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Unscarcity Research

Friction Was the Regulation: Laws That Assumed Humans Cost Time

The FCC is asking whether a person who only clicks 'send' still counts as a person. Most of the law's protections were never written down. They were the price of a human's time.

14 min read 3254 words Updated October 2026 /a/friction-was-the-regulation

Note: This is a research note supplementing the book Unscarcity, now available for purchase. These notes expand on concepts from the main text. Start here or get the book.

Friction Was the Regulation: Laws That Assumed Humans Cost Time

A regulator has been asked, in a single document, to decide what a human in the loop is worth. The answer will matter far beyond phone calls, because most of the law’s protections were never written down. They were the price of a person’s time.

One notice, two questions

On September 4, 2026, the Federal Communications Commission’s consumer bureau put out a routine public notice, DA 26-940, asking for comment on two petitions. Comments were due October 5 and replies October 19. Nothing about the form suggested a turning point.

The first petition came from an individual, Joe Shields. Filed on May 21, 2026, it asks the Commission to declare that “a P2P system that uses a perfunctory human being for the sole purpose of clicking on a ‘send’ or similarly termed button,” while the system pushes out “thousands of text messages per hour,” is an autodialer under the Telephone Consumer Protection Act. In plain words: if the only human act is a finger on a button, does the human still count?

The second came from the Club for Growth, filed August 31. It asks for a waiver of the rule that bans artificial or prerecorded voices on calls to mobile phones without the recipient’s consent, so that “noncommercial, political” calls can use such voices, “including an AI-generated voice.” The Club argues that a conversation with a voter deserves at least the constitutional protection of a delivery notification. Its president, David McIntosh, told the Associated Press: “We think the Constitution protects a conversation with a voter at least as highly as a delivery update.” The petition offers a cap in exchange: no more than three calls to any one person in 30 days. The FCC, the AP reported on October 7, could rule as soon as late October, in time for the midterms. Commissioner Anna Gomez, the lone Democrat, called the request a recipe for “a tsunami of robocalls and misinformation.”

Read together, the two petitions ask the same question from opposite ends. Shields asks whether a human whose only job is to press a button is still a safeguard. The Club asks to remove the human from the voice altogether, and to replace the consent requirement with a number. Both turn on an assumption the law never stated: that putting a person in the loop costs something, and that the cost was doing the regulating.

The law priced the machine, not the person

The TCPA was passed in 1991. The Supreme Court’s own account of why, in Facebook v. Duguid (2021), reads like a description of the present: “Advances in automated technology made it feasible for companies to execute large-scale telemarketing campaigns at a fraction of the prior cost, dramatically increasing customer contacts.” Congress answered by banning two things on calls to mobile phones: an “automatic telephone dialing system,” and “an artificial or prerecorded voice,” unless the called party had consented (47 U.S.C. § 227(b)(1)(A)(iii)).

Notice what the statute regulates. It does not say “no more than so many calls.” It names a mechanism. An autodialer is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” The limit on volume is implied, never stated. A company that dialed by hand was not covered, because dialing by hand was expensive. The expense was the rule.

Thirty years later that mechanism had become, in Noah Duguid’s words to the Court, a “senescent technology.” Facebook had sent him login alerts by text from a system that used no random or sequential generator at all. On April 1, 2021, a unanimous Court held that the statute means what it says: “Duguid’s quarrel is with Congress, which did not define an autodialer as malleably as he would have liked.” The Court could not, as the syllabus put it, “rewrite the TCPA to update it for modern technology.”

The FCC had already drawn the line one year earlier, in a June 25, 2020 ruling on “peer-to-peer” texting platforms used by campaigns and nonprofits: “if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer.” The volume of messages, the Commission added, “is not probative.” The human click became the boundary of the law. What nobody wrote down was the premise behind the boundary: that a human clicking “send” could only click so fast, and that paying that human was a cost most senders would not bear at scale.

The Shields petition is simply the premise failing. A vendor can now seat one person at a screen and have them “actively and affirmatively” tap a button a few thousand times an hour while software fills in everything else. The person is real. The act is real. The safeguard is gone, and no rule was broken.

The Club for Growth petition completes the picture from the other side. In February 2024, after a cloned voice of President Biden told New Hampshire voters to stay home, the FCC declared that AI-generated voices are “artificial” under the Act, “because a person is not speaking them,” so a caller “must obtain prior express consent.” The consultant behind the call was later fined $6 million: a base of $1,000 for each of 3,000 spoofed calls, doubled for egregiousness. Consent, the Commission wrote, “arms consumers with the right not to receive such calls.” The Club now asks to take that right away for political calls, and offers a count in its place: three per month. The proposed replacement for consent is a scale rule. Even the petition that wants the human out of the loop concedes that something must be written in where the human used to be.

The pattern is older than the machines

The telephone is only the latest place this has happened. In every case the shape is the same: a rule assumed that a human act was expensive, the act became cheap, and the protection turned out to have no text.

The affidavit. A foreclosure affidavit is a sworn statement that the signer has personal knowledge of the facts. In a June 2010 deposition, GMAC’s Jeffrey Stephan testified that he signed roughly 6,000 to 8,000 foreclosure documents a month, possibly 10,000, and that neither he nor his team verified what was in them. A Chase signer explained that she had “personal knowledge that my staff has personal knowledge.” A OneWest signer said she spent “not more than 30 seconds” on each document. The requirement of a sworn human had been built when reading was the slow part. Once signing was decoupled from reading, the oath was a stamp. By that autumn the largest servicers had suspended foreclosures, and on February 9, 2012 five of them settled with 49 states for about $26 billion. The fix that followed was not “fewer signatures.” It was a definition of what a signature had to contain.

The public comment. The Administrative Procedure Act lets anyone comment on a proposed rule. It has never limited how many comments one person may file, because filing used to take a person. In 2017 the FCC received more than 22 million comments on net neutrality. The New York Attorney General’s 2021 investigation found nearly 18 million of them fake: more than 8.5 million impersonated real people, submitted by lead-generation firms in a campaign funded by “the nation’s largest broadband companies,” and another 9.3 million came from “a 19-year old college student using automated software.” The penalties came to $4.4 million. The comment process still works the way it did in 1946. It just no longer measures what it was built to measure.

The arbitration clause. For two decades, companies wrote mandatory individual arbitration into their contracts because an individual claim was not worth an individual’s trouble. The clause relied on friction, and friction was abundant. Then a law firm automated the trouble. In 2019 nearly 6,000 DoorDash couriers filed individual arbitration demands at once; the fees DoorDash had promised to pay ran to $1,900 a case, about $12 million, and it did not pay. On February 10, 2020, Judge William Alsup ordered the company into 5,010 arbitrations and wrote that DoorDash “now wishes to resort to a class-wide lawsuit, the very device it denied to the workers”: “This hypocrisy will not be blessed, at least by this order.” In May 2021, facing more than 75,000 arbitration demands from Echo owners and tens of millions of dollars in filing fees, Amazon deleted its arbitration clause and told customers they could sue. A contract term that had governed hundreds of millions of relationships evaporated the moment the cost of a claim fell to the cost of a form.

The ticket queue. A concert’s “four tickets per customer” limit assumed that buying tickets took a human in a queue. When scripts could hold thousands of seats in the time it took a person to type a card number, Congress passed the Better Online Ticket Sales Act on December 14, 2016, making it unlawful “to circumvent a security measure, access control system, or other technological control or measure” that a ticket issuer uses “to enforce posted event ticket purchasing limits.” Read that sentence carefully. The law does not define the limit. It protects whatever friction the seller manages to build, which is an admission that the limit itself was never in the law.

None of these rules was repealed. Each stopped binding on the day the human act it depended on stopped being scarce.

Why agents finish the job

What the autodialer did to telemarketing in 1991, the AI agent is doing to every human act that a rule ever took for granted. The commoditization of intelligence is usually told as an economics story: when reasoning costs a fraction of a cent, the money moves to whatever is still scarce. It is also a legal story. Reading a document, drafting a comment, filing a claim, placing a call, holding a conversation: each of these was a unit of human effort that the law silently used as a throttle. An agent performs all of them for the price of tokens. The throttles do not fail one at a time. They fail together, and they fail quietly, because nothing in the statute book changes.

The Shields petition names the failure mode exactly. A “perfunctory human” is a human kept in the loop to satisfy a rule, not to exercise judgment. The robo-signer of 2010 was a perfunctory human. So is the manager who approves whatever an agent drafts, the case the book’s note on accountability laundering describes: a person in the chain so that the decision can be said to have a human author, with none of the attention that authorship implies. The question the FCC must now answer about a texting platform is the same question every institution will face about its own approvals: does the rule require a person, or a person’s attention? Those were the same thing for as long as attention was expensive. They are no longer the same thing.

This is also why the Club for Growth petition cannot be dismissed as a special-interest ask. Whatever one thinks of political robocalls, the Club is right that the current rule is incoherent. A human caller may say anything to a voter without consent; a recording may not; a cloned voice that says the same words is a recording. The line runs between mechanisms, not outcomes, and mechanisms are exactly what the technology dissolves. The Center for Democracy and Technology’s Tim Harper told the AP that “campaigns will use this technology to target voters in deceptive ways,” and he is almost certainly right. But the deception is the harm, and the statute does not name it. It names a machine.

What a durable rule looks like

A rule that relied on friction had three hidden parts: a limit it never stated, a human act it assumed carried judgment, and a principal it assumed could be found. When friction goes, a durable rule has to write each one down.

Write the number down. The Club’s own offer, three calls per recipient per month, is the honest form of the rule it wants to escape. Wikipedia reached the same conclusion two decades ago: bots are allowed, but each task is approved, each is identified, and each is rate-limited by policy rather than by the cost of an edit. The book’s note on AI as referee walks through how that regime survived an October in which unapproved OpenAI agents began editing the encyclopedia. A rule stated as a quantity can be measured, audited and adjusted. A rule stated as “a human must press the button” can only be gamed.

Define the act by what it contains. The robo-signing consent orders did not forbid signing quickly. They specified what personal knowledge had to mean. The same move is available for every approval an agent now prepares: a human sign-off counts when the human can show what they checked, and the record of that check is itself part of the act. That record has to be one the agent cannot edit, which is the argument of the black box for AI agents, and someone has to be empowered to read it after the fact, which is the argument of an NTSB for AI agents. The human-in-the-loop checkpoints that Microsoft and OpenAI announced this year are only as good as the attention the human spends at them.

Attach the duty to the principal. The $6 million fine landed on the consultant who ordered the New Hampshire calls, not on the software that generated the voice. The arbitration bill landed on the companies that wrote the clause. When the mechanism is fungible, the only stable place for responsibility is the party that benefits. The book’s note on provenance makes the same point about text: a watermark can prove a machine was involved, and that proves nothing about who is answerable.

Make the machine visible. The 2024 ruling’s logic deserves to outlive the TCPA. A voice that “a person is not speaking” is an artificial voice, whatever it sounds like, and the person hearing it has a right to know. This is Law 2 of the Unscarcity framework, Truth Must Be Seen, applied to the dial tone. Disclosure does not stop a deceptive call. It makes the deception a fact that can be found, which is the precondition for every other remedy.

There is a cost to this program, and it should be stated. Outcome rules need measurement, and measurement needs infrastructure that mechanism rules never required. A limit of three calls a month is meaningless without a way to count, across carriers and vendors, who called whom. The friction-based rule was cheap to administer precisely because the public was doing the administering with its own time. Writing the limits down shifts that cost onto institutions. That is the correct place for it. It is still a cost.

The book’s wager

The Unscarcity framework was written with this failure in mind. Its laws are stated as outcomes with numbers attached: Power Must Decay, at a published rate; Truth Must Be Seen, as a property of every ledger. The book’s history of failed legal architectures is a catalogue of mechanism rules that aged into loopholes, and its reading of the iron law of oligarchy is that capture usually arrives through a scale the rule did not anticipate rather than through a rule anyone broke. The 1991 Congress could not imagine a human act costing nothing. The question for 2026 is whether lawmakers can imagine it now, while the FCC decides whether a finger on a button is still a person.

A law that counted on your time was a law that counted on scarcity. It was never written down because nobody thought the price could reach zero. It has. The choice left is to write the limit down, or to discover, one proceeding at a time, that the protection was never there.

Sources

The autodialer was the first machine to make a human act cheap enough to break a law that never named the act. The agent is the last one that will need to. Read the book or start with the preamble.

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