Cable companies ask 5th Circuit to block FTC's click-to-cancel rule

If you needed any more evidence that these companies would rather extract value than provide it …

If the FTC got nothing done but this and it stood up in court it’d be a huge win for society.

I remember the relentless and annoying and capricious and arcane process I had to go through to cancel Comcast for my elderly mother.

Gyms do this, too! Super easy to sign up almost impossible to cancel.

> 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?

I like this as a possible honey trap. Any company/industry that signs up to fight this is pretty much a self own admission they behave this way.

Not one person fighting this is a surprise

Nevermind that if this were put to some kind of national popular vote it would pass overwhelmingly.

If you want to lock customers into a contract then call it a contract. Every subscription plan very ominously states "this is not a contract" so the company has no obligation to provide the promised level of service and can change the plan at any time. Yet here they are arguing that customers don't have the right to terminate a subscription. That's called a contract and you can't have it both ways.

Related:

FTC announces "click-to-cancel" rule making it easier to cancel subscriptions

https://news.ycombinator.com/item?id=41858665

I recently canceled T-mobile home internet.

Cancelling the service was easy.

Cancelling the recurring payments has turned out to be an entirely different matter.

Way back... I think it was the WSJ or Wired, can't remember, where I couldn't change/delete my card details - except one field - once I had subscribed. So the only way to cancel the recurring subscription was to change the cvv code.

> Cable companies worry rule will make it hard to talk customers out of canceling.

That’s literally the fucking point.

"onerous new regulatory obligations regarding disclosures, how those disclosures are communicated, a "separate" consent requirement, regulations of truthful company representative communications with customers, and prescriptive mandates for service cancellation, among others."

Translation: "WTF, how dare you suggest that we have to stop deceiving and ripping off our customers? We aren't prepared to do business honestly! This is an outrage!"

Note: California has this same type of law scheduled to go into effect in July. Can't wait!

oh no, those poor cable companies.

It's hard to see the steelman case for this. The transcript of their objections at the initial hearing are on page 13 of the transcript [1]

> The FTC's highly prescriptive proposal requiring numerous disclosures, multiple consents and specific cancellation mechanisms is a particularly poor fit for our industry. Our members offer services in a variety of custom bundles. They're provided over a wide range of devices and platforms. Consumers, for example, frequently subscribe to a triple play bundle that includes cable, broadband and voice services. They may face difficulty and unintended consequences if they want to cancel only one service in the package.

> The proposed simple click-to-cancel mechanism may not be so simple when such practices are involved. A consumer may easily misunderstand the consequences of canceling and it may be imperative that they learn about better options. For example, canceling part of a discounted bundle may increase the price for remaining services. When canceling phone service, a consumer needs to understand they will lose 9-1-1 or lifeline services as well. Especially important, low-income consumers could be deprived of lower-cost plans and special government programs that would allow their families to keep broadband service.

I mean, except for the 9-1-1 point, I guess I feel like all of those policies -- the bundling in particular -- should ALSO be disallowed.

[1] https://www.ftc.gov/system/files/ftc_gov/pdf/ftc-negative-op...

Quick primer on how the courts have been successfully weaponized here.

The Federal court system is divided into circuits [1]. Circuits are further divided into districts (eg Eastern District of Texas). In sparsely populated, large areas there districts may be further subdivided into divisions. The idea is you shouldn't need to drive 6 hours to get to a Federal judge.

Each district has an Appeals Court that sits above the District Court so that's what "Fifth Circuit Court of Appeals" means. Above all the circuit appeals courts sits the Supreme Court. Additionally, each circuit has a single Supreme Court judge who is available to hear emergency motions from appeals court rulings. That judge can rule on the motion or refer the matter to the entire Supreme Court.

Judges reflect the politics of the state they're in because of the blue slip system [2]. Presidents nominate judges to Federal courts. A Senator from that judge's state by tradition (ie there's no law for this) essentially can veto that nomination.

Federal district court judges have the power to make rulings and issue injunctions that affect the entire country.

So in Texas we have a perfect storm for judge shopping and a forum to push conservative views through lawsuits. Texas is a large state so the districts are divided into divisions. A division might only have 1-2 Federal district court judges. So if you nominally establish a business in Amarillo, TX you know with a high degree of certainty what judge you'll get when you file a lawsuit. With certain questionable tactics, you can know pretty much 100% what judge you "randomly" get assigned.

This is called "judge shopping".

It's why all the patent cases are litigated in the Eastern District of Texas. It's why any anti-abortion lawsuit always ends up in front of Judge Matthew Kacsmaryk [3] in the Northern District of Texas (eg [4]).

So the Fifth Circuit is conservative because Texas, Alabama and Louisiana are conservative. Conservative judges are usually viewed as more friendly to lawsuits attacking any sort of government regulation. Even if the Fifth Circuit Court of Appeals doesn't rule in favor of the cable companies, the matter will go straight to the Supreme Court. This current Supreme Court has shown themselves highly likely to take up the case and intervene, probably in favor of cable companies.

[1]: https://en.wikipedia.org/wiki/United_States_federal_judicial...

[2]: https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate)

[3]: https://www.txnd.uscourts.gov/judge/judge-matthew-kacsmaryk

[4]: https://www.npr.org/2023/04/07/1159220452/abortion-pill-drug...

If this gets canceled, it's hilarious. There isn't a single reason beside "defrauding" consumers that this shouldn't be law

Anyone who has ever tried to cancel Sirius-XM knows how desperately we need this law.

#1 reason I use proxy cards to pay for subscriptions, all I have to do is pause or delete the proxy card and then I won’t have to worry about complicated cancellation processes

Canceling Cable (Kieran Culkin on SNL) https://youtu.be/V5DeDLI8_IM?si=-O1bWCTrdLGK6gCH

The 5th Circuit has a bunch of ultra radical appointees, who among other things ordered ACA to be eliminated.

ExTwitter's new ToS require cases to be held in their jurisdiction, in Northern Texas, which has particularly wild people.

This is absurd court shopping/forum shopping & this court is slated to unmake a huge huge huge part of the USA. The Supreme Court has chastised them numberous times, but they are going to undo so so much.

https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...

Worth mentioning that companies like Starlink make it trivial to cancel service.

Won't somebody please think of the shareholders?

Yikes.. of course they filed in the 5th Circuit too. Why pretend there’s any consistent judiciary when you can just forum shop for the most reactionary Appeals court in recent history?

[Note: This will not be an anti-Cable-company screed]

The American legislative system is bizarre.

To begin with, Congress is accorded very little power by the constitution, with most of it resting with "We the people" or the states.

This however, doesn't pattern match with the amount of power some people (typically progressives) _think_ the Congress or government _ought_ to have, or the amount of power Congress _wants_ to have (as much as possible), so we see BS things like the abuse of the Commerce Clause loophole to justify any Congressional intervention.

Now, you'd think that with all this power that they have loopholed their way into, they would actually exercise it, but that doesn't actually happen, because they are permanently gridlocked and can't pass any damn shit unless it's part of a giant 1000-page omnibus bill that has 100 unrelated things clubbed together based on whatever horse-trading they manage to do one day before the govt shutdown deadline.

So what actually happens is that the actual rule-making is done by the executive, in the form of these government agencies, which ideally should be enforcing things that the Congress has passed, but effectively are given pseudo-legal power through a variety of judicial interpretations (eg. the Chevron Doctrine) that can be overturned by the next Supreme Court as trivially as they were written in.

All in all, you get a massively dysfunctional system where regulatory agencies act as effectively unelected lawmakers, with the actual lawmakers doing jackshit, and the judiciary effectively supporting these shenanigans through capricious rulings.

And while doing all this, lawmakers can conveniently ramp on the rhetoric during campaigning because they know they don't actually need to do anything. They didn't even pass abortion-related legislation for 50 whole years, because they could use that division to reap votes every election cycle.

> Anyone with knowledge who can expand this or explain what exactly is "arbitrary", "capricious" or "abuse of discretion"?

I'm a lawyer. Here's a summary from Perplexity.ai, which comports well with my general understanding:

The U.S. Supreme Court defines "arbitrary and capricious" in the context of administrative-agency action primarily through the standards set forth in the Administrative Procedure Act (APA). According to the APA, a court must invalidate agency actions that are found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" 1 3 4.

The arbitrary and capricious standard is applied when reviewing an agency's decision-making process and involves several key considerations:

Consideration of Relevant Factors: An agency action is deemed arbitrary and capricious if the agency has relied on factors that Congress did not intend it to consider, failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency 2 3.

Rational Connection: The agency must demonstrate a rational connection between the facts found and the choices made. This requires a satisfactory explanation for its action based on consideration of relevant data 6.

Consistency and Reasoning: The decision should not be based on seriously flawed reasoning or be inconsistent with prior actions unless adequately explained. The agency must also respond to relevant arguments or comments during the decision-making process 6.

Zone of Reasonableness: Recent interpretations by the Supreme Court have introduced the concept of a "zone of reasonableness," where agency actions are upheld if they fall within a reasonable range of decisions based on the agency's expertise 4.

It's not like I have much sympathy for cable companies, but I can somewhat see their point here. Canceling your cable involves real costs, someone has to come to your home and disconnect it. Then if they quickly regret the decision, they'll be charged a not insignificant fee to be hooked up again.

That said, the cable companies could still work around this. The rules seems to still allow "saves," which could include them contacting you the next day to try and reverse your decision.

The save portion of the rule seems to be a loophole the telecommunications companies convinced the FTC to add for them, it sounded like originally those would be blocked.