5 ms·

Does the FTC actually have the power to set rules like this effectively now that Chevron deference isn't a thing? I'd imagine e.g. the New York Times, among ot

by Spoom 2y ago

Does the FTC actually have the power to set rules like this effectively now that Chevron deference isn't a thing? I'd imagine e.g. the New York Times, among others, will quickly sue to stop this, no?

ezfe 2y ago
NYTimes already allows cancelling online for most subscriptions, so I imagine this won't be a big issue for them.
- kgermino 2y ago
  That depends on what state you're in right? (i.e. California customers can cancel online, but Wisconsin ones need to talk to an agent)
  - mikestew 2y ago
    As a Washington resident, I tested this a while back: nope, you can cancel online AFAICT (I didn’t actually cancel, but the click flow indicated that it should work), and do not need to be a CA resident.
  - DHPersonal 2y ago
    My Oklahoma-based subscription required chatting via text online with an agent to cancel.
  - ry4nolson 2y ago
    I'm in Texas and was able to cancel online. It was slightly frictional. I had first paused my subscription. Apparently you can't cancel if your subscription is paused, so I had to reinstate the sub to cancel.
  - afavour 2y ago
    IIRC they implemented online cancellation everywhere a while back.
- boringg 2y ago
  Last time I tried it their process is not easy at all.
  - heyoni 2y ago
    Same. Certain subscriptions I won't touch if I couldn't go through it with icloud. nytimes and nytimes cooking were up there as the worst offenders.
- lkbm 2y ago
  USA Today, then. They do not, and most local papers are run by them. They have a "Cancel" button, and when you click it, it says you have to call them, during business hours. This won't be the case in California, but I've observed this in both Indiana and Texas. I haven't subscribed to the local paper here in NC, because I can tell at a glance that it's the same company and I've already had to dealt with their shenanigans twice.
jerf 2y ago
There isn't a generic answer for this. You'd have to check the specific laws setting up what the FTC can do, which is more research than you can reasonably expect from an HN post, unless we get super lucky with some very, very specialized lawyer posting.
minkzilla 2y ago
Chevron deference is about statutory interpretation so it really depends on the statue they are doing it under and any ambiguities that arise around the ability to do this. It may be clearly covered or it may not be, we would have to look. And if there are ambiguities it may go the way of the FTC, but since Chevron is gone, not automatically.
pseudolus 2y ago
The rule wasn't adopted with unanimity and one of the FTC Commissioners (Melissa Holyoak) issued a dissenting statement that basically - with Chevron - will serve as a blueprint for contesting its adoption. [0] If the past is a guide to the future, it can be expected that the 5th Circuit will be the first out of the gate with a ruling. [0] https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-dissenting-statement-re-negative-option-rule.pdf https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-dissent...
tomrod 2y ago
They have all the power they need to enact this.
drstewart 2y ago
How exactly do you think the lack of the Chevron deference impacts the FTC here? It's like asking whether Congress has the power to enact laws now that judicial review is a thing
- ellisv 2y ago
  Since Loper Bright Enterprises v. Raimondo (2024), the judiciary does not need to defer to federal agencies when the statute is ambiguous. In fact, the judiciary can completely ignore the expertise of the federal agency and substitute their own. The overturning of Chevron deference enables the judiciary to first find that the FTC's authority for this rule is grounded in an ambiguous statute and then decide the FTC went beyond their authority. While I wouldn't be totally surprised to see this argument, Commissioner Holyoak's dissenting statement doesn't raise it. Instead she purports 1) the FTC didn't properly follow the rule making requirements and 2) the rule is overbroad.
  - Clubber 2y ago
    >In fact, the judiciary can completely ignore the expertise of the federal agency and substitute their own. I don't believe this is accurate, as you stated >The overturning of Chevron deference enables the judiciary to first find that the FTC's authority for this rule is grounded in an ambiguous statute and then decide the FTC went beyond their authority. The only thing the SCOTUS can do is rule against the agency for exceeding its congressional authority. They aren't substituting their own expertise. Correct me if I'm wrong.
    - ellisv 2y ago
      It doesn’t need to go to SCOTUS, Chevron deference was precedent for the lower courts, SCOUTS can always do whatever it wants. The plain reading of Loper Bright is that the courts should make their own independent interpretation of the statutory provisions. In doing so the court can ignore the agency’s expertise.
    - metabagel 2y ago
      [flagged]
ellisv 2y ago
The FTC has rule making authority but it will certainly be litigated. My expectation is a case will quickly be brought in the Northern District of Texas, they'll rule it unlawful (following Commissioner Holyoak's lead), then it'll get bumped up to the 5th Circuit on appeal and they'll issue a stay. I don't expect to see this rule take affect anytime soon, if ever.
metabagel 2y ago
[flagged]
xracy 2y ago
We gotta stop giving SCOTUS credit for bad decisions when they make unpopular opinions. SCOTUS is not supposed to make legislation, and if they are going to try and override Chevron from the bench without legislation, then we have to ignore them. SCOTUS' power/respect only goes as far as they're actually listening to the will of Americans. This is not representing Americans if they override. Same for abortion (just legality not anything about enforcement), same for presidential immunity. We have expectations, and they do not align with SCOTUS, so SCOTUS is not a valid interpretive institution. "The Supreme Court has made their decision, let's see them enforce it."
- seizethecheese 2y ago
  This is insane and wrong. The Supreme Court is explicitly not supposed to represent the will of the people. You’re advocating nothing less than a type of coup. And against my best judgement, I’ll add that in it was roe v wade itself that was essentially judges creating law (shoehorning abortion rights into a right to privacy is a stretch).
  - mwest217 2y ago
    I don't disagree that disregarding the Supreme Court is essentially a type of coup. However, the power which is being contested here is a power that the Supreme Court invented for itself out of whole cloth: judicial review was born in 1803 when Chief Justice John Marshall ruled that an act of congress was unconstitutional. That's honestly a bigger coup than what is being suggested here, and is only perceived as legitimate because a) it's been around for a long time, and b) the Supreme Court has mostly backed down from its most unpopular opinions.
  - xracy 2y ago
    I'm advocating for a balance of powers. Which is why I'm quoting a precedented action by a president. Right now the SCOTUS is grabbing a lot of power for itself that has been delegated to the executive branch by congress in accordance with Chevron deference. You call out yourself that the judges are essentially creating law. (presidential immunity and abortion both are just bonkers decisions based on thoughts and feelings). I think the only way to curb that from the supreme court is that the other governing body capable of action (see not congress) needs to remind SCOTUS that they've got finite power. Do you have another alternative here? Maybe more ethics rules that SCOTUS doesn't have to follow? Wait for congress to impeach a sitting justice for corruption? Hopes and prayers?
advisedwang 2y ago
The FTC has the power to make rules about "unfair or deceptive acts or practices in or affecting commerce." All the lack of Chevron deference means is the courts are more willing to step in to decide whether or not a rule falls under that. So in this case it makes it harder for FTC to fight a hypothetical NYT lawsuit, but far from impossible. In practice abolishing Chevron deference mostly means rules will follow the politics of judges rather than the current administration. TBH I think this rule is far enough from the culture war that it will probably stand anyway. Unless the NYT happens to buy the judges a lot of vacations...
- heyoni 2y ago
  > In practice abolishing Chevron deference mostly means rules will follow the politics of judges rather than the current administration. TBH I think this rule is far enough from the culture war that it will probably stand anyway. Unless the NYT happens to buy the judges a lot of vacations... I want to agree with you but the vote was split down party lines completely with 2 dissenters being republican. https://en.wikipedia.org/wiki/List_of_members_of_the_Federal_Trade_Commission https://en.wikipedia.org/wiki/List_of_members_of_the_Federal...

by Spoom 2y ago

Does the FTC actually have the power to set rules like this effectively now that Chevron deference isn't a thing? I'd imagine e.g. the New York Times, among others, will quickly sue to stop this, no?

ezfe 2y ago

NYTimes already allows cancelling online for most subscriptions, so I imagine this won't be a big issue for them.

kgermino 2y ago
That depends on what state you're in right? (i.e. California customers can cancel online, but Wisconsin ones need to talk to an agent)
- mikestew 2y ago
  As a Washington resident, I tested this a while back: nope, you can cancel online AFAICT (I didn’t actually cancel, but the click flow indicated that it should work), and do not need to be a CA resident.
- DHPersonal 2y ago
  My Oklahoma-based subscription required chatting via text online with an agent to cancel.
- ry4nolson 2y ago
  I'm in Texas and was able to cancel online. It was slightly frictional. I had first paused my subscription. Apparently you can't cancel if your subscription is paused, so I had to reinstate the sub to cancel.
- afavour 2y ago
  IIRC they implemented online cancellation everywhere a while back.
boringg 2y ago
Last time I tried it their process is not easy at all.
- heyoni 2y ago
  Same. Certain subscriptions I won't touch if I couldn't go through it with icloud. nytimes and nytimes cooking were up there as the worst offenders.
lkbm 2y ago
USA Today, then. They do not, and most local papers are run by them. They have a "Cancel" button, and when you click it, it says you have to call them, during business hours. This won't be the case in California, but I've observed this in both Indiana and Texas. I haven't subscribed to the local paper here in NC, because I can tell at a glance that it's the same company and I've already had to dealt with their shenanigans twice.

jerf 2y ago

There isn't a generic answer for this. You'd have to check the specific laws setting up what the FTC can do, which is more research than you can reasonably expect from an HN post, unless we get super lucky with some very, very specialized lawyer posting.

minkzilla 2y ago

Chevron deference is about statutory interpretation so it really depends on the statue they are doing it under and any ambiguities that arise around the ability to do this. It may be clearly covered or it may not be, we would have to look. And if there are ambiguities it may go the way of the FTC, but since Chevron is gone, not automatically.

pseudolus 2y ago

The rule wasn't adopted with unanimity and one of the FTC Commissioners (Melissa Holyoak) issued a dissenting statement that basically - with Chevron - will serve as a blueprint for contesting its adoption. [0] If the past is a guide to the future, it can be expected that the 5th Circuit will be the first out of the gate with a ruling. [0] https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-dissenting-statement-re-negative-option-rule.pdf https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-dissent...

tomrod 2y ago

They have all the power they need to enact this.

drstewart 2y ago

How exactly do you think the lack of the Chevron deference impacts the FTC here? It's like asking whether Congress has the power to enact laws now that judicial review is a thing

ellisv 2y ago
Since Loper Bright Enterprises v. Raimondo (2024), the judiciary does not need to defer to federal agencies when the statute is ambiguous. In fact, the judiciary can completely ignore the expertise of the federal agency and substitute their own. The overturning of Chevron deference enables the judiciary to first find that the FTC's authority for this rule is grounded in an ambiguous statute and then decide the FTC went beyond their authority. While I wouldn't be totally surprised to see this argument, Commissioner Holyoak's dissenting statement doesn't raise it. Instead she purports 1) the FTC didn't properly follow the rule making requirements and 2) the rule is overbroad.
- Clubber 2y ago
  >In fact, the judiciary can completely ignore the expertise of the federal agency and substitute their own. I don't believe this is accurate, as you stated >The overturning of Chevron deference enables the judiciary to first find that the FTC's authority for this rule is grounded in an ambiguous statute and then decide the FTC went beyond their authority. The only thing the SCOTUS can do is rule against the agency for exceeding its congressional authority. They aren't substituting their own expertise. Correct me if I'm wrong.
  - ellisv 2y ago
    It doesn’t need to go to SCOTUS, Chevron deference was precedent for the lower courts, SCOUTS can always do whatever it wants. The plain reading of Loper Bright is that the courts should make their own independent interpretation of the statutory provisions. In doing so the court can ignore the agency’s expertise.
  - metabagel 2y ago
    [flagged]

ellisv 2y ago

The FTC has rule making authority but it will certainly be litigated. My expectation is a case will quickly be brought in the Northern District of Texas, they'll rule it unlawful (following Commissioner Holyoak's lead), then it'll get bumped up to the 5th Circuit on appeal and they'll issue a stay. I don't expect to see this rule take affect anytime soon, if ever.

metabagel 2y ago

[flagged]

xracy 2y ago

We gotta stop giving SCOTUS credit for bad decisions when they make unpopular opinions. SCOTUS is not supposed to make legislation, and if they are going to try and override Chevron from the bench without legislation, then we have to ignore them. SCOTUS' power/respect only goes as far as they're actually listening to the will of Americans. This is not representing Americans if they override. Same for abortion (just legality not anything about enforcement), same for presidential immunity. We have expectations, and they do not align with SCOTUS, so SCOTUS is not a valid interpretive institution. "The Supreme Court has made their decision, let's see them enforce it."

seizethecheese 2y ago
This is insane and wrong. The Supreme Court is explicitly not supposed to represent the will of the people. You’re advocating nothing less than a type of coup. And against my best judgement, I’ll add that in it was roe v wade itself that was essentially judges creating law (shoehorning abortion rights into a right to privacy is a stretch).
- mwest217 2y ago
  I don't disagree that disregarding the Supreme Court is essentially a type of coup. However, the power which is being contested here is a power that the Supreme Court invented for itself out of whole cloth: judicial review was born in 1803 when Chief Justice John Marshall ruled that an act of congress was unconstitutional. That's honestly a bigger coup than what is being suggested here, and is only perceived as legitimate because a) it's been around for a long time, and b) the Supreme Court has mostly backed down from its most unpopular opinions.
- xracy 2y ago
  I'm advocating for a balance of powers. Which is why I'm quoting a precedented action by a president. Right now the SCOTUS is grabbing a lot of power for itself that has been delegated to the executive branch by congress in accordance with Chevron deference. You call out yourself that the judges are essentially creating law. (presidential immunity and abortion both are just bonkers decisions based on thoughts and feelings). I think the only way to curb that from the supreme court is that the other governing body capable of action (see not congress) needs to remind SCOTUS that they've got finite power. Do you have another alternative here? Maybe more ethics rules that SCOTUS doesn't have to follow? Wait for congress to impeach a sitting justice for corruption? Hopes and prayers?

advisedwang 2y ago

The FTC has the power to make rules about "unfair or deceptive acts or practices in or affecting commerce." All the lack of Chevron deference means is the courts are more willing to step in to decide whether or not a rule falls under that. So in this case it makes it harder for FTC to fight a hypothetical NYT lawsuit, but far from impossible. In practice abolishing Chevron deference mostly means rules will follow the politics of judges rather than the current administration. TBH I think this rule is far enough from the culture war that it will probably stand anyway. Unless the NYT happens to buy the judges a lot of vacations...

heyoni 2y ago
> In practice abolishing Chevron deference mostly means rules will follow the politics of judges rather than the current administration. TBH I think this rule is far enough from the culture war that it will probably stand anyway. Unless the NYT happens to buy the judges a lot of vacations... I want to agree with you but the vote was split down party lines completely with 2 dissenters being republican. https://en.wikipedia.org/wiki/List_of_members_of_the_Federal_Trade_Commission https://en.wikipedia.org/wiki/List_of_members_of_the_Federal...