102
“does not differentiate in treatment of traffic, or if it
differentiates in treatment of traffic without reference to the
content, application, or device.” Id. at 5663 ¶ 144 n.344.
Many of the paragraphs in that section of the Order also
specifically identify the kind of conduct that would violate the
Rule. The Commission explains, for example, that “unfair or
deceptive billing practices, as well as practices that fail to
protect the confidentiality of end users’ proprietary
information, will be unlawful.” Id. at 5662 ¶ 141. It goes on
to emphasize that the “rule is intended to include protection
against fraudulent practices such as ‘cramming’ and
‘slamming.’”
Id.
And “[a]pplication-specific network
practices,” including “those applied to traffic that has a
particular source or destination, that is generated by a
particular application . . . , [or] that uses a particular
application- or transport- layer protocol,” would trigger
concern as well. Id. at 5663 ¶ 144 n.344.
Given that “we can never expect mathematical certainty
from our language,” those sorts of descriptions suffice to
provide fair warning as to the type of conduct prohibited by
the General Conduct Rule. Grayned v. City of Rockford, 408
U.S. 104, 110 (1972). To be sure, as a multifactor standard
applied on a case-by-case basis, a certain degree of
uncertainty inheres in the structure of the General Conduct
Rule. But a regulation is not impermissibly vague because it
is “marked by flexibility and reasonable breadth, rather than
meticulous specificity.”
Id. (internal quotation marks
omitted). Fair notice in these circumstances demands “no
more than a reasonable degree of certainty.” Throckmorton v.
National Transportation Safety Board, 963 F.2d 441, 444
(D.C. Cir. 1992) (internal quotation marks omitted). We are
mindful, moreover, that “by requiring regulations to be too
specific courts would be opening up large loopholes allowing
conduct which should be regulated to escape regulation.”
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