Caution About Using FCC Advisory Opinions Re "Open Internet"

Shortly before the Fourth of July holiday, the FCC announced the process by which a company could seek an advisory opinion about how a contemplated business practice would fare under the FCC’s “Open Internet” order. Dorsey & Whitney attorneys consider the pros and cons of taking the FCC up on that opportunity. On the plus side, companies might consider the fact that advisory opinions from other government agencies – notably the FTC, with regard to proposed M&A deals – have been useful, and that in general advisory opinions can help avoid future enforcement actions. But, per the procedure,  the FCC says it wants complete information, and that could provide the Commission with a loop hole if it decides it wants to find one. Moreover, the writers note, the FCC reserves the right “to ask parties requesting opinions, as well as other parties with relevant information or who may be impacted by the conduct, for additional information. Thus, a potential requester should consider the unintended stones that may be overturned in the process of seeking an advisory opinion.”