Trump, Pai Administration Means Big Shift for Public Interest Tactics

"Resorting to the courts is ... a typical outsider strategy," said University of Tennessee Knoxville political science professor Anthony Nownes, who specializes in public interest group research. "It is a means of last resort for groups that seem to have lost out in the regular policy process.”

Different constellations of groups are typically ascendant in different political administrations, and the Trump administration likely will be associated with more lobbying power by large telecom companies and allies, while the Obama administration was seen as friendlier to tech companies like Amazon, Google and Netflix, and to left-leaning public interest groups, Nownes said. "Generally, you’re sort of in, or you’re out.”

Echoed Matt Spitzer director-Searle Center on Law, Regulation and Economic Growth, Northwestern University School of Law, "That will be the dynamic -- Republican-leaning rules coming out of the FCC, liberal public interest groups challenging them in court." As a result, public interest groups will put more focus on fundraising while hoping they "get the right three-judge panel," he said.

Free-market public interest groups might have more access than they did in the Obama years, but the bigger shift is in the major companies having more access, Spitzer said. Public interest groups and think tanks often craft policy ideas, he said, but "it's the powerful industrial forces that pick them up and run with them." Meanwhile, public interest groups with diminished influence still have the role of taking part in proceedings and introducing evidence that can help them at the appellate court level, Spitzer said. If they introduce powerful enough facts, and the FCC doesn't like the prospect of being reversed, "maybe you can get the FCC to change its behavior somewhat," he said.

Free Press likely will be more active in litigation "by necessity," Aaron said. With the Trump administration and the FCC under Chairman Ajit Pai not on the same side of such issues as net neutrality and media company, and combinations as Free Press, a chief priority is now "avoid[ing] the FCC and Congress sliding too far ... mak[ing] it as hard as possible by whatever means we have available [for them] to roll back these victories for Internet users and consumers," Aaron said. "Exactly what that is going to look like remains in some ways to be seen. We are prepared to sue if need be to prevent bad polices or policies being stripped away."

Free Press was an intervenor on the FCC net neutrality order before the U.S. Court of Appeals for the D.C. Circuit (see 1610040032), and if the agency opts not to defend the ruling if the court takes up the petitions for rehearing, intervenors will step in, Aaron said. He said beyond net neutrality, Free Press priorities in the near future could include fighting possible gutting of media ownership rules, how takeovers are handled and any move "to defang the FCC [of regulatory authority] when it finally got rid of its baby teeth." Aaron said Free Press could spend more time on Capitol Hill now that it's under one-party control than it did in the Obama years, when legislation wasn't moving as much.

PK under Trump will try to find areas of common agreement to try to advance policy, Lewis said, pointing to its support for the reintroduced Mobile Now spectrum legislation (S-19) while disagreeing with its sponsor, Senate Commerce Committee Chairman John Thune, R-S.D., on net neutrality. Given indications of what the Trump administration and Pai will be focused on, such as rolling back net neutrality, Lewis said that "we expect to play a lot more defense." Lewis said one of PK's chief focuses will be on trying to defend the current net neutrality rules regime, with the tactics for doing so depending on how a rollback of the rules happens. If through a FCC proceeding, PK will be participating, he said, but if it happens through proposed congressional legislation, PK will lobby there.

Free market-oriented think tank TechFreedom will still focus on the same issues -- broadband consumer protection, competition law, surveillance and the sharing economy -- but its modes of engagement will shift, President Berin Szoka said. Up to now more responsive and defensive, largely focusing on criticizing government actions and policies, "we have an opportunity to do more thought leadership work, helping to chart an agenda," Szoka said.

Making that pivot "is hard, especially after we have been in the mode we have been for so long," Szoka said, saying the group is still trying to figure that out. "Organizations like Public Knowledge have managed to make that transition in the past and it really changes their work," he said. "That's what we will be doing." TechFreeom's hiring of Austin Carson -- legislative director for House Homeland Security Committee Chairman Michael McCaul, R-Texas -- as executive director (see the personnel section at the end of this edition) is part of that pivot, Szoka said. "That should tell you about our priorities," he said, saying having a Hill person as executive director should help in the goal of pushing a Communications Act rewrite. If Democratic nominee Hillary Clinton had won the presidency, TechFreedom likely would have hired a litigator because the group would be doing more lawsuits and activism, Szoka said.

Ultimately, the changed tactics of public interest groups might be somewhat moot. "Time after time, it appears big changes in policy tend to come from what our government textbooks tell us -- the people in charge," Nownes said. "Politicians tend to do what they say they’re going to do," he said, adding advocacy groups "are probably less important in this than people think.”