NTIA 'Intends to Allow' IANA Transition to Occur Oct. 1

NTIA “intends to allow” its current contract with ICANN to administer the Internet Assigned Numbers Authority (IANA) functions to expire just before midnight Sept. 30 and therefore allow the IANA transition to occur Oct. 1 as planned, NTIA Administrator Larry Strickling said Tuesday. NTIA believes a Friday report from ICANN on its progress with pre-transition implementation work shows the transition can occur “barring any significant impediment,” Strickling said in a letter to ICANN CEO Göran Marby. ICANN told NTIA it believes it will be able to complete all necessary governance changes before the IANA transition, including all but three of the recommendations NTIA made in its June assessment of transition-related plans. The three remaining recommendations require ICANN’s Public Technical Identifiers (PTI) subsidiary, which will be in charge of administering the IANA functions post-transition, to be engaged in post-transition operations (see 1608150056).

ICANN “is pleased with NTIA’s statement and is focused on the remaining tasks to be completed” before the IANA transition, said Global Domains Division President Akram Atallah in a blog post. “ICANN is confident that everything will be implemented in advance of 30 September 2016 to allow the IANA functions contract to expire. The global multistakeholder community, with the support of ICANN the organization, is ready for the IANA stewardship transition to occur.” ICANN’s remaining tasks include finalizing PTI’s bylaws and ICANN-PTI agreements that set up PTI’s authority to administer the IANA functions, Atallah said. ICANN is expected to release a final version of PTI’s bylaws Thursday, while public comments on the ICANN-PTI agreement are due Sept. 9 (see 1608110062). ICANN and PTI also must finalize the Root Zone Maintainer Agreement and agreements related to administration of the IANA functions, Atallah said.

NTIA’s decision to move forward with the IANA transition was widely expected but is significant because it again highlights the looming battle on Capitol Hill over whether to seek a new delay of the transition, several stakeholders told us. “Congress went into [its seven-week August recess] without resolving this,” an internet industry lobbyist told us. When Congress reconvenes Sept. 5 “we’ll be less than a month away from the transition deadline, so I think you have to assume there will be additional pressure” on Capitol Hill Republican lawmakers to take action, the lobbyist said.

“Everyone will be watching for whether or not Congress will take some action” on the transition but “with each passing day it seems more unlikely because of the short amount of time they have left,” said Wiley Rein telecom and Internet governance lawyer David Gross. He said there are encouraging signs that China, Russia and other countries opposed to multistakeholder internet governance are shifting away from using ICANN as a forum for seeking more government influence in internet governance amid perceptions that the IANA transition will occur as planned. Those countries’ shift back to threatening internet governance via the ITU is concerning given the upcoming World Telecommunication Standardization Assembly, which is threatening to become a new battleground on internet policy issues, Gross said. WTSA is to convene Oct. 25-Nov. 3 in Yasmine Hammamet, Tunisia.

“The only thing that really matters now is whether the House and Senate can either pass a stand-alone [FY 2017] Department of Commerce appropriations bill or a continuing resolution that contains an extension” of the existing rider barring NTIA’s use of funds on the transition, which would further delay the transition, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. It’s not clear an extension of the funding ban rider would be useful in blocking the IANA transition at this point, said NetChoice Executive Director Steve DelBianco. “NTIA doesn’t have to spend any money to simply allow the [IANA functions] contract to expire” at the close of Sept. 30, DelBianco told us. “The entire Commerce Department could simply take the day off and the contract would expire without any expenditure of funds whatsoever.”

NTIA’s announcement “is a direct violation” of the IANA transition funding ban rider, said TechFreedom President Berin Szoka in an email. TechFreedom led a coalition of transition skeptics last week in urging House and Senate leaders to sue NTIA to delay the transition, in part over claims NTIA violated the funding ban (see 1608120065). Even Strickling’s letter to ICANN “required time” from NTIA officials, which constitutes “an expenditure of funds via their salaries,” Szoka told us. “This is a deliberate affront to Congress and dangerously erosive of the rule of law and the separation of powers under our Constitution. We hope that Congress will act to protect its constitutional power of the purse.” Szoka suggested Congress could pursue “impeachment of the Senate-confirmed officers involved” in the decision to allow the transition to proceed, along with a DOJ prosecution.

“The courts can still pause” the IANA transition before it occurs, “or even after the contract expires,” Szoka said. “That could happen even if Congress won't defend itself, because private plaintiffs could raise these issues too.” NTIA’s announcement likely hastens the need for either Congress or the private sector to file a lawsuit over the transition, if only to ensure a case is made for a preliminary injunction before Sept. 30, said Americans for Tax Reform's Digital Liberty Executive Director Katie McAuliffe. A lawsuit “seems like an odd way” of taking action against the transition “but we’ll see” how the matter plays out in court if a lawsuit does occur, Gross said.