Congress recently passed the "Anti-Cyber-Bullying Act" (the "ACBA"). The ACBA will be administered by the Online Civility Board (the"OCB"). The ACBA provides that the OCB "shall regulate threatening, abusive, or harassing communications over the internet for the purpose of protecting the general public welfare." The OCB investigates and issues fines for abusive, harassing, or threatening behavior online, and has rulemaking authority to define abusive or threatening behavior. The OCB also reviews and adjudicates disputes between users and online social media platforms when said users have been banned for abusive, harassing, or threatening behavior that violate platform user agreements and platform standards. The OCB defines online abusive, harassing, or threatening behavior as "any communication, or encouragement of communication, on or through the internet that violates any federal, state, or local prohibition involving unlawful communications, including threats of violence, blackmail, or lewd or obscene images." This definition was made as part of Notice and Comment Rulemaking. A company called "The New Order" ("TNO") developed an application for smart phones that allows people to send texts or emails disguised as coming from government agencies.

TNO had submitted comments during the Notice and Comment Rulemaking period for OCB's rulemaking. TNO noted that the ACBA failed to consider a report by the Cato Institute on the costs and constitutional implications of the ACBA. TNO also noted in its comments that the OCB did not perform a Regulatory Impact Analysis determining the relative costs and benefits of the ACBA. TNO indicated that the OCB failed to disclose an Arizona State University report on the psychological effects of cyber-bullying on which the agency relied in its rulemaking decision. After the rule was finalized, TNO argued that the final rule was not consistent with the proposed rule, because the proposed rule did not include the word "blackmail."

Utilizing the IRAC format for your answers - Was OCB arbitrary and capricious in its rulemaking?