5 ms·

> The lawsuits say the FTC order was "arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act," Anyone with kn

by diggan 2y ago

> The lawsuits say the FTC order was "arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act," Anyone with knowledge who can expand this or explain what exactly is "arbitrary", "capricious" or "abuse of discretion"? As far as I can tell, the best argument the cable companies have is "a consumer may easily misunderstand the consequences of canceling and it may be imperative that they learn about better options" but that feels contrived at best. Anyone have any better arguments against the new FTC rule?

m463 2y ago
Can't they just make it harder to sign up, so they can make it harder to cancel? That way consumers will understand the consequences of signing up and cancelling.
- diggan 2y ago
  > Can't they just make it harder to sign up, so they can make it harder to cancel? The obviously ideal case for the cable companies is "easy to signup - borderline impossible to cancel", as that'd lead to the highest short-term profits.
  - exe34 2y ago
    that sounds like a gym membership.
    - theGnuMe 2y ago
      Gym memberships should also be click to cancel.
      - exe34 2y ago
        where I live, I got lucky, the gym burned down. (I had nothing to do with it!)
        deleted 2y ago
        [deleted]
        m463 2y ago
        Were you able to cancel your membership? :)
        azemetre 2y ago
        My gym closed during the pandemic and sold their memberships to another gym then continued charging me. Luckily the owners of my "membership" were understanding and let me cancelled over the phone.
        octacat 2y ago
        it became an outdoor one, you are still subscribed.
hiatus 2y ago
They are saying FTC is engaging in law-making with this rule.
- diggan 2y ago
  Wikipedia says the following about the FTC: > Additionally, the FTC has rulemaking power to address concerns regarding industry-wide practices. Rules promulgated under this authority are known as Trade Rules. But of course, that specific sentence is labeled "citation needed" so can't really dig deeper there. But taking it at face-value, isn't that one of the points of the FTC at least today, that they can setup these "Trade Rules"?
  - ghayes 2y ago
    The recent Loper decision also expressly says Congress _can_ delegate to agencies, just that APA doesn’t do that delegation itself.
    - brookst 2y ago
      Eh, but there will always be some level of detail that was not delegated. That's the bad faith side of Loper. It essentially says that every detail of every instance must be expressly included in the legislation. Which just isn't possible.
      - WillPostForFood 2y ago
        Loper says nothing like that! I know that there were a lot of hot takes after the decision, but read it yourself. All Loper says is that when the law is ambiguous about agency powers, the courts get final say, they don't defer to the agency interpretation. https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
  - deleted 2y ago
    [deleted]
- 2y ago
JumpCrisscross 2y ago
> who can expand this or explain what exactly is "arbitrary", "capricious" or "abuse of discretion"? If you follow SCOTUS opinions, like half of them are about these words. That isn’t an answer so much as an admission that the APA is one of the more jargon-heavy areas of law. Importantly, however: these standards are not overturned by the junking of Chevron deterrence. Arbitrary-and-capricious focuses “on the process of decision-making rather than the outcome itself. Courts applying this standard do not substitute their judgment for that of the agency but instead examine whether the agency’s decision-making process was rational and based on consideration of relevant factors” [1]. Courts will look at if the agency “relied on factors that Congress did not intend it to consider…failed to consider an important aspect of the problem,” or “offered an explanation that runs counter to the evidence before the agency.” So if an agency doesn’t consider reasonable alternatives to its rule or doesn’t provide evidence for each step in its thinking, its rule can be struck down [2]. Note that these concepts trace from judicial standards, i.e. appellate courts will overturn lower courts if they acted arbitrarily, capriciously or abused their discretion. If a lower court “does not apply the correct law or rests its decision on a clearly erroneous finding of a material fact.…rules in an irrational manner” or “makes an error of law,” its ruling can be overturned on the basis of abuse of discretion [3]. So if an agency facing a statute of limitations gets stonewalled by a defendant running out the clock, and a court dismisses (versus stays) the case on the basis of the statute of limitations having run out, that is abuse of discretion [4]. [1] https://attorneys.media/arbitrary-capricious-legal-standard-explained/ https://attorneys.media/arbitrary-capricious-legal-standard-... [2] https://en.m.wikipedia.org/wiki/Motor_Vehicles_Manufacturers_Ass%27n_v._State_Farm_Mutual_Automobile_Insurance_Co https://en.m.wikipedia.org/wiki/Motor_Vehicles_Manufacturers.... [3] https://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/I_Definitions.html#_Toc199130796 https://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_... [4] https://casetext.com/case/pension-ben-guar-v-carter-tillery-ent#p1187 https://casetext.com/case/pension-ben-guar-v-carter-tillery-...
bix6 2y ago
After reading about this in BIG, my understanding is that they are leaving a breadcrumb trail so this can be challenged by conservative circuit judges on process grounds. Because why bother addressing the underlying issue when you can just throw everything out on process and hold society back. https://www.thebignewsletter.com/p/lina-khan-vs-planet-fitness https://www.thebignewsletter.com/p/lina-khan-vs-planet-fitne...
- SideQuark 2y ago
  The reason to require legal cases meeting process is what helps every day people not get railroaded by zealous police and prosecutors. Arguing to weaken this requirement would have far reaching bad consequences for society. And, if a judge does rule that this change did not follow the law, then no matter how much you like it, it's far better that legal requirements get met than to weaken them over something like this.
  - bix6 2y ago
    I agree with you in principle but process has been abused to throw out way too many legitimate cases.
bunderbunder 2y ago
"Arbitrary, capricious, and an abuse of discretion" is all more-or-less boilerplate legalese that was lifted straight out of the Administrative Procedure Act. It's a reference to a specific level of evidentiary standard that the Act prescribes. Basically, the APA is generally deferential to the agencies deciding how to implement regulations, so challengers have to demonstrate that the implementation in question represents an unreasonable abuse of power. What it really boils down to, though, is that they're complaining that the FTC didn't make a strong enough case that the burdens this rule imposes on service providers are proportional to the consumer protection benefit.
danielmarkbruce 2y ago
Most of these cases are not more related to whether the FTC (or whatever agency in question) is/should be allowed to make the rule at all. It's not really about the rule itself. Obviously the specifics of the rule will play into that, but it's not usually about the merits of the rule itself. It's good that these cases happen. The agencies should be kept in check, they can't just make stuff up as they go. There is a reasonable position that some folks take - that the agencies were never intended to have such broad powers and have vastly overstepped their bounds.

by diggan 2y ago

m463 2y ago

Can't they just make it harder to sign up, so they can make it harder to cancel? That way consumers will understand the consequences of signing up and cancelling.

diggan 2y ago
> Can't they just make it harder to sign up, so they can make it harder to cancel? The obviously ideal case for the cable companies is "easy to signup - borderline impossible to cancel", as that'd lead to the highest short-term profits.
- exe34 2y ago
  that sounds like a gym membership.
  - theGnuMe 2y ago
    Gym memberships should also be click to cancel.
    - exe34 2y ago
      where I live, I got lucky, the gym burned down. (I had nothing to do with it!)
      - deleted 2y ago
        [deleted]
      - m463 2y ago
        Were you able to cancel your membership? :)
      - azemetre 2y ago
        My gym closed during the pandemic and sold their memberships to another gym then continued charging me. Luckily the owners of my "membership" were understanding and let me cancelled over the phone.
      - octacat 2y ago
        it became an outdoor one, you are still subscribed.

hiatus 2y ago

They are saying FTC is engaging in law-making with this rule.

diggan 2y ago
Wikipedia says the following about the FTC: > Additionally, the FTC has rulemaking power to address concerns regarding industry-wide practices. Rules promulgated under this authority are known as Trade Rules. But of course, that specific sentence is labeled "citation needed" so can't really dig deeper there. But taking it at face-value, isn't that one of the points of the FTC at least today, that they can setup these "Trade Rules"?
- ghayes 2y ago
  The recent Loper decision also expressly says Congress _can_ delegate to agencies, just that APA doesn’t do that delegation itself.
  - brookst 2y ago
    Eh, but there will always be some level of detail that was not delegated. That's the bad faith side of Loper. It essentially says that every detail of every instance must be expressly included in the legislation. Which just isn't possible.
    - WillPostForFood 2y ago
      Loper says nothing like that! I know that there were a lot of hot takes after the decision, but read it yourself. All Loper says is that when the law is ambiguous about agency powers, the courts get final say, they don't defer to the agency interpretation. https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
- deleted 2y ago
  [deleted]
2y ago

JumpCrisscross 2y ago

> who can expand this or explain what exactly is "arbitrary", "capricious" or "abuse of discretion"? If you follow SCOTUS opinions, like half of them are about these words. That isn’t an answer so much as an admission that the APA is one of the more jargon-heavy areas of law. Importantly, however: these standards are not overturned by the junking of Chevron deterrence. Arbitrary-and-capricious focuses “on the process of decision-making rather than the outcome itself. Courts applying this standard do not substitute their judgment for that of the agency but instead examine whether the agency’s decision-making process was rational and based on consideration of relevant factors” [1]. Courts will look at if the agency “relied on factors that Congress did not intend it to consider…failed to consider an important aspect of the problem,” or “offered an explanation that runs counter to the evidence before the agency.” So if an agency doesn’t consider reasonable alternatives to its rule or doesn’t provide evidence for each step in its thinking, its rule can be struck down [2]. Note that these concepts trace from judicial standards, i.e. appellate courts will overturn lower courts if they acted arbitrarily, capriciously or abused their discretion. If a lower court “does not apply the correct law or rests its decision on a clearly erroneous finding of a material fact.…rules in an irrational manner” or “makes an error of law,” its ruling can be overturned on the basis of abuse of discretion [3]. So if an agency facing a statute of limitations gets stonewalled by a defendant running out the clock, and a court dismisses (versus stays) the case on the basis of the statute of limitations having run out, that is abuse of discretion [4]. [1] https://attorneys.media/arbitrary-capricious-legal-standard-explained/ https://attorneys.media/arbitrary-capricious-legal-standard-... [2] https://en.m.wikipedia.org/wiki/Motor_Vehicles_Manufacturers_Ass%27n_v._State_Farm_Mutual_Automobile_Insurance_Co https://en.m.wikipedia.org/wiki/Motor_Vehicles_Manufacturers.... [3] https://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/I_Definitions.html#_Toc199130796 https://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_... [4] https://casetext.com/case/pension-ben-guar-v-carter-tillery-ent#p1187 https://casetext.com/case/pension-ben-guar-v-carter-tillery-...

bix6 2y ago

After reading about this in BIG, my understanding is that they are leaving a breadcrumb trail so this can be challenged by conservative circuit judges on process grounds. Because why bother addressing the underlying issue when you can just throw everything out on process and hold society back. https://www.thebignewsletter.com/p/lina-khan-vs-planet-fitness https://www.thebignewsletter.com/p/lina-khan-vs-planet-fitne...

SideQuark 2y ago
The reason to require legal cases meeting process is what helps every day people not get railroaded by zealous police and prosecutors. Arguing to weaken this requirement would have far reaching bad consequences for society. And, if a judge does rule that this change did not follow the law, then no matter how much you like it, it's far better that legal requirements get met than to weaken them over something like this.
- bix6 2y ago
  I agree with you in principle but process has been abused to throw out way too many legitimate cases.

bunderbunder 2y ago

"Arbitrary, capricious, and an abuse of discretion" is all more-or-less boilerplate legalese that was lifted straight out of the Administrative Procedure Act. It's a reference to a specific level of evidentiary standard that the Act prescribes. Basically, the APA is generally deferential to the agencies deciding how to implement regulations, so challengers have to demonstrate that the implementation in question represents an unreasonable abuse of power. What it really boils down to, though, is that they're complaining that the FTC didn't make a strong enough case that the burdens this rule imposes on service providers are proportional to the consumer protection benefit.

danielmarkbruce 2y ago

Most of these cases are not more related to whether the FTC (or whatever agency in question) is/should be allowed to make the rule at all. It's not really about the rule itself. Obviously the specifics of the rule will play into that, but it's not usually about the merits of the rule itself. It's good that these cases happen. The agencies should be kept in check, they can't just make stuff up as they go. There is a reasonable position that some folks take - that the agencies were never intended to have such broad powers and have vastly overstepped their bounds.