whereas here when we  is an all or nothing rule but whether whether a b five is in total and like the state we agree that it's not this appeal does not turn on the question whether any motor carrier should be permitted to ossify a driver as an independent pawn talked or but if this court does believe that that's necessary there is a business to business exception in the statute which permits in legitimate business to business pawn tracting situations promoter carriers to contract with with the state said they would apply new circumstances and i certainly don't want to speak for my colleague that there isn't that portion of the transcript but more fundamentally of course that the application of that portion of a b five would be decided by interpretation of the business to business exception in a telephone a state trial court decision that has since been called into serious doubt because the california supreme court has directed the court of appeal to review that decision and so you know they would have to show that the business the business exception could never help any of their theory up reaction your honor is that there is a blanket rule that every owner operator must be classified as an employee under a b f helped that as my colleague argued generally applicable labor regulations are not preempted by the f a day because they're one of many variables that goes into determining the prices rose and services of motor carriers and  regulations of input and like background labor regulations because those laws those state laws are only one of many variables that help determine prices routes and services motor services and motor carriers sculpted in a way that makes it very difficult for us to make those kinds of discrete determinations here in what we're being asked of her and in a very broad way things there perhaps should be presented in a much more challenging for the courts to make the kinds of determinations that they're going to make and so whether there's a concession or not and i'm not sure that it's a concession but whether or not there is some agreement some fashion  false characterization of eighty five dollars and also an inaccurate description of the law eighty five dollars is not an law of general ticket billet it contains numerous exceptions for numerous industries and professions categorically and contains other exceptions for other industries and professions that are conditionally available to those industries actually specifically target the trucking industry we have pointed the courts to the statement of the author of eighty five on the floor of the legislature when shoes explaining the purpose of eighty five says i want to talk about trucking and she says that eighty five dollars was designed to eliminate which she characterized as the out dated model whereby motor carriers use in the independent owner operators to deliver services to their customers so it simply cannot be maintained on the record it is the law of general it's like ability but prevailing wage law is not granted by the acquired the critical thing to note about both of those cases is that in both of those cases the court was dealing with drivers who were unquestionably employees they were ready categorized as employees their employers and moreover drivers who are driving company owned trucks so they're the marginal effect  all with respect to an effect on race excuse me on routes and services and only evidence of an effect on rates with minimal effect here by contrast we have presented through several as today th of major proportions the company motor carries would not only have to hire the employees they would have to then acquire trucks for those employees to drive that have to storage sites for those trucks that have to maintain the trucks that have to build h  r department in order to manage everything that you need to manage with employees compensation record keeping and all that and so the effect of a v five is to prevent motor carriers from contracting with owner test and unlike the concession agreement in eighty eight vs city of los angeles under the perella test a motor carrier ten lawfully contract with owner operators as independent contractor the court said there is nothing in basis that it supposedly had the right to exclude the back of products the state entirely and therefore the state argued it had the lesser right to men to regulate the manner in which they are delivered and the supreme court expressly rejected that search and saying even if sue me for purposes of argument the state had the right to exclude such products entirely from its state s quite a does not allow it to regulate the manner in which the transportation services are provided to the supreme court was looking at the signature  for labor relations and the reasoning in ridgway was pretty clear that it wasn't it didn't set prices it didn't mandate or prohibit certain routes or tell of carriers what services they may or may not  and so what that does is tells us that in certain circumstances where they are i don't know on that spectrum but in certain circumstances the decisions about prices that are set for services  to rouse that are used is really immaterial here if it's generally a applicable to everybody in the business and that's what fork you whatever however you say decisions under the a b a that are directly relevant here that would be the morale this decision and the woolens decisions and in both of those decisions the court was looking at claims brought under sooner financed by consumer protection statutes one was a fall advertising statute the other was to her frauds that she been any about the supreme court was looking at claimed brought under generally a political statute there is no suggestion that either the false advertising statute for the consumer fraud statue or particular to airlines maybe if i can i don't mean to distract from the question but maybe put it on a broader point if we recast this as a statute that's concerned about consumer protection broadly or competition that's what this whole area is all about for purposes of preemption as opposed to general rules of labor relations if we cast if nap perspective does that tell us a little bit about the way in which the th circuit has moved in these kinds of cases in the justification for moving in that these kinds of cases i'm sorry to have gone from the very specific question judge you could ask to a broader one your honor and obviously this court is bound by the supreme court's rulings i don't think there is anything between that and the court's previous cases but if there were obviously the supreme court's decision would trump but you know back to the  out that in excuse me till it was specifically pointed out that there the motor carriers did not offer any evidence as to effect on root or effect on services and the evidence they offered with respect to rates was only about minimal that's quoting the decision affect so looking at the fact there that the one time it's those factors that are factors we have introduced different evidence and it's a point back again harkening two hundred and eighty eight has decided that that the reader understood that that was decided on the facts of the case because in that case a airline that brought the case admitted that it was not going to change services at the result of this law and the the court specifically i'm not aware of it but i'm not also not aware of this court ever being presented with a case in which there was asked to rule upon a classification rule that would prevent all motor cars in the state of  very fact specific type analysis of the impacts and not at a preliminary injunction review stage how do you think that the standard of review that we have to apply here  record in this case is it more than simply there there has been popped into the record a series of documents and depositions and so on that someone could rely on could not possibly comply with prong b of the a b c rule as adopted by the state of california and that therefore the effect of the law as a matter of fact would be to compel the other carriers to switch bennett's inquiry isn't just several steps beyond what previous cases that have made those kinds of discrete determinations have relied upon here this statute your honor is several steps beyond and elsewhere congress has lending statute with the regular following that truth at least things that should specifically anticipated that owner operators would be a part of the nation's transportation system and this court is reckoned a through its probation on motor carriers contracting with owner operators independent contractors is a clear barrier to entry because i would look if we look at this as an attempt to balance i'm not sure how far we can go i recognize that we have to inquire into congress's intent on the other hand i'm a little uncomfortable with things that find their way into what's called legislative history as being truly historical so l look at the larger issue which is congress is trying to balance two things one is they'd like to leave the states as laboratories to develop different ways of approaching things and of the same time they want to assure for their larger purposes the uniform standard the uniform standard is directed however at what kind of competition is consistent with background labor rules strikes me that to state that is simply to begin the don't have to look to the fact finding that's donna cannot be that kind of categorical fact finding i understand the pressures the time pressures that just record understood it to be itself to be under to deal with a statute that was going to  coming to be had come into being actually at the time that it was ruling but but the fact finding is really quite conclusory by the just record whether or not there's stuff in the record is another matter your honor this  from all or nothing that is if if the business model doesn't work in a way that is consistent with background labor principles or policies that so the state of california still isn't we don't we don't make a choice that we simply look to see whether or not there is a fair balance of the two competing considerations background your principles and competition this is striking at the heart of reputation and build off of their experience one truck on track to the independent owner operators by preventing down as a way into the industry you're having going to have a consolidation of monks much larger companies and it mandatory switch from owner operators to employee drivers would have tremendous capital rick tremendous capper requires a motor carriers and would drive people out of business that state and anchor anchor that was predicated on the very understanding that switching from owner operators to employees drivers has a significant market effect they cannot possibly stand before this court today and to the skipping effect on the market of compelling  and whether the motor carriers cannot comply there was no actual finding the district court basically made its own determination based on what he thought the effect of the law would be given the particular allegations of the plaintiff in this and point has basically said there is no way that we can comply with those and would submit to the court in this recording with that but we went to the court that given the way it's been litigated there is no specifics about the particular businesses we don't have a particular  t a particular business relationship or someone can point to and say we can apply those factors so given that our position has been that that particular exception could potentially be circumstances but because there is no specific  model we cannot make that particular determination and it's important to note that the business of this exception is the subject of litigation currently in the california court of appeal which will hopefully make some determination be helpful for that and that will