Senate Republicans Unlikely to Revisit IANA Transition Delay Rider in CR
A jettisoned proposal to include language in the short-term continuing resolution to fund the government after FY 2016 expires Friday that would delay the imminent Internet Assigned Numbers Authority transition appears unlikely to re-emerge in negotiations. The proposed language would extend a rider in the Department of Commerce's FY 2016 budget that bars NTIA from using its funds during the fiscal year to execute the handover (see 1609130050). Senate Republicans' perceived unwillingness to revisit the transition funding ban rider likely removes the major obstacle to the transition, though House legislators are continuing to explore a legal challenge, industry lobbyists told us.
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The Senate voted twice Tuesday against advancing toward a final vote on Senate Republicans' proposed CR language and the FY 2017 legislative branch budget (HR-5325), the vehicle for the CR. The Senate voted 45-55 not to end debate on the CR language backed by Senate Majority Leader Mitch McConnell, R-Ky. The Senate later voted 40-59 against ending debate on the CR language. McConnell said Senate Republican leaders stripped out several contentious proposed riders from the CR in a bid to win Senate Democrats' support for a “clean” CR. The proposed transition ban funding rider was one of the contentious items missing from the CR language released Thursday (see 1609220067). Sen. Ted Cruz, R-Texas, a transition skeptic, was one of the Senate Republicans who voted Tuesday against advancing the CR.
Senate Commerce Committee Chairman John Thune, R-S.D., told reporters before the Senate's CR votes he believes it's unlikely that GOP leaders would revisit the transition funding ban rider if they were forced to continue CR negotiations. “I'd like to see IANA back in play, but I think right now we're at the point where we need to do whatever it takes to get a bill across the finish line,” he said. Thune continued to blame Senate Democrats for Republican leaders' decision to drop the transition rider, saying Democratic leaders “decided to use their political leverage on IANA, which I think is unfortunate.” Some Senate Democrats floated the possibility of agreeing to a transition delay in exchange for a rider that would change the Export-Import Bank board's quorum rules to give it more flexibility (see 1609210070).
“The way is clear for the transition to happen" if Congress is able to pass a CR before midnight Friday that doesn't include the transition funding ban rider, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. A lobbyist for pro-transition companies agreed “the door would be open for the Department of Commerce to allow the contract to the transition to occur as planned” if a CR is passed. The situation becomes more problematic if Congress fails to pass the CR and a government shutdown occurs, the lobbyist said.
“If there's no CR in place on Oct. 1, [NTIA’s contract with ICANN to administer the IANA functions] simply terminates, but Commerce is concerned that allowing the transition to occur amid a shutdown might be seen as defying the will of Congress,” the lobbyist said. NTIA Administrator Larry Strickling said during a Senate Judiciary Oversight Subcommittee hearing this month that NTIA wouldn't defy the will of Congress if it extended the transition funding rider (see 1609140062). “Even if the government is not funded on Oct. 1, Commerce will need to do its own calculation about how to honor the will of Congress knowing that they still have the power of the purse,” the lobbyist said. Commerce's leaders “do not want to jeopardize all of their programs' funding for this one initiative.” Corwin said he agrees the full transition might not occur if a shutdown occurs, but said a shutdown isn't likely to extend more than a few days. NTIA didn't comment.
Rep. Mike Kelly, R-Pa., is continuing to pursue a push for the House to file a lawsuit against NTIA to delay the transition, an aide told us. Kelly has been seeking a lawsuit via H. Res.-853, which would authorize House Speaker Paul Ryan, R-Wis., to file the lawsuit. The House Administration Committee hasn't moved to advance H. Res.-853 and it's unlikely it will do so given the ongoing CR debate, an industry lobbyist said. Corwin said he doubts there's an appetite in the House to pursue a lawsuit, while possible private sector-led lawsuits would be unlikely to succeed in court.
Cruz continued to push Tuesday for an executive branch intervention to delay the IANA oversight spinoff, noting a joint letter from 77 top national security and cybersecurity experts to Secretary of Defense Ash Carter and Chairman of the Joint Chiefs of Staff Gen. Joseph Dunford to intercede against the transition. “There is, to our knowledge, no compelling reason for exposing the national security to such a risk by transferring our remaining control of the Internet in this way at this time,” said the stakeholders, including former Senate Minority Whip Jon Kyl, R-Ariz. “In light of the looming deadline, we feel compelled to urge you to impress upon President Obama that the contract between NTIA and ICANN cannot be safely terminated at this point.” DOJ separately was expected Tuesday to respond to concerns raised by Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and House Judiciary Committee Chairman Bob Goodlatte, R-Va., about the department's role in advising NTIA on the agency's evaluation of ICANN's IANA handoff-related plans. The DOD and DOJ didn't comment.