The guidance debate is moving from 30,000 feet to ground level

 

Scholars in administrative law have written on the differences between an agency issuing guidance versus rules for years.  There is no clearer statement on the subject than a recent post by Professor Strauss based in part upon a study conducted by the Administrative Conference of the United States authored by Professor Parrillo.

Those working on a plan to “regulate” the internet in many instances assume that the controlling action must be in the form of a binding regulation which is criticized by some because of the rapidly changing landscape of the internet. What are the implications of basing a “regulatory” program on guidance in lieu of regulations? That said, while some agree that guidance is not legally binding on a regulated party they conclude it is tantamount to binding.