stand sixty two dollars et al oklahoma gas and electric company edition or versus federal energy regulatory commission is your long stressed for the position or oklahoma gas and electric company mr bean that for the petitioners southwest it is not a question of whether the funders who see reimbursement but when it was they're saying that this case is only about whether payment will be now or over a period of time in the future is that correct do not preclude such institutions from being eligible to receive reimbursement perspective we continuously until they receive full reimbursement is that not accurate on aca i think it's not going to i think there are two answers to that your honor and this  l we will be because we don't know exactly who is going to take service in the future under this or example the lines are fully subscribed now as who allows payment from future  customers it's a very complicated process in which perhaps over the next thirty or forty years we'll recover all but we don't know that for sure until we see exactly how it's implemented the one thing we do know for sure  and i guess all i can say is it's a very complicated process that requires the s p p to determine who is going to be using that that facility in the future and do the calculations of the payment and of course i think in take decades but it took eight years to accumulate this much money why would it take a lot longer than yours accumulated again because we've collected a fort but we've only like a portion of it that then has to be allocated in the future and again i admit i have not worked out all of the calculations future all i know is and this is why get that money back in the future if we have to pay if we have to pay it back now yes i mean i get yes we are hoping that if we have to pay the money back that we put in and we'll be able to get some of that back in the future i just can't tell you  costs arise when transmission occurs so these upgrade charges had been passed along in the monthly bills like what is the connection between those charges and the transmission in terms of the billing like how do they how do they work together again i again this is starting to get to the complexities of the tariff and it may be that mr burnett is in a better position to talk about exactly how that works  out but i think i think it's important for the terms right because there is there's a sense in which on the plain meaning an upgrade charge sounds like something different than a transmission rate right i mean and the upgrade charges are for you know reimbursements for infrastructure whatever infrastructure means to investments but you know where i was whereas transmission rates are for the actual transmission of the energy mechanism for allocating allocating the cost of this transmission that was constructed because we didn't have an identifiable customer base you have a situation where the wind power is out in west in our case in western oklahoma the like any other mission facilities it's just that because in those transfers transmission facilities were built we didn't know how skimmers were going to be we had to have this new mechanism out of an innovative mechanism like for senate want to later under one thousand  make sure that this transmission was built so the wind power could carry that explanation then seems to undercut your argument that seventeen wind doesn't apply to see two  charge for the energy in the transmission service that was being taken during this period asked b p was working out no one raised their hand and sad ones makes all of this issue a raid and no one ever is going to get couldn't figure out how much to charge until they worked out how to implement this new implement this new collection of these this new out provision and says what oklahoma gas have a separate tell you they are vigorously opposing that flames in a small part because right to the extent that for example x l took transmission service during the month and the transmission that's required a lot of different facilities to ok but whatever it is whatever it is it has to be bill it it has to be bill it has it has to deal bill imagine i'm the cable customer and comp cast let's say the cable company and then the rule is that within a reasonable time after the st day of each month comcast chef submit an invoice to the customer for the charges for all services furnished under the tariff during the proceeding month now if we just look at that then i have a table cost of our have to get my bill for april sometime in may and b shall be limited to those corrections and adjustments found to be appropriate to set service within one year after the rendition of the bill reflecting the actual data for such service so which exception do you think that this falls under any or b your honor is the general general that the bills reflecting the actual data were not actually rendered until twenty six just prior that you lack the ability to have been that just takes us back to the preceding paragraph which says you have to submit either actual data or estimated data within a reasonable time after the st day of each month i believe it does not say that it the morning your honour's hoping to hear me thank you and i'm going to start with this actual data language in the link procedure one point seven point one if you look at the estimated data set sentence in the st paragraph of one seven point one which says invoices may be issued using estimated that at the expense actual data is not available by the th working day of the month following service and then it says adjustments reflecting the difference in billing between the estimated and actual data will be included on the next regular and boy again following on with the you have to get this all done within a month if you have to use estimated data you can use estimated data but you have to provide the actual data in the next month and then the next paragraph which talks about the one year time limits says that billing adjustments for reasons other than those two exceptions that don't apply shall be limited to those corrections and adjustments found to be appropriate for such service within one year after a rendition of the bill reflecting the actual data for such service actual data they're refer back to the short time period after which you replace actual data decimated data with actual data all happening in a very short time period not a matter of years so that's what the actual data is talking about here not actual data you can sit and wait for eight years and come up with actual data and then come back and have these bills be not final this entire time so i could if you could reply to their reply here they're quoting canadian association of petroleum or decision which itself is quoting natural gas clearinghouse and its two sentences  so long as the parties have adequate notice that surcharges might be imposed in the future imposition of surcharge does not violate the filed a great doctrine found a great doctor and simply does not extend to cases in which buyers are on adequate notice that resolution of some specific issue may cause a later adjustment to the rate in collected at the time of service i suspect that that you have a way that you can distinguish that  case sorry i didn't i did actually find the quote but i think i understood what you were talking about your honor i think the commission found that there was no actual there was not adequate notice here to satisfy the filed right doctrine or retroactive rate making require and i'm a little bit confused on that too because i'm on the next two pages of their reply maybe i have the page numbers wrong but i think it's seven and eight that i'm on now they've got two quotes from from your brief that seem to be in some tension so i'll get the two quotes one of the quotes is talking about upgrade sponsors and it says they could not reasonably have expected that their upgrade costs would be reimbursed so that's what you just said a moment ago but then it looks like there's also quote saying customers may have been aware from the stakeholder proceedings and study report negotiations that s p p ultimately intended to implement the crediting procedure retroactively for the historical period so do you see the tension there and how do you resolve that no i there is no tension there your honor and i'm sorry if my brief caused cause some confusion i know the commission's point was there is there c statement one sided statement saying that is not sufficient what the court has found what this court has found is that what this court has found is that  requires that all race be on file with the commission and any changes to those rates be on file or commission so i'm not the phrase but who has a yes or on it so adequate notice means notice provided through some type of filing with for that that is one of the ways to do it there are other ways none of which applies here as well if for example if there is a judicial proceeding regarding the matter it already is a formula for proceeding or it's a formula or  a levin of the petitioners brief on the opening brief the very st sentence says an upgrade sponsor shall be eligible to receive revenue credit in accordance with the two and then the next sentence says costa recover from new transmission service using the facility as a fine until the amount owed the upgrade sponsor is zero so it's just a little over time it is all about timing and if there are concerns that  because of the way articles the two is formulated now that in the future upgrades sponsors won't be able to fully recover which of course they weren't promised on the st place but there's this promise eligibility but if the promise because of this revenue requirement issue which i confess i don't really understand what the issue is but even if that's true these two has been changed before and these two can be changed again so if there is if it's now based on these all and i'm sure that the commission would entertain a filing to make a change such as that as long as stations the commission in old dominion itself the underlying to you know decision drew the possibility that there could be some distinction between right and non rate terms is that no longer the position of commissions i would  i would say that as a general matter i think that's probably true i'm not saying that there is no non return the commission when i can't really speak for the commission that sense but i think the point is the filed rate in the file great and race include front requirement to have filed have filed as a commission is not limited to brace themselves but to all of the rules and other things that go along with that that would not not necessarily rate and so so the commissions reso the commission previously was granting waivers as it did in this case right which what i how for a form of retroactive rates to be applied and so so the commission's position now is that that is inconsistent with the statute i think the commission also issued statements that the is mentioned in the petition is brief and what the commission there said is is you know worth hearing i think the commission says  against restaurants or rate may be making once the violated so so my question is is firk retroactively applying that new determination here to oklahoma gas because because the only reason this went to st on remand was in light of all to make it right this court's decision an old dominion but but that decision didn't change the things that you have just discussed for changed in its policy statement so this was opened up on remand but it doesn't seem that st was really addressing anything that happened in or dominion it was just making a policy change you know or a legal interpretive change about its authority under the filed right doctrine which it's now apply in a sense retroactively to these parties i don't think that's exactly right your honor what the commission was reminded by from oldham from old dominion coming out and again remember old dominion of sun the commission's determination not to allow a tariff waiver because of the file great doctrine so the commission just was reminded all my gosh we we have a situation we have a protest  here we have somebody bringing us to court we do not have a defense for this so it's not a matter it's literally the commission now complying with what this court's precedent already has said for a long time and many of st decisions have said for a long time circumstances i mean i guess i'm wondering why these parties have their proceedings reopened in this circumstance i mean the commission were not allowed to take a different position and explain itself reasonably i'm not suggesting it doesn't have the authority to do that but but what about applying it to these parties who had already previously received a waiver your honor that was pending litigation so this isn't a real opening of the case the case was still pending in litigation so there was no finality to the commission's orders yet the commission had issued what were final orders and ask for it back because the case is still open so this isn't the circumstance where there was no court proceeding the orders were final orders final with respect to further can mean there was litigation in this court but that doesn't mean you make the commission's decision on that and all that said the commission was faced with a circumstance of having to to defend indefensible orders is really what it came down to to to to grant waiver here without considering biled rate docs and concerns that were readily apparent and and  the commission found a defensible i mean that's why the commission brings back its orders because they think that something needs to be reconsidered and the commission does not believe that that decision was made correctly so this again wasn't it wasn't it was it wasn't final the order stopping final once an appeal is is made strew once we file the record the commission could no longer issue an order without asking for the peace to come back to the commission but the orders for no longer final orders in the sense that these types of waivers which retroactive application using a form for fact to test it out mention during notice or the file is a doctor and they say you're continuing to grant those type of waivers as recently as last friday  so true so so this course precedent in brooklyn union gas which is there were no protests filed and no over here less for filed but i wouldn't want to have had to defend those cases in court either so you know and the commission has issued just proposed policy statement which is still in flux it hasn't been finalized yet and i'm speaking completely out of my i think maybe the courts commission is waiting i have no idea but maybe they're waiting for this decision to come out and get up you take transmission service from the p p entered into service agreements with us p p for the transmission service and then pursuant to the waiver orders will retroactively bill be a prohibitive resettlement of transmission service charges going back all the way to two thousand a primary issue in this case is the notice going to be a recycling of all the attention of all the transmission service charge of to include the attachment to component and this is not the case it was their burden to demonstrate that such notice are being provided have argued they have pointed to statements that excel energy services we have made it are pleading for and there is a concession that we are aware now what was really happening w begin to understand that in the nd half of two thousand and fifteen that having figured out how to identify the relevant parties the parties who should be charged in the parties who should be compensated process discussing how these revenue credits are to be allocated over a period of time that you wouldn't be some kind of actual notice that you were why a bill for those for those costs of which you know the interveners enjoy the benefits of that service that does seem i don't know that that's dispositive here but it does seem like it does seem hard to imagine that there was no actual notice to the interveners provided but for credible upgrade now this task force and the s p p committees one of which was called the crediting process passports was trying to figure out how conceptually they can do that when they're given the volume transmission service requests that are coming in and keeping in mind that the changes in customers in general pay a road and rate reflecting all the cost of the transit system and what we're trying to do here one of the other protesters there's a graph two thousand a lap on the market group that all these people are part of what's next credits to back to may two thousand and eight when for approved the but for condition record thirty  five everybody know that's why we were there for years everybody knew this was going to be well acted back to two thousand and eight that was the whole point there is not a single case that when people have that kind of actual  notice or can you point to a case in which the actual notice did not involve a filed rate with fur where they took into account that actual notice it seems to me that the cases that you cite involve notice involving some type