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does announce a “nonexhaustive list” of seven factors to be
used in assessing providers’ practices, including “end-user
control,” “consumer protection,” “effect on innovation,” and
“free expression.” Order ¶¶ 138-45. But these factors
themselves are vague and unhelpful at resolving the
uncertainty.
The Commission made an effort to palliate the negative
effect of its “standards” by establishing a procedure for
obtaining advisory opinions. Order ¶¶ 229-39. It delegated
authority to issue such opinions to its Enforcement Bureau,
perhaps thereby telegraphing its general mindset on how
broadly it intends its prohibitions to be read. But the Bureau
has complete discretion on whether to provide an answer at
all. Order ¶ 231. Further, any advice given will not provide a
basis for longterm commitments of resources: the Bureau is
free to change its mind at will, and as the opinions will be
issued only at the staff level, the Commission reserves its
freedom to act contrary to the staff’s conclusions at any time.
Order ¶ 235. I do not understand this to mean that the
Commission will seek penalties against parties acting in
reliance on an opinion while it is still in effect, but parties in
receipt of a favorable opinion are on notice that they may be
forced to shut down a program the minute the Bureau reverses
itself or the Commission countermands the Bureau.
Besides affording rather fragile assurance, the advisory
process promises to be slow. “[S]taff will have the discretion
to ask parties requesting opinions, as well as other parties that
may have information relevant to the request or that may be
impacted by the proposed conduct, for additional
information.” Id. ¶ 233. Given these possible information
requests from various parties, including adverse ones, it is
unsurprising that the Commission is unwilling to give any
timeliness commitment, explicitly “declin[ing] to establish
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