good morning ladies and gentlemen our first case for this morning will be perilous network against m c i community let's say the counts that relate to the matters that have been referred to the f c c are are too closely related i refuse to use that word in extra intertwined  too closely related to justify fifty four b doesn't that still leave the breach of contract count as properly before this court on a fifty four b it certainly removes the breach of contract count as final count eleven right to a joint statement a statement of fact and a paragraph in our answer that somehow we had actually conceded that we had breached the contract i think we showed in our briefs that we did no such thing we can take it from the start of the case through the end of summary judgment rethink that we had and on the contract that we had breached the contract and the only question left was by how much and i don't read his opinions to have given us the opportunity to come forward with evidence that says i know you found that we breach the contract but the actual not by which we preach t case from a while ago now makes clear that theories of relief are not separate claims even when they're played in separate accounts what we have here are some more sedate different legal theories that are aimed at the same recovery you're watching out of a well then we are in the area contemplated by marcel that this is not a case like some of the ones purely cited it's brief where somebody has completely different theories relief for themselves not even like the situation in kurdish right where kurdish right claimed that it was owed twenty million or so dollars under the contract and g e said but you owe me money for an entirely different thin related to the contract to be sure but because i couldn't undertake an extraordinary efforts to stop you from breaching and ultimately we would like net out those two amounts of money that's more or less like a set off from a permissive counterclaim as opposed to recouped by darius and if the f c c ruled in some respect in fries and favors so i suppose that's a good way to think about it but we need to relate that scenario to finality that's your honor and if i could positive side note the notion that we weren't paying for six or eight years has no basis in the record it's in fact contradicted by other parts of the judge's opinion like a page appendix thousand and eight to two thousand and ten we at least put in facts that we paid ninety seven percent of the amount of the fearless bill that's going back six years before the complaint so this notion that purely so been sitting around waiting for half a decade or more might notice that there might be an auditor there might be something saying why aren't we getting paid and there was your honor and we put in summary judgment an extensive compilation of record evidence showing that through letters and e mails and in person leadings and conference call we identified the peerless why it was we were disputing their invoices which invoices we were disputing how much of those invoices we were disputing and certainly the district court didn't conclude that we had done something improper in terms dispute we obviously didn't terminate the calls within the meaning of the definition of terminations in their tariff that's why cites the broad box for maryland which also involved a question of power of compliance so i think we raise them very clearly it's not clear to wants to call it is in no way shape or form terminated within the meaning of that word in the terra we did in a footnote noted a certain logical inconsistency in peerless position for the voip traffic they wanted to take advantage of the work that we provided was doing bill for that work yourself in getting the call to the actual person dialing or answering the phone and we find out this is logically inconsistent for peerless to be claiming that the same voice provider who work it was relying on to get the call to the actual end user was in fact a named user or the end user for purposes of the call it was merely a logical inconsistency we were pointing out no we legality and it didn't go to the actual terms of the tower make it clear that different theories don't make something different and actually you're looking for something almost like a united mine workers against gibbs distinction if that's an entirely different legal entitlement separate recoveries then you have the fifty four b separate quote claim close quote but wholly apart from whether your client ought to prevail in the end is the question whether  can't get away from the fact that you're asking us to intervene half way through the determination of how much money is owed from a to b or from b back to a and we are going to have to go back and redo the whole thing if the opinion you know the f c c is the expert here it's not me you know that the f c c sort this out did you argue that there should be no primary jurisdiction referral we did not argue that there should be no primary  reason to delay enforcement of the judgment on what you're about that i mean entirely different legal entitlements yielding separate recoveries that's a language we house but but you know abstract i heard i just heard mr x strikes say that they were challenging anything about the tariff they fix up the filed rate doctrine but they're saying you were not doing what the terrorists said you were others and you were using the wrong part of the tariff so for example and and service if you're charging now maybe does the right thing to do again i don't know this the f c c will figure this out but if determination means terminating at the platform instead of terminating it in germany then and then you terminated but if it means the person who was called is the chairman eighteen point then that's different but that's not challenging the rate so much application so and that's where i think the court did address rises differences i mean this is really a question about whether the rising stefansson peerless is prima facia turf collection case were properly addressed by the court can't the f c c take a overlap between the two so the f c c comes out differently than the district court judge did on the voip issue wouldn't that directly impact the affirmative defense  but then says because there was some of the mental briefing in december twenty sixth team after the original after the full briefing on summary judgment was brought up there was a supplemental preview because the eighteenth tee order had come out from the from the federal circuit saying that impact on ultimately what pierces collect but there are two separate issues and that's why we think that the issues that you're conceding that it will have an impact if it i mean you're just not spent a spelling out there the legal path that will lead to that twelve ninety one appeal it's not a twelve ninety to anyone it's not you know a twenty three apps it's not any of those other things it might be and the same thing is true with all claims that it's really a separate claim in the sense of judge says no let's just get this over and done with then then the judge judge can certify that we don't accept everything before be certification it's our responsibility to see if it fits the rule so i would urge you to look at the writer piece because it does basis and we went to a preliminary injunction hearing because the rising was claiming we're not going to pay you anything because your tariffs are in violation of the excess stimulation rules and your tariffs exceed the the benchmark we want to implement injunction before hundred percent during the course of litigation had been holding with hundred percent of the excess charges that were in the peterson title to receive into the final great doctrine that docket is unassailable that the rates are going challenge by horizon which is what they is all in the chair and the tariff says you can withhold and there's there's there's we had an expert testified that there was that the language in people's the tariff is pretty typical of language elsewhere in most other you may have to pay quite a surcharge as the price of withholding it seems like balanced incentives for those those that terror provision is really for if there's a mistake in the building saying that's not what it says it says it just ruling by the district court of all of whether you know picking the right isn't ruling that it gets to dispute anything including the legitimacy the the the validity of that of the rate itself were our version which is you can only challenge if there's a mis billing and you give notice as to what the result of what the what the the reason for the misspelling is before the f c c have an impact on the resolution of that question no no and so we think that to terminated into internationally are not entitled to and office charges we think in footnotes thirty one thirty two and thirty four the court address that the court also tonight rises arguments counterclaim that is in light of the d c circuit vacating the f c c is order in the eighteenth the eighteenth tee order which really goes to the f c c question of whether any voice traffic at all should be subject to  that's an issue that's pending at the f c c that's the issue that the court referred to the f c c the if the court did not specifically refer to the f c c the two sub parts of their defenses so peerless believes that we've established our prima f that's the question we raised at the outset of the case we parked it because the f c c it ruled against until it was vacated and then we revived it and that's the question about whether we got the  them the effect of the different courts decision is just to convert all of our defenses and to counter claims because if we have to pay the money out to them we can get all of it back if it turns out they didn't provide us the service you didn't reject any there was no benchmark regime in the interstate commerce commission's regulation of interstate shippers but there is here and what the f c c has said is if your telephone company like peerless have even a legal amicus brief that the reason it set up the system this way is more efficient to put the burden on the telephone company to get it right than to put the burden on the f c c which sees thousands of towers every month or the many many different customers o telephone companies like fearless ferret out illegal rates peerless can't make out it's primakov the case of complying with the benchmark rules without actually showing it file benchmark compliant t in the normal course you're supposed to benchmark your rates to the company the incumbent company that provides service in the same part of the state you get to a space like california where eighteen provide service and some parts and what was going to arise in this now frontier provide service in other parts if like peerless you operate both parts of the state your terra has two sets of rates one for the north of the state basically and one for the south of the state basically and that's what your list is tariffs hat and that's obvious that they were trying to comply with the standard