§ 8.18   Advisory opinions.

   (a)  Procedures.  (1)  Any  entity that is subject to the Commission's
   jurisdiction may request an advisory opinion from the Enforcement Bureau
   regarding its own proposed conduct that may implicate the open Internet
   rules or any rules or policies related to the open Internet that may be
   adopted in the future. Requests for advisory opinions may be filed via the
   Commission's Web site or with the Office of the Secretary and must be copied
   to the Chief of the Enforcement Bureau and the Chief of the Investigations
   and Hearings Division of the Enforcement Bureau.

   (2) The Enforcement Bureau may, in its discretion, refuse to consider a
   request for an advisory opinion. If the Bureau declines to respond to a
   request, it will inform the requesting party in writing.

   (3) Requests for advisory opinions must relate to prospective or proposed
   conduct that the requesting party intends to pursue. The Enforcement Bureau
   will not respond to requests for opinions that relate to ongoing or prior
   conduct,  and  the Bureau may initiate an enforcement investigation to
   determine  whether  such  conduct  violates  the  open Internet rules.
   Additionally,  the  Bureau will not respond to requests if the same or
   substantially  the same conduct is the subject of a current government
   investigation  or proceeding, including any ongoing litigation or open
   rulemaking at the Commission.

   (4) Requests for advisory opinions must be accompanied by all material
   information sufficient for Enforcement Bureau staff to make a determination
   on the proposed conduct for which review is requested. Requesters must
   certify that factual representations made to the Bureau are truthful and
   accurate, and that they have not intentionally omitted any information from
   the  request. A request for an advisory opinion that is submitted by a
   business entity or an organization must be executed by an individual who is
   authorized to act on behalf of that entity or organization.

   (5) Enforcement Bureau staff will have 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 that the staff deems necessary to respond to the request. Such
   additional  information,  if  furnished  orally or during an in-person
   conference  with Bureau staff, shall be promptly confirmed in writing.
   Parties are not obligated to respond to staff inquiries related to advisory
   opinions. If a requesting party fails to respond to a staff inquiry, then
   the Bureau may dismiss that party's request for an advisory opinion. If a
   party voluntarily responds to a staff inquiry for additional information,
   then it must do so by a deadline to be specified by Bureau staff. Advisory
   opinions will expressly state that they rely on the representations made by
   the requesting party, and that they are premised on the specific facts and
   representations in the request and any supplemental submissions.

   (b) After review of a request submitted hereunder, the Enforcement Bureau
   will:

   (1)  Issue  an  advisory  opinion that will state the Bureau's present
   enforcement intention with respect to the proposed open Internet practices;

   (2) Issue a written statement declining to respond to the request; or;

   (3) Take such other position or action as it considers appropriate. An
   advisory opinion states only the enforcement intention of the Enforcement
   Bureau as of the date of the opinion, and it is not binding on any party.
   Advisory opinions will be issued without prejudice to the Enforcement Bureau
   or the Commission to reconsider the questions involved, or to rescind or
   revoke the opinion. Advisory opinions will not be subject to appeal or
   further review.

   (c) The Enforcement Bureau will have discretion to indicate the Bureau's
   lack  of enforcement intent in an advisory opinion based on the facts,
   representations, and warranties made by the requesting party. The requesting
   party may rely on the opinion only to the extent that the request fully and
   accurately contains all the material facts and representations necessary to
   issuance  of  the  opinion and the situation conforms to the situation
   described  in  the  request  for opinion. The Bureau will not bring an
   enforcement action against a requesting party with respect to any action
   taken in good faith reliance upon an advisory opinion if all of the relevant
   facts were fully, completely, and accurately presented to the Bureau, and
   where such action was promptly discontinued upon notification of rescission
   or revocation of the Commission's or Bureau's approval.

   (d) Public disclosure. The Enforcement Bureau will make advisory opinions
   available to the public on the Commission's Web site. The Bureau will also
   publish the initial request for guidance and any associated materials.
   Parties soliciting advisory opinions may request confidential treatment of
   information submitted in connection with a request for an advisory opinion
   pursuant to § 0.459 of this chapter.

   (e) Withdrawal of request. Any requesting party may withdraw a request for
   review at any time prior to receipt of notice that the Enforcement Bureau
   intends to issue an adverse opinion, or the issuance of an opinion. The
   Enforcement  Bureau  remains free, however, to submit comments to such
   requesting party as it deems appropriate. Failure to take action after
   receipt of documents or information, whether submitted pursuant to this
   procedure or otherwise, does not in any way limit or stop the Bureau from
   taking such action at such time thereafter as it deems appropriate. The
   Bureau reserves the right to retain documents submitted to it under this
   procedure or otherwise and to use them for all governmental purposes.

   [ 80 FR 19849 , Apr. 13, 2015]

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