thank you for being in the afternoon so that we could appellant individually and as the former representatives of the now decertified classes that were serving claims against global telling based on its unjust and unreasonable calling rates and fees for in may calling service seek the reversal of the district court's decision refusing to refer to central questions within the special competence of the f c c to the f c c under the doctrine or jurisdiction referral without the benefit of f c c guidance and based on errors of law without recognition of the disputed facts in the record that precluded the summary judgment in favor of the discretion review right  appropriate factors and even with an abuse of discretion standard if a court fails to give significant weight to the proper factors or commits a clear error of judgment in weighing those factors then that's an calling services the that in that decision they are you referring to the question whether deposit fees can be segregated between interstate intrast determine which portions of the site commissions are a legitimate are related to the provision of i c s and therefore a legitimate cost that can be recouped in rates and which are not i thought their could claim was certified because it provide a common question but the d c circuit went on to say we are remained in to the f c c to determine which portions of  commissions are related to the provision of i c s and legitimate and which are not leaving it leaving it making it clear that there was still a question that remained after the psych missions can be it can be determined to be illegitimate and therefore not recovered in rates they one question i have is whether would make any difference what the f c c might say prospectively if this matter were to go to the c and they were to say we think we can sort out interest state and interest state deposit fees and we're going to set a limit on interstate deposit fees why would that make old they gave notice to providers when they originally did the interim rates on an f c c our rates it said in that very same order and we're also putting you on notice that even if you have compliant rate you may still violate  their applicability yes but i don't know that the guidance that they were at and that is in fact the very happy was that was used ultimately and was accepted in the final rule which the d c circuit said was justified so i don't i don't understand that two thousand and thirteen order to be stayed with regard to that particular factor because it didn't it didn't place in terms of rules in effect on that it gave guidance as to how the court how  s providers are still acting as if there are regulated under the deposit into every fee regulations from visiting the f c c site i believe that my colleague probably would have a more definitive answer on that one but but for her because that was consistent with f c c law generally that cut fees fees and rates must be cost based that's a general proposition and it was consistent with the guidance that was provided in the two thousand and thirteen rule that put the interim rates in place there for the end at the two in the two thousand and fifteen f c c or rule those rates were actually adopted and these d c circuit said that suc interstate from interstate fees that rule would not be in effect your case before your time's gone was it was either the commission fees or not and you yeah you never had a theory i think of split up our theory of our case was based on the on the pronouncement of the f c c that qusai commissions were locational rants and therefore not properly considered cost of delivering service that they were they should not be included in the rate and that was the position so therefore that's common question is that right or is that not right our position is though that the change in the law has said you know what is not true as to the whole the whole site commission but a portion of that site commission still on that would be common could be common depending what the f c c says cannot be included because it's not legitimate what that portion is at this point we don't know is there still a common question now without the guidance from the f c c how do we know that and that's what and as to the class claim on the rate that's why the d c the that's why the district court should have asked for guidance because if it comes to pass people the relief they would otherwise be entitled to would result in an inconsistent a disk term nation that's inconsistent with the way the f c c ends up regulating this and denies people relief for what has been generally recognized as rates that are high and pretty present serious problems across the board from the you know the commissioner of the f c c to to the d c circuit in that's been something that's generally been recognized so that always in favor of saying well negotiation process we can have we have people who can say what the business the business case was for that unless you look at all of those things how can you determine because there's how can you determine whether the race were lit legitimately included the entire commission when you have a circumstance where the district district d c circuit court has mandated to the f c c the question which portions are legitimate and which are not with regard to that so the for the individual only if you assume everything in favor and in for everything every outcome of law in every outcome of fact in favor of the of the defendant which is not proper on a motion for summary judgment do you resolve it in favor of the g t o with regard to the individual deposit claim i do want to make the point that the individual who the individual was the representative of that class made only interstate calls and therefore there's no segregation issue with him and therefore his claim should not have been dismissed commissions in ancillary fees in fact if it found justified the method that the can the commission used and i think that i want to save a little bit of time for everybody you know i think oh i'll sit down very well you may reserve the balance of mr hole hear from you write well we wanted to go to the f c c because we knew that this entire legal regime was being challenged in the d c circuit and so we said to judge brooks why don't we see how this shakes out in front of the p c circuit before we start going down the path of expensive civil litigation as it turned out of course the d c circuit invalidated whole of these orders and those orders were the legal predicate on which the plaintiffs had brought their entire case today of never take effect vacated in part by the d c circuit but the parts of it that were not vacated were then remanded to the agency and those have gone into effect including the ancillary rate caps and slurry feet caps rather i think it's to be clear the at cost regime is the regime that is the predicate for the plaintiff claims the planets then brought their claims after the two thousand and thirteen order went into effect then the is the ancillary you say has gone into effect after the remember that was it ever in effect for them it was not and mr hobbs the only plaintiff that has brought a claim related to deposit fees did not pay any deposit fees while those caps were in pla his claim as i was about to say is not that the g t health fees are higher than the caps d t l has been complying with the caps his claim is that the fees cannot be higher than cost that o cost based regulation we don't require fees or rates to be at cost instead we're going to impose a regime of caps both on rates and on fees and there's a big difference provide the deposit service for zero dollars fifty cents they're still allowed to charge three dollars there is no claim that it is unjust and on reasonable to charge in excess of actual cost and recover the two dollars fifty cents that the provider has made by charging the cap and even though the cost for zero dollars fifty cents but that's exactly what mr hobbs this claim was so as to the summary judgment issue it was absolutely correct to grant summary judgment for d t l on the deposit fee claim because the deposit flea claim rested on an at cost theory that the f c c had rejected and not only that the cost that the plaintiffs tried to calculate took no account of slight commissions and therefore their theory was completely inconsistent with the d c circuits decision in c s a that the site commissions had to be considered setting ancillary fees or just rates that the d c circuit said site commissions are a legitimate cost of doing business as long as they are a condition of providing services at a facility that's the limiting principle and it said that without limitation it didn't say you can only recover these site commissions through your rates it didn't say that you can't recover them through your ancillary fees and so judge brooks was entirely correct to read the d c circuit decision as saying these site commissions are required by the government in order for i c s providers to provide service at these facilities they are a legitimate cost of doing business and if a provider as the record supports here is trying to recover those costs not only through their rates but also through their ancillary fees that is legitimate under the communications  expert had a very good illustration of the point there was a situation in which g t l had to pay much higher site commissions to the government site commission went from fifty six percent of calling revenue to eighty percent of calling revenue s said well we can't make a profit if we have to pay eighty cents of every dollar to the government but the way we can make a profit is if we can increase the ancillary fees that we charge because revenue is revenue and if we can have two  of revenue that in combination cover the costs including site commissions then we can make this work and that's exactly what they did so that when the f c c set the three dollars limit did they explain whether that was designed to allow for recovery of site commissions or what they what the f c c had said was that the ancillary cap fee caps were designed to prevent the providers from recovering site commission prior to the d c circuit decision but they never went into effect until they were reviewed by the d c circuit and then remanded to the f c c and they went into effect they did go into effect so they were c c thinks that it's still a valid three dollars cap that with circuit says site commissions are a legitimate part of doing business it vacates the rate caps it also casts doubt on the validity of the ancillary fee caps but it does not vacate those instead it remands them to the agency to determine whether the caps are valid and whether it can segregate inter state from interest fees but as a technical matter those ancillary rate caps because they were not vacated are in effect starting in two thousand and seventeen and even though the theory behind them was you can't recover site commission absolutely that's the global crossing supreme court case that we cite in our brief i am familiar with the haven's case that my my adversary raises i don't think it's cited in the brief but it actually is directly on point on this issue the rd circuit in the havens case from two thousand and sixteen said to have a claim under two a one b of the communications act you have to have an  order then the bring the then the plainest file their claim then the f c c says forget about the two thousand and thirteen order we're superseding it with the two thousand and fifteen order the plaintiffs then try to reshuffle a little bit but they're still pursuing as slight commissions are per se unlawful to recover and two is that deposit fees cannot exceed the actual costs of processing not including any site commissions both of those theories went out the window with the c circuits decision and so the question as i think my adversary concedes is are they entitled now to say we don't actually have a theory currently we don't have a rule that says what portion of site commissions can be recovered we don't have a rule that allows segregation of deposit fees but we're hoping that the f c c might provide us with such a rule in the future that doesn't work one because they are of the retroactivity point any such rule making will only apply just as a district judge would be rigged well within his discretion to deny an amendment to a complaint four years into a litigation when a plaintiff wants to pivot from a theory that's proved untenable to a theory that they now think maybe tenable judge brooks was well within his discretion to say we're four years and you hitched your wagon to this star and it's too late for you to go to an agency in search of new and different theories do you think it is abuse i'm sorry want to remake it here are these people without any remedy what happened water under the bridge well let me let me say a couple of things in response to that one is it is it is true that the f c c has prior administration put into effect is the regime that it wants to put into effect so at the moment the plaintiff is sort of the customer according to his now under bill to public be damned yes well i think you know the agencies are allowed to change their position and the current agency doesn't believe in these regulations and this goes back to the need for a predicate the need for a what the need for a predicate in other words that or what should have that there is no right now in other words a civil plaintiff doesn't have the ability to come into a federal court and say we would like a practice ruled unjust on reasonable even though the agency has never eat said a to continue down the path of i c s rick rate and fee regulation what the right what remedies they do have i would highlight that the decertification decision in this case was actually quite charitable to the plaintiffs given the summary judgment rulings the district court would have been well within its right to grant summary judgment against all the classes but instead what it did was decertified the class meaning there was no claim of effect on any of the absent class members and any of the absent class members would have been free if they had wanted to to go to the f c c and say we think that there needs to be a new rule making and unreasonable rates is a very broad one and so the courts including supreme court and the havens case that i alluded to before have said you st need to have an f c c order in your hand before you can go to a federal court and seek damages voluntary payments is a defense to under estimate richmond in all the states and voluntary payments is an individual ised issue that defeats class certification on the merits his preemption analysis i think was also exactly right unjust enrichment on entire payment that's sort of a hobson's choice and well it the what judge brooke said and i think this is exactly right is that there were mitt many instances many people that had the option of making free calls or of voiding the deposit fee altogether by paying through other means maybe there were people for whom it was a hobson's choice but there were lots of other people for whom it was a free choice stuff money into the commissary account there are lots of other ways that you can pay this is basically a convenience for four people and mr hobbs himself said i just didn't want to be bothered with payment by credit card and that was the real only reason conduct and the only wrongful conduct the plaintiffs ever alleged in this case was that d t l had violated section two a one b of the committee communications act by charging unjust and unreasonable rates without that hook there is no viable unjust enrichment claim that simply says i paid too much for my rates and fees and i'd like my money back so that is why  actually apply to deposit fee claim yet because of voluntary payment doctrine decision the court made earlier so we're only talking about the rate fee claim there and with regard to the rate fee claim there is no evidence in the record that people were generally able to just choose to get a free call versus a non free call the record shows and we've cited that in our briefs that at booking and of certain limited circumstances before becoming part of the general population an individual might get some free ca therefore the calls that are plaintiffs made when they were paying rates outside of those circumstances get rate rise to their at least the very least to their individual claims and on its own those depend to a one b monopolies that the ice that g t o had exported that position in order to expose extract claim to more more than they were entitled to and i said how do you decide what they're entitled to doesn't that depend on whether the rates are regulated by someone because the f c a preserves state claims from section forty one dollars for i think that the claim under the state unjust enrichment law would still be able to proceed in and that was held in james versus global telling the court they're allowed that individual claims at least to proceed i want to address briefly the deposit fee issue because the two thousand and thirteen quarter did not put into a fact interim caps on deposit fees it said we're just telling you we're giving you fair warning that this is how we are going to interpret this statute and that is a predicate that's allowed as a predicate you don't have to have a regulation and if you look at the global crossing in the hague havens in the cases that were cited by my colleagues you will see that there is no determination that you have to have a regulation and you have to have a decision that people know are notice and they had it that was not it couldn't have been then stayed because it was in a recap it would end when things are cost based they are cost based with also allowing for fair compensation and that's the way the f c c has approached it forever and i don't think there was ever a time when they said you can only charge the cost of your ancillary services and we presented a lot of evidence on the record as to why the deposit fees grossly exceeded the cost of some of the service that has been our that was our our theory since the beginning that's the theory that the district court relied on certifying that claim and that's the theory that we would have presented to a jury our expert had a different analysis and their expert our expert with a different compares and their expert district court looked at none of that in determining that there was no