103
Freeman, 108 F.3d at 362 (alterations and internal quotation
marks omitted). That concern is particularly acute here,
because of the speed with which broadband technology
continues to evolve. The dynamic market conditions and
rapid pace of technological development give rise to
pronounced concerns about ready circumvention of
particularized regulatory restrictions. The flexible approach
adopted by the General Conduct Rule aims to address that
concern in a field in which “specific regulations cannot begin
to cover all of the infinite variety of conditions.” Id.
(alteration and internal quotation marks omitted).
Any ambiguity in the General Conduct Rule is therefore a
far cry from the kind of vagueness this court considered
problematic in Timpinaro v. SEC, 2 F.3d 453 (D.C. Cir.
1993), on which US Telecom heavily relies. In that case, we
found a multifactor SEC rule defining a professional trading
account to be unconstitutionally vague because “a trader
would be hard pressed to know when he is in danger of
triggering an adverse reaction.” Id. at 460. We emphasized
that “five of the seven factors . . . are subject to seemingly
open-ended interpretation,” and that the uncertainty is “all the
greater when these mysteries are considered in combination,
according to some undisclosed system of relative weights.”
Id. Unlike in Timpinaro, in which the factors were left
unexplained, in this case, as noted, the Commission included
a detailed paragraph clarifying and elaborating on each of the
factors. And because the provision at issue in Timpinaro was
a technical definition of a professional trading account, the
context of the regulation shed little additional light on its
meaning. In contrast, the knowledge that the General
Conduct Rule was expressly adopted to complement the
bright-line rules helps delineate the contours of the proscribed
conduct here.
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