Hacker News Reader

Comment by diggan | Hacker News Reader

> 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?

View on HN

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-fitne...

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.

I agree with you in principle but process has been abused to throw out way too many legitimate cases.

"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.

> 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-...

[2] https://en.m.wikipedia.org/wiki/Motor_Vehicles_Manufacturers....

[3] https://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_...

[4] https://casetext.com/case/pension-ben-guar-v-carter-tillery-...

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.

> 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.

that sounds like a gym membership.

Gym memberships should also be click to cancel.

where I live, I got lucky, the gym burned down.

(I had nothing to do with it!)

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.

Were you able to cancel your membership? :)

it became an outdoor one, you are still subscribed.

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.

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

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"?

The recent Loper decision also expressly says Congress _can_ delegate to agencies, just that APA doesn’t do that delegation itself.

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.

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

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

In part. They’re also claiming the Commission didn’t consider some material facts. (What they are is so far unstated.)

And let's face it, that's what they're doing. As much as I hate the cable companies, this weird governance structure where most of the legislation in the country is written by these extra-constitutional agencies is super sketchy. The government is not supposed to be able to make these massive changes to its own structure and separation of powers without the check of having to amend the constitution.

You’re right it’s much better for a do-nothing Congress attempt to legislate rather than let experts decide (which is also handled through a democratic process).

Much better to maintain the status quo. Wouldn’t want to upset a corpo now would we?

Imagine living in a common law country where judges legislate from the bench every day, then going online and complaining about regulatory agencies doing the thing they were created to do

Yes, and with the recent overturning of the Chevron doctrine, that's going to be tougher to fly.

Arbitrary-and-capricious and abuse of discretion are parallel deferences to and older precedents than Chevron. Junking Chevron doesn’t junk them.

This is a disingenuous argument. I too think they're engaging in law-making, but if that were their concern then they have the influence, time, and specialized knowledge to convince Congress to make it a law. You know, so everything's proper.

When the criminal says "hey, that's not fair, the legislature didn't make this thing illegal that should be illegal"... well, let's pass it as a law. Anyone not a criminal should be on board with that, including the complainants.

Make no mistake. This is fraud by any sane standard, fraud of the criminal sort. These companies should be fined tens of billions of dollars, if not more. Those who cannot afford such fines (Planet Fitness, etc), should be bankrupted, their assets sold at auction, and their executives and directors prohibited from ever holding such jobs again. Make the shareholders of these companies destitute.

> Anyone not a criminal should be on board with that, including the complainants

There are plenty of reasons to oppose new laws and rules than your own guilt.

There are plenty of reasons to oppose new arbitrary/irrelevant/random laws other than your own guilt.

No reason to oppose such a one as I hinted at. Other than your own guilt.

Here is one, and it will come up almost certainly.

A service has all your source code. Click to cancel is super easy. Privacy laws mean that data must be destroyed almost instantly. You accidentally click and POOF all your stuff is gone. So... to avoid that the service implements something like github - now you have to enter details of the repo, maybe 2fa in because security, and so on. An overzealous Lina Khan type now comes after a service doing the right thing making it hard to shoot yourself in the foot.

every new rule has lots of cases like this. At any given point a good number of the agency heads are ambitious folks trying to build a career of note, not actually protect society.

I don't think this scenario is credible in the sense that the FTC would have to receive complaints from devs who love nuking all their code, complaining that GH made it far too difficult to wipe away all their work.

No, they wouldn't have to receive complaints. The FTC doesn't sit around waiting for complaints to take action. They also take action (sometimes) after receiving complaints, but it's not the only way.

That's not why it's disingenuous, it's very simple: This will reduce their profits. Any additional analysis is superfluous.

There is a good reason why Harris doesn't use the FTC (under Lina Kahn) to gain political capital. This is the sort of stuff that actually matters, so naturally barely anyone ever talks about it.

An argument about what mechanism of law should be used, who has jurisdiction isn't disingenuous.

A class action lawsuit could likely work. This doesn't need to be a rule per se. These companies are behaving poorly and it should cost them billions - but we don't need to create red tape every time this happens.

Reply on news.ycombinator.com