this originally was to use entergy arkansas own plants which tended to be lower cost ferk ruled however that entergy was required to use the highest cost sources on the system to serve these opportunity sales now that issue of liability turns in particular on the meaning of the word loads in section thirty dollars a of the energy system agreement and i'd like to begin with that with that word and that provision now our argument today is that st aired as a matter of the plaintext and the structure of the entergy system agreement in ruling that loads does not include the opportunity sales again entergy is position is that loads it does include the opportunity sales and therefore they should have been allocated the low cost energy from en entergy arkansas now the meaning of the word loads i think what it's helpful to start with for its own decision and i'd direct the court's attention respectfully but i just ask you a general question  you can't do that we wouldn't entirely agree with that statement because we do present an argument under step to the analysis here is akin to the chevron analysis the court is familiar with we do present an argument as well at step two and in particular at step two we focused on the absurdity of st interpretation and i skipped a little step here which is that st initial e and finally did rule that entergy arkansas was allowed to make the opportunity sales and yet in the same breath a few pages later an opinion five hundred and twenty one dollars for were going to allocate the costs such that all the witnesses for all the parties in the proceeding agreed these sales would almost always lose money and so for by definition for prevails right usually the agency does prevail if there's ambiguity or i would i would recognize that not always but usually about this case in this case well in addition to the absurdity point which  that aside the other arguments that we've made about the plain language which i'd like to get into in a nd those even if they don't quite reach the level of an ambiguity in favor of energy we do think that they in balance helped to show why appendix stated that system dispatcher has to meet all of the loads that it faces and those would be meeting native load beating off system sales and opportunity sales so there is a statement from l p s his own witness that loads is an inclusive term that includes opportunity sales but even beyond the plain let the plain meaning of the word loads and the definition given by the industry i think the most important thing i can point the court to this morning is the contrast between thirty point one  there is no carve out there's no exception it's just loads and moreover it's not load singular it's loads plural so it's hard to imagine what you're looking at thirty one hundred and thirty point zero three day which is the key provision and i'm about to contrast that with thirty three it with something else but what we have contrasting it with with thirty point one three or thirty thirteen yes that's that's the most important contrast that i have to draw this morning because again in thirty  a loads is in the plural it's not subject to any carve out or adjective or modification it's just loads plural however if we look at thirty dollars and firk interpreted this very provision in our thirteen of opportunity sales we have no such carve out in thirty three a and this court routinely will draw the inference in such a situation that that was intentional that the broad use of the unmodified term loads  that's a direct quote total load and it's interesting that for accept this in the portion of its decision which was about whether entergy arkansas was permitted to make the opportunity sales a few pages later when for turns to the separate issue of allocating costs for sort of forgets about that and then all of a sudden it comes to a much narrower interpretation of load in loads and thirty three so that's a very important contrast there's another contrast though if the court wants an additional example which is seventy  s of the system agreement again that uses the term loads specifically net area loads and then it carves out from that off system sales now an opportunity sale is one example of an off systems so in seventy  have loads minus off system sales and thirty dollars a all we have is loads period and those those are important contrasts that should be considered as a matter of the plain text and structure here three in terms of the definition for didn't identify and other alternate reasonable definition in opinion five hundred and twenty one it acknowledges this is an inclusive definition and then it said well loads and requirements are used in different ways in the system agreement we think it's ambiguous but as we explained in a reply brief really for only examples or of the word requirements and not loads we think that as a matter of loads that the meaning is clear as to what  a question about the fact that requirement sales are included within loads generally under this contract i mean what is what is the difference between requirements sales and opportunit sales i mean they're obviously both to others i guess like how are they different for purposes of thinking about what's in the industry so judge we we think that the word loads cannot distinguish between those two types and your your honor is right everyone in this case agrees that requirement sales which is one species of wholesale sales they generally tend to be longer term a year or more as opposed to opportunity sales which can be a month long they are within distinction between requirements and opportunities as they're either both in loads or they're both not in loads and we think that they both are and it's now when firk said that there was ambiguity and thirty point zero three a st instead to decided to turn to allocated the highest cost energy on the system the immediate problem with that is that thirty four has this concept in it of reimbursement so that is the selling company which in this case was entergy arkansas under st you has to reimburse another energy company that's providing the energy however ferk earlier in its decision said that the very essence of an opportunity sale is that it's a sale for which the selling company takes sole responsibility and we think that there's a conflict between the notion of care well one the main reason why it's unreasonable is because it runs into the problem that loads and thirty point zero three a cannot support a distinction between requirement sales and opportunity sales and in fact lists the type of payments that one company can make to another and absent from that list is a payment to reimburse for energy supplied under thirty four on the other hand in a joint account sale the payment is made by the system by the group of companies and is received by the company of its furnishing energy so the fact that there is no provision in thirty point zero nine which provides an exhaustive list of the types of payments that one company can make to another there's no mention we did not use thirty nine in that specific way we acknowledge that however we believe it's subsumed within our arguing about the reimbursement concept on the one hand and our argument which i was about to get to which is there's a whole service schedule called m s s five about how to allocate the margins from an opportunity sale sorry from a joint account sale and yet there's no such service schedule on how to allocate margins from an opportunity sale and we think that that's instructive because as the louisiana commission's own witness conceded at page two thousand and twenty eight of the appendix there is no margin that's calculated for an opportunity sale and therefore it makes sense that you would have a service schedule that only applies to joint account sales and not for opportunity sales and just  thirty point one three and thirty three hundred you say they're important i asked the question by the same question judge you have just asked you whether you raised those two definitions in your petition for here so in specifically the point that judge raul referred to before which is about there's no textual basis for distinction between work requirement sale and opportunity sale this is all part of how broad the word loads is but even if even if the court were to conclude that we didn't preserve the the idea that that an unraised argument was subsumed in another argument i would just point to judge tables decision in don tar maine from two thousand and three where the court made clear that you have to if you can argue about a specific section you don't get to argue that it was subsisting in an argument that you made and that was in a case where the commission actually conceded that the sections were closely related and the court still found it hard so i just want to analysis sales to others there's actually no provision if we're talking about things that aren't provided in various provisions this agreement there's no provision this agreement that that says anything about how to treat opportunity agreement that indicated that something like opportunity sales could be permissible and that was the ground for the commission finding them permissible which the louisiana commission challenged on rehearing but entergy certainly did not and nobody has three but they're also sales to others under or arguably sales to others under thirty four so i'm just wondering why does ferk think that it is more natural to take that sales to other explanation for why it should be in the thirty four bucket as opposed to the thirty three and i think and one thing that really i think wasn't a big issue in this case is is requirements contracts there was a lot of discussion of native load and opportunity sales so i don't have a lot of weight to you for required requirements contracts my understanding is and i think this is reflected in entergy had a couple charts in its brief and i'm thinking it might be page fourteen of their opening brief that they showed the stack of how they want to allocate energy everyone seems to agree that something called native load is the low the lowest gets the low the highest priority low cost native followed as parties agree that requirements sales are with that load with unfair he wasn't i'm sorry right it was a really challenged here my understanding is that a re your your retail rate your end user customers their customers of entergy whatever it whichever state wholesale requirements contracts could be like a municipal it be like a town that serves its retail customers but buys wholesale but it pays i think the distinction but that was discussed at some point in orders and i may not have that marked wholesale requirements contracts because they're long term they pay for both capacity and energy they pay toward the fixed costs of the system so they like retail rate payers are paying for the generation that's built and the transmission and all the fixed costs opportunity sales like joint account sales are one offs short term you have some you think you have some extra or you think you can make a buck on whatever you have and in this case in particular they were just energy sales i think there's language in section four point zero five that joint account sales can be both capacity and energy but these were just energy sales made short term off the system to entities that were neither is there anything in the definition of loads that requires things that are included in the low to be both to include both energy and capacity not in that definition and that goes the ambiguity but this is like a key point i want to bring up because central to the commission thirty five we have to say is this in our brief as well and there are other places it's echoed but i want to point to this the commission said entergy ignores the commission's analysis of the system agreement and the distinction between sales made to native load and those sales made off system is inherent within the system agreement itself the commission was looking at the context this is very unusual i don't i don't know if there's there was another another agreement like this anywhere like the entergy system agreements where these  different operating companies in different states they serve their customers in different states but they cooperated to a great extent on planning where to build generation and so the whole thing in the contract and the whole reason for sections thirty point thousand and eight roman two which was where this this issue previously came up and was dismissed because it was dicked and then this proceeding started i think in that case the court noted that the there can be disparities in fuel cost in the energy system in particular arkansas tends to have i think a fair about amount of nuclear and a lot of coal and louisiana would have more gas so there were times in history when we see it at louisiana's energy was cheaper than arkansas and vice versa in this time period arkansas was significantly cheaper so the energy system agreement was set up so that these different operating companies working together would plan generation throughout the system and share access to the cheaper capacity to serve their base loads and that context which suffuses the commission's analysis i think is absent from entergy is reading of it and that's what it's aimed to though that reading though seems inconsistent with what seems to be the the practice in the entergy system of allowing wholesale requirement sales right which was allowing companies to use that that low cost energy to serve other contracts outside the system so i understand that that's not before that before i tickler however it is you know it is seemingly part of the practice within the entergy system to allow such contracts and i think that the answer is that those wholesale requirements contracts like native load contribute to the capacity costs and they're sharing in the cost of the system and the only eleven dollars place i can point entergy arkansas had properly accounted for its costs in its requirements contracts in terms of of making sure that its requirements customers were paying their share whether it was passing those through appropriately so that's an indication that the way wholesale requirements contracts are build i think is similar to where the way that native load is whereas opportunity sales are just taking you know the one off sale of energy without contributing to the cost of the system and the commission is saying that the parties particularly the native load and i think for these purposes requirements contracts are in the same position the parties that have paid to build the system get the benefit of being served by the more efficient lower cost energy capacity that they have contributed to and that that is the context of this very unusual system agreement  which again this whole agreement the commission also talks and it's in its opinion not just about the purpose of sharing it energy but also about the idea that the system agreement allows the companies to maintain their own capacity and to to use that you know for their own retail customers and their own needs so there are i mean the the system agreement doesn't just have a single purpose to share energy and also importantly leaves some of these energy you know some of the control over the generation and use of energy to the individual companies so it doesn't seem to me like the general purpose can necessarily dictate how these costs should be allocated for the opportunities but i think you know on track interpretation generally right like we were looked at the specific controls any general language i would think well in the commission found that two others because it's only used in four five and thirty four so the commission actually thought that sales to others was specific language but i would i would point also to paragraph forty three of opinion five hundred and twenty one and this is that jay eight hundred and thirty five where the commission said that that the commission is trying to strike the correct balance it believes that it's holding here strikes the correct balance between the rights of the individual operating companies to make opportunity sales for their own account and the rights of the system as a whole and it makes a reference elsewhere i believe in forty eight don't know if i can put my hands out right away to the ability of the highest priority customers throughout the system having access to the cheaper energy so the balances here is does entergy arkansas to sell all of its cheap energy to whoever it wants or does it have obligations under the system agreement to allocate yes st two it's retail customers and it's wholesale requirements customers those aren't an issue here the question is what comes next is it the pool selling it to the other companies under lose if we find the congress if we find a contract on ambiguous i guess what's your best argument for you know like a plain reading that supports for  well i mean the commission said there was no clean reading i suppose my best argument would be the mirrored language between four point zero five and thirty dollars that's the and again there's no language in the agreement that says how opportunity s should be treated all we have even to permit them in section four dollars is the implication in the negative that joint account sales are for when you don't want to sell for yourself just a note on on the subtraction of them from net area requirements in the bandwidth formula in section thirty thirteen which was added in two thousand and six it was actually after many of the sales had occurred and that doesn't use the word loads at all that's about requirements i don't think that helps your so and the commission said the allocation provisions in the m s s don't tell you what's allowed under the agreement so the commission had to find the permission under four five anyway but apart from all that the commission i mean and twenty eight on j one thousand four hundred and one the christians looking at the word load on the one hand it's looking at the word sales to others on the other hand it has substantial evidence in the record it's disputed but it has substantial evidence in the record including testimony from staff witness salmon that we cited in our brief and it cited in the order that loads and requirements are used in a number of different ways throughout the agreement and and there isn't a clear meaning there now the commission also said at the end of that paragraph that louisiana has not demonstrated that loading requirements must refer exclusively to native lote the commission says we're not convinced that that's a plain reading that we must follow but that natively well the commission did make that funding but it said that is another reading it's not the what we don't find it to be a plain reading so the commission's decision here was very much based on ambiguity but it is rooted in both the terms the m in those two provisions and always looking to the overall context of the agreement  would note as we did in our brief that there was no absurdity argument with regard to the contract interpretation raised below the only place i could find entergy ever used the word absurd was with reference to disputing the refunds that the commission determined that aside i don't think there's evidence in this record that they would always lose money exactly what can the difference let's assume  cost energy and if the only way to that's been influenced cause energy was not to sell to non customers isn't that just a natural consequence of the agreement yes yes you're absolutely right no i think that's right like the commission said you can make the failed and you know they made some of they may not made enough to cover their cost maybe they made more than if they hadn't sold any but but the commission says you you want full responsibility it doesn't mean you get to keep the cheapest energy away from the other members of the system it does mean that you own the margins positive and negative all right ok well thank you  yes your honor my font representing the louisiana public service commission i would like to address judge rouse question in judge wilkins then if i have time i'll move to the jurisdiction rod there is a tremendous difference between opportunity sales and wholesale requirement sales wholesale requirement sales are part of native low native load is defined as the retail and customer served under a long term wholesale commitment customer served under a whole see a long term commitment our customers like the customers of a city in north little rock that buys all its requirements from energy arkansas those requirements customers just like native load customers pay for the capacity and so therefore they are entitled to the cheap energy that comes from that capacity opportunity sales are these what are supposed to be short term like a day ahead sales where the utility thinks it can make a buck those revenues are credited to customers in every retail jurisdiction those revenues go to customers to offset their cost of the capacity what energy did in this case is it pretended that those sales were being made to a wholesale requirements customer so that it could keep the revenue instead of crediting the revenue and it even filed fuel reports at ferg end in arkansas saying that these sales were may in arkansas they said to customer number thirteen which was a fictitious wholesale requirements customer and infer that it was just mustin with the energy for wholesale requirements customers so the fundamental issue arises and that's the issue in this case more than all this stuff about what one kemeny can do what another company and do the shareholders men has to take all the revenues and they manage to put the cost the money for the shareholders so they you know falsely reported this is a wholesale requirements customer it's not an opportunity say but it was an opportunity say so there's a tremendous difference there and this is universal judge every where you make an opportunity sale the revenues go to the customers it's not you know somethin that unique to energy not anything it's unusual it's everywhere but you know if you're willing to go to some extreme stick keep the money yourself for shareholders then you know you don't credit the revenues and when energy is always done with join institute energy information agency industry definition technical definition you will not find anything ok and they never are at any point in phase one never yes thank you to table i'd like to start with the again going back to the most important point in our view in this case the contrast in how much time does he have left counsel have no time remaining but he had initially you have six minutes reply brief six notes five we explain that further itself equated those terms i'd like to address the point about opportunity sales not contribute the customers don't contribute anything to the fixed cost we disagree with that point and i'd refer the court to join appendix for thirteen dollars the whenever the revenues from an opportunity sale exceed the fuel costs that excess is available to help pay for fixed costs and i think the north little rock example which was referred to by mr phantom i believe illustrates this so north little rock was a wholesale requirements customer no dispute the wholesale requirements customers are within loads under thirty dollars once that contract ended the same exact amount of energy was sold as an opportunity sale this wasn't taking it away from the other companies or their customers this was an energy that wasn't going to those companies initially and now because of the loss of north little rock of the customer we're speaking still to an opportunity sales customer and the excess if any above the variable cost was going to be used to help pay for the more the refinancing and mortgaging of the fixed costs of that plant so we disagree with that but i want to come back to the most important thing which is a lot of what we've heard from mr banta from mr font them is about reasonable ness it's about policy our main submission in this case in addition to the absurdity point but our main position is the plain language the contrast between those provisions chevron step one  and i think of the cases we cited although it goes always back the consolidated edison case that judge cable sat on is is a case that i think shows that even where the agency and st in that case is being reasonable if the plain language precludes what st has done the agency has to lose and that is our submission in this case if the court has no further questions i'll rest on my briefs thank you very much  read it ray this is fundamentally a case involving shareholders versus consumers and to look to the point is made by mr weisberg's none of these opportunities sales margins if they were positive which was rare were credited to the customers in or he kept them all and virt found that two hundred and two million dollars well they about two hundred and eighty million dollars on the customers as the cost and they were happy with that absolute proposition but once ferk says not now you have to absorb the actual cost which is the actual cost of the sails well they're not so happy with it because mercy have to pay that that's their position now with regard to burden of proof are complete allege that they were doing something that they couldn't do under the system agreement in hand by by the fact that the actual fact is they had never done it and they had had a policy that they won't do and they realize you disagree with it and i might even disagree given that this is a highly discretionary decision how can we possibly nd guess well because there are precedents as that if you take the burden you go  last you can't turn around and say somebody else said the bird that's in the northwestern case that we side in this court has said it in two or three cases that we cited that the party proposing often and that is what happened in this case energy asked for the right to propose offsets this was after the damages were were basically done they damages everyone had agreed we're going to rerun the then energy says ok here's a procedural schedule we go st we go left or you is it is all part of putting the system back to where would have been if the opportunity cost had in charge correct it all goes back to how well it does go back to that and has as my own all that over and over again they never would have been met me all of these adjustments that for kids made or not made arkansas slope and as a result of that the shareholders are really they impose it on customers in arkansas but there was an allocation of the capacity cost to arkansas energy said wait a minute we want to change that and that's what we were doing it had it wasn't part of the initial damage calculation at all and with regard to the ban with birkhead ruled in the th circuit rule you can't make out of period adjustments to the bandwidth and firk acknowledge that so that was the law so for access well yeah but we're just going to just damages for the debt for the band with well how in the world do we have the responsibility to intice a paper an argument like that and then attack it when when we don't even know what the argument is so we we went nd we responded to energy's arguments and we you know they got to go last on the staff witness they accepted all that and then they turn around and change their mind so your honor these are all sets this is not part of the initial damage calculation it's two separate service schedules and like as an example in the case of the band you're not under the band with adjustment that they may cause everybody to have to pay energy arkansas money that the damages that was returned eight million three  ward for the then with period which was two thousand and five to two thousand and nine the only thing it is you in face three was the band with period and in the band with periods for made the other companies  to maybe on judge tails questions i mean it seems that most of your arguments are pushing in the direction of an assumption like putting the company's back to where they would be if opportunity sales never happened hate we are in a world where fergus said they are k i believe you're not challenging whether opportunity sales were permissible in this appeal or in this petition so i'm just not sure how your arguments fit within the framework of an interpretation of a system agreement that allows for opportunity sales the arguments about the the offsets yeah because it seems like your arguments are really trying to push back to a circumstance in which opportunity sales never existed well and that's exactly right because that measures the difference in the ban with that was made by the opportunity sales in other words we ordered putting the refunds into the band with we didn't order that we ordered avoiding duplex duplicative damages well if you want to if you want to remove duplicative damages you remove the revenues the revenues were much lower than the cost of the other companies pay so if if you encourage ten dollars cost and the revenues are six i credit you six ok and then later on for it says ok there was a violation i have to pay you ten dollars but we're going to take the ten and put it in the bay with it it's going to go right back to you so you're still out for all the at extra costs had originally been included in arkansas as costs yes that's that's what they accomplished but as everybody agrees a sales never would have been made under that circumstance so you know the repairs wind up for the band with period i agree the rate payers wind up paying arkansas how can an agony sense for violating the system agreement and the same thing is true with regard to the responsibility ratio allocation it is proven the judge made all kinds of finance it these sales because they were made a month ahead as opposed to next day energy never made sales a month ahead because it didn't have the resources to start them it had a bottom to serve a say from a month they had standpoint they had they knew they had the resource so they make the sales a month ahead they buy capacity to support the sales they're buying and putting the cost on consumers and selling and keeping the revenue for shareholders carol just and the jets or you have to pay the capacity  it's not what it's not right those are ok tell me what well in the band with there's two ways you can deal with these sales you could have them take responsibility for the sales in the energy ratio the energy ratio was not change so they took no responsibility for the sales so they bore none of the costs what they did was is they credited the revenues even though the revenues are going to shareholders they credited the revenues and so energy arkansas paid other companies and him out equivalent to the revenues in my example the six dollars but the cost of the sale was ten dollars doubt in my example ten dollars so they only gave back the revenue credit and this was a matter in opinion five o five we were fighting that we were saying wait a minute they need to take responsibility for the and as as the commission said well what is mine and she's i think did you hear his did you understand his argument to explain know somewhat but but louisiana's position throughout has been that the bandwidth needs to be calculated as though the sales were never made right and i underst we need to get us back of the game back it's a bit artificial the commissions would be if these had been probably ok to correct precisely and the commission said we're trying to recreate a scenario that admittedly didn't  weren't allocated correctly and there is an argument that some of these sales would have been made but the milk is spilled and the commission is just trying to and so several times this isn't necessarily going to be difficult because we're trying to recreate circumstances that did not exist but the goal throughout yes was what would the picture have looked like if the allocation had if the sales were made because they were permitted and exactly right that the commission looked at this this is we're not setting a rate here this is a damage calculation what are the damages resulting from the misallocation not the sales being made from the misallocation so the  st thing we do is the methodology the commission approved was rerunning be interesting bill to determine if all the energy had been allocated appropriately but because of the impact in the bandwidth formula the commission determined that the other operating companies may have already benefited from the mistake because arkansas was reporting these sales at the cheapest energy cost so it was it had a lower production cost and its production cost being lower than the system average is precisely the reason that it had to pay band with payments the other companies and precisely the measure by which it made those bad repayments so the commission said if for calculating the damages done here which are x what do we do to make sure we don't have duplicate amounts that  windfalls because we're requiring damages to be paid for for damages that weren't incurred and in fact there were benefits so that netting it's not an offset in the set a sense of an affirmative defense it's not where you determine damages for some contract breach but then you can back off some of that because there was mitigation it is the initial damages calculation and the commission said that in a couple places in her a five hundred and forty eight in opinion continue to suit to reflect a misunderstanding of the commission's holdings in opinion five hundred and twenty one dollars louisiana still fighting phase one louisiana is still wanting the calculation to be done as though sales were never made because  it believed from the start that the sales were an authorized that's done that's phase one that's done the commission said and it's not before the court of appeal to commissions that these deals are authorized so what do we do with that we found a breach in the misallocation damages and all the calculations are oriented toward recreating the scenario that would have been had the sales been made but allocated properly and i  i also want to point out that while there was some netting to avoid duplicate damages in the band with calculations no company had to pay entergy arkansas the commission made clear in numerous places the damages calculation is for the entire period that was found to have been mis allocated which is from i think late two thousand to two thousand and nine the band with remedy becomes into effect in june two thousand and five there's evidence in the record that the commission cited that the bulk of the sales and the bulk of the dollars amounts from the sales occurred between twenty million twenty two thousand and five maybe two thousand and six so most of them are completely unaffected by the band with the just middle and as and we had the numbers in our brief in the compliance filing all of the other operating companies received millions of dollars in some cases tens of millions of dollars no one had to cut a check to entergy arkansas so in a few of the band with yours it did turn out that some companies had benefited more from the reality of patient from the misallocation then they had suffered from the misallocation so there was some netting but because the commission was looking at the damages for the entire decade and the bulk of the damages predate the bandwidth remedy then that amounts were still substantial refunds to all the companies and the kid the commission had made clear from i believe opinion five hundred and twenty one dollars that entergy arkansas would be paying rent pay refunds to the other companies no one dollar would be paying entergy arkansas and it was that way from the start and it was that thing with regard to the bandwidth let me go with that for sure the the refund they began with remedy for each of us was to put the refunds into arkansas's cost in the band  this is to get back to the position if they have been allocated correctly in opinion five hundred and forty a day we asked for rehearing of the band with decision and in no forty eight on and eighty eight of the appendix burke said the louisiana commission appears to assume that the commission found that the refunds ordered in this proceeding should be included in revised then with formula inputs that assumption is in carette the commission instead required that it determination should be made as to whether any over payments were made under know because over payments were not the overpayments were not made as a result of the incorrect county that's because of opinion five o five and we cited it in the brief opinion and five says don't include the costs which is the incorrect allocation include the revenues that's what they did they only included the revenues to reverse that you can only take out the revenues that's the whole issue about negative margins the difference between the revenues and the total cost it is incorrect to say that the incorrect allocation cost dishpan with result it did not and we proved that and there's no contrary evidence now on the burden your honor what point was it you want to meet to address ire the well you heard what mr banta said she she she she well i think we're going over over plowed ground here do you have anything more you want to say about the burden of proof because well i just want to say your honor in for the forty a day for except for in this no they recognize it's not the same thing to include the refunds in the band with which is what ultimately happened and get rid of the overpayments they recognize that they said you're wrong we didn't order that then they wind up doing and we'll hear from mr way i think is that correct i think so your honor with so i just want to get back back to since my argument will be about the excess operating companies don't get a windfall from the access bandwidth pa where we disagree is that the question so what the commission did was come up with a simple remedy but the question is did that simple remedy to get the other if you seconds if he has the words like ok so it to put it in your words judge stayed all day to put the other the entergy other entergy operating companies in the same position they would have been without a misallocation is that just there is a simple commission picked a simple remedy but did that of bandon cost us a sion principles and therefore it's arbitrary capricious there are two dollars groups that were burdened by the misallocation under the commission's ruling the other entergy operating companies obviously paid the higher energy costs but the excess ended with payments everyone agrees were paid by arkansas retail rate payers our position at the commission was that the commission instead of so what the commission did was take a simple remedy they said way this ok all you entergy operating companies you are getting damages from the lower end to energy costs that you should have pay had the missed had the these opportunity sales not been misallocated but we're going to do is offset that with the excess that for the excess bandwidth payments in effect entergy arkansas page sixty seven it was as i understand it for just decided for didn't or so yes so look the commission said it's outside the scope of the hearing but in fact it was used as an offset so that's within the scope of the hearing they determined in the hearing that the excess band with payments equaled thirteen million seven hundred thousand dollars they figured that out yes the commission said we're not asking you to recalculate the band with payments but in fact they determined what the excess payments were they deducted from the damages amount so that it was in the  understand our view is it wasn't outside the scope of the proceeding it was in the proceeding in what should have done was just put that money basically put it aside in not correct i mean are you prejudiced by the fact that for may not decide this i mean don't you have an alternative form to pursue these claims and federal district court well the answer is the arkansas commission has decided it and we decided that the retail rate payers should not pay for it now entergy arkansas has taken us to federal district court appealing that state court decision in oregon basically their argument is the st decision preempted us from taking that action so yes we to consider that that money was paid by retail rate payers and it should have gone back to them rather than being used as an offset to the damage that were to be paid by shareholders mr lane with st i mean under your if you would st have to decide that question with respect to shareholders and rate payers of the other operating companies that they were receiving a refund no we don't think we agree with ferk completely that the question of whether these money should go to ratepayers or shareholders it's a retail great question and should be decided in this case by arkansas docked that amount from the damages rather than basically we said it should be credited to the rate payers the shareholders never paid for that shareholders did not pay that access the rate payers did in and but the effect of using that offset was to give that money to the shareholders ok commission went out of its way and i would point in particular i mean in addition to the numerous places where the commission said this is outside the scope i would point to paragraph eleven and twelve of order five hundred and forty eight a and eighty three the commission went beyond saying this that says that the distribution of damages between eight years of shareholders and outside the scope the commission has made no findings as to how this should be treated for purposes of retail rates and the commission said twice what the appropriate forum could be but of course the arkansas commission is itself a state regulator and my understanding is they did take action that would be one forum as as your honor noted federal district court i suppose could be the commission didn't even limit an appropriate forum could be just that this wasn't it ok that the commission focused on the allocation among the operating companies because it was focusing on the system agreement it said several times that the goal was to put the operating companies in the position they would have been if the reallocation if the allocation had been proper and that the commission's remedy was or consideration was limited to allocation of costs among the operating companies not allocation among classes of customers but he left that open and it went out of its way not to say something that that would be preemptive or preclude someone from making an argument and i would note that in the district court litigation which the commission has not been involved in and as far as i know has not spoken to it in the order or anything but because it was but from this court in a letter i would note that the commission seems to agree because  the commission's repeated emphasis that it was not deciding retail treatment and that that should be relevant to the preemptive effect of these orders because that's exactly the argument that arkansas has made in moving to dismiss miss bantay it's not  position that they have exclusive jurisdiction over this i'm assuming because they said they're making no findings and it's outside the scope of the proceeding that's right i think in in the appropriate case there is case law that if the commission sets a rate or sets a wholesale allocation that does by virtue of case law have a preemptive effect on state regulators but here is a damages calculation rate violation and the commission allocated among it would not be open for one of the state regulators to decide that the damages should have been allocated differently and that one state really should have gotten more than the other that would be precluded by the commission's determination here but as to how the damages or paid or received residing with any one of the operating companies should be treated by that company's retail regulator or or regulators the commission expressly disavowed in pretty coward categorical language so i think that the question with a pretty far in view is that that excluded issue is more like an issue involving retail regulation right the question of whether you can have the pass through yes to that was right because it is a question here within entergy arkansas entergy arkansas had to pay a certain amount those damages were netted out by a certain amount how that will or should affect arkansas retail rate payers is not something the commission was deciding he regulators to some degree but this again and the commission said several places although this complaint was brought under section two of six the commission did not set a rate it didn't change the system agreement at all it said there was a violation of the system agreement and damages are appropriate for it as the case didn't go into all that it was much simpler this is outside of scope and we're not saying anything that prevents you from doing this in the  and if the commission has no further questions i'll get back my time then under under the f p a we can only appeal it to you so we did appeal it to you and entergy arkansas came to the arkansas commission with the retail ra didn't raise this as a retail rate question we raise this as a wholesale raise issues what damages should be paid in the wholesale under the system agreement and what we were saying that all the damages should have been paid by the shareholders there should have been no offset for the excess began with payments which were paid by retail rate payers that are that's what we're saying is wrong with the commission's decision not that we didn't have other options we we had other options we've taken them we're in district court now fighting with entergy arkansas about the state retail rate decisions and yes we did what what the commission said but we don't think that makes what the commission did right oked well thank you we have your argument thank you all for your ar