Senate GOP Files CR Text Sans IANA Transition Delay Rider

Meanwhile, House and Senate Judiciary committee leaders asked DOJ to explain its role in advising NTIA on the agency's evaluation of ICANN's IANA handoff-related plans. NTIA and DOJ indicated an interagency consultation on the move didn't find any significant anticompetitive issues (see 1608290047 and 1609020038). "With so many outstanding questions remaining, especially in the areas in which DOJ would seem to have direct subject matter expertise, we believe it is important to understand what input and contributions the Attorney General and the DOJ made in blessing this transfer and in answering many of the specific questions that were raised by other agency participants during the process,” said House Judiciary Chairman Bob Goodlatte, R-Va., and Senate Judiciary Chairman Chuck Grassley, R-Iowa, in a letter to Attorney General Loretta Lynch released Thursday.

Goodlatte and Grassley raised ongoing concerns about whether nonbinding letters between ICANN and NTIA that guarantee that control of the .gov and .mil top-level domains can't be transferred without explicit permission from the U.S. government are sufficient. “These assurances certainly are not legally binding and could lead to the loss of the TLDs despite the declarations of NTIA and ICANN,” the Judiciary chairmen said. A GAO report released earlier this month said the switch won't result in a transfer of U.S. government property and likely resolves one of the many issues posed by critics (see 1609130050). Goodlatte and Grassley also said they remain concerned about whether the transition involves a transfer of U.S. government property and whether it will result in ICANN being exempted from U.S. antitrust laws. The chairmen sought a response from DOJ by Tuesday.

The Senate GOP's CR text didn't result from a deal with Democrats, since negotiations on the CR were still stalled Thursday, a Senate Democratic aide told us. Senate Democrats believe McConnell introduced the CR language to force them into a “take-it-or-leave-it” position, the aide said. Multiple lobbyists and stakeholders told us Thursday they're cautiously optimistic McConnell's tactic to entice Democrats to back the CR means the switchover funding ban rider won't be in the final CR text, but also said it was too early to say the rider is dead.

“There have been broad requests for a clean continuing resolution, so that’s what I’ve just offered,” McConnell said on the Senate floor. “It’s the result of many, many hours of bipartisan work across the aisle.” The CR text McConnell filed also didn't include several provisions that Senate Democrats sought to attach to the legislation. Senate Democratic leaders said earlier in the week they opposed the transition funding ban rider and several other proposed provisions. McConnell moved to block additional amendments to the CR from being proposed. A procedural vote on Senate Republicans' proposed text is set for Tuesday, before which negotiations could result in new bill text, two industry lobbyists told us.

Senate Minority Leader Harry Reid, D-Nev., told reporters Thursday that the GOP-proposed CR text is DOA for Senate Democrats. “We’re in no hurry to go anyplace,” he said: “We have” more than a week to pass a CR before FY 2016 ends. House Minority Leader Nancy Pelosi, D-Calif., is “not going to agree to this,” Reid said. “The president is not going to agree to this. It’s really unfair to the American people.” Senate Appropriations Committee ranking member Barbara Mikulski, D-Md., told us Senate Democrats wouldn't support what she called a “Republican-only” CR text.

Senate Judiciary Oversight Subcommittee ranking member Chris Coons, D-Del., told us he believes the decision not to include the transition funding ban rider in the Senate GOP's CR text “is a good sign that Republicans are beginning to get the message that inserting policy riders into the CR bill is not going to work.” Coons said he hopes Senate Republicans choose to jettison the rider after consulting policy experts and conclude "that the reality was the opposite of what was presented to them" by Senate Judiciary Oversight Chairman Ted Cruz, R-Texas, and other transition skeptics. Coons promoted the changeover during a Senate Judiciary Oversight hearing last week. Cruz criticized ICANN's transition-related plans during the hearing and claimed NTIA officials broke U.S. law by continuing to evaluate the plans given the existing funding ban (see 1609140062).

Cruz said Thursday he's “profoundly disappointed” by the omission of the rider in the Senate Republicans' CR text. “This is one more example why the American people are so fed up with Washington, because they expect all of us -- Republicans, Democrats, and independents alike -- to protect free speech online,” Cruz said in a statement. House appropriators should “continue to stand united to ensure that the government funding bill prevents the Obama administration from permanently undermining free speech on the Internet.” House Appropriations Committee Chairman Hal Rogers, R-Ky., said in a statement that “there are several additional items I would have like to see included" in the Senate GOP CR text, but "the bottom line is that it is essential that we keep the government open and provide these vital funds.”

The absence of the transition funding ban rider in Senate Republicans' CR text makes it “far less likely” that a final CR will include such a rider, but “nothing is final until the same bill has been passed by both the House and Senate and signed” by President Barack Obama, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. The Senate GOP's CR text doesn't represent a deal and “if negotiations resume between now and [Tuesday's] procedural vote, the IANA freeze could be put back in play in exchange for something the Democrats have on their wish list,” Corwin told us. “The fat lady has yet to sing.” Some Senate Democratic leaders previously floated a proposal to allow the transition funding ban rider's inclusion in the CR if it's paired with language that would change the Export-Import Bank board's quorum rules to give it more flexibility (see 1609210070).

It would be difficult for the House to include a transition rider in its version of the CR if the Senate does ultimately pass a version without the rider, an internet industry lobbyist told us. It would be difficult for congressional Republicans to find another avenue for opposing the transition at this point if the CR doesn't include the transition rider, said Shane Tews, visiting fellow at American Enterprise Institute’s Center for Internet, Communications and Technology Policy. Capitol Hill's interest in the transition may well “die down” if that comes to pass, she said.

It still also is possible a private entity could move to file a lawsuit to block the transition, but “I think it would be difficult to find a judge who would be willing to enjoin NTIA from proceeding,” Corwin said. ICANN has “opened itself up to a lawsuit in a number of different grounds and those are challenges that are certainly still possible,” said Heritage Foundation fellow Brett Schaefer. A TechFreedom-led coalition of groups skeptical of the transition urged House and Senate leaders in August to sue NTIA, claiming the agency is rushing for political reasons (see 1608110062).