kelsey you may proceed good morning me please the court deal dixon representing the appellant's north county communications corporation of arizona and north county communications corporation of oregon  this case is about interconnection agreements but what this case is not about is whether or not these parties had disputes about billing in their previous interconnection agreement and it's not about whether the old interconnection agreement from hundred ninety seven included provisions that needed to be amended this case is about violations of the congressional mandates in the one nine hundred ninety six telecom act and it basically breaks down into two violations the first violation is the oregon commission's referral refusal to allow north county to use an existing interconnection agreement that another carrier was using at the time and it happened to be the same agreement that north county had from one thousand nine hundred seventy until two thousand and eleven the second issue applies to both the arizona and the oregon commissions and this is the issue of not allowing north county in either state to demand and get in direct in or connection well isn't the essence of your of this appeal having to do with whether binding arbitration could be a forced the the appeal is really that if that's the second portion the first question is  company can quest or century link can't now probably continue to call them question probably called us west ken quest demand and require north county to remain in a direct interconnected environment with qwest well i'm still focused on the arbitration issue doesn't interconnection agreement permit arbitration the statute itself i'm talking about the agreement  a the nine hundred ninety seven i see is that the agreement that you're asking about in particular it was it said that the parties would enter into negotiations it actually said they would enter into negotiations two years after the effective date which would have been in one nine hundred ninety nine but it wasn't until two thousand and eight that qwest approached north county and said let's enter into these negotiations is that a yes or a no to my question indirectly it's it's a yes because once you enter into a negotiation you're allowed to under the act section two fifty two of the telecom act you're allowed to petition for arbitration if you can't resolve the issues that are being negotiate your position is if i understood your last statement correctly and please let's be precise once the parties enter into negotiations either party can request arbitration true once the parties enter into valid negotiations either party can request or invalid negotiations when qwest the incumbent local exchange carrier seeks to negotiate a direct interconnection agreement and says to north county we're going to enter into a direct interconnection if qwest requests a negotiations it is invalid negotiation because this is that right if qwest request the negotiation yes to say you have to enter into a direct interconnection agreement with me as an incumbent local exchange he let let's let's suppose you're right so let's suppose that quest makes an invalid request for negotiations at that yes and then c which is that what happened then has not n c c requested negotiations only one party can get that negotiation ball rolling but both parties request negotiations when they negotiate because negotiations are made up of requests for concessions to because that's not the language of the statute the language of the statute says in section two fifty two that when an incumbent local exchange carriers receives a request to negotiate and in a connection agreement you your client was in writing stipulated that the arbitration period of one hundred thirty five two hundred sixty days could be extended and the arbitration could be requested by either party but if if north county backs out of arbitration or says i'm not moving forward with these negotiations i'm not moving forward with this arbitration they their commission under the statute is required to move forward and impose an agreement anyway what i'm trying to say is that under section two fifty one of the act you connect directly which requires one of these interconnection agreements where you concur connect indirectly and that means you're going through a third party north county would not have a direct relationship with qwest at that point there would be a third party that provides a tandem where qwest network goes to the third party and north counties network goes to that third party when north county in oregon asked for the agreement that was in existence they were told that while they would make it available to them because the carrier using that agreement was using it for something else they were ordering different types of circuits and that agreement just simply wouldn't be made available to north county and while it's possibly true that the carrier was using in a different fashion it's not the law the law is the agreement exists in the agreement can be selected by another carrier or competitive carrier so when the oregon commission did not allow in when qwest did not allow north county to adopt that agreement they violated section two fifty two i  council back to the i c a for just a moment yes is it your position that somehow or other the i c a is void is in conflict with the stature the i c s that were imposed on north county focusing on the ninety seven one primarily we know that the ninety seven those were agreements that were adopted by north county and well both parties right yes or yes ok it was an agreement that qwest had with a different carrier in north county said in both states will take that agreement and they continue to operate together and their relationship was governed by that agreement until two thousand  changes there isn't actually an amendment provision in the one thousand nine hundred ninety seven interconnection agreement and that's not the same as going to the commission and requesting arbitration in fact as the law changed there were several amendments that were added to the one nine hundred ninety seven inner connection agreement well let me ask you this is the i c from your point of view the ninety seven ninety i see is that consistent with the statute or not yes it is it is yes so anything that is in the i c a that may not have been in the statute is still relevant there were there no provisions in the ninety seven i ca that violate the current status of the law in two thousand and eleven there was nothing in there that needed to be amended to bring compliance for the telecom act and subsequent decisions by the f c c this is about forcing a direct connection versus an indirect connection was that was that specific objection raised in the district court that was raised in the district court and it was raised at the state commissions and it was raised in the beginning when north county said here's what we really want we like our agreement someone in oregon has it let us keep our agreement and they said no you can't have the agreement and they said listen let's just go to interact in our connection and question no we're not doing and direct inner connection i you know maybe i'm i'm overlooking it i have so much so much stuff in this i may have overlooked it my impression was here this is come up for the first time on appeal it wasn't brought up below no it was it was it was brought up originally when north county filed the motions to dismiss saying that the commissions didn't have the right to arbitrate these agreements and it was also brought up in the district court cases as the third party inner connection issue what about the actual terms of the agreement itself could you talk about those those were addressed and we've certainly addressed those in the brief and those are the specific discriminatory the specific unlawful provisions that shouldn't be allowed to be upheld in the interconnection agreements   there's no reason that qwest gets to choose what the proper signalling method is and this is the m f vs s s seven issue and there's no reason why don't they get to choose th i think is the incumbent they would not be allowed to they aren't the f c c they don't get to say this is a signal signaling technology that is valid and anything else we're just not going to allow one on their systems and well there are ways that they can still interconnect using north counties using m f technology and again the indirect route would resolve this they don't get to set a nationwide or even a region wide technology they don't get to dictate what the technology is going to be used by all its competitors that would that would allow the incumbent local exchange carriers such an advantage they could adopt something new every six months if they wanted to every two leases that the f c c the f c c polices then well the f c c me has acknowledged as a seven is a valid a seven technology requiring i suppose you're correct i suppose there is nothing that's basically size and it's the whole industry moving toward s s seven then m f is is is an ancient point of view yes i would like to reserve the balance and you may do so counsel think you will hear from the other side or sides i should say we have three different side has twenty minutes total so however you allocate your time is fine as long as you understand that yes thank you i'll keep my eye on the clock the original agreement in this case dated from one thousand nine hundred seven one year after the telecom act was passed originally north county requested inner connection with qwest in both states chose to opt in to an existing agreement that agreement required north county to use its best efforts to transition to s seven signalling that was in one thousand nine hundred seven that also required the parties to negotiate a new agreement starting in two years and c c did not transition its signalling system which has led to a number of significant billing disputes and overpayments by qwest nor did the parties negotiate a new agreement within the first two and a half years it was amended several times however by two thousand and eight qwest had discovered these  significant billing problems and overpayments and requested a renegotiation of the agreement to address those changes to address those problems and also to address changes in qwest product offerings in business practice processes over eleven years the significant motivation for requesting the change was the fact that n c c had never updated its signalling system from and that quests in tension in the negotiations was to accommodate in cc's desire to continue using this outdated technology but at the same time protect ques from unfair bills all the decisions by both state commissions are place if there is a request for negotiation by the competitive carrier against the incumbent carrier and a reading of the statute doesn't quite say condition precedent but it does it's the only instance that is covered by the statute and we have in this circuit adopted as a rule stage tory construction which is called express who dies in a copyright case which i remember quite well because i descended  so that being so if there is only one expression in the statues as to how arbitration can be commenced isn't that the only way the statute allows arbitration  commenced well first let me say that the expression of the statute is not jurisdictional it does not say that the state commissions may only or shall only or only have jurisdiction to arbitra in this circumstance no but it relates the circumstances under which arbitration can take place and it only has one circumstance understood and in the courts in this court there's a case forrester versus chertoff five hundred f third nine twenty which we consider this to be a claim probably that is one of the reefs it is not which is why i want to bring it to your attention before you leave the courtroom please provide copies of the other side in three copies for the court ok i make my follow up with that i do not have copies with me he will give you the form ok thank you yes so it's a claim processing rule it doesn't affect the jurisdiction of the commissions therefore it can be waived it can be modified by agreement of the parties and we submit that there are many ways in which the parties agreed to modify or waive any requirement that qwest initiate that north county initiate the request to renegotiate the agreement first it was agreed to in the one nine hundred ninety seven agreement when it said that both that the parties would negotiate a new agreement both parties agreed to that secondly cuesta sent the request for it for renegotiation indicated that it would terminate the agreement absent an agreement to to renegotiate which north county agreed qwest had the right to do had the right to terminate the north county agreed to negotiate negotiated for eighteen months in fact never raising the issue that the request for negotiation was invalid after the negotiations failed quest filed a petition for arbitration and north county's response they characterize that as a as a reasonable request and they acknowledge that both parties have the right to request arbitration and they continue to negotiate now is there a particular part of the i c a the ninety seven i c a that you rely upon for the right to arbitrate no other than the fact that the  mint to read to renegotiate that's what that's what we rely on is that there was in both parties agreed to renegotiate and you agreed to commence those negotiations within two years so we would submit what is it that you rely upon to justify the right to arbitrate or the right to compel arbitrarily well in fact we would rely initially on the initial request for interconnection that preceded the ninety seven agreement the notion i think in section two fifty two is that sea like should decide where they want to compete where they want to interconnect so they initiate that interconnection by requesting interconnection within i like in other words i like shouldn't be going around the country saying i want to take advantage of your network mr c lack and i want to interconnect with you that happened that request happened already back in ninety seven in the parties interconnected their networks at that point counsel ha to be a think in the mind about the language of the statute two fifty two a one talks about a request for interconnection and that leads to voluntary negotiation two fifty two b one talks about a request for negotiations which leads to arbitration so a request for interconnection is not at least in language the same as a request for negotiation is it at a fair point then i would say that in ninety negotiations we're is there in the record some evidence that and c c requested a further negotiation other than their participation in the negotiation as you were referencing no they agreement was for a term of what two and a half years something i think yes two and a half years what would have happened if there had been no negotiation would have to be cut off or what would happen it was an evergreen status is it specifically said it would continue in in effect until replaced specifically ruled on this issue and said that i like may request may initiate negotiations for an amendment to an existing interconnection agreement and then request arbitration if those negotiations fail so the challenged in a court of appeals that has jurisdiction over that decision let me just quickly address the indirect interconnection issue this is an issue that relates to a term of the agreement negotiations in either state it did not request a term providing for indirect interconnection in its response to qwest petitions in either state it did not raise this issue at all in the oregon proceeding it raised it late in the arizona proceeding and the arizona commission did address it but the evidence in this raid in district court in arizona in the arizona proceeding it did as your dish will review yes and no additional evidence was submitted of course the evidence before the arizona commission was that there were a number of technical issues that need to be addressed in the event of indirect interconnection and the commission found that the parties had not negotiated those and  no record on which to establish terms for indirect interconnection so it said that you the parties will connect interconnect directly and it did not flatly refuse indirect  interconnection it did not prohibit it forever it simply said in the contract reflects this that if the if the parties want indirect interconnection they need to negotiate and agree to terms and the agreement specifically says you can do that and in the four years since that agreement has been in effect north county has never requested to negotiate those terms at this point i'd like to let counsel for arizona commission speak based on the decision of the district court i'm wondering if we might look at this one or narrower standpoint in other words instead of relying on the statute which has some issues statutory interpretation issues what about relying on passages in the i c a your honor i think that's a very good point however if i could address the statute you yes please and i believe counsel for the oregon commission can also supplement that site if needed relevant to that maybe it's part paragraph nine and seventy or seventy one rather sorry seventy  to a series of extensions of the arbitration window to file a petition for arbitration that won and your honor could i follow up on why we believe that we have the power to arbitrate given this proficiency as you answer our question c's argument is because qwest requested negotiation in this case that points to section two fifty two of the statute which he or abuse limits the request to arbitration to the other side in other words the quest does not have that power in the statute right but this is still agreement and the parties agreed to hear that either party could negotiate command's negotiations on a new the parties can come to agreements that are necessarily reflective of the requirements of the statute or what happened when the if the negotiations this case the negotiations failed right if the negotiations fail which they did to what happened then neither party has the right to come to the commission and hear what their rights are what actually happened what happened when and the parties started to quest request arbitration yes quest ultimately requested arbitration or an objection to the request for arbitration at that time no there was not thank you counsel