> 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?
> 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].
> 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"?
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.
> 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.
What is there to expose? Basically every company would probably like that, if a company doesn’t sign up, it’s not because they are too moral but because they think the public perception of them will take a hit.
> Basically every company would probably like that
No, only the ones who suck. I don't mean this in a jokey way. If I'm UpstartISP, Inc. and I believe that my product is actually better than Comcast offers, I want people to be able to cancel services without being jerked around, waiting on hold, and hassled, so that they can sign up with me.
It's only companies that know they suck, and that their whole business is full of scams and deception, that want this. Yes, that's entire major industries, such as the "home security" lobbying group and cablecos mentioned in the article. As well as gym memberships.
> No, only the ones who suck. I don't mean this in a jokey way. If I'm UpstartISP, Inc. and I believe that my product is actually better than Comcast offers, I want people to be able to cancel services without being jerked around, waiting on hold, and hassled, so that they can sign up with me.
Sooner or later, some SeniorLeader inside UpstartISP, whose bonus is driven by profit or loss, will do the math and note that making it harder to cancel will cause quarterly profits to increase by 0.N%, and then the company will surely make the change. The tendency for all companies to profit-maximize guarantees it.
If a company doesn't do that, or does but wants to stop, it will be in favor of the regulation and against that suit.
That is for whatever reason they have for not wanting to do it. Except, maybe for not doing it for publicity reasons and exploiting that fact with a large campaign.
Who knows what evidence will finally get someone to get off the fence, so the more evidence of whatever type and especially own goals like this are welcome
Given that half the country loves the party that is anti-regulation, "small" government, I don't think you have your finger on the pulse of the nation, so to speak.
Not only would many people in the US be against this on principle ("the feds should stop meddling", "the free market will sort it out"), but the companies in question would invest lots of money into propaganda that many, many people would fall for.
I feel like that's too over-confident. They'll just do what corporations have been doing for decades. Invest in PR that paints this as protecting the American way and American values, and all the other nonsense corporations will use to convince voters to vote against their best interests.
maybe I'm unusually optimistic, but I feel struggling with a BS subscription is a fairly bipartisan and universal experience here. It's not quite like how you can sell to the affluent how they deserve more and there are leechers taking from society. The leeches are the subscription companies.
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.
"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!
> same type of law scheduled to go into effect in July
As near as I can tell, that's the real rub here - this is not a law,, nor was it directly enacted by legislation. It's a regulation written independent of lawmakers, and the question is whether the FTC has the authority to write this specific set of regulations.
I'm hoping the cable companies lose but we should be aware of the consequences of allowing uncheck regulatory rule making outside the scope of congress.
You're absolutely right on that point. I am so frustrated at the massive vacuum left by our worthless federal legislative branch. It seems like "both sides" of the political aisle are feeling the same: Executive branch attempts to do something in an arguably commonsense way to solve a real problem, the guilty parties who caused the problem run to the courts for relief (usually on the grounds of lacking clear authority from Congress), courts agree and (often very explicitly) encourage Congress to pass a law if they think this authority ought to exist, and Congress resumes furiously fundraising and meeting with their donors.
Edit: I know in general it's the left who "likes to regulate things" but a relevant example on the right would include regulating things like immigration.
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.
The one exception to frictionless cancellation could be a big modal warning the customer that cancelling will hamper their 911 service, if what they're doing will actually do so.
>"All wireless phones, even those that are not subscribed to or supported by a specific carrier, can call 911. However, calls to 911 on phones without active service do not deliver the caller’s location to the 911 call center, and the call center cannot call these phones back to find out the caller’s location or the nature of the emergency. If disconnected, the 911 center has no way to call back the caller."
Requiring carriers to enable whatever side-channel is necessary to transmit location info to the 911 PSAP shouldn't be a heavy lift.
The callback issue seems harder to resolve, but even if a handset has no assigned phone number, there are other ways to address it (e.g. IMEI). Carriers should be required to build in a capability to make this work.
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.
That's because the US wasn't designed to have unelected federal bureaucrats create laws for the entire country. Every state should make their own laws, and then those state's courts could determine if the law is legal or not.
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?
I feel the ACLU or other legal action committee is going to have to DoS this circuit to prevent it. If you can’t get on the docket for 10 years, it becomes less of an option.
I have nothing to add other than I am so tired of watching the 5th circuit just blatantly legislate from the bench (and in such a partisan way). It's basically a 2nd legislative arm at this point controlled by one political party.
Not knowing much about this and just going from your link (honestly I don't even know which side the 5th and 9th are on)... 5/10 and 8/10 are not all that close. 5/10 seems to give the 9th one of the lower rates of reversal, given that so many of them are 1/1.
Scroll down to the first vertical bar graph. Sixth is reversed over 80% of the time, Ninth right behind it. Fifth, Eighth and the State Courts comprise the second cohort in the 70-ish percent range. Note that these are conditional probabilities; we’re observing cases SCOTUS took on.
[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.
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.
These days, if they need to physically come out to disconnect/reconnect, that's their problem. Mechanisms exist so they can do this remotely; if they're not set up to do that in 2024, they can eat the costs.
Also... who cares? If there's regret and then the customer gets charged a reconnect fee, that's life. People need to learn that making decisions without thinking them through can have consequences.
The thing they are predominantly fighting is not "I don't want cable anymore". It's not likely anyone who wants to terminate the service permanently is unwilling to spend the time to cancel given the cost of sitting on it.
It's being able to trivially downgrade service packages the same way you can upgrade them. That does not involve a major cost like a technician visit.
I have never had cable activated without a technician coming. I live in a more rural area, but I've also heard other people discuss "the cable guy is scheduled to arrive sometime between 8AM and 4PM."
I think cable boxes change it somewhat, but the last time I had cable and not just cable internet they still had someone come to hook the cable box up. Admittedly, that was fifteen years ago now.
There has been zero reason to physically disconnect the hookup since analog cable was phased out 15 years ago.
It can still be cheaper to send a guy out on service start to ensure the existing hookup is of sufficient quality (hasn’t degraded or been chewed or cut by the last owner) and the new customer isn’t trying to hook it into their aerial or old satellite dish or something. Or if your records are spotty and aren’t certain there’s an existing hookup.
You're right that they probably don't disconnect it. Honestly, I've never considered what happens when it's disconnected, as it's always been when I move out of a place.
Needing somebody to show up to connect it made me assume someone disconnected it, but a status check makes more sense.
I don't sympathize because I remember cable being both 1) long term (yearly) contracts instead of monthly and 2) if you cancel early you still have a termination fee. Those should make up for the need to come to your house to deactivate services.
> 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?
> 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-...
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.
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.
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!)
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
What is there to expose? Basically every company would probably like that, if a company doesn’t sign up, it’s not because they are too moral but because they think the public perception of them will take a hit.
> Basically every company would probably like that
No, only the ones who suck. I don't mean this in a jokey way. If I'm UpstartISP, Inc. and I believe that my product is actually better than Comcast offers, I want people to be able to cancel services without being jerked around, waiting on hold, and hassled, so that they can sign up with me.
It's only companies that know they suck, and that their whole business is full of scams and deception, that want this. Yes, that's entire major industries, such as the "home security" lobbying group and cablecos mentioned in the article. As well as gym memberships.
> No, only the ones who suck. I don't mean this in a jokey way. If I'm UpstartISP, Inc. and I believe that my product is actually better than Comcast offers, I want people to be able to cancel services without being jerked around, waiting on hold, and hassled, so that they can sign up with me.
Sooner or later, some SeniorLeader inside UpstartISP, whose bonus is driven by profit or loss, will do the math and note that making it harder to cancel will cause quarterly profits to increase by 0.N%, and then the company will surely make the change. The tendency for all companies to profit-maximize guarantees it.
If a company doesn't do that, or does but wants to stop, it will be in favor of the regulation and against that suit.
That is for whatever reason they have for not wanting to do it. Except, maybe for not doing it for publicity reasons and exploiting that fact with a large campaign.
Who knows what evidence will finally get someone to get off the fence, so the more evidence of whatever type and especially own goals like this are welcome
Nevermind that if this were put to some kind of national popular vote it would pass overwhelmingly.
Given that half the country loves the party that is anti-regulation, "small" government, I don't think you have your finger on the pulse of the nation, so to speak.
Not only would many people in the US be against this on principle ("the feds should stop meddling", "the free market will sort it out"), but the companies in question would invest lots of money into propaganda that many, many people would fall for.
I am a small government advocate. The problem with cable companies is that they enjoy near monopoly status. That’s not free market.
> Nevermind that if this were put to some kind of national popular vote it would pass overwhelmingly.
But it's typical of big industry groups to try to block any kind of regulatory- or legislative action that inhibits them from doing what they want.
I feel like that's too over-confident. They'll just do what corporations have been doing for decades. Invest in PR that paints this as protecting the American way and American values, and all the other nonsense corporations will use to convince voters to vote against their best interests.
maybe I'm unusually optimistic, but I feel struggling with a BS subscription is a fairly bipartisan and universal experience here. It's not quite like how you can sell to the affluent how they deserve more and there are leechers taking from society. The leeches are the subscription companies.
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.
Related:
FTC announces "click-to-cancel" rule making it easier to cancel subscriptions
https://news.ycombinator.com/item?id=41858665
"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!
> same type of law scheduled to go into effect in July
As near as I can tell, that's the real rub here - this is not a law,, nor was it directly enacted by legislation. It's a regulation written independent of lawmakers, and the question is whether the FTC has the authority to write this specific set of regulations.
I'm hoping the cable companies lose but we should be aware of the consequences of allowing uncheck regulatory rule making outside the scope of congress.
You're absolutely right on that point. I am so frustrated at the massive vacuum left by our worthless federal legislative branch. It seems like "both sides" of the political aisle are feeling the same: Executive branch attempts to do something in an arguably commonsense way to solve a real problem, the guilty parties who caused the problem run to the courts for relief (usually on the grounds of lacking clear authority from Congress), courts agree and (often very explicitly) encourage Congress to pass a law if they think this authority ought to exist, and Congress resumes furiously fundraising and meeting with their donors.
Edit: I know in general it's the left who "likes to regulate things" but a relevant example on the right would include regulating things like immigration.
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...
The one exception to frictionless cancellation could be a big modal warning the customer that cancelling will hamper their 911 service, if what they're doing will actually do so.
These are spurious objections. They're grasping.
Not so sure about the 9-1-1 point.
>"All wireless phones, even those that are not subscribed to or supported by a specific carrier, can call 911. However, calls to 911 on phones without active service do not deliver the caller’s location to the 911 call center, and the call center cannot call these phones back to find out the caller’s location or the nature of the emergency. If disconnected, the 911 center has no way to call back the caller."
Source: https://www.911.gov/calling-911/frequently-asked-questions/
Seems they're deliberately distorting their responsibilities.
That sounds like something to fix, then.
Requiring carriers to enable whatever side-channel is necessary to transmit location info to the 911 PSAP shouldn't be a heavy lift.
The callback issue seems harder to resolve, but even if a handset has no assigned phone number, there are other ways to address it (e.g. IMEI). Carriers should be required to build in a capability to make this work.
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...
That's because the US wasn't designed to have unelected federal bureaucrats create laws for the entire country. Every state should make their own laws, and then those state's courts could determine if the law is legal or not.
oh no, those poor cable companies.
> Cable companies worry rule will make it hard to talk customers out of canceling.
That’s literally the fucking point.
Canceling Cable (Kieran Culkin on SNL) https://youtu.be/V5DeDLI8_IM?si=-O1bWCTrdLGK6gCH
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?
I feel the ACLU or other legal action committee is going to have to DoS this circuit to prevent it. If you can’t get on the docket for 10 years, it becomes less of an option.
I have nothing to add other than I am so tired of watching the 5th circuit just blatantly legislate from the bench (and in such a partisan way). It's basically a 2nd legislative arm at this point controlled by one political party.
> I am so tired of watching the 5th circuit just blatantly legislate from the bench (and in such a partisan way)
Folks have been similarly complaining about the Ninth for some time, which has its rulings reversed about as often as the Fifth’s [1].
[1] https://ballotpedia.org/SCOTUS_case_reversal_rates_(2007_-_P...
Nuke 'em both then. Seriously. Partisan politics, regardless of the side they take, should not belong in the judiciary.
Indeed.
"But both sides do it," they say?
No worries. There's no particular harm in destroying both.
We should have our judges confirmed by a randomly selected jury.
Not knowing much about this and just going from your link (honestly I don't even know which side the 5th and 9th are on)... 5/10 and 8/10 are not all that close. 5/10 seems to give the 9th one of the lower rates of reversal, given that so many of them are 1/1.
> 5/10 and 8/10 are not all that close
That’s only the recent term.
Scroll down to the first vertical bar graph. Sixth is reversed over 80% of the time, Ninth right behind it. Fifth, Eighth and the State Courts comprise the second cohort in the 70-ish percent range. Note that these are conditional probabilities; we’re observing cases SCOTUS took on.
This is a wonderful source - thank you for providing it.
And the 9th Circuit hasn’t?
Why pretend lawmakers are doing their job when you can just blame the courts?
Chevron flew right past people's heads, didn't it.
[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.
That's a fairly accurate assessment of how the whole thing works. Grand, ain't it?
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.
These days, if they need to physically come out to disconnect/reconnect, that's their problem. Mechanisms exist so they can do this remotely; if they're not set up to do that in 2024, they can eat the costs.
Also... who cares? If there's regret and then the customer gets charged a reconnect fee, that's life. People need to learn that making decisions without thinking them through can have consequences.
I forgot to pay my Time Warner Cable bill once. It got disconnected remotely. I paid it and it was re-activated in a few hours.
As far as I'm aware, no humans other than me were really involved with this.
The thing they are predominantly fighting is not "I don't want cable anymore". It's not likely anyone who wants to terminate the service permanently is unwilling to spend the time to cancel given the cost of sitting on it.
It's being able to trivially downgrade service packages the same way you can upgrade them. That does not involve a major cost like a technician visit.
I have never used a cable provider that required a visit to connect or disconnect service - it has always been done remotely.
I have never had cable activated without a technician coming. I live in a more rural area, but I've also heard other people discuss "the cable guy is scheduled to arrive sometime between 8AM and 4PM."
I think cable boxes change it somewhat, but the last time I had cable and not just cable internet they still had someone come to hook the cable box up. Admittedly, that was fifteen years ago now.
There has been zero reason to physically disconnect the hookup since analog cable was phased out 15 years ago.
It can still be cheaper to send a guy out on service start to ensure the existing hookup is of sufficient quality (hasn’t degraded or been chewed or cut by the last owner) and the new customer isn’t trying to hook it into their aerial or old satellite dish or something. Or if your records are spotty and aren’t certain there’s an existing hookup.
You're right that they probably don't disconnect it. Honestly, I've never considered what happens when it's disconnected, as it's always been when I move out of a place.
Needing somebody to show up to connect it made me assume someone disconnected it, but a status check makes more sense.
I don't sympathize because I remember cable being both 1) long term (yearly) contracts instead of monthly and 2) if you cancel early you still have a termination fee. Those should make up for the need to come to your house to deactivate services.
not sure if you have cable. Its all remotely done