is local traffic regardless of the carrier involved in transporting it and elects may not assess access starches on any carrier involved in transporting local calls the core question in this case is whether the lax provide access services when they originate or terminate interest m t a traffic and that question is answered by the f regulations which is where i would like to begin i would invite the court's attention st to forty seven c f r fifty one dot seven o one b t that regulation defines non axis traffic that is local traffic as traffic exchange quote exchange between and quote a left  within an m t a traffic that passes through an intermediary carrier whether i x e or otherwise is exchanged between a and fifty one g preserves access starches for exchange access so the question becomes does the provision of transport of origination and terminations of interest m t a calls constitute exchange access and that was what this regulation determines because the f c c has unquestioned authority to define the local calling area which is what determines ruling of the local competition order and the regulation that was promulgated apply when there is an intermediary carrier between the left and the sierras there's no question that when the lack in the c m arrests exchange traffic directly within the m t a it's not subject to access the question was when there's an intermediary carrier does that change anything and then we had a series of appellate decisions which held that no it does not and the and eleven connect america order indorsed d those decisions so that is and i would say also amended the regulations to make it even more clear and if i may i would like to focus the court on the language of those regulations which we think controls the case so again seven hundred and one b two says traffic that is exchanged between cmos and like networks is not sub is local d traffic it's not access traffic the a th and th circuits of all held that this regulation is applicable to traffic that tacitus through and i x e as an intermediary carrier as i say those decisions were endorsed by the f c c in the two one thousand and eleven dollars order and in fact the lexx do not really dispute this proposition because they admit that they cannot charge access to c m arrest providers when the traffic passes through an intermediary carrier which means they must concede that seven o y n d two applies to such traffic so now the question is given that the traffic is not a ccess even when terry by an intermediary carrier it is unlawful for the lax to impose access charges on the i axes to carry such traffic that is clear from seven a one to two which refers to the traffic not the nature of the carrier and it's also clear from fifty one dot seven hundred and three so there are two provisions of seven o three that are important seven o three b expressway prohibits lax from imposing to oranges on quote any other telecommunications carrier and quote for originating non access traffic clearly i axes are within the sweeping language total charges that electing assess and quote for non access traffic exceed the reciprocal compensation so when we're dealing with not excess traffic as we clearly are in this order make it reinforced as by stating that traffic is not subject to access charges and that was the holding of all of the important cases that are discussed court had held quote an intermediary carrier was not required to pay access charges for cell phone to landline calls originating and terminating within a major traffic area and  ex cannot impose access charges or local d traffic point one dollar traffic that originates in in the same m t a is local traffic that's also true when it passes through an intermediary carrier points very lax cannot impose access charges on i exchange to carry local traffic that's what this case boils down to it's local and i and i might say i think the reason perhaps that the district court was led astray to that conclusion was that this issue was not adequately briefed in the district court so this the explain to the district court so the whole construct that the district court applied we submit was the wrong and the district court said this is access traffic therefore you need to point me to a regulation that explicitly supersedes access traffic i find these regulations ambiguous therefore the lex when you see not will grieve below you me not will brief you or your son i would say so it was the lex that filed had to be an explicit regulation saying that that's terminated at found those regulations not sufficiently clear we feel that that was an error and we invite the court to reverse that error the reason it was an error is because before you get to the question of whether the regulation has explicitly superseded access charges one has to ask the question is this access traffic is this long distance traffic subject to access charges to begin with and the main point is case as not access traffic seven o three b and c prohibits the imposition of access charges on any carrier involved in transporting the traffic and i might say in all of the cases in all of the cases the th th and th circuit cases the question was could the lax you pose access charges or were they required instead to impose reciprocal compensation all of the cases held reciprocal compensation and not access churches that was the precise holding of all those cases by the way those cases involve the question could that carry intra m t a traffic and those orange said no so where does that leave the lacks in this case what they say is those cases were limited to the circumstance where the i exceed was not quote acting as and i exceed look that's exactly our submission in this case just because the carrier who happens to be involved in transporting an intra m t a call also transports long distance know what if i have read i mean to fit one gene yes or are indicates at least from my point of view and just reading it is that explicitly superseded by regulations described yes all right then i would read are the comprehensive reform yes they say that that  may i reserve the balance of my time for a bottle where you can you can save the initial five minutes that you would want is this showing me that by minutes i'm sorry i'm a little confused you know you have for me  not subject to access searches that became a disputed issue and that was there were counter claims that were filed by the lacs to seek to up teen payment of those amounts that district court granted summary judgment for the lax on those  and so those amounts are part of the issue in this case does the record reflect when or approximately when those fees were discontinued i don't remember the exact date but you don't need to give simple terms and i think i can do that money let me give that a try the appellant's in this case cannot point to any section of the telecom act and even any f c c rule any f c c order or any judicial opinion that ever point to anything that says that rule of law there are at least five authorities the judge fitzwater relied on that i can cite you now that confirm that i accept that i axes over these access charges for this kind of  not the regulations the council talked about the starting point the analysis to fifty one g in the ninety six act in the in the local competition order paragraph thirty of the local competition order which when you tell me when the f c c intends to explicitly supersede they know how to do it and they use those words but this is not the superseding of the obligation to pay the access charges if you read further it talks about the transition process detailed below what happened in two thousand and eleven was the f c c was beginning to transition the rates of access charges not who pays them or when they're paid that's covered by port sixty nine dollars of the access charge regulations terminating access which is practically complete now it began in two thousand and eleven and it's grandfathered for some of the smaller lax terminating access charges have gone away for the large relax the originating limited to terminating switch access traffic as i referenced earlier with the f c c was doing in two thousand and eleven was reforming the rates to move towards the elimination of access rates over a seven  happened was they tell me i cannot understand that unless i go to other regulations that what you say there are there are many other provisions in this order that relate to the transitional mechanism for the access rates all it was doing was changing the transitional device in seven thousand seven hundred and sixty three and it talks about the transitional mechanism in seven hundred and sixty four and you know we're certainly happy to provide some supplemental briefing to you on this issue which i don't think either party briefed but honor i don't i don't have handy the the whole large mechanism to show you where the rates are transition but we're happy to provide some supplemental briefing on that because again part sixty nine many other provisions of this very long order but there is a there is a transition of rates down to close to zero which is in process which actually ends in two thousand and twenty and this was in two thousand and eleven so they would slowly gradually that in section thirty of the local competition order it says nothing in the order alters the collection of access charges in in the t s in the ts or wireless case intra m t a traffic is subject to access rules if carried by and with respect to some of the other questions were asked jeff smith the appellants have been completely inconsistent in their representations in this litigation and in their actions they did they tell you now you asked about the two thousand eleven order they would tell you that the change occurred in the ninety six order i just read a number of quotes between ninety six and two thousand and eight that says these charges still apply they say they for sure have have no argument lawsuits were filed which i suggest to shows that if there if it was so explicit and so obvious after two thousand and eleven and as judge jolly is suggesting then why oh why would they have continued to pay access charges in two appellants are engaging is they're using a set of rules for the endpoint carriers the wireless carrier and the local exchange carriers and they're trying to apply it to the carrier in the middle of the i exit and these are two streams that do not cross there are of a large set of rules they're called the reciprocal compensation rules that relate to those two endpoint carriers and then i think those are not a nation not issue before the court and so let me now take you to  and that's what was to wiseman's talking about he says it's local meaning it's local for everyone not true the sentence goes on to say for the purposes of applying reciprocal compensation obligations under section two  middle they're not wireless carrier and they're in the local exchange carriers the f c c designated the traffic as woken just for the purpose of those two endpoint carriers they are trying to take it and import it into the rules relating to the the rules relating to the i exceeds or in the access regulations when the access when the i and cs order service out of our access terrorists they pay access charges and the and that's governed not by reciprocal compensation but under part sixty of the regulations in fact the section one thousand and thirty four of the of the act just two sections before what i just read says that reciprocal compensation is not applicable to the i axes so what it what you see in the briefing and by the way what you see in the cases is an attempt to import rules that do not apply to this case it's like a it's like applying rules regarding f l needed a comprehensive reform  does not apply in this case it does apply to this case your honor but but again it is and we will clarify this we will show you that it does not abrogate the access rules it just gradually over a number of years lowers the r status quo and the explicitly superceded it but they just did it for the rates the amount not whether you i don't know but well i'm we're going to some submit a supplemental briefed to the court that will walk you through that your honor i'm not i'm not able to although some of the questions you're posing i think have been answered which is that i don't think it's in dispute and judge fitzwater certainly phallus that there was no explicit superseding of any of these rules the judge fitzwater found at any it to provide exchange rate access until over route that's correct what is provide what is exchange access and exchange access it is seems to me to refer basically to long distance calls between the previous effectively effectively it is your honor and so what to fists and yes and that's and so what you is that you will continue to obtain and pay the compensation that you have been paying prior to the implementation of the act this argument that they they don't use exchange access is sort of this magical transformation that they suggest from section one thousand and thirty six dollars which i just read to you that's a misunderstanding because they're importing the reciprocal compensation rules into the access charge regime they're trying to cross the streams that don't cross these are different carriers that provide different services and in fact in the two thousand and one order which i highly recommend to the court it's very critical order paragraphs thirty to thirty nine the  the the f c c cautioned against the very thing that the appellants are doing here is the f c c said you cannot use the reciprocal compensation regs to override preexisting access obligations that they and that's paragraph thirty six of the two thousand and one or the two thousand and one order i would suggest to the court is that is perhaps the most important authority before the court on this issue because the money on the on the issue of whether the access charges  they may try to take those end point carrier rules the ones that i say do not apply because i axes do not exchange reciprocal compensation try to take those two to undermine the preexisting access pickle compensation regs regulations are not applicable that's why when council started with that they're looking to to get away from two hundred and fifty one gene to fifty one dollars g is the operative provision here and in fact in that century summarized it correctly it's affectively the access to the local network to provide long distance service for the cluster murs for the i x it and that's that and they pay a fee for that they also charge their customers a toll those parties is reciprocal compensation to fifty one cheap cards out certain services from that and says those services are not compensated by reciprocal compensation they're compensated by the access charges you've been paying all along up to the data that that was what judge fitzwater found he called the baseline practice he looked at what the i axes were doing the day before the statute was was inactive and he said well you're receiving access and therefore you have to pay access charges and that continued until explicitly superseded depends on what you mean by exchange excess well your honor i think you summarize it accurately just in general it means on long distance it's effectively access to an exchange that allows the i exceed to connect a call from the homeowner who wants to call and we use the middle into monroe example on by the long distance carriers to the local carries with access charges that's what this whole case is about they are coming in now late in the game after paying these charges for eighteen years with no dispute and saying the f addressed the issue of whether you have a wireless carrier and one end of the call and it low power on the other end of the call what is the nature of the compensation if there isn't a carrier in the middle not what is the carrier in the middle or and what what is there a change in the payment by the wireless or the local if the carriers in the middle though that's the issue every one dollar of those cases on atlas western radio i enhanced that's the issue there's only been one or two cases that has ever addressed the issue before this court today what is the compensation that the i exceed must pay to get that exchange access that is the the the fiche case in this case this court and cases that address different issues into this case judge bennett by the way in iowa who also looked at all of those cases he found the exact same thing his conclusion was these cases have nothing to do with the issue before the court so those three different courts have concluded that this clarke in the in the fitch case judge bennett and judge fitzwater and i i suggest that when this court reads those cases careful you it's the same conclusion i wanted to address an issue that a judge stewart raised regarding two hundred and fifty one g in the bri in the sequencing in the briefing there was the initial motion to dismiss that sprint and rising were involved in two thousand and fifteen which we breathed i argued judge for two water issued an opinion two thousand and fifty and the two hundred and fifty one g was that was about a four hour argument it was a major part of that morning in two thousand and seventeen level three which is a different carrier also an appellant in this case brought a motion to dismiss against century link and that was argued in two thousand and seventeen for another few hours in front of judge fitzwater and almost the entire discussion was about two hundred and fifty one dollars judy so to suggest that there was an opportunity to brief this is simply not true judge fitzwater spent many many courtroom hours discussing these issues between the appellant's and the apple e and the said virtually the same arguments are being made today that were made in front of judge fitzwater and he certainly can read the transcripts which are part of the record to confirm that police in this case so basically the entire industry is looking for guidance from this court as to what the intra m t a rule means and how it applies in a situation like this let me start with we will provide the basically the past practice of imposing access charges on calls that were long distance preferred the m t a rule is no longer applicable because once  in easy it's really surprising that the fees continued to be paid for as long as things were i take the point your honor and i would say that it did take a while for the courts to make clear that that rule i had just announced or described i should say is applicable when there are carriers involved in the call so once that became clear through the decisions of the th and th circuits and the f c c is indorsement of those decisions in the connect america order and as joe shelley has pointed out it's explicit super section of access charges that's when the industry studied the issue came to the conclusion at least on our side of the table that that is a correct statement of the law and brought this lawsuit to vindicate that position mr ballen teased that those decisions from the other circuits only with the reciprocal charges where there is a carrier in the middle but not nothing i x the fees themselves not we would respectfully disagree your honor and would invite the court's attention specifically to the i n s case from the th circuit where the dispute was between the local exchange carriers and the long distance carrier quest was the long distance carrier it passed the traffic through long distance trunks and the court ruled that the lack could not impose access charges on quests because it was acting as an intermediary carrier to facilitate the delivery of local traffic subject where the court seemed to if i may say so assuming that the traffic involved was long distance traffic that was not examined and the court did not have the benefit of the f c c is ruling in the connect america order  creating a prince of opinion among the circuits case which you realize was different because in that change qwest wasn't acting as an axiom because it connecting calls within the same exchange area about six blocks apart as i recall the five so your honor st of all that's not disclosed in the court's opinion and if that was the fulcrum of the analysis then the court would have had to announce that as a basis all that the court said is i and sorry quest is a long distance carrier is delivering it to a long distance trunks it doesn't matter because the traffic is local as defined by the  not as defined by the amount of distance that the carrier is transporting to cause it would also invite the court's attention to the read it case also from the th circuit where again the question was of charge the long distance provider qwest access charges and the court said no it could not because the calls were interim t a a that was the reason that was the reason the calls were local because they are inter a and that reason is equally applicable in this case i would say your time has expired osment so there's been in your case under submission there's been discussion of supplemental briefing so here's what we won't allow each side can present a supplemental letter brief of no more than five pages but two weeks from today and then each side may provide a simultaneous response of no more than three pages ten days after that these are not supposed to be repeating what's already in the brief but responding to specific