Comment by ortusdux
1 year ago
I think it is important to note that the legal principle that allows the FCC to make rulings like this is called Chevron Deference, and many consider it to be under attack.
https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
This thread wildly misunderstands "chevron deference". "Ending chevron deference" does not somehow throw us into a Mad Max anarchic hellscape where agencies cannot actually do anything, because there is always some standard for what administrative rulemaking is permissible. There is a broader question of how much leeway they have, but clarifying that AI generated voices count as "artificial" under the statute barely requires a regulation, any more than they need one to say "hit in the head with a computer" constitutes an "assault".
The problem with your argument is that, for decades, congress has been passing and failing to update laws under the understanding that the courts would apply Chevron deference.
If the courts decide to get rid of that, they're intentionally misinterpreting the laws that congress has passed over that time. They're also effectively rewriting a large fraction of US law, despite the fact that the constitution is carefully designed to prevent such a small group of (unelected or elected) people from modifying US law that quickly, and without safe guards.
The current Supreme Court has repeatedly undermined separation of powers, and they're explicitly doing so against the wishes of the electorate. Their behavior is fundamentally undemocratic.
> Their behavior is fundamentally undemocratic.
Correct, because in the United States, our model of government is a Democratic Republic, not a democracy. For all of the flaws of our system of law, the Constitution is considered supreme, and any laws that violate the Constitution are to be considered null and void. The job of the Supreme Court is to decide the Constitutionality of laws.
One interpretation of removing Chevron deference is that it's defacto rewriting law, another is that executive agencies have been doing this for decades already. The truth is probably some mix of the two.
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>The problem with your argument is that, for decades, congress has been passing and failing to update laws under the understanding that the courts would apply Chevron deference.
It is literally the job of Congress to update laws. That they are bad at doing that is not relevant to the place of the Court in the structure of this country's government.
>If the courts decide to get rid of that, they're intentionally misinterpreting the laws that congress has passed over that time.
The opposite of this is true. If the Court decides to jettison Chevron deference (you should look in to why that case is called "Chevron") it means that gasp our legislators have to actually listen to constituents and write laws and not just bet that the executive branch in the next election cycle agrees with them.
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Undemocratic or capitalistic but with a cap?
If it were such that individual states with greater agency could negatively impact neighbouring states and in Chevrons original case, environment and agriculture, then it’s a dangerous precedent of opening up states to competitive market at the detriment greater societal impact and responsibilities. Both positive and negative but the incentives are there to push towards later in pursuit of fast profits and deferred responsibilities.
Am I making sense? States can compete for corporate interests, while we know full well who runs the senate: lobbyists with deep pockets.
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Imagine the following: The FCC fines a company for using AI-generated voices in robocalls. That company appeals the fine. With Chevron intact, the court would need to defer to the FCC's interpretation of the TCPA and dismiss the appeal. With Chevron overturned, the court would be able to advocate for their own interpretation of the TCPA. A favorable judge could just claim textualism, and insist that the TCPA does not apply because it does not explicitly use the word AI. Then it is a slippery slope of forum shopping and companies moving their operations to districts with sympathetic judges.
Imagine the FCC goes to congress, proposes a new rule and then congresses passes it. Then there is debate and congress can't abdicate its responsibility.
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Ruling that artificial intelligence voices aren't artificial would seriously damage the legitimacy of the court system.
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Even if it was unclear, ending Chevron deference wouldn’t say “the agency can no longer make these policy interpretations.” It just means that a court ought to test whether that interpretation is in compliance with the law, when that comes up in a dispute (which is something that courts are in the business of in many other areas) more so than simply deferring to the agency’s expertise on the law.
(If you look at the original Chevron decision, they were much more interested in trying to get out of the “understand and make determinations about complex environmental issues” business anyway, more so than the “understand the law” business.)
Postscript: For your next unfairly downvoted reply I recommend that you explain to someone Citizens United was actually a nonprofit trying to air a movie on cable television and was fighting the FEC over it. (Total hackjob of an organization, mind you. But core political speech.) Some facts are unpopular.
Chevron deference would come into play if the FCC tried to say that a test-tube baby was an artificial agent. I support ending the doctrine, because the shadow laws are strong and bad.
How would it? The FCC aren’t experts on the philosophical or scientific difference between artificial and natural insemination.
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This is great that this is line of comments are under an article about banning something most people here would like to see banned. That is in fact doing something good, unless I guess you're on the side of robocalls. Perhaps choose to make this argument in another thread, it'd be far more convincing.
The argument espoused should be examined more directly for things you agree with, otherwise one risks becoming a hypocrite.
I've only read your link there, but aren't you mischaracterizing it? The Chevron doctrine isn't what allows agencies like the FCC to make rulings like this, it's what protects their decisions from being overruled by the courts. That is, even if all the justices privately agreed the agency's interpretation had issues, they'd still defer to it. But without Chevron, in that case, they could overrule it.
In this case, considering AI-generated voices "artificial" for the purposes of applying a law seems obvious enough to me that I don't think the Chevron doctrine would apply, personally.
> The Chevron doctrine isn't what allows agencies like the FCC to make rulings like this, it's what protects their decisions from being overruled by the courts.
Yes and it's in cases where a law gives authority and expectations to an agency. In the past, it was left up to experienced and qualified agency specialists to work out how best to implement it because 1) it's their job and 2) because Congress knows it can't write every possible contingency into a law.
Chevron supports this. The SCotUS case is brought by folks who want to shift that determination from agency specialists to judges who don't have the related experience or qualifications. It would effectively allow endless monkey wrenches to be thrown into the oversight process by corporations who aren't keen on oversight.
> shift that determination from agency specialists to judges
Again, that's still not my reading of it. The determination is still done by the agency, right? This is purely about the recourse of folks who don't like what the agency has decided and the futility of appealing it or not.
I feel like both you here and the original poster I replied to are implicitly saying that an agency only truly has the ability to implement laws based on expert qualifications if there's no "check" on them. But this isn't really true for Congress, is it? They make laws around specific topics based on expert input all the time, whether it be around trade or cryptography or whatever, while still having the courts sit above them with the ability to hear out someone who thinks the law is unconstitutional. How is this any different?
It's true that without Chevron, there's more freedom to appeal an agency's decisions. But as a general principle (i.e. not this specific moment in time but say 20 years from now), it seems just as likely to me that an agency is politicized, paid for by corporate donors, etc, as the courts, so it's not clear to me that an un-appealable agency decision is better than one that can be appealed.
Edge cases make great news, but I suspect in our sprawling administrative framework of government agencies, the vast, vast majority of interpretation of laws is done by experts, is relatively fair, and has gone and will continue to go unchallenged. So I don't think the characterization that "interpretation of laws by agencies will move to judges from experts" is fair, on the whole. Maybe only on the controversial parts where there are interests on all sides, but then maybe that's a fair place to have that, too.
>shift that determination from agency specialists to judges
All correct until this bit. They in fact want to shift it back to congress, who should do a better job in specifying what power they delegate to unelected heads of executive branch agencies.
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Just because there is an ongoing consensus failure in our democratically elected components doesn’t mean we should skip the democratically elected components
This court has been very consistent about that and we’re going to have it until the 2050s so get with the program
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I agree with you on the importance of Chevron deference, but I can't see any court getting to the second step of Chevron with this particular ruling, so no deference would be required. The legislation bans "artificial or prerecorded voices"; AI agents are by definition artificial.
> "Congress should have used more precise language rather than deferring to the supposed "expertise" of members of the administration in order to establish the artificiality of AI"
>"I ctrl-F'ed the document and didn't find the phrase "AI" or "Artificial Intelligence". Overruled."
- Strict textualist judge that really loves his new RV.
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Chevron is facially frivolous.
So, an agency says you broke the law.
You take the agency to court.
The court defers to the agency.
You’ve been denied your day in court.
Congress says: "Hey agency! You're the experts. Figure out and enforce the policy details."
The agency: we have determined that this action by company X is against our policies.
The courts: Congress said that the agency decides the policy. Even if we think an action is inside policy, the agency has Congressional authority to change the policy to put the contested action firmly outside policy.
The company should therefore lobby Congress to regulate the agency. Maybe you could make a case about retroactive or post-facto laws, but I suspect the company is not usually claiming that they abide by the letter of the policy, but that the policy is outside the agency's powers.
Congress makes the laws. The Executive enforces them. Separation of Powers precludes Congress from delegating lawmaking authority to the other branches.
You might have a hearing held by the agency to determine guilt. There is no separation of powers.
With the speed things move at now I worry about a situation where we have to wait for explicit legislation for every little thing ...
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It will cause chaos and disaster if congress has to make regulations for every little thing. Congress is so divided the result of Chevron reversal is that huge numbers of usefully regulated utilities, companies, etc will be unregulated. It also doesn't make sense for congress to spend all their time writing regulations, they'd get even less done. Congress can barely pass a budget shortly before the previous budget year ends.
Ending the ability of federal agencies to write useful regulations means unregulated spam robocalls! It's the dream of Elon Musk and Peter Thiel. Rich people are unbounded. They would say we don't need regulations about food safety written by those ninnys in the federal government.
Yes. Heavens forfend if they had to do the job they asked to be elected to do.
In short, good. How many here can even map the entire list of all the agencies and corresponding rules, recommendations, and guidance that has the weight of law.
<< It will cause chaos and disaster if congress has to make regulations for every little thing.
Free people pull in all sorts of directions. Its going to be ok.
They have done the job they were asked to do.
Prior courts said that they were going to use Chevron deference when interpreting the laws that congress passed, since it keeps them simpler, and allows the executive branch to apply common sense (while retaining safeguards in case agencies overstep their bounds).
The current court has repeatedly decided to arbitrarily reinterpret settled portions of the law by overturning existing rulings. Getting rid of chevron deference would be a continuation of that, though on a scale that probably exceeds the fraction of the US legal code the court has actually read.
The current courts' actions are unprecedented in the US. The Supreme Court is not supposed to overturn prior Supreme Court rulings, except in exceptional circumstances. They even went so far as to mostly overturn the 4th amendment when they eliminated the right to privacy as part of the Roe v. Wade ruling.
At this point they're looking more like an unchecked legislative branch than a judicial body. This is the reason they are wildly unpopular. They understand this, and they've explicitly said they don't plan to follow the wishes of the electorate. On top of that they've done a lot to undermine US election integrity with recent rulings.
However, given ongoing demographic shifts, there's a good chance they'll have to cope with a unified executive and legislative branch. At that point, expect court packing or impeachments. The only other path I see is some sort of apartheid-style setup designed to ignore the votes of anyone that's urban, educated, female, minority, or not elderly.
This argument reminds me of people who wish for our credit system to burn down so they don’t owe money anymore. Both are completely short sighted and would result in catastrophic outcomes.
We (unfortunately) need credit now. And we (unfortunately) cannot depend on congress to do anything.
Congress should have gotten off their hands and written something by now, same with Crypto legislation. “Chevron Deference” breeds tyranny through legislative apathy
No, Chevron deference breeds sanity. it would be insane to think that every little detail of complex regulatory structure must be outlined specifically in legislation in order for it to be valid. For example, legislation gives the EPA the power to regulate waterways. Chevron deference allows the EPA to use its expertise to write rules that say you can't dump benzine into the river. Without Chevron deference, someone who wants to dump benzine in the river could challenge the EPA saying that the law doesn't specifically say you can't dump benzine in the river. Imagine relying on our elected officials to come up with a list of what is and isn't considered toxic.
Regulations and regulators existed before 1984 when the case was argued. In my opinion, it's a good idea to curtail the power of government whenever possible. I'd rather Congress specify in a bill/law that a committee of leading experts from the private sector and the advocacy side of any given subject matter weigh in yearly on any topic before regulations can be changed rather than blindly hoping regulators know what they are doing.
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I agree with your post. If you step back, can there be any highly developed countries that do not have the equivalent of the Chevron Deference? It seems impossible. Else, parliament would spend all of its time updating laws to add new corner cases that industry/people exploit. It would be very inefficient.
To be very specific: For each new chemical discovered or manuf'd, environmental protection laws would need to be amended by parliament. It is madness to think about.
They should make recommendations, and then before anything goes into effect, these recommendations must be passed into law (Congress passes bill, President signs it).
They could bundle these up regularly.
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>Congress should have gotten off their hands and written something by now, same with Crypto legislation. “Chevron Deference” breeds tyranny through legislative apathy
It would be literally impossible for congress to rule on every nuanced thing that Chevron allows agencies to do. Saying "congress should take care of it" shows either an intentional disregard for the roles agencies and their experts play, or a complete misunderstanding of the power it grants to federal agencies.
"It breeds tyranny" is absolutely ridiculous. When agencies rule in a manner people find unjust, they sue and win or lose in a court of law based on the content of the policy. It also gives congress a chance to rule on "big ticket" things that do need addressing without causing an absolute standstill having to rule on something as mundane as what the legal weight and length limit should be each season for catching a salmon from federal land in Montana.
It's by design. Legislators aren't and can't be competent regulators, and they know this.
Congress can't even handle managing fiscal policy sanely, and that's the one job they can't delegate.
look no further than the recent border bill that got the "no not like that, it wasn't supposed to work". Now they have to answer for it in november, a major piece of legislation in their favor and they left it on the floor because the maniac running the party has hurt feelings on not being included.
From a practical point of view, it's hard to say whether Congress would make better or worse decisions, and it's probably good that the government can make decisions about new technologies while Congress is mostly dysfunctional.
Maybe the thing that guards against tyranny is that Congress can override them (by passing a law) if regulators screw up badly enough?
At least, in theory.
Just like, in theory, the people could elect a better Congress.
Congress did act. They passed the TCPA in 1991 knowing full well that Chevron deference would allow the FCC to tweak their interpretation of the law as facts change. Congress doesn't want to have to micromanage things like this. If they did they would write the laws in a way that prevents situations where Chevron comes into play. And anyway, getting rid of Chevron would transfer the agencies powers to the courts, not congress.
The language of the bill here, "artificial or prerecorded voice" isn't even ambiguous to a normal person. An AI agent's voice is undeniably "artificial". It'd be a much bigger stretch for the FCC to interpret it otherwise!
Saying "Congress should" is basically abdicating solving the problem
Have you listened to our congresspeople? Nothing they do or say suggests to me that they have the capabilities to legislate effectively on technical matters, be they AI, Pollution or Food Safety.
We have departments that have traditionally been staffed with SMEs to make these rulings and decisions on behalf of congress, who legislates their existence and budget.
With some sarcasm and much trepidation, I would submit that lobbyists would be more than happy to write the laws that their congresspeople will sign into law, ending the due diligence and oversight of qualified, established government departments. (I know they do this now, but think of how much worse it could be!)
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Looks like someone doesn't give a shit about shared resources or tragedies of the commons, and wants to do away with important regulation...
Our country is falling apart because of the current level of congressional ineptitude. One party refuses to support important legislation they specifically asked for because it may give the opposition party a positive news article.
Wishing the Congress had to study and pass legislation for all enforcement and regulation of society is tantamount to accelerationism.
The border bill was not what the GOP was asking for. It was a compromise and not enough of one to get the deal done with the most fringe of that party.
We are a divided house.
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Congress can’t reasonably be expected to rule on everything, nor are they equipped with the expertise to do so.
there is simply no way for congress to enact every regulation. This is all a power grab for corporations bankrolling republican judges and congress critters to be able to ignore any regulations they want in order to make a few more bucks.
I think the current SCOTUS thrives on chaos (6 of 9 members anyway) and Chevron will go down in flames just like Roe. This is the modern "conservative" party.
It's not chaos that the current court thrives on, it's corruption, grift, and baldfaced power grabs.
Glad to see Chevron Deference at the top here. Basically, the FCC can’t “rule” they can “dictate” and this isn’t a power explicitly granted by congress. It’s some made up judicial rules that say these federal agencies can do it
The controlling legislation here, the Telephone Consumer Protection Act of 1991, prohibits initiating "any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" (I got this quote directly from the FCC ruling). The legislation does not define "artificial or prerecorded voice". The FCC here is stating that they interpret "artificial voice" as including interactive AI voice agents, which did not exist in 1991. Do you think this is an unreasonable interpretation? Or should Congress be required to list exactly what technologies are prohibited in this context and update that list every time something new comes around?
In 1991 "artificial" probably meant something like "pre-recorded and re-cut". Which is basically AI voice generation, but at scale.
>Do you think this is an unreasonable interpretation? Or should Congress be required to list exactly what technologies are prohibited in this context and update that list every time something new comes around?
Not OP but this is the right question to ask. My answer is yes, congress is quite literally required to update statute to reflect modern technology (ensuring it conforms to the founding principles of course).
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Chevron Reference is the idea that when a statute is ambiguous the agencies can interpret it according to their expert opinion.
The alternative is requiring Congress to write every single rule explicitly and pass a law adapting to any change in circumstance or technology. In practice this means "no regulation" because Congress is pretty slow and adding more detail would only make them slower.
All that has to happen is the agency propose a set of rules and let congress vote. If they can't get it through congress then it should be a rule.
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Many of these regulatory agencies were created by Congress, of my limited knowledge on the subject is to be believed.
Executive agencies are granted authority by the legislature. The legislature can at any time make additional legislation overriding or limiting specific actions taken by executive agencies. It isn't made up.
Nonsense. The law in question explicitly grants the FCC the right to make this determination via regulation.
Chevron deference is about whose interpretation governs when a law is ambiguous; that’s not even close to being the case here.
Be careful using strong language like "nonsense" unless you're very sure that's you're right. For starters, it's hostile. Also, I think you're incorrect.
Who do you think determines whether or not a particular voice is an 'artificial' voice? The FCC or the Courts? If it's the former, that's Chevron deference. You haven't quoted any legislation which expressly confers power on the FCC to interpret the law (which is typically the province of courts) and determine themselves whether or not a particular 'voice' is an 'artificial' ... 'voice'. But the legislation, at least arguably, impliedly confers that power per Chevron - like in Chevron, it was within the EPA's power to determine what a "source" of pollution was.
Compare Australia, where Chevron deference was rejected as forming part of Australian administrative law (Enfield v Development Assessment Commission (2000) 199 CLR 135), it would be a question for the courts whether the agency was authorised to make this regulation, without deferring to the agency's interpretation. The agency does it's best to conform with the law, but it's ultimately the courts that say what the law is.
Who will think of the poor corporations and their armies of on-retainer lawyers?
Of course government is incompetent and can't be reasonable in regulation? Is that the idea? How dare these corporations not be given minutely detailed regulations that they can easily tear apart to pollute to their convenience? You mean you want REASON in government and regulation?