House Subcommittee OKs Commerce Budget With IANA Transition Funding Ban
The House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies unanimously advanced its $56 billion FY 2017 budget (see 1605170018) to the full committee Wednesday after a markup. The subcommittee didn't add any amendments to the budget during its markup, but retained a rider from the Department of Commerce's two previous budgets that bars NTIA from using its funding on the Internet Assigned Numbers Authority (IANA) transition. The proposed extension of the IANA transition rider already provoked criticism from some House Democrats. Meanwhile, Sen. Marco Rubio, R-Fla., is planning to ask NTIA to delay the IANA transition ahead of a planned Senate Commerce Committee hearing.
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Acting House Appropriations Commerce Subcommittee ranking member Mike Honda, D-Calif., echoed White House and House Democrats' earlier concerns about the IANA transition rider during the markup. Honda said he's concerned the rider "prevented the Commerce Department from transitioning the oversight of certain Internet domain name system functions to an international multistakeholder process even though this transition has been supported in principle by every administration since 1998.”
Retention of the IANA transition funding rider could set up a "potential confrontation" between Congress and the White House, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw, in an interview. The White House hasn't viewed the rider as a deal-breaker in past budget negotiations “because it didn't really matter since the IANA transition wasn't ready to happen” before the end of previous fiscal years, Corwin said. “We're in a different situation now since the transition is on a clear trajectory toward being completed by Sept. 30,” the current expiration date for NTIA's contract with ICANN to administer the IANA functions and the end date for FY 2016, he said. NTIA Administrator Larry Strickling “has been on record in the past that NTIA views the appropriations ban as precluding them from completing the transition,” Corwin said. “Whether that's still their view and whether the White House cares given their record on doing things by executive order, who knows?” NTIA didn't comment.
House appropriators may “feel like NTIA isn't paying attention to their intent” in enacting the IANA transition rider in previous budgets, said Shane Tews, visiting fellow at the American Enterprise Institute’s Center for Internet, Communications and Technology Policy, in an interview. “They're using the appropriations process to get that point across.” Americans for Limited Government told the Department of Commerce's Office of Inspector General earlier this year it believes NTIA violated the transition funding ban (see 1604210072).
The potential extension of the IANA transition funding ban is “somewhat surprising” given the largely positive tone of comments that House Communications Subcommittee members made during the subcommittee's March 17 hearing on the transition (see 1603170051), Corwin said. “But as we know, the appropriators have their own view and their own agenda” on the transition. The House Appropriations Commerce markup occurred ahead of a planned Senate Commerce Committee hearing on the IANA transition. Senate Commerce confirmed Wednesday its hearing will be May 24, as expected (see 1605060065). Critics of the transition have been pushing the committee to give their concerns some attention during its hearing. The IANA transition rider itself may factor into discussions at the Senate Commerce hearing, Tews said. The hearing is to begin at 10 a.m. in 253 Russell, Senate Commerce said.
Rubio, a Senate Commerce member, has been circulating a letter urging NTIA to delay the IANA transition to ensure “that the transition establishes a stable system that reinforces the multistakeholder model and does not contain unforeseen problems or consequences that could jeopardize the security, stability, and openness of the Internet.” It's unclear whether other senators agreed to sign Rubio's letter, which would be sent to Strickling, an industry lobbyist told us. ICANN stakeholders' care in writing the IANA transition-related plans that NTIA is reviewing is “clear,” but “the Internet is too important to allow the transition to occur without certainty that the proposed accountability measures are adequate and that ICANN’s new governance structure works properly,” Rubio said in the draft letter.
ICANN's transition plan “would create a radically different governance structure for ICANN” via proposed changes to ICANN's accountability mechanisms that would give additional power to ICANN stakeholders over the ICANN board, Rubio said in the letter. “Although promising in theory, this structure and authority remains untested and it is unclear if the Empowered Community would actually be able to exercise these powers with reasonable facility.” An extension of NTIA's contract with ICANN would “ensure that the many changes in the transition proposal are implemented, operate as envisioned, and do not contain unforeseen problems, oversights, or complications that could undermine the multi-stakeholder model or threaten the openness, security, stability, or resiliency of the Internet,” Rubio said. Rubio's office didn't comment.