actual economic value of what that service of what the local phone company is offering  and that's for historical reasons that have to do with the eighteenth one thousand nine hundred billion universal service of phones and things like that but the f c c says look we don't want these new technologies to be subject to this all common carrier regime this this regime that had to do with sort of very heavy handed regulation of what of what companies paid to look into the local phone line so there's language in the ninety six act that just says look the internet is great we want to be very lightly regulated so far it's been working great you know paraphrasing obviously it's been working great  from centrelink store and not paying for it and not paying for it because that's not what's going on here the question is should this new service that sprint is is offering thousand and four set out to figure out what's the economic value of the service that a company like century link provides that a local phone company provides when it completes a call  provision two fifty one g b and they are in a transitional moment they want to foster informational services but they also want least till two thousand and twenty are going to protect the local administrators so what they basically said and i think you said it at the outset is well freeze time in ninety six we're going to preserve that arrangement and in ninety six as you describe what didn't even exist so spring same calls that end up t d m to century link where then telecommunications they weren't informational what you're saying is void calling before nine hundred ninety six was a telecommunications service because now i'm just saying could you address why we wouldn't give chevron deference to the f c c is comprehensible order that saying this is a transitional rule the carve outs protecting it and therefore we're going to look at what scruton fact was paying what they were doing in ninety six the identical calls were telecommunications they because remember it sort of refuses to say this information service is a telecommunications source and it says to the extent that void calls constitute information services they were subject to the information services are know i just i'm done language that they seem to rely on that i'm reading is the f c c states the commission is already found the toll communicate toll communication is transmitted in ip were subject to the access charges and the same would be true to the extent that telecommunication straightforward in the statute there are two options telecommunications services traditional calls or information services right in telecommunications in the statute are defined by sending data without the change in form that that the language of information services in the statute are defined as sending information with among other things a change in the format of the information that's what we have here what the f c c says an ip in the middle is that what it cares about is the net protocol conversion so it cares about what does it look like to the person who to the consumer right the consumer is blinded  changes to another form it into livered and in in the old fashion or is some case law with your time running out what's your best case to support your kid that chevron deference doesn't allow the f c c to come to the conclusion that  said this kind of calls and information that the f c c explicitly disavowed them paychecks the most recent right that's the d c s district court right and i don't want to get right in that case the court made this broad comparison to brand that information source  site so if the court wants to rule for us on that that's great but it's not an argument we've made here and i want to clarify that argument is an argument about whether interstate tariffs apply to these calls it's not an argument about whether terra supply at all my primary argument in the argument that we've always made is that no tariffs apply because federal law which is superior to state law says they don't if you're not making the district made an opposite conclusion preemption and you're do just dance you're just barksdale you aren't contesting that right the district court said  the district court said tariffs apply we deny your primary argument and also your other argument hey all all these tariffs ought to be inter state yes we're not we didn't make that argument authoritatively interprets section two a one that's the global crossing case so it's a it's an ambiguous statute we all courts always look to the f c c to determine what violates section hundred one and here the f c c and all american telephone took the cases that took the decisions that centrelink relies on specifically that's the m c i case in the business wants case specifically distinguished both of them said neither of them stand for the proposition that self held or or failing to pay a tariff tax charge those states those decisions don't stand for the proposition that that violates because we don't want to hear it in section two always gives the f c c that it gives gives parties the right to go complain to the f c c in the us to see says listen non payment for any reason care who you are or what you're doing three or four years and then decide you shouldn't be paying that terror and start with claw back situation there is no case that decided by either the f c c or core holding that it is not unjust and on reasonable for a carrier to do that if that is your your question just part still and what about a case that says it is complicated and i would respectfully disagree with opposing counsel characterization of what the supreme court building global crossing because in global crossing the supreme court did not say that something is unjust and unreasonable only if the f c c says it's unjust in a reasonable what the supreme court said is that something is actionable if it is either unjust or unreasonable within the meaning of the statute or if the f c c has declared it to be unjust you know let me ask you more specifically if you were writing this decision for you but so as to make sure it contained a limiting principle that just failure to pay clay says would now all be to a one what is the limiting is that the length of time or is it the even why would you limit the principle to protect a failure to pay as not within two there are two ways of limiting it your honor one is that we're not simply talking about a failure to pay tariff access charges and in fact century link made clear in the district court made clear that the section two a one b claim was not based on failure to pay tariff to access drives in particular starting in the summer of two thousand and nine when sprint begin disputing  obligation to pay the tariff rates and then withheld the difference between the tariff rates and point triple zero seven per minute that was not the basis for the two a one the claim nor was it the basis for  retroactively in did so by withholding payment on invoices that it did not speak of invoices that were clearly for t d m traffic and that is something that  lation it was an unjust you know unreasonable practice and it was ok just because the industry and you saw the amicus brief is very concerned about this second issue you would say failure to pay cannot be a tour in violation unless the offsets include amounts that are undisputed that's the critical i don't that's part of it but part of what's the second part actually to ok one is is that it's a cause of action for that then there would be a conflict with all american but that's not what we're talking about here the second difference is that the amount of the sprint withheld was based on an unreasonable estimate spring never calculated how much of this traffic from two thousand and seven until july two thousand and nine i actually originated in a way sprint could have calculated but it didn't instead it came up thanks record was clear the during that time spreads volume of white calls have increased dramatically thirty two percent from two thousand and seven to two thousand and eight and then by another fifteen percent from two thousand and eight to two thousand for the three again you can see how important this is to me failure to pay becomes a two and violation when it is retroactive with no explicit described amount and it dispute but simply an unreasonable estimate so it was really those three and you got any case sort of inching in that direction to a one case largest well certainly there are cases decided by the f c c what's the best way that self arisan has come forward with an amicus brief but even over eyes and says that this is a standard industry practice it doesn't provide any evidence whatsoever that that's true it doesn't when there's a everyone acknowledges this is a transitional period the f c c is trying to apply a balance maybe slightly in my mind artificial mutually exclusive information service sources telecommunications so in good faith sprint horizon in your your client they're all in a flux and the f c c may not be giving the best direction and so on the second issue they're saying listen we need to be able to debate points of law and interpretations of law without risking a two or one that's what they're saying and that seems to me an  concern except your honor that that concern couldn't possibly occur the real world because regardless of what the f c c did or didn't do retrospectively retroactively going forward at the end of two thousand and eleven make clear what the rules would be starting in january two thousand and twelve so at this point nobody could legitimately claim to be confused as to what the compensation and at this point it's also way beyond any statute of limitations where somebody could dispute of create two thousand and twelve invoice so we're not looking at introducing  uncertainty to the contrary what we're what sprint is asking this court to do is to basically say that century link has a right but no remedy and the right of course is to in its appeal briefs the sprint site quote or even mention the tariffs why not all the explanations is obvious at trial sprint conceded that century link provided the switched access services described in each of the tariff city issues that's in the record and that concession ought to be the beginning in the end of this court's inquiry no matter how much support may per minute sprint now once this corner at least one of the district court to set for the benefit of spread alone it's a little unclear whether sprint still wants that rate set for its benefit because we've we've heard this morning that sprint now says it shouldn't have to pay per minute access charges at all in which case what should they put in anything in that raid was a local rate it dealt with internet why am i wrong to look at this sort of simply in the following way that sprint has come to the realization that they are an enhanced service provider that they're actually doing more than just transmitted the message and in that context we don't ask what's your client doing we ask are they part of that information service industry that was supposed to get favored treatment to fostering well they're there and i looked and so we now know what they that it was an enhanced service provider is inconsistent with the d s p exemption as recognized by the f c c rules but but then they point out that the district courts that looked at and he predicted that the of c c would if given the opportunity find that this was an information service as the district court in this case found judge robertson guessed wrong and the  this is without any deference i'm going to predict what they'll do read the educated yes verbiage i believe came out of judge jayne's opinion in the western district of l call it and there are several aspects of that order that are inconsistent with what george robertson did and that would we would submit make it erroneous for this court to follow his lea that sprint seeks is that the district court made a finding of fact that in this case sprint was acting in his capacity as an i x c a long distance carrier whose obligation to pay access charges was preserved by section one she that's not true of say dow jones or lexus or other enhanced service providers that might have qualified for the typically under the e s p exemption information service provider paid a fixed rate to access a telephone line again paragraph nine fifty seven of the comprehensive reform order addresses that talks about the fact that there was a fixed rate sort of like what business subscriber would pay to essentially rent to own or gain access to a telephone line to provide not talking about a database here we're talking about subscribers picking up the phone and calling other subscribers but best evidence of that is actually in the record a trial testimony to avoid and not even have to change his phone that's kind of the quote and he also said that from the end consumers perspective and that is the perspective that the supreme court in brand  questions to understand how you would suggest this case has to be cited you're saying on the one hand it's facts specific and the district court made no clear error concluding that your client did the exact same switch for either type of call that the focus is on the consumer and the local administrator not on the character that sprint is well we would respectfully submit your honor the court was and even need to get ok backs on that what about the fact finding that that sprint is on wipe originated traffic procedurally the case was somewhat different however in that the parties certainly go she added interconnection agreements but the interconnection agreements incorporate the tears but referee it wasn't a disputed point you didn't bring it to our attention the last point as you heard his response on the preemption question how did you interpret that response do you see the sense do you feel they waive that issue no definitely your honor in the district court one of the principal arguments was th federal law preempted state the state tariffs and also the state statute in this area that argument was not raised in sprint's opening brief here in sprint knows how to raise that because there's an appeal  pending in the eighth circuit that was argued on january eleventh of this year for effect in march of last year and in its brief that sprint submitted to the eighth circuit and that brief is very similar in many respects to the briefs of you to this court sprint makes the preemption argument eight times using the word preempt eight times that's not certainly not used in the opening brief here and even in the response brief and in oral argument of what sprint seems to be saying is that there is quote preemption by virtue of two fifty one cheap but that's not really korean action and in fact what the this comprehensive reform order is that there is no preemption that there is a role for state tariffs with respect to compensation for voip originated traffic so we would respectfully submit that that argument has been waive the first where the court ended with preemption want to clarify again there are two preemption arguments one was the argument that we're not making an argument that federal tariffs apply here embrace is a conflict preemption argument yes yes we are saying that we should have just perceived that behind the reference to the supremacy clause we may have been i apologize if if we it sounds normal phone calls but over time both court heard two days of trial and made the conclusion this isn't i mean your dude say he has no record support for that state but i don't think that the court found that with respect to sending these phone calls that sprint