§ 8.18   Advisory opinions.

   Link to an amendment published at  83 FR 7922 , Feb. 22, 2018.

   Link to an amendment published at  83 FR 21927 , May 11, 2018.

   (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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