county into the southwest power tool transmission rates so is your position that what happened in that first order was basically on lawful action  commission under section two of yes that is our position and therefore it follows that the commission must do what the commission must fix has the authority under section three or not of the federal power act to take any actions necessary in order to fix errors and they should have done that in this case so the commission takes the position that it has all of this that they were in error by the fact that they accepted the rates without suspension or a refund commitment so done then part of the commission's explanation here it's that well s he is a non which i call it the cost of the refund the other never read so windfall your client to the detriment of everybody else well i would take issue with it being considered a windfall because at the end of the day when that when the case is received through the system the facilities that try county sought to to include in their revenue requirement were ultimately found by the commission not to be transmission so therefore their revenue requirement the rate was zero yet they had one point four million dollars of repair money that the that there was no obligation to refund now to your point and to your question  who should not have had any obligation to the users of people who use the s p p is it yes the repair should not have had any obligation to pay because at the end of the day none of these facilities qualified as transmission they were money and they have ways that they do that they have that will go to their transmission owners or market participants in the recover the funds that way they said it is they set aside litigation reserves per situations where they feel that there might be some sort of refund not provide explanation for how an r t o might be able to pay for this now that's not our burden under section two of five it's not even required by section two five but to your point yet they did say that because they had accepted the rate they had no ability to s so of the d i guess the argument made by the commission at this point that because the commission doesn't have jurisdiction over tri county there's no way to  really equitably order this is refund without having some parties have to contribute really shouldn't have to contribute in some some just members of the was powerful because they were the first jurisdiction of utility and the the notion that tri county would not have to pay those refunds if it's not clear to us that s p p stuff was powerful couldn't go and get that money from tri county to up to our understanding we don't know that they ever attempted but is that is it was it improper for the commission to take that into consideration take this issue love you know potential inequity used to them caused by not being able to actually order try kelly to pay to refund what i do think it was inappropriate for them to consider  think was inappropriate to consider that i just think it was inappropriate for them not to carry that analysis out the commission has said from the very beginning that the courts have said and confirmed as follow through on this is that a non jurisdictional zz revenue requirement can be given the full section two five review because it's going to become a component of n r t o's rates of recent transmission or an organization like southwest powerful it will become part of their rates they can do is full section two a five review what the courts have said is that but at the end of the day they can require a refund refund from the non jurisdictional but our point all along has been  jurisdictional public utility and the therefore refund should have been wired of them the cases that first cites to never speak to that issue about the refund obligation  you're asking this court if my guess is of your your last ditch effort you're asking us to use our acquittal powers  might our equitable powers be different than fer x in the sense that tri county intervene in this proceeding and therefore their party before us and we certainly have  was that you direct ferk to fix its air so that we could be rid of this so that the consumers the rate payers that pay this money could get the appropriate refund made but i will i will reserve the rest of my time for rebuttal but the one point that i would like to make is that in terms of the court's equitable powers a remedy for x legal where we cited to numerous cases where the court has has done that and we would request that you do that that they would have been in but for first there are i excel does not ask for her to further this court to get refunds from tri county because the court is limited to what kirk would be able to under the statute and it's very clear from this court's decision in transmission agency of northern california that kirk cannot order refunds from a non tourist fictionally telling me so this court would likewise be limited to two direct refunds from a nontraditional utility and perks struggled with what to do with this case and you know excel asked lately excel makes a statement that all along they have asked for refunds from southwest power pool that is not the case if you look at their protest that was filed they ask for f to make the filing effect without the voluntary commitment to make the filing effective after the hearing they don't ask for refunds from southwest powerful and to the real they did excel developed this idea that first could suspend the filing on rehearing subject to refunds by southwest power pole and the commission decided that it has substantial precedent subject to payment from southwest power pole i think in the actually initially x l was trying to get the commission to do what it's required to do under section two hundred five namely make some decision or determination that these were not on just on reasonable of course rates all right kirk never did that right so then on rehearing and that's another way to distinguish those cases you cite in those cases per did take action pursuant to its section two zero five responsibility and it was dealing with issues raised on rehearing we don't have that here right and the commission's position is that it not withstanding the timely protest that the commission cannot suspend under a hearing and then the regular life out of the c s suppose all this happened to the first order commission has said that when it's acting on an order from the court it can obviously implement judicial reversal i swopped why is it different if the error sways before it gets to court which the case here but the idea that that eliminates commission power to provide what it ought to have done in the first instance is amazing to me i take your point and if this court wants to find that the commission can suspend a rate i were hearing then certainly the commission would take that into account however the commission has said that its regulation which the states of equivocally it that we cannot see spend after hearing although i think it would be faced with and maybe perhaps a more difficult challenge from southwest power pole if the commission did say i'm rehearing here oh we're going to suspend the raid i think there was but what i want to understand is as you heard me ask counsel for excel whether or not what happened in s he won was essentially a legal nobody be cause for never comply with section two hundred five responsibility and judge william suggests one hypothetical i mean i can suggest another hypothetical one point four million is not chump change but the commissions view it wouldn't matter what amount xcel it had to pay you couldn't do anything about it even though the original order resulted and on the mall full rate the commission takes the position that sec congress also consider these is in weighing the act when he is this case is unique from a lot of other cases were like calorie property exxon where the court is able to put the parties in the position they would have been in  here unfortunately the southwest power pool is the public utility here and they are not the ones with a windfall to be you know if you well if the commission were going to just rest on its inability to suspend other hearing it could have stopped there but instead add chave five thirty five the commission no it's in addition excel suggested approach would be inconsistent with commission policy and it cites the midwest ties so case which excel was a party to and inc and in that case excel asked the commission to hold midwest high so another r t o responsible for five you just don't want to deal with that that's what i'm having trouble with here in other words the commission could just ignore section two or five let our rate go into effect where party is paying well to all six you can only get prospect of relief that can't be the scheme congress invision indeed congress in addition that the commission would exercise its responsibilities under section two  the letting the filing become affective not in not suspending the filing now i understand but the problem is and i do appreciate this that once we have these our tito's where you have non jurisdictional entities involved the commission has had to massage the system it had and the way it did was through this getting these voluntary commitments or the alternative of suspending not letting the rate go into effect until commission finishes it but here that massage didn't work because and there are by the commission was committed and the commissions are throws up its hands and says nothing we know about it i think it was a very difficult case and the commission was being very cautious and wanted to stay within with us waiting for the court to say do no point in the commission noting its you know that s p p is a nonprofit and she with no ability to pay and there would be a no point in noting that we don't suspend these types of filings if we were simply resting on our  we didn't go beyond that simple statement and then the fact that excel had not proposed to the commission satisfaction and appropriate remedy will if you look at black oak which i recognize not cited by the commission the reason the commission does not like to do surcharges on regional transmission organizations is because it's a notice problem and that ties in also with this court's precedent when the court exercises equity or uses its equitable powers and there is potential notice problem to the members of the southwest power pools so it's  everything there is record evidence that as people that southwest power pool said and it's at a three forty five southwest power poll says we have no money please confirm to us that we can use section ten point five of our t e but in the black oak case the commission explains that it's inequitable applies surcharges to members of a regional transmission organization because they are not effectively on notice of   public utility member of southwest power pole were to make a filing and maybe it had s p p is how it was powerful make the filing for them if they were refunds do their refunds would not be over by southwest powerful they but if you look even when the commission provided a remedy here it in there in the first three hearing order it did not hold southwest power pole responsible for refund fact that it's i think the standard is it would do it would do what the commissioner would have done and the commission could not have  place where they were soup you put those two things together why why couldn't we ordered well since excel did not ask for that remedy i would ask that if the court we're going to consider doing that maybe a supplemental briefing might be in order to sort of further develop the court's hours if the court wanted it but in closing i just would like to note that i believe this case is distinguishable from other cases where this court has used equitable powers to the extent the court feels it doesn't need to use its equable powers and it remained so the commission i do think the commission did explain in the alternative why it would not have done what excel asks here and i just would like to know that excel did have some although imperfect other remedies available to them and they did symmetry between that case someone excels asking for here in that case this court tonight that we're quest to hold the pipeline responsible as guarantor to the extent any gas producer doesn't pay refunds and i think the southwest power pool is very similarly situated to the gas pipeline in that case because gas producers are not sure but the pipeline is so it they would have asked for the gas pipelines to be held accountable to the extent that gas producer doesn't i would have to let her know save money first through possible  thank you i just like to make a couple of points first hold would disagree with a couple things that her counsel said one is that we believe clearly that this court can direct for a fix it's there and we cited to numerous cases where where that happened the other is that the reference to black oak and the case that was decided the wacko case in that case this court recognized that in order to you as an offer profit may have to seek  refunds or or monies from from its members so it recognized that that was one avenue that is available to our theo's and as we discussed there are other avenues available to them as well so my last point that i would like to make is just  that and in relief we flesh this out quite a bit in our discussion but we believe it is necessary in this case to place customers back in the position they would have been in if not for first legal air and we believe the court can use its a to impose a suspension a refund condition upon this s p p rate and while they contend that their hands are tied we don't believe that this court is so limited the committee legal there because of their perceived limitations on their authority