[00:00:00] Speaker 02: Case number 23-5280, United States of America versus Facebook Inc. [00:00:06] Speaker 02: Appellant. [00:00:07] Speaker 02: Mr. Rohonda for the appellant, Mr. Caron for the appellee. [00:00:13] Speaker 04: Three minutes for reply. [00:00:20] Speaker 05: Good morning. [00:00:21] Speaker 05: James Rohonda, may it please the court. [00:00:23] Speaker 05: James Rohonda for the appellant, better formerly known as Facebook. [00:00:27] Speaker 05: The core issue to be decided on this appeal is whether the stipulated order imposed the injunctive relief in the FTC administrative order. [00:00:38] Speaker 05: That was the linchpin of the district court's decision. [00:00:40] Speaker 05: He disagreed, but the record is overwhelming on that point. [00:00:46] Speaker 05: The parties in the district court repeatedly said that what was happening was the stipulated order was imposing that injunctive relief. [00:00:55] Speaker 05: There is a companion question, which is whether the FTC has the power under the statute to do what it is doing. [00:01:03] Speaker 05: Does Section B permit modification or enforcement of the administrative order? [00:01:08] Speaker 05: So let me just start with the reasons why the stipulated order imposed that injunctive relief. [00:01:15] Speaker 05: The first is the consent motion. [00:01:17] Speaker 05: If you look at the circumstances surrounding the entry of the stipulated order, the consent motion was absolutely clear. [00:01:25] Speaker 05: Here's what it said. [00:01:26] Speaker 05: This is at A89 of the record. [00:01:28] Speaker 05: It said, the stipulated order requires Facebook to pay a $5 billion civil penalty and imposes significant injunctive relief, primarily in the form of an amended administrative order that would be entered by the FTC. [00:01:46] Speaker 05: In other words, the district court is imposing the relief that's contained in that administrative order. [00:01:53] Speaker 05: Metta said this, and of course, that consent motion was made on behalf of the government with the consent of Metta. [00:02:00] Speaker 05: But Metta also put in a number of briefs in connection with approval of the consent decree. [00:02:06] Speaker 04: May I add, it seems to me there are a couple premises that you're not stating. [00:02:13] Speaker 04: Number one is that the FTC has no enforcement authority. [00:02:19] Speaker 04: It has to go to a court to get its orders enforced. [00:02:23] Speaker 04: That's number one. [00:02:24] Speaker 04: Number two, the FTC has no power to issue an injunction. [00:02:32] Speaker 04: Number three is only the district court can issue injunctions. [00:02:38] Speaker 04: And so those premises then, when you apply that to statements like this, indicate that if the significant injunctions are contained in the administrative order, it has to be injunctions issued by the district court. [00:02:55] Speaker 05: Yes, Your Honor. [00:02:56] Speaker 05: In fact, the FTC, as Your Honor stated, has no injunctive powers. [00:03:00] Speaker 05: And in fact, what's going on here is not simply that the FTC is usurping the district court's jurisdiction. [00:03:06] Speaker 05: It's in effect usurping the court's injunctive powers. [00:03:10] Speaker 05: It's basically saying, we came to the court, we got an injunction, and now we're saying, thank you very much, court. [00:03:20] Speaker 05: Thank you very much, Metta. [00:03:21] Speaker 05: We'll take it from here, and we will issue new injunctions. [00:03:25] Speaker 05: That is not statute does not permit that whatsoever. [00:03:29] Speaker 05: So I would agree with your honor exactly those premises are exactly true. [00:03:33] Speaker 05: The error that occurred here was. [00:03:38] Speaker 05: I think the ramifications of that, as your honor said, is that's the premise. [00:03:43] Speaker 05: So you have to look for some authority, other authority that gave the FTC the ability to do what it's doing, modify. [00:03:52] Speaker 05: And if you look at Section 5B, that's the only statute. [00:03:56] Speaker 02: If the 2020 FTC order had not been entered pursuant to a court order, then the FTC would have the authority to modify it. [00:04:09] Speaker 02: Well, Your Honor, it only if there was just an ordinary FTC order, right? [00:04:15] Speaker 02: Yes. [00:04:16] Speaker 02: Administrative order. [00:04:17] Speaker 02: They would have the ability. [00:04:18] Speaker 05: Well, it would have to be an administrative order. [00:04:19] Speaker 05: And there's a clear distinction. [00:04:20] Speaker 05: They went to federal court as instead of what they did in 2012, they proceeded by administrative complaint. [00:04:27] Speaker 05: So if it were an administrative complaint and they met all the requirements of five B, [00:04:32] Speaker 05: then they could modify it. [00:04:34] Speaker 05: But if an administrative complaint means there's a notice of hearing, if you read the statute 5B, it has absolutely no application. [00:04:41] Speaker 02: I understand that. [00:04:42] Speaker 02: So even though, say I agree with you that the FTC has no modification authority over the 2020 order because it was entered pursuant, you know, by a district court. [00:04:52] Speaker 02: Um, why is why is Facebook's remedy not a petition for review in this right that that the FTC is impermissibly exercising its modification power? [00:05:04] Speaker 05: Because I think the injunction is appropriate in the situation where the government is proceeding in an improper forum and it was required to go back to the district court and to sort of because the district court retained jurisdiction. [00:05:19] Speaker 05: The other piece of this is [00:05:21] Speaker 05: The record is absolutely clear that the court imposed the relief in the administrative order. [00:05:27] Speaker 05: And it's equally clear that the court retained jurisdiction. [00:05:31] Speaker 05: So there was no other option for the FTC to do anything other than come back to the federal court if it wished to modify or enforce the order. [00:05:41] Speaker 04: I don't think that's what the district court said in its order approving the stipulated order. [00:05:50] Speaker 04: I read this on my iPad. [00:05:53] Speaker 04: And I'm now, for the first time, trying to read it in the appendix. [00:05:56] Speaker 04: And unfortunately, the important part of the district court's opinion is not in the appendix. [00:06:02] Speaker 04: I don't know whether my colleagues saw this, but it runs from A196 to A227 with a gap. [00:06:11] Speaker 04: But do you have your appendix in front of you, Council? [00:06:15] Speaker 02: I don't have it. [00:06:16] Speaker 02: Do you want to see this? [00:06:17] Speaker 04: Yeah. [00:06:18] Speaker 04: It's page 200. [00:06:19] Speaker 04: Thank you. [00:06:25] Speaker 04: I just wanted to point out. [00:06:28] Speaker 05: I believe the relevant portion is on A201. [00:06:43] Speaker 04: Well, the court said that the order doesn't prevent the FTC, and I'm quoting, from bringing new enforcement actions if it learns of additional violations. [00:06:55] Speaker 04: So if that statement is true, and I've looked through the order and the attachment, and I don't see anything that contradicts it, then this seems to me almost a tempest and a teapot, because the FTC could have framed up this revised attachment order as just a new complaint, couldn't it? [00:07:20] Speaker 05: No, well, that's not what it did. [00:07:22] Speaker 05: It didn't bring a separate complaint. [00:07:24] Speaker 04: I know it's not what it did, but that's all it had to do is just put that in there and then ask the district court to enforce it. [00:07:30] Speaker 05: I don't think in that passage the court is talking about additional violations in the sense of what has been alleged here in what's put forward in the order to show cause. [00:07:39] Speaker 05: Additional violations would be violations that hadn't occurred to date. [00:07:43] Speaker 05: When you're talking about enforcing or modify, the court at 201 addressed specifically the issue [00:07:50] Speaker 05: In the context of retention of jurisdiction, the court said, the court ends by noting that under the stipulated order, it retains jurisdiction over this matter, including to enforce its terms. [00:08:01] Speaker 05: And then it goes on to say, in the event the parties return to this court. [00:08:06] Speaker 04: Can I finish the sentence? [00:08:10] Speaker 04: You have it in front of you. [00:08:11] Speaker 04: It's the top of 200. [00:08:18] Speaker 04: It's the second sentence. [00:08:20] Speaker 04: As the United States explains, this is the district court, the stipulated order does not stop the FTC from bringing new enforcement actions against Facebook should it learn of additional violations of Section 5 of the Act, even if those violations occurred before July 12, 2019. [00:08:38] Speaker 04: So if it learns of violations that it didn't know about, [00:08:42] Speaker 04: on before July 12th, and it learns of other additional violations that can bring a new action. [00:08:50] Speaker 04: And so I get back to the question. [00:08:52] Speaker 04: I mean, if the FTC can do that, then what are we arguing about? [00:08:59] Speaker 05: Well, it can't do what it did here. [00:09:00] Speaker 05: That's not the same thing as what it's doing here. [00:09:04] Speaker 05: What it's doing here is bringing an order to show cause with respect to the stipulated order. [00:09:09] Speaker 02: and an administrative A. Does the FTC and Judge Randolph's hypothetical have to have a different burden of proof than to make a modification to the old order? [00:09:18] Speaker 02: I mean, wouldn't that be a much bigger burden on the FTC? [00:09:21] Speaker 05: It would be, and it would be quite different. [00:09:24] Speaker 05: And I think it's very clear in context that's talking about additional violations. [00:09:29] Speaker 05: If there's a new thing that the FTC discovers, it could file a new complaint. [00:09:32] Speaker 05: Nobody's contesting that. [00:09:34] Speaker 05: But at 201, the court says, what happens if Facebook violates the terms of the amended administrative order? [00:09:45] Speaker 05: And it says this in the context of retention of jurisdiction. [00:09:48] Speaker 05: It says, in the event the parties return to this court because the United States alleges once again that Facebook has reneged on its promises and continued to violate the law or the terms of the amended administrative order, [00:10:04] Speaker 05: The court may not apply quite the same deference to the terms of her post resolution, then cites this court's Microsoft decision. [00:10:11] Speaker 05: So what it is saying is absolutely crystal clear. [00:10:14] Speaker 05: The court is saying if what you're alleging, not new violations, but what you're alleging are [00:10:20] Speaker 05: violations of the terms of the administrative order, my retention of jurisdiction, I'm retaining jurisdiction over that. [00:10:28] Speaker 05: That's what the court said at the time it entered the stipulated order. [00:10:32] Speaker 05: This is the memorandum of opinion filed on the docket right before the stipulated order. [00:10:37] Speaker 05: And the parties agreed. [00:10:40] Speaker 05: The parties stated this. [00:10:41] Speaker 05: In fact, the FTC continued to state it after the stipulated order. [00:10:46] Speaker 05: If you look at the course of performance, [00:10:48] Speaker 05: This is at A611, I believe. [00:10:51] Speaker 05: The FTC wrote to Meta and said, it's the stipulated order that's imposing the critical provisions of the amended administrative order. [00:11:04] Speaker 02: I asked my earlier question maybe a different way. [00:11:06] Speaker 02: So here Facebook is challenging the FTC's order to show cause, right? [00:11:12] Speaker 02: So that's a particular order that the FTC has issued. [00:11:16] Speaker 02: Does it matter to Facebook whether they seek review of that order here in a petition for review or whether they have review under stipulated order in the district court? [00:11:30] Speaker 05: Yes, absolutely. [00:11:32] Speaker 05: It matters greatly. [00:11:33] Speaker 05: I mean, the standard of proof is different. [00:11:36] Speaker 05: The review is different. [00:11:38] Speaker 05: The review is different. [00:11:39] Speaker 05: I mean, the factual findings that the commission would make, it's an entirely different process. [00:11:44] Speaker 05: And in fact, Your Honor's just dealt with a case. [00:11:46] Speaker 05: That's a completely different process than what should happen here, which is, if they wanted to enforce or modify, which is what they specifically said they're doing, we're enforcing and we're modifying, they have to go. [00:11:58] Speaker 05: This is a judgment. [00:11:59] Speaker 05: They have to come back to the district court and satisfy 60B for that. [00:12:04] Speaker 05: If they want to go off and file new allegations and new complaints, they could do that. [00:12:07] Speaker 04: I don't think that's the alternative, is it? [00:12:10] Speaker 04: I mean, at least my impression from [00:12:13] Speaker 04: Your argument is that instead of filing a new attachment, a modified attachment A or whatever, they should have filed in the district court to hold Facebook in contempt. [00:12:27] Speaker 04: Well, they could have tried that. [00:12:29] Speaker 04: They could have tried to do that. [00:12:29] Speaker 04: That is the usual. [00:12:31] Speaker 04: In structural injunctions, one of two things happens when there's a violation. [00:12:36] Speaker 04: And by structural, I mean prisons and schools and antitrust. [00:12:41] Speaker 04: One of two things happens when there's a violation. [00:12:44] Speaker 04: You either go back to the district court and try to tighten up the terms of the injunction, or you hold the party in contempt. [00:12:53] Speaker 05: They had multiple options. [00:12:56] Speaker 05: They could have sought modification under 60B. [00:12:58] Speaker 05: They could have sought contempt. [00:13:00] Speaker 05: They could have sought civil penalties under 45L for a violation. [00:13:04] Speaker 05: They didn't do any of those things. [00:13:05] Speaker 05: The path that they chose, interestingly, [00:13:08] Speaker 05: is the path that would expand their powers under 5B. [00:13:13] Speaker 05: And that path is crystal clear they don't have the power to do that. [00:13:16] Speaker 05: The 5B allows them to modify administrative orders that are issued on a notice of hearing with a stipulated record or litigated record. [00:13:25] Speaker 05: It's actually, if you look at 2.32C, that's a federal regulation that deals with settlements, settlements of administrative complaints. [00:13:35] Speaker 05: So that doesn't apply here either. [00:13:37] Speaker 05: But it's very clear from 2.32C that says, if you're in the settlement context of an administrative complaint, you're in the settlement context, not fully litigated, then the respondent has to agree that the order that results will have the same effect as if it were [00:13:54] Speaker 05: uh, litigated and you have to agree to modify. [00:13:59] Speaker 05: And so it's treated in the same manner as a litigated or stipulated record. [00:14:03] Speaker 05: So that actually was interesting. [00:14:05] Speaker 05: The import of 2.32 C is it demonstrates that 45 B does not or five B does not cover, uh, settlements like so. [00:14:14] Speaker 02: Mr. I mean, should we, um, give any deference to the district court's own interpretation of its stipulated order? [00:14:21] Speaker 05: No, Your Honor. [00:14:23] Speaker 02: Why is that? [00:14:23] Speaker 05: Because this is a contract. [00:14:25] Speaker 05: Consent degree is a contract. [00:14:27] Speaker 05: It should be interpreted according to the intent of the parties and the circumstances Gordon Pickford said circumstances surrounding the entry. [00:14:35] Speaker 05: Look at the course of performance and [00:14:38] Speaker 05: The court did not address, for example, the conclusion of the memorandum of opinion. [00:14:43] Speaker 05: The evidence of what the parties intended is absolutely overwhelming here. [00:14:48] Speaker 05: There's nothing cited by the other side. [00:14:51] Speaker 05: There's nothing cited by them that suggests, no, that the parties did agree that it could be modified or that the parties thought [00:15:02] Speaker 05: that the administrative order was not being imposed. [00:15:05] Speaker 05: The terms were not being imposed. [00:15:06] Speaker 05: There's nothing on the other side of the ledger. [00:15:09] Speaker 05: All of the circumstances and the evidence as to what happened here comes to at least one conclusion, which is the stipulated order ordered the relief contained in the administrative order and in the retained jurisdiction over that. [00:15:23] Speaker 05: And that meant they had to come back to the district court in order to enforce it. [00:15:30] Speaker 03: The FTC vote to put it on the FTC docket was 3 to 2. [00:15:35] Speaker 03: If the Attachment A was kind of part of the district court's order over which it would retain jurisdiction, I don't understand why the two dissenters would have voted against putting it on the FTC docket. [00:15:51] Speaker 05: I don't think it was intentional, but I think it was left unclear. [00:15:56] Speaker 05: That argument made by the FTC was sort of unclear. [00:15:59] Speaker 05: The 3-2 vote occurred back in July of 2019. [00:16:05] Speaker 05: because that's when they were authorized in the settlement. [00:16:07] Speaker 05: The court didn't approve. [00:16:09] Speaker 05: It's not like the court approved this in April 2020, and then the FTC considered it. [00:16:15] Speaker 05: The FTC already had voted to approve the settlement that was then submitted to the court in July of 2019. [00:16:21] Speaker 05: And then the court took action in April 2020, having considered the consent decree. [00:16:27] Speaker 05: So all that happened after the entry by the court of the stipulated order, all that happened was a few days past, it was a ministerial act, they just put the document that was attached to the stipulated order on file. [00:16:43] Speaker 05: at the FTC, and it's very clear why they did that. [00:16:45] Speaker 05: It says it in the consent motion. [00:16:47] Speaker 03: And you're saying there were no dissents from that ministerial action? [00:16:51] Speaker 05: No, there was no dissent from that. [00:16:53] Speaker 05: And it was done to replace the 2012 order. [00:16:57] Speaker 05: And very interestingly, the 2012 order, which was an administrative order, had a modification provision. [00:17:05] Speaker 05: The 2020 did not, and that has to be viewed again as intentional. [00:17:09] Speaker 05: Thank you. [00:17:11] Speaker 02: Thank you. [00:17:42] Speaker 01: Good morning, Your Honors. [00:17:44] Speaker 01: May it please the court, Zach Cowen for the government. [00:17:48] Speaker 01: Your Honors, pursuant to Section 5B of the Federal Trade Commission Act, the FTC is conducting administrative proceedings designed to protect the public, specifically [00:18:01] Speaker 01: It is trying to determine whether it should modify an administrative order with respect to Metta's data privacy based on allegations that it is now for the third time misrepresented its data privacy practices to consumers. [00:18:16] Speaker 02: How does the FTC retain modification authority when there has been a consent decree in the stipulated order? [00:18:23] Speaker 02: I mean, here the stipulated order says the district court retains jurisdiction. [00:18:28] Speaker 02: It makes it clear that it's granting the injunctive relief that the FTC sought. [00:18:33] Speaker 02: you know, through the administrative order, you know, that is Appendix A. And so that's all part of the settlement that the government came to with Facebook. [00:18:45] Speaker 02: How does the FTC continue to have modification authority in that context where an Article III court has entered a consent decree in stipulated order? [00:18:53] Speaker 01: Your Honor, I want to start by clarifying exactly what the settlement required here. [00:18:58] Speaker 01: Now, the government has a lot of cases where they seek a stipulated order involving the Federal Trade Commission. [00:19:05] Speaker 01: And often in those cases, part of the injunctive relief is laid out in the stipulated order with some of the same sort of obligations that you might see and what's attachment A to the stipulated order here. [00:19:16] Speaker 01: The parties here are very sophisticated. [00:19:18] Speaker 01: They spent months working on this. [00:19:20] Speaker 01: And the precise term that they used was not that the court shall order all of these obligation terms. [00:19:27] Speaker 01: Rather, the party said that meta shall consent to modification in the administrative proceeding. [00:19:35] Speaker 01: And there are reasons, Your Honor. [00:19:36] Speaker 02: I mean, to read it that way, so when they consent to modifications, they're also consenting to the FTC [00:19:46] Speaker 02: Continuing to modify into the future so like they've come to an agreement where they pay a large fine and they agree to all of these onerous terms and appendix a and the FTC gets to continually unilaterally modify those terms. [00:20:01] Speaker 02: I mean how could that I mean why would a private party agree to that. [00:20:04] Speaker 01: Your Honor, pursuant to Section 5B of the FTC Act, the FTC has the authority to make a modification where there are changes in fact or law where the public interests are required. [00:20:14] Speaker 04: After it's received, or after it's received $5 billion from the respondent? [00:20:21] Speaker 04: Your Honor, I mean, I have the same qualm that Judge Rowe has. [00:20:29] Speaker 04: The bargain was, we'll give you $5 billion and we'll accept these terms for injunctions, right? [00:20:39] Speaker 04: And you say, we can change the terms for injunctive relief. [00:20:44] Speaker 04: So are you gonna give the $5 billion back because they don't have the benefit of that bargain any longer? [00:20:49] Speaker 01: So, your honor, I think there's essentially two questions, and I think the first is why would they have agreed to the five billion dollar settlement? [00:20:55] Speaker 01: And I think the second question is related, but slightly different. [00:20:58] Speaker 01: Why would MEDA have agreed to have the FTC issue that order, knowing that the FTC has the power to modify under Section 5B? [00:21:06] Speaker 01: So I want to start with the five billion and then hit the second point as well. [00:21:08] Speaker 04: You might want to also mention along the way why [00:21:11] Speaker 04: why the court and the attachment means the FTC. [00:21:16] Speaker 01: Yes, Your Honor, and I'll certainly address that as well. [00:21:19] Speaker 01: So starting with the $5 billion point, it's important to recognize that when settling the case, there are a lot of claims that the government should have sought even more money related to this case. [00:21:31] Speaker 01: Ultimately, the final relief sought was essentially $5 per violation. [00:21:37] Speaker 01: The statutory cap for those penalties [00:21:39] Speaker 01: is over $40,000 per violation. [00:21:42] Speaker 01: So there was a serious risk of overhead that MEDEF could have ended up paying a lot more money if it actually litigated this case to resolution. [00:21:49] Speaker 01: So that's... [00:21:52] Speaker 01: Exactly, Your Honor. [00:21:53] Speaker 01: So I think that's one reason to explain why it would have settled the particular allegations at hand. [00:21:57] Speaker 01: I think there's a separate question of why the Commission and Metta would have agreed to issue the administrative order as a part of, issue the conduct relief as a part of an administrative order as opposed to a court order. [00:22:10] Speaker 01: And I think this makes sense for several reasons. [00:22:12] Speaker 01: Under Rule 60B, as this court is well aware, there's cases such as Salazar that makes very clear that relief under those circumstances is very stringent. [00:22:20] Speaker 01: It's very difficult to modify without finding sufficient reasons to do so under Rule 60B. [00:22:27] Speaker 01: However, actually having a modification of the FTC proceeding, [00:22:31] Speaker 01: The Supreme Court is recognized, for example, in International Union. [00:22:35] Speaker 01: There are ELMO cases. [00:22:36] Speaker 01: The ELMO cases are both other examples. [00:22:39] Speaker 01: The Commission can modify based on changes of fact or the public interest. [00:22:44] Speaker 01: That could also benefit META to actually have that flexibility. [00:22:48] Speaker 01: And we actually see that in parts two and three of the administrative order that was ultimately entered. [00:22:54] Speaker 02: fact that the FTC's order says that it will be in place for 20 years, and the district court discusses that. [00:23:02] Speaker 02: Doesn't that also suggest some limitation on the FTC's modification power? [00:23:06] Speaker 01: I think it recognizes that the order would be in place absent some additional action, Your Honor, and I don't think that is necessary. [00:23:14] Speaker 01: Your Honor, I think the same is often true for stipulated orders as well. [00:23:16] Speaker 01: They'll contain some provision, but that doesn't bar the stipulated order from then considering new conduct related [00:23:22] Speaker 02: Did the FTC have to enter Appendix A or is the FTC's position that even after the stipulated order, they could have, you know, modified Appendix A when they were making their 2020 order? [00:23:34] Speaker 01: As Section 2 of the stipulated order is laid out, META only agreed to provide its consent to waive its rights with respect to the particular modification that would have issued at Attachment A. Could the Commission have done something different? [00:23:48] Speaker 01: Perhaps, but if it did, META had not agreed to waive any rights with respect to that. [00:23:53] Speaker 01: I think realistically, Your Honor. [00:23:54] Speaker 02: Do you think it's possible the FTC could have, after a court entered an order, the FTC could have put in place something other than Appendix A, and it would just be to Facebook to challenge that? [00:24:08] Speaker 02: Well, Your Honor, so Judge Kelly... Do you think that FTC has the authority to do that? [00:24:12] Speaker 01: As Judge Kelly correctly recognized, he never imposed the obligations that were listed in Attachment A. So if the court would have been, if the commission would have imposed different obligations, it would in no way have conflicted with the court order. [00:24:24] Speaker 01: I think that's important to understand. [00:24:26] Speaker 01: But to the extent that the commission decided to go seek. [00:24:29] Speaker 02: You can make that argument with a straight face. [00:24:30] Speaker 02: I mean, if a party consents to certain terms, they're only consenting to somehow put it into the FTC register. [00:24:39] Speaker 02: That's all they're consenting. [00:24:40] Speaker 02: They're not actually consenting to the terms. [00:24:43] Speaker 02: I mean, that's the argument that the government wants to make here. [00:24:46] Speaker 01: Well, so your honor, to be clear, meta considered to certain terms and the parties are very sophisticated. [00:24:52] Speaker 01: They very intentionally didn't bind the commission to do anything. [00:24:55] Speaker 01: There were several points in the briefing below. [00:24:58] Speaker 01: Well, at the time the order was entered where the parties recognized that the commission retained its discretion and continually invoked the commission's discretion to modify its own administrative order. [00:25:08] Speaker 04: They're so sophisticated. [00:25:09] Speaker 04: Then why did they contradict your argument? [00:25:14] Speaker 04: by inserting into the attachment A, the following sentence, this court retains jurisdiction over this matter. [00:25:22] Speaker 01: So your honor, I think it's important to recognize this court retains jurisdiction is the first binding. [00:25:27] Speaker 01: And as Judge Kelly recognized below. [00:25:29] Speaker 04: Don't leave out the of this matter. [00:25:32] Speaker 04: That's right. [00:25:34] Speaker 04: The matter is what the court is retaining jurisdiction over in a document that's the attachment A. [00:25:42] Speaker 01: Absolutely, Your Honor. [00:25:43] Speaker 01: So this court has jurisdiction over the matter. [00:25:46] Speaker 01: And the question is, who made that finding? [00:25:48] Speaker 01: And if you look at the sentence that immediately precedes this court has jurisdiction, it says the commission makes the following findings and issues the following order. [00:25:57] Speaker 01: That second sentence cannot be read without the sentence that immediately precedes that. [00:26:01] Speaker 01: And it's also worth noting that even though it is attachment A, immediately at the top of the heading is united. [00:26:07] Speaker 04: I know what the heading says. [00:26:08] Speaker 04: I also know what [00:26:09] Speaker 04: the FTC said in filing their motion for the district court to accept it, and as counsel for Facebook pointed out, the opening line of that motion on page A89 says that this stipulated order requires Facebook or imposes significant injunctive relief, primarily in form of an amended administrative order. [00:26:36] Speaker 04: A question I'll ask you. [00:26:38] Speaker 04: Does the FTC have any authority to? [00:26:42] Speaker 04: Impose injunctive relief your honor judge Kelly looked at the statements no no no yes or no Does it have a bigger pardon does the FTC have any authority to impose injunctive relief? [00:26:57] Speaker 01: It has an authority to issue an administrative cease and desist. [00:26:59] Speaker 04: Does it have authority to impose injunctive relief? [00:27:04] Speaker 04: If the answer is no [00:27:07] Speaker 04: It doesn't. [00:27:08] Speaker 04: It has to go to court. [00:27:09] Speaker 04: And so when you see a representation by the FTC that the stipulated order imposes significant injunctive relief, which then explains that it has to be talking about the court. [00:27:24] Speaker 01: But, Your Honor, the second half of that sentence goes on to say, primarily in the form of an order that will be issued by the FTC. [00:27:29] Speaker 04: Primarily, right. [00:27:30] Speaker 01: But, Your Honor, respectfully, if I'm following you correctly, if the FTC never has authority to issue an injunction, the FTC could not issue an order imposing an injunction, either, as that sentence goes on to suggest. [00:27:44] Speaker 04: Unless it did it as part of a settlement and a consent decree. [00:27:47] Speaker 04: And that's exactly what happened. [00:27:50] Speaker 01: Respectfully, Your Honor, Section 2 of the stipulated order as written is very clear that the FTC would be issuing an order pursuant to Section 3.17 of its rules. [00:28:03] Speaker 02: So the FTC puts in this order, but you've admitted the FTC lacks enforcement authority. [00:28:11] Speaker 02: So what it seems to me is happening here is the FTC is using its modification authority in order to basically bring an enforcement action. [00:28:20] Speaker 02: I think it's worth looking at. [00:28:22] Speaker 02: I mean, the FTC's proposed order here makes very substantial revisions to the 2020 order and imposes [00:28:31] Speaker 02: many new obligations on Facebook. [00:28:34] Speaker 01: Absolutely, Your Honor. [00:28:35] Speaker 01: And the proposed modifications. [00:28:37] Speaker 02: So to do that, though, you can't do that through a modification. [00:28:41] Speaker 02: You're trying to enforce the 2020 order by changing it with modifications. [00:28:48] Speaker 02: But I don't see where the FTC has that authority under the FTC Act. [00:28:52] Speaker 01: So I want to respond to the authority point. [00:28:55] Speaker 01: And before I do so, if you don't mind, Your Honor, in terms of the actual scope of the changes, I just want to point out that those aren't currently before the court. [00:29:02] Speaker 01: The meta will have an opportunity to contest those under Section 5C. [00:29:05] Speaker 02: But they give a sense of a flavor, right? [00:29:07] Speaker 02: I mean, for instance, like part 10 says, before Facebook can introduce a new or modified product or service, its most recently privacy assessment must show that its privacy program meets the requirements of the order. [00:29:20] Speaker 02: And that is a very substantial restriction on a private company, that it can't introduce a new or modified product or service without the approval of the agency. [00:29:30] Speaker 02: And perhaps that's something that the FTC could impose if it brought a new complaint and a new order. [00:29:37] Speaker 02: But to put those types of terms into this innocuous sounding administrative modifications authority, [00:29:45] Speaker 02: It seems like you're bootstrapping the fact that you know, you have no enforcement authority into the modifications of the word [00:29:51] Speaker 01: Well, Your Honor, so just taking the statutory point. [00:29:55] Speaker 01: So of course, as I indicated, it would be, Metta could seek review of that under Section 5C, and that's what Congress intended was for them to file, as Your Honor mentioned earlier, a petition for review after the commission reaches a final decision on what modifications are appropriate. [00:30:11] Speaker 01: That question isn't before the court today. [00:30:14] Speaker 01: The commission is still trying to determine whether any modifications are appropriate at all. [00:30:19] Speaker 01: We are not at that point today. [00:30:20] Speaker 01: But what I would say, Your Honor, just in terms of the pure statutory question, Section 5B does authorize the commission to modify an administrative order, quote, in whole or in part based on changes of law, a fact of the public interest. [00:30:33] Speaker 01: Again, those questions were raised below. [00:30:35] Speaker 02: This goes back to Judge Randolph's question, which is that this isn't an ordinary administrative order. [00:30:40] Speaker 02: It's an FTC order that was, you know, with a variety of forms of injunctive relief imposed pursuant to a court order. [00:30:48] Speaker 01: Well, Your Honor, we would respectfully disagree that it was imposed pursuant to a court order. [00:30:52] Speaker 01: I understand that the language is relying on, but Judge Kelly said that's a retroactive characterization of what actually occurred. [00:30:59] Speaker 02: So I have a question. [00:31:00] Speaker 02: Would it be different if instead of putting the terms of the order into Appendix A, those terms were [00:31:06] Speaker 02: you know, like just listed in Judge Kelly's order? [00:31:09] Speaker 02: Would that actually be different? [00:31:11] Speaker 01: Absolutely, Your Honor. [00:31:11] Speaker 01: And in most cases that, in my personal experience working on these cases, typically the terms are included in the stipulated order. [00:31:18] Speaker 01: This is a unique setup that the parties did here, where they said, shall consent to modification of the administrative procedure. [00:31:24] Speaker 04: If in fact they had been, to follow up on Judge Rao's hypothetical, that if in fact all these terms have been put right into the order itself, [00:31:35] Speaker 04: The FTC still would have the authority to modify. [00:31:39] Speaker 04: But the difference is they couldn't do it on their own. [00:31:42] Speaker 04: They'd have to go to the court and ask for a modification of the terms of the injunctive relief. [00:31:51] Speaker 04: And so the FTC has that option. [00:31:57] Speaker 04: And there are Supreme Court cases. [00:31:58] Speaker 04: There are cases all over. [00:32:00] Speaker 04: you know, in the courts of appeals and the district courts, one of them comes to mind is Ruffo and the Supreme Court, where you can, they go back and they keep modifying and modifying consent decrees. [00:32:11] Speaker 04: That could be done. [00:32:12] Speaker 04: And in fact, if in fact the attachment A is, this is not a question, okay, this is going to sound so low-key, but if attachment A is part of the consent decree, [00:32:25] Speaker 04: then the mistake the FTC made was doing it on its own without going back to the court. [00:32:33] Speaker 01: Well, Your Honor, so typically Rule 60B applies for court modifications. [00:32:36] Speaker 01: And for reasons I've mentioned, the parties had an interest in making sure that the FTC could continue to modify its own administrative order pursuant to Section 5B. [00:32:45] Speaker 01: As the Supreme Court has also recognized, the FTC's authority to modify a final commission order is much greater than its authority [00:32:52] Speaker 01: the court's authority under Rule 60B in traditional principles of race judicata. [00:32:58] Speaker 01: So there's a lot more flexibility for both parties, the commission and META, to actually issue this order through a cease and desist order or injunctive relief or whatever other term, though it's not traditionally an injunction relief as the court would issue. [00:33:13] Speaker 01: I did want to also clarify one point. [00:33:15] Speaker 01: Judge Walker asked earlier whether any commissioners dissented when the modification was actually issued in 2019. [00:33:20] Speaker 01: At A380 at the bottom of the page, it does very specifically say that two of the commissioners did dissent. [00:33:28] Speaker 01: And the commission, when it issued the order at A380, it did make an independent statutory finding that a modification was in the public interest. [00:33:36] Speaker 01: If it truly believed its hands were tied and it was unable to modify its own order, [00:33:41] Speaker 01: It could have simply noted the court's judicial resolution of the matter. [00:33:44] Speaker 01: It would be no reason for it to make its own finding. [00:33:46] Speaker 01: There would be no reason for the commissioners to dissent, and Meadow could have objected to the finding, but that didn't happen. [00:33:53] Speaker 01: Even when the modification occurred, as contemplated by the parties, there was an independent finding by the commission that a modification was appropriate. [00:34:01] Speaker 01: Judge Kelly recognized the same thing, and he again said that this shows that the FTC retained its discretion and believed it retained its discretion to modify its own order. [00:34:10] Speaker 02: Do you think that if we were to agree with the FTC here, would it ever be possible for the FTC to enter into a private settlement? [00:34:19] Speaker 02: I mean, if the view is that a private party can settle, have a court order, recognizing the settlement, but then the FTC can just continue indefinitely to modify its orders, I mean, I assume no private party would ever agree to settle. [00:34:34] Speaker 01: Well, Your Honor, typically in most cases, the FTC always [00:34:40] Speaker 01: when it does issue administrative orders, it still has the statutory power that Congress gave it under Section 5B. [00:34:46] Speaker 01: There are some circumstances such as Elmo, where the commission and the party haven't reached some sort of agreement to limit that power in some way. [00:34:55] Speaker 01: And the parties could do that potentially with the commission if they wanted to do so. [00:34:58] Speaker 01: But by default, Congress determined that the FTC should have authority to modify its own orders to protect the public. [00:35:05] Speaker 02: Isn't that default overwritten by the fact that we have a court order here? [00:35:10] Speaker 01: No, Your Honor, I don't believe so, because the court order, again, is very important to recognize how the party set up the settlement. [00:35:15] Speaker 01: It says, shall consent to waiver of its rights and to modification of the order. [00:35:21] Speaker 01: The commission was, the Meadow was never ordered to actually modify its order in any way. [00:35:26] Speaker 02: And, Your Honor, that's... It's modification of the decision and order with the decision and order set forth in attachment A. So they've agreed to attachment A. They've not just agreed to like any modification, right? [00:35:42] Speaker 02: I mean, to the modification, to the decision and order set forth in attachment A. Absolutely, Your Honor. [00:35:47] Speaker 01: That's right. [00:35:48] Speaker 01: And that brings me back to what I said a few moments ago about [00:35:52] Speaker 01: First of all, it's ordering defendants to consent. [00:35:54] Speaker 01: It doesn't order the FTC to do anything whatsoever or the United States to do anything. [00:35:58] Speaker 01: And that decision was very intentional by the parties to use that language. [00:36:02] Speaker 01: But additionally, it says, wave up its sprites. [00:36:05] Speaker 01: consistent with the modification that we discussed. [00:36:08] Speaker 01: Perhaps the FTC may have tried some other modification and MEDA could have argued against that. [00:36:14] Speaker 01: It could have retained all of its procedural rights. [00:36:17] Speaker 01: Realistically, that's not what happened here. [00:36:19] Speaker 04: Can you explain what's going on in the United States motion and the FTC's joint motion to accept the settlement agreement on page A93? [00:36:34] Speaker 04: Yes, your honor. [00:36:37] Speaker 01: Is there a particular line which you're pointing? [00:36:40] Speaker 01: At the top. [00:36:48] Speaker 04: The injunctive relief provisions articulate specific but flexible compliance terms designed to ensure that Facebook and its controlled companies protect user data. [00:37:00] Speaker 04: And then these are listed. [00:37:03] Speaker 04: their injunctive relief terms. [00:37:07] Speaker 01: Absolutely, Your Honor. [00:37:08] Speaker 01: So here's what I'll say. [00:37:09] Speaker 01: The procedure that was used at times, the injunctive relief, the FTC cease and desist order was called injunctive relief. [00:37:18] Speaker 01: And there's a lot of discussions. [00:37:19] Speaker 01: The procedural mechanisms here are pretty complicated, but there are other things I want to point out in the record too that essentially make this distinguishing point where the government, you know, where it felt like [00:37:30] Speaker 01: The government, neither of the parties expressly, every single time they discussed the procedural mechanism that was occurring, re-articulated the entire process every single time. [00:37:41] Speaker 01: But I would point the court to A-155, for example, where the parties specifically say there are two separate orders that would operate together that would let the DOJ obtain discovery rights. [00:37:54] Speaker 01: If the court's order gave full discovery rights, there would be no reason for their [00:37:58] Speaker 01: you would have to rely on both orders together for the DOJ to get discovery rights. [00:38:03] Speaker 01: That seems to imply that the FTC's order and the court-stipulated order had to operate in tandem to give the government that right. [00:38:12] Speaker 01: So of course, Your Honor, there are places where it's referred to as, for example, the injunctive relief. [00:38:16] Speaker 01: And you could say, well, the commission doesn't issue an injunction. [00:38:19] Speaker 01: But there are other places in the same briefing record where the parties took much more care to distinguish the two types of orders that were at play and [00:38:28] Speaker 01: Ultimately, for those reasons, Judge Kelly said this was a retroactive characterization of the record. [00:38:34] Speaker 03: There's language in I think there's language in attachment a that talks about the FTC having the right to appeal. [00:38:42] Speaker 01: That's right, Your Honor. [00:38:43] Speaker 01: I mean, the full sentence together, and again, this was selectively exerted in some of the briefs, but it says both meta and the commission appeal the right to challenge or otherwise contest the voodoo of the order. [00:38:53] Speaker 01: That broad language is essentially trying to scope out any type of challenge. [00:38:57] Speaker 01: So whether it be a challenge to the voodoo of the order in this proceeding or in some other proceeding, the administrative proceeding, whether by the commission, by meta, whoever else, really that long provision is just to say the order is, you know, essentially cannot be appealed at this time. [00:39:14] Speaker 03: Let's say that the FTC actually acted illegally when it modified. [00:39:23] Speaker 03: What do you think is Facebook's recourse? [00:39:33] Speaker 01: Do you mean, well, so the FTC hasn't modified. [00:39:38] Speaker 03: OK, so let's say after the show cause order, they decide they're going to modify the order on their doc, the entry on their doc, the 2020 order, 2020 FTC. [00:39:48] Speaker 03: Let's say they modify that. [00:39:51] Speaker 03: And Facebook thinks that that's illegal. [00:39:53] Speaker 03: Imagine Facebook's correct. [00:39:55] Speaker 03: What should Facebook do then? [00:39:57] Speaker 01: I think pursuant to Section 5C, they would file a petition for review at this court. [00:40:02] Speaker 03: And what would our standard of review be? [00:40:04] Speaker 01: I think it would be deferential. [00:40:05] Speaker 01: I don't have the exact statutory language out in front of me, but I believe it's deferential, some sort of deference under 5B and 5C. [00:40:15] Speaker 03: If the district court does have continuing jurisdiction over compliance with attachment A, then do you concede that an injunction would be appropriate? [00:40:25] Speaker 01: If this falls within the court, if it falls within the district, if the terms were substantively ordered by the district court, then the district court would have jurisdiction, but the district court didn't subtly ordered. [00:40:36] Speaker 03: If it has jurisdiction, then an injunction by the district court would be appropriate. [00:40:43] Speaker 01: The one reason I hesitate on that, Your Honor, is Metta has recognized at page 15 of its reply brief that the commission retains authority to modify the order in some circumstances. [00:40:55] Speaker 01: And those circumstances are laid out in parts two and parts three of the stipulated order. [00:40:59] Speaker 01: It creates an unusual situation where essentially [00:41:03] Speaker 01: Metta is claiming that the commission can modify the court-stipulated order in some circumstances, but that seems inconsistent with the idea that it would be the court's administrative order at all. [00:41:13] Speaker 01: I mean, the court-stipulated order at all. [00:41:15] Speaker 01: So it's a strange situation to even encounter. [00:41:21] Speaker 01: It sounds like a yes. [00:41:23] Speaker 01: Well, but Your Honor, if it were the court's order, why would it authorize the commission to modify parts two and three, the stipulated order? [00:41:32] Speaker 01: the court would have given it power to do that. [00:41:34] Speaker 03: I mean, that may be part of a good argument that it's not part of the court's order and the court did not retain jurisdiction. [00:41:41] Speaker 03: My hypothetical is, imagine we disagree with you and we find that the court did retain jurisdiction. [00:41:45] Speaker 03: I think at that point, an injunction would be appropriate. [00:41:49] Speaker 01: I think there are similar cases where the court is enjoined under those circumstances. [00:41:53] Speaker 01: Yes. [00:41:54] Speaker 04: What page of the reply briefing? [00:41:57] Speaker 01: Reply briefing page 15. [00:42:03] Speaker 01: Is there a particular sentence, you know? [00:42:05] Speaker 01: Yes, your honor. [00:42:06] Speaker 01: One second. [00:42:08] Speaker 01: It says the existence of two orders does not detract in any way from the district court's imposition of injunctive relief as part of a consent decree over which it retained jurisdiction. [00:42:18] Speaker 01: It goes on to discuss bilateral, what it characterizes is bilateral modification. [00:42:24] Speaker 04: A possible bilateral modification of certain injunctive provisions without further court approval as consent decrees routinely due. [00:42:36] Speaker 01: Your honor, I'm not aware of any authority that the parties can work together to modify a court's order absent the actual court making a decision to do so. [00:42:48] Speaker 01: I'm not either. [00:42:49] Speaker 04: Thanks. [00:42:54] Speaker 01: Thank you for the reason we would ask that you affirm the district court and did not met his motion to enjoy. [00:43:06] Speaker 05: Thank you. [00:43:07] Speaker 05: I wanted to clarify my response to Judge Walker, your question. [00:43:11] Speaker 05: The written dissents were written in 2019, and that was a 3-2 vote, and those were the written dissents. [00:43:18] Speaker 05: When the deal came up after the judge approved it, of course, they reissued the, they stated that they had dissented. [00:43:26] Speaker 05: There was no new opinion. [00:43:27] Speaker 05: Nothing occurred in those three or four days between the time that the court entered the order [00:43:31] Speaker 05: And the FTC. [00:43:33] Speaker 03: I don't want to eat up your time, so I'll let you do a minute 30. [00:43:36] Speaker 03: But I do. [00:43:37] Speaker 03: I don't think that's right. [00:43:37] Speaker 05: I want to ask you about that. [00:43:43] Speaker 05: OK. [00:43:43] Speaker 05: The point here is it was ministerial. [00:43:44] Speaker 05: The deal was locked and loaded, and the claims had already been released pursuant to the order. [00:43:50] Speaker 05: The question about whether it makes a difference if in the body of this, whether the attachment A was in the body of the stipulated order or not, [00:43:58] Speaker 05: I mean, it was filed in the same filing on the same docket, its contract law that it would be incorporated into the stipulated order. [00:44:09] Speaker 05: And in any event, there needed to be something to be able to be filed on the FTC docket so as to replace the 2012 order. [00:44:17] Speaker 05: The parties said that in the consent motion. [00:44:21] Speaker 05: As to this court has jurisdiction, I don't think the government can continue to take the position that the commission [00:44:28] Speaker 05: is a court. [00:44:28] Speaker 05: It's not a court. [00:44:30] Speaker 05: Congress creates courts. [00:44:31] Speaker 05: Congress knows how to create a court. [00:44:34] Speaker 05: If they truly had support for that, they would cite us to the act of Congress that created the FTC as a court. [00:44:41] Speaker 05: And it's never referred to itself as a court. [00:44:47] Speaker 05: The interpretations provided by the government really make no sense. [00:44:51] Speaker 05: It makes no commercial sense that Metta would agree to pay $5 billion, enter into an injunction that could be freely modifiable by the FTC, imposing new injunctive relief, which in any event, they're not permitted to do. [00:45:08] Speaker 05: Only courts can do that. [00:45:10] Speaker 05: In terms of the question about harm to the FTC, I agree with the point that it would harm the FTC. [00:45:19] Speaker 05: Parties would not agree to settle if their counterparty could freely rewrite an injunction over time. [00:45:27] Speaker 05: And as to 5B, it's just critical that the language in 5B, we continue to hear the position that 5B allows modification of [00:45:39] Speaker 05: the FTC's orders. [00:45:40] Speaker 05: That's just not correct. [00:45:41] Speaker 05: It says that it can modify orders under this section. [00:45:47] Speaker 05: So you have to look at the order that's being contemplated under that section. [00:45:51] Speaker 05: It's an order that results from a complaint issued on a notice of hearing where there are factual findings made and a cease and desist order is issued. [00:45:59] Speaker 05: That's not what we're dealing with. [00:46:01] Speaker 05: And there is no other [00:46:02] Speaker 05: In addition to no statutory authority, there's no agreement to modify. [00:46:07] Speaker 05: The fact that the parties may have agreed that MEDA could seek from the commission certain modifications, that has of no moment here. [00:46:17] Speaker 05: Of course, a consent decree can allow all sorts of things that the party, it was up to the court to approve that or not. [00:46:22] Speaker 05: And the court approved an order that allowed MEDA to seek certain limited circumstances, modifications to that. [00:46:30] Speaker 03: So on JA 380, this is the order of modifying the prior decision. [00:46:36] Speaker 03: It says it's ordered the matter will be reopened. [00:46:43] Speaker 03: It's further ordered that the 2012 order will be modified with the attached decision in order. [00:46:51] Speaker 03: And right after that, it says, by the commission, commissioners Chopra and Slaughter dissenting, dissenting in the present tense, not they dissented a long time ago when the original settlement was being bargained for. [00:47:08] Speaker 03: So it seems to me like they, two commissioners dissented from this 2020 modification order. [00:47:22] Speaker 03: Yes, the two commissioners dissented. [00:47:24] Speaker 03: I guess they dissented from it. [00:47:26] Speaker 03: That suggests that they dissented from the modification order. [00:47:30] Speaker 03: That suggests the modification order was not ministerial confirmation of a locked and loaded deal. [00:47:39] Speaker 05: Well, you need a majority vote, and the majority of vote had already taken place to approve and go to the court with an agreed upon deal with two dissenters. [00:47:52] Speaker 03: So in one world, there's the FTC's vision of how things played out, which is the court issued an order that was binding and Facebook agreed not to object to the entry of attachment A on the FTC stock. [00:48:14] Speaker 03: And that was the extent of the deal. [00:48:18] Speaker 03: It didn't tie entering [00:48:21] Speaker 03: Attachment A by itself did not tie anyone's hands other than Facebook could not object to the entry of it in the FTC. [00:48:28] Speaker 03: And in that world, it makes sense that if two commissioners didn't like Attachment A, they would dissent from entering it onto the FTC's docket. [00:48:40] Speaker 03: But in your world, it was a locked and loaded deal, and entry of it on the FTC's docket was simply ministerial. [00:48:49] Speaker 03: And in that world, it really doesn't make any sense that two commissioners would dissent from a ministerial act that confirms a deal that was already locked and loaded. [00:48:58] Speaker 05: Well, I think the first reading of that is if they hadn't dissented, then they might have been waiving the prior dissent that they had issued, saying, we don't agree. [00:49:12] Speaker 05: You should go to the court with this deal. [00:49:14] Speaker 05: And so the reason I say it's locked and loaded is there already was a release in the stipulated order signed by the court. [00:49:22] Speaker 03: Essentially, the result. [00:49:23] Speaker 03: Under your theory, those two commissioners voted to defy the district [00:49:27] Speaker 03: it's an odd thing for commissioners to vote to do. [00:49:30] Speaker 05: I don't think I don't. [00:49:31] Speaker 05: If that's if that's a fair reading of it, it could be that they're preserving that they weren't so much define it as they were saying. [00:49:38] Speaker 05: We've not agreed to this in the first instance. [00:49:41] Speaker 05: We understand it's going forward. [00:49:43] Speaker 05: And we're issue. [00:49:45] Speaker 05: We are dissenting from this again, but it really doesn't change the fact that the, um. [00:49:52] Speaker 05: That there the deal had essentially been done. [00:49:54] Speaker 05: I suppose if additional [00:49:56] Speaker 05: The hypothetical is additional commissioners had said, well, we're going to dissent from entry of this order on the docket. [00:50:08] Speaker 05: Metta would already have had its release in place, and the claims would have been released. [00:50:13] Speaker 05: So when I say it's ministerial, I think the court wouldn't undo the federal court's order. [00:50:20] Speaker 05: If you're saying that only Metta had to agree and the FCC didn't agree, the claims would be released. [00:50:27] Speaker 05: Okay. [00:50:29] Speaker 05: Thank you. [00:50:29] Speaker 02: Okay. [00:50:30] Speaker 02: Thank you.