ICANN, Meet Your New Master, the FCC

The National Telecommunications and Information Administration (NTIA), an executive branch agency within the Department of Commerce, sparked controversy last year when it announced its intent to transition its oversight of Internet domain names to “the global multistakeholder community.” The controversy is now over. The NTIA no longer has authority to relinquish U.S. control over the Internet domain name system. Though few seem to have realized it, the FCC assumed plenary jurisdiction over Internet numbering in its 2015 net neutrality order reclassifying the broadband Internet as telecommunications (Reclassification Order).

Internet Domain System

The NTIA’s oversight of the Internet domain system includes the assignment of IP numbers and the system for registering domain names. Each device connected to the Internet has a uniquely identifiable IP address. Domain names allow users to identify these numbers using easy-to-understand names (e.g., www.cbit.org) rather than a string of numbers and/or letters. “In this way, it functions similar to an ‘address book’ for the Internet.”

Basis of NTIA Authority

The Internet domain name system originated under a government contract funded by the Department of Defense’s Advanced Research Projects Agency (DARPA). The National Science Foundation later assumed management responsibility for Internet numbering, a responsibility that was subsequently transferred to the NTIA through a memorandum issued by President Clinton as part of his Framework for Global Electronic Commerce. The NTIA’s oversight of Internet numbering is thus a legacy of its historical development and the Clinton Administration’s policy of minimizing government intervention in the Internet. The NTIA has no statutory authority over the Internet domain name system.

Privatization of the Internet Domain System

President Clinton’s memorandum transferring oversight of the Internet domain system directed the NTIA to support efforts to privatize the system. The NTIA complied by creating the Internet Corporation for Assigned Names and Numbers (ICANN), a private, non-profit corporation that currently manages the Internet domain system under an Affirmation of Commitments agreement with the NTIA.

The controversy started last year, when the NTIA sought to transition its contractual authority over ICANN’s administration of IP numbers to the global Internet community as early as September 30, 2015, when the current contract expires. Though many opposed the move, it was widely believed that only Congressional action could stop it.

FCC Authority

Until last month, it was assumed that the U.S. government had not exercised statutory authority over ICANN or the domain name system. With the issuance of the FCC reclassification order, that assumption is no longer true.

In its zeal to regulate mobile broadband services under Title II of the Communications Act, the FCC equated IP addresses with telephone numbers and expressly ruled that its authority over the “public switched [telephone] network” includes “public IP addresses.” (Reclassification Order at ¶ 391.)

According to the FCC, exercising authority over addressing identifiers other than telephone numbers merely “recognizes that today’s broadband Internet access networks use their own unique addressing identifier, IP addresses, to give users a universally recognized format for sending and receiving messages across the country and worldwide.” (Id.) It does much more than that. The same reasoning gives the FCC statutory authority over ICANN and the Internet domain name system as well.

The FCC has long held that it has plenary jurisdiction over telephone numbers under Section 201(a) of the Communications Act, because “telephone numbers are an indispensable part” of the duties that section imposes on carriers. (See Administration of the North American Numbering Plan, Notice of Proposed Rulemaking, FCC 94-79, ¶ 8 (1994).) IP addresses are likewise an indispensable part of those duties now that broadband Internet access service providers are considered carriers subject to Section 201(a), which means the FCC “may issue orders and otherwise regulate such numbers and their administration.” (Id.)

To be sure, the FCC refrained from asserting its new found authority over the domain name system in a footnote. (Reclassification Order at ¶ 391, note 1116.) But a congressional delegation of authority exists whether or not an agency exercises that authority. Under U.S. law, the FCC now has all the authority it needs to dictate policy to ICANN.

End of the NTIA Plan

The FCC’s assumption of authority over the Internet domain system under Title II of the Communications Act puts an end to the NTIA plan to globalize it. The NTIA said it would “not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.” That’s not possible now. Under the Reclassification Order, the FCC can step in at any time and exercise full regulatory oversight of IP numbering and there is nothing NTIA can do to stop it.

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