from the dismissal with prejudice of southern walks amended complaint that amended complaint was dismissed on open bans twelve b six motion to dismiss given that procedural posture the threshold and overarching issue before this panel is whether the amended complaint stated to claim under the tuam ball standards for plausibility or is this court said in the coleman case whether the amended complain raised the right to relief above the speculative level applying that very low standard the decision of the district court should be reversed for three reasons first the amended complaint states a case or controversy second southern walk has standing to sue both in its own name in its own right and as a representative of its members and the third is just assuming argument oh we were to reverse what would you are you seeking on  would be remanded back or a determination by the district court consistent with this court's ruling and part of that will depend on how the court rules with respect to the last issue that the district court purported to reach which was the of the f c c exclusive access ban to the telecommunications services agreement the t s a and the ancillary agreements that were executed simultaneously if the court reaches that issue purpose and that was his make the single purpose was to provide for and install and maintain a private utility system for the benefit of its underlying documents to say my me asking you about a difference in your complaint and i read in the complaint that was filed in the other case that the internet provider the defendant here provided services it directly to the homeowners association they have some center that the homeowners go to they provided and i didn't see that allegation in your complaint and if it's their happy  look at know your arse corrected i apologize for misunderstanding your question there is not an allegation or complaint that we maintain ourselves a technology center that is served by open that so in order to give you standing you don't have an additional you haven't a homeowner so to give you standing we have to find some basis other than your individual use of the service because you don't plea that because you have that unlike the plaintiff in the other line right with all due respect your honor i don't agree with the premise of the question that we have to be using the services ourself to have been harmed we have to find something in addition some way some that they don't have to show because they have a different relationship with the internet provider than you do it would be different yet the other a so that i think that at least for me your initial problem here  identified as being caused by the exclusivity or harms that organization suffers which is we are barred from choice in identifying the services that we provide to our home owners which is our sole function are there is no competition from other wire based providers which was the focus of the f c c is order and new companies are barred or does the earth are you seeking standing in an individual or representative capacity both we believe both your honor to you the are you party to the agreements yes we are party to the telecommunications services agreement which is the principal that you a party to the agreement we are party to the agreement which is violet of of the f c c order and therefore have standing to complain about the exclusivity provisions of that agreement and what is what's your theory of representative standing and representative standing that you're claiming both we claim both and we think we satisfy both under representative standing under the hunton maryland highways case maryland highways case before this court there  three things that are required one that the members would otherwise have standing second that the action is germane to the purpose of the organization and third that the individual members participation is not necessary for the relief is that you have to be able to identify a member that has suffered or would suffer harm i don't read the case anywhere to say that you actually have to name the defendant and the reason that summers is distinguishable from our case is summers involved in environmental organization where the membership was voluntary there was no way to identify who the members were what their interests were and what the summers case said was you had to be able  to establish that one or more members would be directly affected you didn't say you had to name them but you had to be able to establish that one or more would be directly affected it went on to say relying on the sierra club matter that you can't rely on statistical probabilities what they were looking at there was whether there was any evidence at all that any of those members of that organization would in fact travel to the forest that was going to have the timber removed and therefore whether any of them would have been directly affected our case is very different because our members are directly affected by this lack of choice they've all suffered the harms yet c c i down they do not have a choice of providers a we know that it is talking about an earlier case that the affidavit provided by the city to establish standing would be insufficient because it did not name individuals who harmed by the challenge license revocation program this requirement of naming the affected member has never been dispensed with in light of statistical probability but only where all the members of the organization are affected by the challenge activity then citing in a c p so i read summers as saying that they have never dispensed with this requirement unless you say that all of the members but you can't make that representation because it may not be that every one of your members wants to change given given that they going to have to pay more money but your honor and that's as i've read them you wouldn't dispute that they would have to pay for my more money if they yes that's correct but on the other hand i don't think it's necessary to say that they would change we would not have to allege that they would change only that they've suffered these harms if they choose to suffer the harm scant if you have to allege an actual person to me that not all of your members will suffer the harm some of them are going to or die least day with this internet provider that your honor i think the distinction that i think i understand and i think my colleagues understand the distinction you may but if i could circle back to the standing that you claim in your own right don't you could have to claim that you were harmed yes ok but isn't the bulk billing arrangement the reason that hired both billing range from has to do with finances and we're not playing claiming a financial harm but that's only that's the only way to effect you're not affected by the by the other agreement because it goes senate the question is whether we're harmed in the harms or not possibly armed i thought the harm that you laid here was the harm to your ability to obtain cable service for your constituents competing cable services different cable services from alternate providers that's correct that that was the that that was the harm you a party to the agreement and that you were harmed in the sense that you could not provide a menu of cable they found that the harms flowed and the harms ultimately to the numbers include price and cost but as far as the organization is concerned we are charged as a fiduciary with obtaining these services on behalf of our members we don't have the options to do that we cannot provide them choice and therefore those harms which are identified by the f c c are incurred by our organization as well if i could move past the standing list there further questions on that issue just briefly in the time i have remaining to the f c c exclusive access ban the district more again before on the on the standing point  you say you members of directly affected i'm talking not about individuals standing about representatives standing right because i think that you know they have if you went on either one of any individual member who suffers injury as i was responding to justice mots a few moments ago i think summers is distinguishable when i read summers to say you have to one or show that all of them suffer the hard right but the only instance where they did that with when the anything with challenging some racially discriminatory nature and in that case it was an identifiable group that you could say suffered the harms but as in that every one of them suffered the harm because every one of them was discrimination and that is our current case here and i would analogize to an automobile accident case so you have a car with four people there's an automobile accident all four injured doesn't necessarily mean accordance with busting the situ asked earlier just as mots that they all would necessarily sue some people are satisfied just to put up with the pain and let it go away that doesn't mean they weren't injured or they weren't harmed it simply means they are proceeding over in a li way i can't represent to this panel that every one of our members would necessarily change their service as your example let's make it a train wreck so there are a hundred people and one of them says or to train somebody representing one of them to some organization that they belong to they belong to women for or against drunk driving and women against drunk driving sues a one of those people is going to be hurt and if they all name one of them they don't  supreme court they say there is no individual standing next to us in my times of just response to the i'm not asking this court to reverse the supreme court i'm simply saying apply summers in the way summers was intended which is all the members are harmed i'm not representing that they all would proceed or change their service because i don't have to but they have all suffered the harms just like the members in the car just like the people on the train since they've all been isn't your argument i mean this isn't analogous to a train wreck or what have you because you're not just a stranger walking in fiduciary obligation as a homeowner association to the home to to to the homeowners to provide them with a choice of services and a menu of services and that  and like the n c double legs so yeah i mean i guess i didn't i just wanted to make sure i knew what your argument was on on this your honor may please the court we're here this morning on behalf of open bans and open dan at broad lands in response to judge leaves dismissal with prejudice on the merits of the jurisdiction over the case below quite simply that the plaintiff does not have standing it doesn't have standing in its representational capacity and as judge we found it does not have standing in its individual capacity because it doesn't take services from open band and it is not responsible for providing service to the homeowners its responsibility to the homeowners is limited to administrative the providing of services by open band pursuant to the telecommunications services and the homeowners association one is it's the one that already contract contract all obligations of it's contractual obligations or to make a monthly payment that is based upon dues that are paid by the homeowners and it's part of their overall to use package so that's that's the obligation for the homeowners association the homeowners association has other problems with standing here is we have no right case in controversy i'm just a fury what i am i'm nervous about is you know doesn't understand the point on representational standing or what i'm nervous about as a party to a contract not being able to serve as a provision of a contract that i as a matter of law is not a violation what would have to take place for there to be standing in the case of me or give me a situation where there's an us or a representative player and associational lynette that was because there were provisions in the in the telecommunications service agreement that require notice and cure there's no periods there's no bridge there's a question of whether a provision of a contract is in is in violation of law and that's my point your honor at this point there the case the question isn't right for this court because in order for there to be a question as to whether it's violet there has to be talk about and maybe you don't have an argument but i mean i would be interested in your addressing will judge wilkins and the question to him sticking with standing and he can't do that fine but there's three elements who stand in your honor or whether that the case is ri whether there is an actual case in controversy whether there is a direct injury and then whether there is an injury that can be redressed by this court ok working here today you don't want to talk about the element of standing that we were talking about with your colleague is that right you're ready to give up on that one no no on well then maybe you can address that one first still on the direct on the direct harm your honor on direct harm it is the fact that the straight the homeowner's association has no obligation that is being interfered with shelving what does that exist or if it if it can't offer some menu of of services to kind of the customer is one of the things is that i'm concerned about here is th see order and just just the span out there there may be some argument and i have to take your point about the representatives standing but i am hard pressed to member and the mere fact that that members may have an interest has never been sufficient for venison association to have standing under all circumstances to file cases if the homeowners association or you're that in the mothers against drunk driving is a very interesting parallel because the mothers against drunk driving don't have a contract or if they want your arm that they're there the contract here doesn't provide for the homeowners association to play any role in selection or the providing of video services were any telecommunications services because the homeowners themselves there is no they are not being stopped from doing anything that they have an obligation to the homeowners to do in the t s a and and in the homeowners association only has the obligations that are in the articles of incorporation which judge we record in his opinion which provide that they were to administrate and is different from selecting offering and providing correct give them redress ability the eye for the assorted injury i thought that the bulk billing arrangement was key to that it is your honor and that's and that the other witness would whatever relief they got wouldn't get them what they want anyway  depends on it depends on which relief they're talking about they've got two problems first they have the bulk billing agreement which to the extent if they're complaining about payments they have to pay and the f c c has blessed bulk billing agreements and they have to pay for the service regardless of whether they take it that is permissible and it is found to be procured and it is found to be pro competitive by the f c c in the two thousand and ten f c c order the follow on to the two thousand and seven order they have a second problem if they claim that the violation of of a of a contract if your child yourself in the foot because if we do away with the exclusivity agreement that that thing goes away but what i asked you was doesn't the bulk billing arrangement still require them to pay that there's no difference in their status it's far as payment is concerned that's that's corelli's they're all in they don't get the service directly so how is their status affected in any way not their status if the players in that case should prevail we could simply remained here for a determination in light of this case than  substantive issues which are separate but there's still no standing there's still no right paper case or controversy right for an amended what i can't and they often do we would have to take a look at that because you have a question of of of the fact that they still be there would still be the issues over addressability and an action and going back to actual harm and whether there and rightness where really the court stands right now the best the court can do is issue an advisory opinion and that's not what the courts are here to do they need to have an actual case or controversy in this case in this case and the plaintiffs have not played it despite three  thank you i know you saw my time i don't have much time left but there are a few things that i'd like to address one issue that was raised by your question to wilkinson is the fact that we are the party to the contract we are the party to the we as the only other party to the contract don't have the ability to challenge whether the contract which we are signatory is null and void i'm not sure what party would be in the harmony of the homeowners party to any contract with with open band group the homeowners they all are the homeowners were supposed to have and there's no evidence yet whether they all did or not but they were supposed to have signed it if i'm of closing an agreement to be bound by your claim is that this case the agreements here are exactly like the agreement in the other case and they certainly are all parties to the agreement in the other case so if you're correct about the underlying document being identical all your be party to represent to the panel that it was supposed to have been done that way but i can't represent to the impound that they're identical the two agreements my understanding and there were no you get those then they would be parties to it if they are identical there were supposed to have been agreements they did not sign an exclusivity agreement what they signed was a three party agreement agreeing to be bound by the other agreements so they feel that maybe they actually do save the agreements or incorporated that reference i believe so and what is the source in the law here but do sherry duty to provide the service to provide a choice of services to the members of the homeowners association you said what we are under the do share duty to provide services as alleged in our medical plain of paragraph seven our sole purpose is to didn't administer the telecommunications services agreement for the benefit of the homeowners our obligation is to do that you know to the best of our ability does it say can i point to a document that says we have to provide you our boy or where is that that you just read that's that's from the amended our members are about stockholders because there's not stock but we are a non stock corporation and like the board of directors of any corporation we owe duty to our constituent members are the homeowners in th like to turn finally to the the question that you raised just mots in the with respect to the bulk billing the redress that is available and that we would be asking for doesn't deal with the bulk billing question we understand that the only reason that you have to pay because the bulk billing range and again are harms are not pay related by our harms or the competition related in some of our home you don't suffer from the competition related either because you don't have a visitor's center or  center for all of your people where you are using these three of you individually we suffered the harm we suffer as not being able to provide choice to our members correct and what we're asking for ultimately the redress that our homeowners would get that we would be asking for on their behalf is the ability to contract with the horizon for fire services or to contract with a comcast or their triple play whatever they call that the homeowners want that choice irrespective of any obligation they may have under the ball billing and that's what we're asking for from  as to counsels last point on the relief as to what the homeowners were seeking and the reference to the contracting council has just explained why this court cannot provide the relief and why there is no out there isn't there over reaching and why they can't have standing his council said they want that they were trying to provide the homeowners with the option to buy a triple play which is video internet and telephones are the two thousand around in the problem which is the plaintiffs often ask for more than they are entitled to and they are given by either a jury or court that to which they are entitled so your argument on this point goes to the merits now you want to make that argument that's fine but going to the extent you're trying to argue that that was their harm and i'm just saying it's a harm that it's a harm they can allege they can allege all of it or some of it but they