Net Neutrality Order Could Give FCC Authority Over ICANN, Former Bureau Chief Says

“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,’” Campbell wrote, citing paragraph 391 in the text of the order on mobile broadband. The FCC refrained from asserting this authority in a footnote, Campbell noted. “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.”

The language in the order could mean an end to NTIA plans to globalize the Internet domain system, Campbell said. The NTIA has said it won’t accept a proposal that replaces the NTIA role with a government-led or an intergovernmental organization solution, he said. “That’s not possible now,” Campbell said. “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.”

Campbell’s arguments are “silly,” responded Public Knowledge Senior Vice President Harold Feld. “The FCC did not assert ‘control’ over IP numbers any more than the post office asserts control over building numbers by delivering mail,” he said. “The FCC simply recognized that, for the very limited purpose of defining what constitutes ‘interconnected,’ that the IP address system is as ubiquitous and global as the traditional 10-digit phone number.”

Paul Feldman, attorney at Fletcher Heald, also blogged on the topic Friday. The FCC’s order, “in a welcome show of humility,” says specifically that the commission is in no way asserting control over the assignment or management of IP addressing, he said. “That’s nice, but it underscores the fact that a critical definitional element of the FCC’s new net neutrality approach is dependent on a factor -- the assignment of IP addresses -- over which the FCC has no control,” Feldman wrote. “You can bet that this issue will be part of any appeal by wireless carriers attacking the FCC’s reclassification of mobile broadband Internet access service as a Title II” service. Feldman represents wireless and other clients.

Former FCC Commissioner Robert McDowell, now at Wiley Rein, said one of the “counterproductive consequences” of the net neutrality order is uncertainty. “Usually, it's the private sector that suffers,” he said. “But after the FCC's recent expansion of its jurisdiction into the net's affairs, there are now uncertainties among government entities, not to mention inter-agency rivalries, regarding which will be the 'alpha' agency that has the maximum amount of power over the Internet. By legally equating IP addresses with phone numbers, the FCC could be starting a sandbox fight over which agency is in charge of such things. This jockeying for power will spread across the globe as well." Wiley represents a broad range of communications clients.

The FCC's decision to redefine the public switched network to include the Internet “is certainly one of the more troublesome, and legally problematic, aspects of the commission's decision,” said Randolph May, president of the Free State Foundation. But May disagreed with Campbell on one point: “I'm doubtful that NTIA will let this thwart its proposal to hand over control of the Internet to some new global entity. I think this FCC and this administration have shown that, in their view, the ends justify the means, and that the English language is quite malleable. At the end of the day, it will be up to the courts or Congress to prevent the commission from prevailing."