When consumers are asked to identify their most frustrating interaction with businesses, the obstacles to canceling an automatically-renewing service invariably rank high.

Some companies require cancellations to be done by phone, or even in person. Even finding a cancellation option on a merchant's website can be daunting. Cancellation can require multiple steps online, or waiting for hours on hold — before a call just gets dropped without warning.

Millions of consumers have ended up paying unwittingly for services or goods they no longer want or need, sometimes for years.

So unsurprisingly, the Federal Trade Commission last year finalized a "click to cancel" rule, requiring that it be as easy to cancel a recurrent subscription as it is to sign up.

Also unsurprisingly, the rule came under immediate attack from Big Business, via a federal lawsuit filed last year by the U.S. Chamber of Commerce and other business lobbies.

Possibly most unsurprisingly, a three-judge appeals court panel in St. Louis (two appointed by Trump and one by George H.W. Bush) threw out the rule on Tuesday — less than a week before it was to take effect and after more than five years of painstaking administrative and regulatory work — on a legal technicality.

Whether the rule will be resurrected by today's FTC is unclear; the commission told me by email it's still "considering our options." The FTC's two GOP commissioners — including Andrew Ferguson, who was elevated to the chairmanship by Donald Trump in January — dissented in the 3-2 vote last year to make the rule final. Ferguson succeeded Biden appointee Lina Khan, who told podcaster Pablo Torre last month that the rule had "enormous support" from the public.

The commission has sued several companies over their automatically-renewing subscription services, including Amazon, Adobe and Uber, which it sued as recently as April. Those cases are pending.

In announcing the Uber lawsuit, Ferguson observed that "Americans are tired of getting signed up for unwanted subscriptions that seem impossible to cancel" and said the commission "is fighting back on behalf of the American people."

Before delving more deeply into the court's ruling, here's some background on why the rule was drafted in the first place.

Its target was "negative option" programs, in which businesses assume customers have consented for automatic renewals unless the customers explicitly cancel. These programs were pioneered by book-of-the-month clubs and similar others, which delivered merchandise to members unless the members told them to skip their monthly offerings.

When the FTC first moved against this practice with a 1973 rule, its quarries were 72 book clubs and four record clubs. The practice mushroomed, especially during the pandemic, when people signed up for automatic deliveries of goods or streamed entertainment so they wouldn't have to leave the house.

By 2022, businesses were making a mint from auto-renewals, relying on "lapses in consumer memory and on a lack of fluency with technology," as 11 law professors told the appeals judges in a friend-of-the-court brief.

Seniors who forget what they have signed up for and can't easily navigate online procedures and parents of young children who get snared into signing up for subscriptions tend to be the most common victims.

Opinion polls revealed that more than half of all consumers had faced unwanted charges at some point from these programs. Almost three-quarters of respondents to a survey by JPMorgan Chase said they were wasting more than $50 a month on automatic payments for goods or services they no longer needed. A cottage industry of firms purporting to help consumers track down their forgotten subscriptions sprung up — typically operating on the same subscription model.

Think all this was accidental? Think again.

When the FTC started investigating negative option programs, "we were stunned to see just how deliberate a business strategy it is," Khan, who oversaw the regulation's development, told Torre.

In 2019, the FTC began working on expanding its 1973 regulation of book clubs to cover all forms of negative option marketing and published a final rule last November. The rule required businesses to clearly disclose all costs and terms of their programs, to obtain explicit enrollment consent from customers and to provide a means of cancellation that is "at least as easy to use" as signing up. In other words, if it took two clicks to sign up, it would have to take no more than two to cancel.

In a parallel effort, in 2023, the FTC sued Amazon over the enrollment and cancellation procedures for its Prime memberships, which afford enrollees discounted shipping fees and access to Amazon's video and music streaming services for annual or monthly fees.

The agency asserted that the giant online retailer had "knowingly duped millions of consumers into unknowingly enrolling in Amazon Prime" and "knowingly complicated the cancellation process for Prime subscribers who sought to end their membership."

Amazon enticed nonmember customers into signing up for Prime by showering them with repeated come-ons while they tried to finalize a purchase, the FTC said. Some of these messages, the FTC said, obscured that customers who responded to seemingly free offers were actually signing up for Prime.

After the FTC told Amazon it was investigating its approach, the company made the signup process more transparent. The agency asserted, however, that even after internal analyses showed Amazon executives that having customers "sign up without knowing they did" was a major "customer problem," higher-ups pushed back against efforts to clarify the sign-up process online.

The reason, the agency said, is that the "clarity improvements" drove subscription numbers down. Prime executives ultimately "pulled the plug" on the changes, the FTC said.

Perhaps more frustrating for consumers was what the FTC labeled the "labyrinthine" procedure to cancel Prime memberships. This was known inside Amazon, the FTC said, as the "Iliad flow," a term that evokes the seemingly endless Trojan War as described in Homer's epic. It was, as the agency laid it out, a "four-page, six-click, fifteen option" cancellation process.

Amazon pared down the process in early 2023, shortly before the FTC filed its lawsuit but after the agency sent it civil investigative demands — a form of subpoena — related to the signup and cancellation processes.

In its answer to the lawsuit, Amazon said that its signup and cancellation procedures complied with federal law by "prominently and repeatedly disclosing key terms, obtaining express informed consent from consumers, and offering a simple cancellation method." The company also disputed the FTC's "characterization" of its enrollment and cancellation practices.

The claims in the FTC lawsuit, the company said, are "factually unsupported, legally unprecedented, and wholly antithetical to the FTC's mission of protecting consumers." It said that it had established an internal team to analyze customer complaints, and that although the team's studies arose from "anecdotal feedback expressed from a relatively small number of customers," it "took that feedback seriously" and made efforts to address the concerns.

The FTC lawsuit is currently scheduled to go to trial in Seattle on Sept. 22.

Businesses that fear the sting of the FTC's crackdown maintained that the agency had been trying to stamp out a consumer benefit. Auto-renew terms, argued purveyors of home service contracts in a friend-of-the-court brief, appreciate automatic renewals "because they take one thing off their plate given busy workdays, hectic family schedules, or other demanding circumstances."

The appeals judges expressed some empathy with the victims of marketing scams. "We certainly do not endorse the use of unfair and deceptive practices in negative option marketing," they wrote.

But they subjected the commission's rulemaking procedure to pitiless quibbling. The commission had failed at one point to issue a "preliminary" regulatory analysis of its proposed rule, as required by law in some cases. But the FTC did issue a "final" analysis, which was available for public comment.

Yet there could be little in a preliminary analysis that the final analysis wouldn't cover, and businesses had every opportunity to pick it apart (as they did). Nevertheless, because of the FTC's shortcut, the judges said, the business community "lost a notable opportunity to dissuade the FTC" from issuing the rule.

Is that plausible? Industry could hardly be unaware that the rule was under consideration; businesses had mobilized to protect negative option marketing starting at least in 2019, and they hardly lacked for resources to "dissuade" the commission.

This ruling looks more like a reflection of the observation of Dickens' Mr. Bumble in Oliver Twist: "The law is a ass." The rule addressed a known consumer abuse that had received bipartisan condemnation in Congress over the years. In developing the rule, the FTC solicited public comment at virtually every stage.

Moreover, the rule addressed a marketing process that is destined to keep mushrooming. Companies that used to market their products on a buy-once, use-forever basis have turned to subscription models that allow them to collect fees once a month or annually into the limitless future. If buyers forget that they subscribed and don't notice the regular charges on their credit card or bank statements, so much the better.

"Everything wants to be a subscription now," Khan told Torre. "Firms have identified this as a key revenue source, and they've noted that to fully monetize that, they need to make it as easy to sign up and as difficult to cancel" as they can. So they implemented "explicit strategies to make that happen."

Three conservative judges have given those strategies new life. It's up to the FTC to make its chairman's promise a reality.

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