consistent with a presumption of judicial review of a vision agency action we have along allowed the availability of other avenues of review to affect our assessment of our jurisdiction how is that not make is the opinion of our court now and i'm duty to them to respect as fully as possible and so i'm just trying to make clear here how this is an analysis that internet related to me sounds like an analysis that was necessary to the if you read past the point that you quoted you then get into the discussion of this particular issue and what the court says repeatedly is the complete commission contends the commission contends and then when it gets to that conclusion it says that if i can pick up that language i'm just worried about the internet in your language he was disgusted or argument again other than the commission which was offering this up as an alternative to gordon that the parties didn't address it and the court clearly did not resolve it because they said if this is true it was quite clearly saying if your issue is right then this is true and it's also true of rules in particular and in two thousand and ten in the dodd frank act because what congress said is for immediately effective rules under which are governed by section nineteen b the commission has only sixty days upon submission to s for a couple reasons st of all if you look at the other types of activity actions that are subject to review under nine hundred and eighty it's things like disciplinary actions decisions denying membership to particular individuals they're all focused on entities and then the th category of fee was it'll be a one million dollars for new pop up investors because for some reason they don't like papa asters new that when the s r o is considering whether to impose one of those restrictions on it on a party it must give that party notice and another to need to be heard when it is considering whether to do it in the rule of law and even even the rules that comply with any fine the actions all applies to failure to pay into your other dues or fees or to file prescribe forms or reports but i'm not sure which really are referring name of the person to whom the limitation has been applied to course that's nonsense ago and when you're talking about a generalized fuel they have no idea who i subject i am just asking about if you had it by a terms discriminatory fee is part of language to section one thousand he hears you but the question was they filed a petition saying that this was you know excessive or discriminatory the court heard that it appears that there was no argument made before the commission that the commission should act under that statute so when it came to us it was too late to make such an argument but nonetheless you know they proceeded under that statu where the parties were disputing applicability of that review process and were only fighting about the merits and the court i just explained why d n a is the last on the merits and i said never under these circumstances believe is appropriate that's not really on the threshold question of the commission's jurisdiction and of course between limitations on services and rules by requiring that the united nations and services be judged against the rules which makes no sense of limitations are rules and finally the point made in our brief that the remedy that the commission totally misread it what you meant by most customers can do to discipline pricing through litigation and i think that's a reference properly understood to the to the to their office to participate in look right i don't know their record doesn't reflect and i don't know the answer to that your honor but i'm not going to get into the way that the statute works is the the party again it's not that and the way it normally works is not that some party comes to the s r o and says please determine whether you get let me it's that the s r o determines that to institute a proceeding to limit or deny membership to or whatever it may be and then at that point under sixty two dollars because it's an equation i do to get it proceeding they have to give notice and an opportunity for thought i heard you say earlier course that's not this case look at that could perhaps be dealt with under nineteen are you are you now saying that it can't ever be thought i also said if you don't agree with that for purposes of this case that's not the question presented you can still rule for us on the generalized the real issue and leave for another day the question of whether is prohibited from purchasing this product no fee is high enough and your position is that they could not then seek a proceeding under nine again it is if you believe those words in the abstract without any context or structure around and it would be possible to give them a broader meeting but when you look at the list of other things they're in when you look at the procedures that congress contemplated when you look even at the commission's rules recognizing that these are two to get proof there and the disciplinary sanction was imposed your the prohibition on membership was imposed on me i'm putting in my own minds appeal over and seek review by the commission and then someone has to demonstrate that that is sanction or prohibition is needs a statutory terms is consistent with the interests of the statute in the commission seek to principles of statutory construction as a supreme court has said when the statute doesn't specify who bears the burden as is immediately the case here the moving party bears that bird and that's exactly the error of the commission maybe the other hand if they were proceeding under nineteen be the way he say they should use arrows we have the burden of demonstrating that the rule complies with again there's sort of list of statutory factors and concerns and considerations and applies there has been a proceeding it's like you know it's an appellate proceeding where you don't with as if you don't ask the question has the bare burden of proof on appeal you ask who has the burden of proof at the commencement of the proceeding who is the moving party to commence the adjudication and case where the two the two peoples at issue here that that commission adjudicated without any hazara proceeding at all what they said is in answer to our arguments about how this makes no sense it's inconsistent among other things that the sixty two notice an opportunity to be heard before arose because that leads us into the standing question and it leads us into how what the process really is in what a real section one thousand the proceeding ought to be and the example that i'm going to give you is of the listing of a company and so for example when a company is listed by one of the n y s e exchanges that company is given notice it's given an opportunity to object it's given an opportunity to have a hearing every witnesses can be called for example and a record can be created and it's then given and then that there's a hearing about that there's a just there's a determination issued and then and assuming that the determination is that the company is the listed then that notice that becomes a notice that's provided to the f c c under section one hundred and eighty and apart and the company that is listed then has the ability various briefs about have the walls been complied with and so on and so forth come from if your views whether the rules have been complied have been up i consistently with the s arose roles whether there can if they've been applied consistently with the exchange act and whether the the the answer for and the burden of proof under those circumstances is with the us or i can give you a citation to the commission before the commission in the context of that sort of the proceedings on posing the burden of proof right if you lose your nineteen do you argument and where in that world then i guess we have to agree the burden would remain on you just as it does another nineteen to proceedings if this is a proper nine hundred a proceeding but there is i can give you a citation to something that's not in the record that will perhaps assess the case called navistar and maybe i asked t a r it's actually one of the listing proceedings that i was referring to is the is the application of a rule not the not the rule itself so that's that's the the the argument me let me just if if if if in the commission in the room making say you know we think that is petitioner sif muna makes a good point these rules are too high and so our proposed rule is that  what would typically happen in circumstances like that is that there would be it would be done by submissions to the f c c in connection with that well making proceeding there with the star would obviously try to justify its fees and say no you're wrong commission it shouldn't be a twenty percent drop you should leave it where it is or maybe have a ten percent drop but there would be and obviously other interested parties would be permitted to address that issue as you framed it here or there is it's not clear that there is something that directly into a burden of proof under those circumstances but again you know that proceeding is important because sigma wasn't denied access to anything on the record and i specifically direct you to the jurisdictional declarations just by way of example page one hundred and seventy eight of the joint appendix then that's all they would need to show that they're injured on the other hand if you actually have to show some sort of individual lives limitation you wouldn't be in this nineteen but that's that would be rejecting the commission's view of one thousand dollars days application  general fees and i don't see where this is how this argument vance about seems to me to arise where they have to show depends on what the nature of the proceedings it's a narrower are given essentially the argument is that even if the court were to find that generally applicable two things one is even in the cut even if you would engage in the association of standing analysis it has to be done statute by statute so this is a different situation than section twenty five right so you got a book again that the structure of section one thousand nine hundred and eighty and see how would that informant that sort of an argument and here what it would require is that sifting assuming you were going down that road which we don't agree that can for the reasons that we've set forth in our briefs but assuming that you were going down that road you would have to look at has system a demonstrator did that in fact some of its members were denied access and that's view fees are inherently limiting there's just a barrier to getting these services are a barrier they can be surmounted but there are a barrier that you've got to deal with and they've made sufficient available but not that any fee can be can be found they found sufficient declarations here by the individual members based on the fact that they said they paid the fee so i don't know how we can say that doesn't mean the commission thinks that having to pay a fee is a limitation although if you compare what they said in the procedural order which said there needs to be and that kind of gets to the difference in what judge sent i was asking in the procedural order they said there has to be more evidence there has to be evidence from members that members were denied or limited access and specifically what the commission said in that context was and it can't be just that they think the fees are too high that's what the commission's own procedural orders sat but if you look at the  were actually submitted for example the one from the good night on page one hundred and seventy that's all it actually sat and so in fact there wasn't enough and the only things that are in the record from actual members are inconsistent with relates not only to the example that your honor gave about the one hundred but also to all the other evidence that arca and nasdaq submitted is that it was an uncontested signal was in the best position to put in as to if you found that they were wrong on substitutability but not on the order flow when that mean your fees are still not competitive at l won or two and so i asked of them if they were wrong in the analysis that they were arbitrary and capricious or lack substantial evidence in their analysis of the substitutability issue wouldn't we still have to how would you win there because there still would be the problem as to the one hundred dollars that your prices would not be competitive because they are that's an order flow argument so with respect to the one hundred we actually disagree that they have to buy them i get that i'm just trying to answer what do do you have to do you have to cover the board here to win now i don't see two different markets we're looking at competitiveness them i don't think it's that there's two different markets i think it's that there are different business model choices and there is nothing in that coalition one that said that all business model choices have to have perfect substitutability demonstrated for them that i think was one of the the  errors that it required perfect substitutability that was something that the commission held against us that we weren't able to demonstrate one of the reasons we were unable to demonstrate is because it's not evidence that the that the exchanges that they were spot on on the order flow argument i know you have disagreements of not i'm just asking what happens if that's the outcome with respect to the order for if you find that wins  are actually the arcus and nasdaq's competitors so you have to take that into account as well that's something that we've talked about in the briefs very significantly that these are entities that in many instances are using that may be a better way to answer this is that i don't think they can win on the order flow with respect to that because in most instances the one hundred are actually using our market data to compete with the with us i want to make sure you can hear me please the court i'm the credo on behalf of the securities and exchange commission in two thousand and seven the nasdaq stock market filed a petition with the commission alleging that it was denied access to the services of petitioner c t a in the nd case by means of an unreasonable fee this is no accident it was no nominally need both the commission and this court had already recognized that and legibly unreasonable fee could be reviewed as a prohibition or limitation of access to services or use and mastic yes they did citation it's on page forty so the only thing that's changed is is where nasdaq steps today and i submit to you back when i think it's changed this court now history to statute and interpret it doesn't always mean parties i mean we get it right that is absolutely the jurisdictional holding in that case what we were arguing and the reason why we were putting that forward as an alternative is because we were aware that the court would have to follow a presumption against agency review beli agency action action and essentially that decision was that the commission's non decision to suspend immediately effective rule would be on reviewable so look at the judge and how it was on the panel themes here as opposed to some of the hypotheticals we were opposing or any as a dean where there are some reason and individualize shelling or targeting of a fee that could be what  defunct industry group the challenge was to the same exact arc of book fees that are before the court today after their coalition one in which this court found that there was a lack of evidence to demonstrate either the connection between order flow and a competition that constrain the pricing of dept of book data or the substitutability point congress changed the law on di frank and it said that you can file immediately effective rules the next month nice yorka filed the same rules same fees and so the issue before the court was when the commission passed on that and did not suspend the rule whether that was reviewable and then the case was brought was any s d i mean i think the difference between general or specific here it wasn't it was a vendor fee so yes the road one vendor in that case that was affected by the fee but i don't believe it was written in a way that would only mean that is really is a distinction without a difference for these cases what you have is a requirement in the exchange act that all rules even mediately effective rules can be enforced only to the extent that they're not consistent with the rules of the exchange so they always do need a rule to apply when you're talking about this and that rule was applied in a manner consistent and the rule was consistent with the data and so congress built in this established nicholas sheley one all these cannot be unreasonable they cannot be in reach of the discriminatory and so that process requires the commission to consider and to determine whether or not if he is reasonable the nd they impose that fisa before they impose the fee they have to give notice to the world the most as the commission sent that they're immediately effective filing can be construed as the notice to the world  wrote giving notice ahead of time or in compiling the correct record when the commission for example in the two thousand and fourteen procedure order when it sent it back to the doing l j to very different and so insane that adopting this view of general means that says you just you know you will give notice when you do your nineteen the filing which is not before you advance notice isn't going to be by a trigger for the review process because it's no different in the targeted feel exactly all that you are giving to again so it's the same thing it would still be in immediately or the commission set forth a three part test that a petitioner would have to me in order to to have a review limitation of access and under that it would have to knives that there was a limitation here would be an unreasonable fee it would have  basis for why i believe the fee to be unreasonable and it would have to show more importantly or most importantly that the fee went to some sort of substantial or fundamental service of the exchange and so i think that would be the for monfort was a chaperone case so and multiple agencies are involved there's not just one regulatory agency that's involved in the nineteen due process right now as to these opportunity to i think you just said you were asserting deference in your brief we did what they did when we surely you're the expert here here you've read the statute you're aware that it applies to multiple regulatory agencies so you realize your burdens different if you're going to invo hard right in your brief to show why it applies here don't you know you know that right yes but you didn't do it you know we did not anticipate that argument here it's not a statute that is often construed by anyone but the interesting i as it turns out as a broker dealers they are whether or not certain members include investment banks i mean i imagine it may be so i don't know i don't really consider myself pointing to any inconsistency in our interpretation as to any other regulatory agency and i thought your argument for why now you are trying to reconcile the nineteen the process which would lead to allow these means to become me what's the difference between effective and of course when i'm handed a menu at a restaurant with prices listed on there they're certainly affective rule taking effect that says don't cheat or you'll be kicked out or suspended right there we'll take a fact and then you wait till someone violates and then you have a horseman action but it sounds like here you're saying you're somehow protecting the effectiveness under nineteen b by saying yes they'll take effect but as soon as they're enforced you're subject to nineteen d but the nature of  fees to have to go through lengthy processes before they can be charged that was a whole reason you don frederick put in this immediate effect of this provision and if the commission has now interpreted nineteen  know before you do your nineteen me filing or the nd you do your nineteen be filing you can get stopped by a nineteen day complaint which i think is probably always going to happen now but it doesn't stay the the feet could be continues to be charged unless the commission either stays it directly or finds that it's a limitation of access and sets aside percent to nineteen before they move but you normally have to go through that process before you post a limitation it depends on the limitation there are certain circumstances in which the changes have not gone through a process and yet there was a challenge or a limitation of ac that's the way nineteen d works is sometimes you do it before the limitation and sometimes you do it after but i couldn't speak to the fact that the commission has those cases in which it says it's not conditioning it's review power on whether or not the fees a limitation on access you don't have to do it you don't have to go through the nine hundred and eighty dollars process before you impose them what i'm saying is the mission pointed out that the next in the process could be satisfied both with the cross we i mean there are ways that the commission can engage but i don't know as an industry i guess x i suppose as a individual if it's an individual exchange the commission has the ability to ask for information through its normal inspection process getting it isn't the alternative that the exchange is what you believe it is i mean if if they think that hundreds of limitation of access challenges being reminded to them it's cumbersome imagine the hundreds of rule making that the commission would be required on that their interpretation to engage in order to you know reach whether or not any of the scenes that they challenge are actually reviewable limitations of access how w as i said the records that come up are deficient so the commission either can send it to an l j or can send it back to the us euro to compile the records but these cases and i don't want to get ahead of us with the greenland question  these cases all that commission said in that order was we remain and for you to consider in light of our decision and said no and so we're going to give you the st opportunity to apply that standard we set forth in the procedural order and  making the procedures etc so why isn't that just of support of zero crossing well it's not when you're talking about the extend into the sometimes narrowness of the fe period if there's a suspension they pull the world file and then they resubmit and then they go through the process yet again and so i think it's i don't believe that the most efficient way would be for the commission to attempt to address each one of those with a notice or comment rule making putting in fact in effect all of the requirements that that this court you know knows that it has to go through when engaged in the rule making particularly when you're talking about a fee that may be pretty specific as to to whom it's it's directed for example in this case you know the it's the depth of book data products are the fees that have gone up or the fees that are targeted at the non display users over over the last decade and it would be i think for the commission doing a rule making to try to address that aspect and other all the other aspects of all the other types of fees that we're additional style is there a mechanism for the commission to seek further information from the s r o to just kind of at least assisted in making a determination as to whether or not to commit such a rule me out presuming to there's a process just just just you know petition is filed and they say under nineteen the commission could call for some sort of response from the s r o in the asking for certain information about the fee and set it up and what the basis for it is considerable to determine that i mean i think it may be an avenue but it doesn't provide the same judicial review it doesn't provide the same standards for the us or uk there are the cries a government governmental entities here they're charging fees without some sort of review process that would be unchecked unless the commission gauges and rulemaking which is a not a very streamlined process requires much in the regards under the a p a and that's all fine the commission is proposing a rule to do certain actions act to take certain actions it within this realm but it doesn't it cannot cover the ever changing quickly evolving securities markets and  is why congress put it this in as a backdrop or a backstop to it and in the legislative history from nine hundred and seventy five i was concerned that was creating monopolies of securities information processing article in the new york times that this hang on something looks wrong with this you now to write a letter or to request information from me as sorrows to a response d what you're saying is that in essence yes or no somes can't have to fox guarding the hen house so the speaker we have some independent hearing officers of some sort of mechanism whose name escapes me right now they have hearing officers that they're hearing officers would develop a record in kind of make findings and then if one party didn't like death finding they would seek review before the commission right that's correct me it seems to me that part of what's going one here is  the record development so i have that option as well but yes it is helpful to have the s r o determine these things in the st instance sometimes the records that are part of these he filings are are not the most developed effect and then so we i'm assuming this commission has a standard that would change campbell everything's around and someone comes in during that thirty day period and says i'm feeling very limited what happens then you have to do when someone comes in and says they've given the notice right and someone comes in and says yes i am check to be in a limited way then they have to go through there if you're in process if they file it with the commission then they do not have to go through the process if they find that the commission pointed out it's order it can get in visions that the filing itself could could double as the record from the limitation of access process all that it sound if the exchanges wanted to they could just certify and send it back up and say we think it's fine and since you're so i know that at the time your decision here there were only four hundred challenges to he's since us since the very beginning i should at least start by saying that no matter how you look at this the reality could not have been what congress intended which is that the exchanges have been allowed to file unreasonable an unfair fees and charge them for more than ten years without any reasonable opportunity for review and what we know from the decision of the commission in this case is that the grounds upon which they originally asserted that these fees would be fair and reasonable which is a you know the core mandate of the securities exchange act is that there would be real competition and the one dollar thing we know is there is no real competition that constrains the fees that the exchanges charge and the reason we're in this awkward situation is because congress in the middle throws in the monkey wrench of all amid a judicial review clients consistently relied on that and said fine if the nineteen b doesn't work then the one thousand de does wasn't crazy wasn't a crazy idea and has the upheld that theory of limiting mean on the facts of the case that's true but all the opinion says basically is that if you increase the net case a fee by one hundred and fifty dollars that that limits the access within the meaning of section eleven a case where they went through and explained how it was i mean they actually described how it was a limitation in that case because it was just don't you think they couldn't pay it economically no economic sense to right but the but i still think the from a relian standpoint as a regulated entity being told by the commission that if you are in fact charged an exorbitant fee one dollar that cannot be justified as as reasonable and fair that you have it you are entitled to bring an action under nineteen d and and they then will have to demonstrate i think that it's going to establish the burden is on them to show that this complies with with the fair and reasonable standard but to protection is obviously hard to square with reality because we're sitting here with four hundred and fifty dollars increase requests that have been in effect and charged and paid well that any evidence whatsoever at this point that any of those are in fact fair well and resigns challenge the commission's odd view here that unlike most limitations under nineteen he they're not supposed to take effect until you go through the process well i mean we can ask them not have huge i mean you think they leave it up to you have you not you're challenging their decision in any way with even though it allows fees to stay in effect which is at least as i understand i could be wrong not normally how the nine that's right imitations on access you know have to go through the process before you get on and force the limitation right although i don't read section six is as saying at least necessarily that this pre deprivation i mean that language  in connection with making a decision to find you have to give notice an opportunity to be heard before does it say exactly when the notice an opportunity and are you aware of any other but i'm not aware of any other situation where you would where you wouldn't with as a pre unfortunate process i don't know of any that fall into that category on the other hand the statute doesn't talk about pretty and i'm saying if you're complaining about the fees being allowed to stay in effect even though commission here's how this has always worked as far as we can tell and so you can actually not let them charge these once what challenges illuminate we can make that argument but at the end of the day st of all the reason why we don't go to the exchanges and ask them for relief is because that's unrealistic they are they are the ones who have created these fees they have created this revenue flow the idea that we would go to them and ask them for a hearing on this and i to tell somebody else yes but that's normally you know things normal rules normally operate until someone comes in and jacks to the unlimited and then they don't have to enforce it well except that i actually think the way nineteen be seen the operators is not adjudicatory versus rule making for some other versus disciplinary i think it's very unfortunate generally rulemaking in general and then post in force i mean how you deal with it so they answer your question so they executed it they're charging us presumably if we decided at some point if one of our members said i'm not paying that anymore i still want to have access they could bring that as an unfortunate action and say it's unjustified the question is is is that it is that the only way you can get  that you have to in fact deprive yourself of access to a market that's extraordinarily important as a condition for being able to bring their knowledge to what what is it that as we look at it right now rates that are unfair and unreasonable and unjustifiable and i say to you i don't think that's the way it is the bill i think is quite reasonable when congress cut off one thousand b said that you're entitled to have your full protections legitimate method by which to do that and that we think that's a reasonable construction i don't know whether that's a matter that you would defer to the chevron manner but i do think it's something that the court out of the fur to the expertise and experience of the commission and it's certainly going to do it question is i understand no they your commission has the exclusive the story to regulate us under these provisions the i'm trying to remember where i read this but i thought that the way that this was handled understanding so so i correct with that that that that at the end of all of this if there is a nineteen d proceeding cetera that the commission could i would like to think that they can give refunds i don't you know i don't i can't point you to a specific provision that gives them the authority i do know under one thousand nine hundred they can remit sanctions so the notion of some form of relief these release fees have never been determined and frankly we don't believe they are fair and reasonable and therefore they should never been charged and the right answer is they should be issued in fact be remitted to the to my resolve this sort of industry well st of all i think of rulemaking proceedings in general as sort of dealing with broader problems than would arise in connection with a single  idea that the commission would be asked in response to we say this is a bad it was a new charge has been implemented on on a particular device with a case it's unfair it's unfair and reasonable we want you to adopt a mean that's a much more cumbersome mechanism for getting at the decision then i think where we are now and it does go to kind of judgment to question about you know are we seeing a lot more filings know why because now the commission spends all because none of these weeks later they come back with the same thing i mean it's not unlike what happened in this recent case this court decided that there was there was no proof that these were fair and reasonable and the coalition won and as soon as the return petition was denied their file a brand new years and made it go made it implementable immediately and this that's just sort of what they do and so they can keep these and keep fees coming on a regular basis my clients have to pay them and the commission be more active under nineteen the better but if we didn't have the one thousand nine hundred mechanism to allow the commission at this point to reach the decision the ruling that's really at stake here which is that there are no there is no competition that constrains the fees that the exchanges set that the commission will continue to assume as it did at the very outset before it undertook this kind of an inquiry that competition probably does constrain those fees it now knows that at least we know there are exchanges out there that give this information for free if this if that constrain them every one of my members would be their own arbitrary capricious challenges here whole different theories that are in now it's the basis i think on which you can have the entire set of remains need to be focused because it provides the core analytical framework for all that goes on from here on out in front of the exchanges or randel to really in front of the commission a few years from the review at that point so it does it effects substantial rights in a way that continues on into the proceedings that will follow what i said down  the statute is clear the mechanism that the f c c has adopted for this situation just doesn't work with the statutory structure with respect to substitute ability in order flow i agree with the board of reed but that's nonsense that to do debility the case would have to go back to the commission operation of supreme court precedent the moving party bears the burden of proof unless the statute says otherwise here it is not judge wilkinson answer your question regarding the process when filings are made mr philips talked about that comment letters that are submitted and whether and you get asked whether there are mechanisms that  the f c c has to get in for me additional information the answer is yes two ways for in the st instance when they want to comment letter is submitted opposing a filing generally speaking the s r o that made the filing gets a call from the operation of law as congress required when they are when the statutory procedures are are are followed as they have been here and there is no entity that is challenging  these these fees as an unfortunate matter and there is no way for an exchange to insulate a disciplinary or discriminatory action as a rule to of it to somehow evade reviews that just can't happen the way these rules work and the last thing i'd like to mention is that you know mr frieda talked about the concept of showing that a fee was too high