WASHINGTON, DC – Today, the FCC issued a 6-page Public Notice telling companies how to seek an “advisory opinion” to determine if their future conduct might run afoul of the FCC’s Open Internet Order.

“The FCC reminds us all that ‘Mother, may I innovate?’ is now the law of the land,” said Berin Szoka, President of TechFreedom. “Advisory Opinions were supposed to reduce the uncertainty created by the FCC’s radical reinterpretation of the Communications Act. But today’s ‘guidance’ indicates just how disinclined the FCC is to offer any clarity that might reduce the agency’s vast discretion over the Internet. It’s sadly ironic that, for all the FCC’s talk about the need to protect permissionless innovation, it’s done the very opposite. The FCC should be embarrassed by this — and the fact that they tried to bury this by releasing it right before a holiday weekend suggests that they probably are, at least a little.”

“The FCC retains the discretion to publish requests for advisory opinions, which can include highly sensitive information,” noted Tom Struble, TechFreedom Legal Fellow. “Imagine if a competitor or political opponent got hold of a business plan for a service that can be portrayed as a ‘net neutrality’ violation. The backlash could destroy a business model before it even gets off the ground — as happened to Sprint just this week. The FCC could have avoided this risk by keeping requests confidential until the FCC acts upon them. As it is, this risk will likely discourage companies from seeking Advisory Opinions at all.”

“If anything, it’s more clear than ever that the FCC plans to use the Advisory Opinion process as a soft form of extralegal rulemaking — without any real procedural safeguards,” concluded Szoka.

  • “Of course, no one’s required to seek an opinion but if they don’t, they proceed at their own risk. So there’s a strong incentive to ask for an opinion.
  • That means waiting to launch a new service, like zero-rating, until the Enforcement Bureau deigns to respond, if it chooses to at all. Since there’s no shot-clock, that could take years.
  • How to respond is up to the Bureau Chief and the FCC Chairman — with no input from the other four Commissioners.
  • The Bureau doesn’t have to give a thumbs up or down: it could respond by issuing detailed ‘guidelines’ on how to implement the proposed service, potentially well beyond what the request entails.
  • The Bureau can revoke an Advisory Opinion at any time — and immediately threaten to sue if the company continues doing what the FCC had said, the day before, was legal. Advisory opinions are supposed to function as safe harbors that allow companies to make long-term decisions, but why would any company invest in long-term plans, let alone infrastructure, given the risk of such regulatory fickleness?”

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We can be reached for comment at media@techfreedom.org.

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