think of this appeal as an appeal about the merits why is the district court wrong to think that you lack a good statutory claim well this record i wrong for two reasons all three reasons your honor number one there is no record evidence that there is an established business relationship between kraftwerk three and either that is contained in the junk faxes does not comply with the standard what the court said is right understand it is well the wording of the opt out is defective but it didn't make any difference because craft was in fact able to opt out now why is that a mistake a legal mistake because are you denying that kraft would did indeed opt out is that there's this factual dispute mr brown has attempted to opt out but interestingly enough he did not do so in a legal way in the sense that the law requires that an opt out request have certain subject matter and he didn't do that in a proper way and the law is is there factual dispute about whether this enable kraftwerk to opt out in fact after it purported to opt out did he get any more unsolicited faxes there is nothing in the record to suggest that he received additional unsolicited faxes but he did  i'm asking is whether that entitle her client to a remedy it was good enough to enable an actual opt out it does because the injury occurred before the client attempted to opt out one because he really isn't is correct or not the opt out language is important only for somebody who wants to opt out or who for example doesn't know he can opt out that's why i'm asking the question this way the the injury was suffered before the opt out no the injury that was suffered before the opt out was the injury of getting any facts that is correct that injury would have been  the opt out language been letter perfect and and that is true and the injury is receiving the facts and the leaven circuits that in florence indicating that the injury results from the facts and then going on the hol don't thinking back in standing terms again i said don't think about standing there is injury in fact for purposes of standing the question i'm asking is whether there is a statutory remedy well the language technical deficiency is the third requirement element of the established business relationship defects it is not enough to have an established business relationship the third component is that there be a sufficient opt out notice that's the only precisely cut it is argued injured by the plaintiff's conduct as to the question of what on the merits is there a viable claim here the answer is yes because all elements of the opt out disclosure are required there is no substantial relate there is no substantial compliance standard at work here when you have a federal statute requires mandatory disclos district court in this case ignored the concrete injuries that plaintiff suffered the court nevertheless held that in order to satisfy it were to have standing the plane that had to show that the plane was injured in the case of duke power that we cite in our preferred the claim that there was that the price anderson act was unconstitutional you do you think the supreme court's impending decision in p d or network will bear on this case on the question of whether the opt out regulations are required for solicited faxes that does not bear on this case because there is despite the assertion and the headings  appellate brief there is no evidence that these faxes were solicited and in fact the only evidence in the record is that the defendants did not obtain tryer express permission before sending the network could bear on this case no because we have a right also you can say no when you've already told me you don't have any clue what it is your honor said that it had to do with the validit withstanding i don't think strawberry to think that standing turns on an affirmative defense well if he if it is clear from the record that there is rather than standing in an situation i think its merits and by the way i mean if you're saying why is this different a violation of law now where do you find that in the supreme court's cases well i think that standing as an issue should be decided which you would address my i don't so i can't see why this isn't clear standing here there's an injury in fact getting in on a lot of facts uses up a little toner and disturbs peace of mind caused by the defendant sending a lot of that's the point you can't say we win on the merits it's true there are disputed issues of material fact but if we make this is a standing motion the judge can resolve those issues and therefore the judge can say defective opera choir members but to protect them from on want to faxes and yes they're able to opt out regardless of the technical deficiency is because congress the purpose and act in this law was to protect people from unwarranted facts advertisements that was congress purpose you know what the supreme court says these days about asking what was in the contents of legislati court we asked what they had and what they enacted was the prohibition of unsolicited facsimile advertisements and in two thousand and five they said well will carve out a special safe harbor if you if you touch