105
inadvertent violations of the Rule. Nonbinding opinions thus
are characteristic of advisory processes, including the
Department of Justice Antitrust Division’s business review
letter procedure, which served as the model for the
Commission’s process. See id. Expecting the Bureau to issue
final, irrevocable decisions on the permissibility of proposed
conduct before seeing the actual effects of that conduct could
produce anomalous results.
Our colleague also identifies certain perceived
deficiencies in the advisory-opinion process.
Notably,
however, the partial dissent makes no argument that the
General Conduct Rule is unconstitutionally vague. Rather, in
arguing that the Commission’s reclassification of broadband
is arbitrary and capricious, the partial dissent criticizes the
advisory-opinion process on the grounds that the Bureau
could choose to refrain from offering answers and that the
process will be slow. See Concurring & Dissenting Op. at
22–23. Insofar as those criticisms may seem germane to
petitioners’ vagueness challenge, we find them unpersuasive.
Even if the Bureau’s discretion about whether to provide an
answer could be problematic in the absence of any further
guidance in the Rule as to the kinds of conduct it prohibits,
here, as explained, the Rule does provide such guidance. The
advisory-opinion procedure simply acts as an additional
resource available to companies in instances of particular
uncertainty. Moreover, the partial dissent’s suppositions
about the slowness of the process stem solely from the
absence of firm deadlines by which the Bureau must issue an
opinion. There is no indication at this point, however, that the
Bureau will fail to offer timely guidance.
In the end, the advisory-opinion procedure can be
expected to provide valuable (even if imperfect) guidance to
providers seeking to comply with the General Conduct Rule.
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