It’s no secret that controversy has plagued the Obama Administration’s plan to surrender U.S. oversight of the Internet domain naming and numbering systems from the current U.S.-based ICANN (the Internet Corporation for Assigned Names and Numbers) to the “global multistakeholder community.” But the reason the Federal Communications Commission (FCC) declined to exercise its statutory jurisdiction over Internet numbering inside the United States was indeed secret until Senator Ted CruzTed CruzWhat are 'religious liberty' bills really about? Fiorina calls for special prosecutor for Russia probe Lee: Nuclear option justified after Dems used it in 2013 MORE forced the FCC to explain itself. Based on FCC Chairman Tom Wheeler’s response to Cruz in this Senate hearing record, it appears the FCC had previously omitted any mention of its statutory authority over Internet numbering in its net neutrality order in an effort to conceal the net neutrality order’s relationship to the ICANN controversy.
FCC Authority Over Telephone Numbers
The U.S. government has exercised oversight authority over the administration of telephone numbers since at least 1984, when a Federal district court approved the break up of the old Bell System telephone monopoly. The FCC has long asserted that it has “plenary jurisdiction” over telephone numbers under section 201(a) of the Communications Act of 1934, because “telephone numbers are an indispensable part” of the duties that section 201(a) imposes on telecommunications carriers.
Congress (in the Telecommunications Act of 1996) later imposed specific duties on the FCC’s exercise of its plenary authority over telephone numbers in section 251(e) — a provision that, among other things, gives the FCC “exclusive jurisdiction” over the administration of telephone numbers for the United States.
NTIA Authority Over Internet Numbers
Internet numbering is currently managed by the National Telecommunications and Information Administration (NTIA), which is part of the Executive Branch, through a contractual relationship with ICANN, a private corporation that NTIA formed for the purpose of managing Internet numbering on its behalf. The U.S. government has always controlled the Internet numbering system, because it was developed under government contracts funded by the Department of Defense’s Advanced Research Projects Agency (DARPA) and the National Science Foundation (NSF). Contractual control over Internet numbering was transferred from NSF to NTIA by the Clinton Administration as part of a broader deregulatory approach to Internet governance, and not by Congressional action.
FCC Authority Over Internet Numbers
Nobody thought Congress had given the FCC statutory authority to regulate Internet numbering until the agency adopted net neutrality rules last year. In its effort to justify regulating mobile Internet services as telecommunications services under Title II of the Communications Act, the agency expanded its authority over telephone numbers to include IP addresses. Specifically, the FCC concluded that the “public switched network” —which had historically been defined by its reliance on telephone numbers — now includes “IP addresses.”
The FCC’s decision to classify Internet numbers as “telecommunications numbers” in the net neutrality order has significant implications for the Obama Administration’s plan to relinquish U.S. control over Internet numbering. In section 251(e)(1) of the Communications Act, Congress mandated that the FCC — not the NTIA — “create or designate one or more impartial entities to administer telecommunications numbering and to make such numbers available on an equitable basis.” The NTIA would thus have lost whatever authority it had to relinquish all control over Internet numbering to the “global multistakeholder community” when the FCC classified mobile Internet access as a telecommunication service, if the provisions in Title II were actually mandatory.
As it happens, none of the provisions in Title II are “mandatory” in the plain sense of the word. Under section 10 of the Telecommunications Act of 1996, the FCC can forbear “fairly easily” from applying any provision in Title II that the FCC decides it doesn’t want to apply.
So, in order to fulfill the Obama Administration’s net neutrality and ICANN plans simultaneously, the FCC decided it isn’t going to apply section 251(e) or its plenary authority in section 201(a) to regulate telecommunications numbering to Internet telecommunications.
The FCC’s Lack of Transparency
But the FCC didn’t actually say that’s what it was doing in the net neutrality order. The FCC said “the availability of other protections adequately address commenters’ concerns about forbearance” from section 251 (other than section 251(a)(2), which the FCC decided it likes), but the FCC didn’t say what these “other protections” are with respect to section 251(e). In fact, the 2015 net neutrality order never mentions section 251(e) at all, let alone ICANN. By itself, the net neutrality order gives no indication that Congress gave the FCC express duties with respect to telecommunications numbering in section 251. To the extent the reader is aware of the duties Congress “mandated” in section 251(e), the reader is left to speculate as to why the FCC decided it doesn’t need to exercise any oversight of Internet numbering.
Though the FCC still has plenary authority over Internet numbering under section 201(a) — the FCC forbore from the application of Section 201 only to the extent that it “would enable the adoption of ex ante rate regulation of broadband Internet access service in the future” — the FCC likewise didn’t mention its section 201 numbering authority or explain why it was choosing not to exercise that authority over Internet numbering in the net neutrality order.
Wheeler’s Response to Senator Cruz
Thanks to the diligent oversight of Senator Cruz, the rest of the story, is finally revealed. As part of a Senate hearing on oversight of the FCC, Cruz asked the following questions:
“How can the FCC uphold the public interest requirements in section 201 of the Act if it refuses to assert its statutory authority over an indispensable part of the public switched network [i.e., Internet numbering]?”
“If the FCC believes regulation of IP numbers used to connect end points on the public switched telephone network is unnecessary, why hasn’t it forborne from the regulation of telephone numbers?”
Chairman Wheeler’s candid response revealed — for the first time — that the Obama Administration’s plan to give up U.S. oversight of Internet numbering was the “other protection” the FCC was relying on when it decided it isn’t going to apply the Congressional mandate in section 251(e):
“In fact, the Commission forebore [sic] from Section 251(e)—the provision that gives the Commission authority over telephone numbers. IP addressing—in contrast to telephone numbers—is already governed by IANA, (the Internet Assigned Numbers Authority), a department of ICANN, that is responsible for the global coordination of IP addressing, among other coordination functions.”
As revealing as Wheeler’s answer is about the real reason for the FCC’s forbearance from section 251(e), he didn’t explain why the FCC believes ICANN can be trusted to uphold the public interest requirements in section 201 of the Communications Act. How could he? Once the U.S. relinquishes its authority, ICANN will not have to answer to the FCC and will have no responsibility to uphold the public interest or any other requirement of U.S. law.
ICANN has already demonstrated that it has no respect for the concerns of Congress or U.S. citizens. ICANN has repeatedly refused to answer the questions of U.S. Senators about ICANN’s secretive new relationship with China — and this behavior is occurring when ICANN is still under contract with the U.S. government. Sadly, the secretive behavior of ICANN is consistent with the FCC’s secretive behavior under Chairman Wheeler.
Campbell is a former Chief of the FCC’s Wireless Bureau. He is currently the Director of Tech Knowledge and an adjunct professor in the Space, Cyber, and Telecommunications Law LL.M program at the University of Nebraska College of Law.