104
Finally, the advisory-opinion procedure accompanying
the General Conduct Rule cures it of any potential lingering
constitutional deficiency. The Commission announced in the
Order that it would allow companies to obtain an advisory
opinion concerning any “proposed conduct that may implicate
the rules,” in order to “enable companies to seek guidance on
the propriety of certain open Internet practices before
implementing them.” 2015 Open Internet Order, 30 FCC
Rcd. at 5706 ¶¶ 229–30. The opinions will be issued by the
Enforcement Bureau and “will be publicly available.” Id. at
5706–07 ¶¶ 229, 231. As a result, although the Commission
did not reach a definitive resolution during the rulemaking
process as to the permissibility under the General Conduct
Rule of practices such as zero-rating and usage caps, see id. at
5666–67 ¶ 151, companies that seek to pursue those sorts of
practices may petition for an advisory opinion and thereby
avoid an inadvertent infraction. The opportunity to obtain
prospective guidance thus provides regulated entities with
“relief from [remaining] uncertainty.” DiCola, 77 F.3d at
509; see also Hoffman, 455 U.S. at 498.
Petitioners argue that the advisory-opinion process is
insufficient because opinions cannot be obtained for existing
conduct, conduct subject to a pending inquiry, or conduct that
is a “mere possibilit[y].” 2015 Open Internet Order, 30 FCC
Rcd. at 5707 ¶ 232. But the fact that advisory opinions
cannot be used for present conduct or conduct pending
inquiry is integral to the procedure’s purpose—to encourage
providers to “be proactive about compliance” and obtain
guidance on proposed actions before implementing them. Id.
at 5706 ¶ 229. Petitioners also point out that the guidance
provided in advisory opinions is not binding. See id. at 5708
¶¶ 235. The Bureau’s ability to adjust its views after issuing
an advisory opinion, however, does not negate the
procedure’s usefulness for companies seeking to avoid
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