[caesil]

If you actually bother to click through and read the article, you'd find the court expressed sympathies with the intent of the rule, but the FTC "is required to conduct a preliminary regulatory analysis when a rule has an estimated annual economic effect of $100 million or more", and they did not do that.

The blame here belongs to the FTC for its rushed and sloppy process that put the rule on shaky ground legally.

[rtkwe]

Depends on how accurate you think the >$100 million estimated impact from the lower court is. When the FTC did the analysis they came up with a lower impact so they didn't have to do it. I'd be more willing to believe they got it right than a single judge did.

[kristianbrigman]

Why does it matter? As far as I can tell () the law asks the FTC to do an estimate, they did, and now the argument was ‘some one else thinks it’s wrong’. But does the law require an actual estimate?

If they are worried about this… either mandate some third party do the estimate, or mandate the study. This is just confusing.

() - of course I haven’t read the actual law or ruling yet…

[rtkwe]

The FTC did their estimate, it came out to less than $100 million so they, to their estimation were not required to take the additional steps of some types of impact analysis and the required comment period etc about it, the courts are disagreeing with the FTC and kicking the rule out. They only have to do that extra step when the economic impact would exceed $100m USD.

[Glyptodon]

The main reason I think the court got it right is that with ~33 million businesses in the US you could argue that sending every business an email would cost them >$100 mil in just labor cost if they forward it a few times and several employees spend a reasonable amount of time reading it.

[blacksmith_tb]

Luckily not all 33M of those businesses are wringing subscriptions out of their customers (yet), so it might be fairer if we could narrow it down to the subset who do?

What's more interesting to me is the court is basically admitting that doing the right thing for customers will cost unscrupulous businesses more than $100M they're currently fleecing those customers for, so they won't let this go ahead.

[db48x]

> Luckily not all 33M of those businesses are wringing subscriptions out of their customers (yet), so it might be fairer if we could narrow it down to the subset who do?

This is quite correct. The FTC estimated that there are 106,000 businesses offering subscriptions to Americans. Those are the ones that would have to comply with the new rules.

A hundred million dollars is a lot of money, but divided by a hundred thousand businesses it suddenly is only $1000 each. Not actually that much! Since the new rules proposed by the FTC include a lot more than just a button on a website, complying with the rules would in fact require every one of these companies to do a fair amount of work. They’ll have to review all of their existing marketing material, and all of the forms that they use to sign up customers. They must ensure that all material facts are disclosed to every prospective customer, and that consent is obtained from the customer correctly.

Certainly these are good rules for businesses to follow, but the question now is the cost. Can your business review all of its marketing material for less than $1000? I doubt it. So the judge rightfully noted that the FTC’s estimate of the impact was insufficient.

And all they have to do as a result is to allow additional public comment on the proposed rules, with the specific intent to find alternatives. If these alternative rules would be just as effective but cheaper to comply with then the FTC is supposed to drop their own proposed rules and adopt the alternatives. They had already done some of this in the earlier phases of the process, and the result was that several unworkable rules were indeed dropped. They could have spent a few more months doing the final review and analysis, but they decided to rush it through instead.

> What's more interesting to me is the court is basically admitting that doing the right thing for customers will cost unscrupulous businesses more than $100M they're currently fleecing those customers for, so they won't let this go ahead.

I’ll say it again that this has nothing to do with how much the unscrupulous are getting away with, or whether it would cost the unscrupulous businesses anything at all. This is entirely about the cost to the legitimate businesses.

[zaphar]

Why do you think the FTC analysis was more accurate than the opposing sides? The judges, of whom there were multiple, were going off of opposing side argumentation not just their own subjective opinion. That's how courts in the US work.

[rtkwe]

The companies suing to stop this have every reason to massively inflate the difficulty and cost of compliance to continue their long established dark patterns of trapping people in difficult to cancel subscriptions. Judges are not experts in the field and have a hard time evaluating the actual credibility of various presented estimates, you see it all the time with long debunked forensic evidence techniques being accepted still years later by judges and courts.

[skybrian]

To figure out who's right, we would need to do research, rather than choosing the judges versus the FTC based on vibes.

I'm hardly going to do that research myself, so I have no opinion. There are legal bloggers whose opinions I'd respect. I assume comments on Hacker News are no more informed than my own, unless they show they have relevant expertise.

[vkou]

Why would this have any economic impact? These dark patterns don't generate any net value, they just move money from one pocket to another. The money will be spent somewhere else, instead.

[rtkwe]

The economic impact here is only factoring in how much it would cost companies to comply with the measure which is inherently designed to give an extra hurdle by not counting the money saved by consumers not trapped by dark cancellation patterns.

[db48x]

Right. It doesn’t count the money consumers save by not being trapped primarily because most businesses are legitimate. This threshold is all about identifying rules that are costly for legitimate businesses to implement and allowing them time to suggest alternative rules. If the alternative rules would be just as effective while being cheaper to implement, then the FTC is supposed to drop their own proposed rules in favor of the cheaper alternatives.

[FuriouslyAdrift]

Compliance and enforcement costs

[caesil]

Moving money from one pocket to another... is economic activity.

[julienchastang]

> "If you actually bother to click through and read the article,"

HN guidelines ask that you say "The article mentions that".[0]

[0] https://news.ycombinator.com/newsguidelines.html

[didibus]

I don't understand, they did an estimate and found it below 100$ million. That seems to have followed the process. An estimate can always be challenged and is just a best effort prediction. Now it seems this create a pretty flaky ground for precedence that the FTC simply can never estimate less than 100$ million as it could always be challenged in court, what if it was more? And they now have to always follow the more effortful process of assuming it is more than 100$ million.

It really seems like a weird line in the sand that the court will just randomly decide on a case by case now, with the FTC having no way to know if the court will agree with their estimate or not.

[standardUser]

> you'd find the court expressed sympathies with the intent of the rule

And you'd find such sentiments to be completely worthless, except insofar as they act as cover for a ruling on a technicality in favor of the same corporate interests that fund the politicians that appointed these judges.

[epgui]

Ruling on technicalities is their job. I don't like the outcome either, but they did their job and they did it well.

[cortesoft]

If we don’t want rulings based on technicalities, then don’t put technicalities into the law.

[AndrewKemendo]

Why are you carrying water for this?

The FTC didn’t make that rule.

Who do you think created that rule that anything that lost money for advertisers? I’ll give you one guess

The fact that you’re indignant that someone doesn’t agree with the argument is absolutely absurd.

The law/rule constraint was corrupt from the outset in order to provide multiple avenues for capital to ensure they don’t lose their profits.

[jakeydus]

Sure, but that's a different argument. OP wasn't carrying water for the companies that would be affected by this change, they were carrying water for the rule of law. If the FTC had sued saying that the $100M limit was too restricting and had no valid basis, then sure, this would be a valid argument. But the judges have to rule on the law as it's written, not as HN commenters would like it to be. Is the law wrong? Corrupt? Maybe! But that's a different conversation.

Believe me, I'm incredibly disappointed that this didn't work. I paid a Planet Fitness membership for a year after I had moved to a place too far away from any PF location to reasonably use it, just because the cancellation process was so convoluted that it took me ages to figure out how to cancel. I think that companies should be held liable when they employ predatory business practices like this. I agree with your premise, that the limit is too low and there's nothing to stop companies from lying about the cost to implement the rule. But the law is the law is the law is the law. Courts exist to interpret the law, and in this case, the law they were asked to interpret was whether the FTC had abided by the $100M cap. They found reasonable justification to rule that they had not.

Again, I get the desire to be up in arms over this. But recent events have shown just how fragile our legal system is when people decide that the rules can just be ignored, and I wish that people would be more hesitant to throw the baby out with the bathwater, even when doing so would mean I wouldn't have to pay planet fitness $20/mo for a year.

[wahnfrieden]

Tidy logical explanations of rule systems that click for people are very powerful when they come from authority. There’s a comfort in this sort of bureaucracy that appears to have taken broad considerations to protect us from complex dangers and second order effects.

[exabrial]

^ This.

A shoddy implementation would just mean later problems. Hopefully the FTC gets the memo and does it "the right way" to make it watertight, otherwise people will just get away with doing whatever they want.

[tsimionescu]

I find it quite absurd to suggest that a ruling that forces corporations to simplify their business practices would cost $100 million to implement. I would be willing to bet the companies would significantly reduce their spending by following these rules, not increase them. But it's not in any way surprising that they'd find a judge who buys their massively overinflated estimates over the FTC's calculations.

[fumeux_fume]

This is a pretty narrow view. A lot of businesses--whose bread and butter (well maybe just the butter) is keeping people locked into subscriptions they don't want--put a large effort in challenging this rule. They would have fought it like hell during the "analysis" which would have stretched into the Trump presidency were it would surely would have been killed. Even if the analysis had been completed, it's likely the courts would have struck it down for overreach (like Dept of Education's student loan forgiveness). It died because a lot business interests are opposed to it.

[pessimizer]

I don't know what you mean by "narrow" here. It sounds like you're saying that they did it at the last minute, and failed to finish. But you're saying that since the next administration would "surely" never do click to cancel, that somehow should immunize the FTC from following their own regulations? The next administration was elected.

The reason they have to do studies is so they can't rush things through. We don't want them to be able to rush things through. They're creating law.

[John23832]

I read the article. It is how I was able to reference the "gotcha".

[pavon]

In this case, I'm guessing the FTC knew it was a long shot and took the Hail Mary pass anyway. If they had done the preliminary regulatory analysis the ruling wouldn't have been completed during the Biden administration. So they gambled that it would be better to take their chances with the courts than with the next administration, given both Republican commissioners voted against the rule. Which makes this less of a disappointment to me that it would otherwise.