Redl's NTIA Confirmation Delay Comes Amid Nominee Gridlock
David Redl’s stalled nomination to be NTIA administrator is continuing to get communications and tech sector officials’ attention during Congress’ August recess, with some industry officials noting possible objections from Sens. Ted Cruz, R-Texas, Dean Heller, R-Nev., and Mike Lee, R-Utah. Cruz, Heller and Lee are members of the Senate Commerce Committee, which twice delayed a vote because of Cruz’s continued concerns about the U.S.’s October transfer of oversight of the Internet Assigned Numbers Authority (see 1610030042, 1706280027 and 1708020052). Redl’s troubles must be seen within the bigger picture in Washington, officials and lobbyists said. Votes on other nominees in President Donald Trump’s administration are also on hold, including FCC Chairman Ajit Pai’s renomination to another term and Makan Delrahim’s nomination to lead DOJ’s Antitrust Division (see 1708030060 and 1708030063).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Heller and Lee privately raised concerns about Redl since Trump nominated Redl in May (see 1705170056 and 1705180051), but they were believed to have been “on board” with the nominee when Senate Commerce pulled him from an early August markup, a telecom lobbyist said. The move to give more time to provide assurances to Cruz may make Heller and Lee “waver” on Redl, the lobbyist said. Both senators raised objections last year to the trajectory of the IANA transition process (see 1605250051 and 1609160066). Spokesmen for Senate Commerce, Heller and Lee didn’t comment.
NTIA Chief of Staff Glenn Reynolds noted during a Tuesday Commerce Spectrum Management Advisory Committee meeting (see 1708150060) that Redl’s nomination was "the elephant in the room." He said CSMAC work remains important and would be “studied by both the career staff and by the political leadership that we fully expect to get on board in the near future." Reynolds said NTIA is working with White House aides Grace Koh and Kelsey Guyselman to “keep the trains moving.”
Former NTIA officials said the Trump administration could have provided some political leadership early on at the agency by naming a deputy administrator, a choice usually made by the secretary of commerce rather than the White House. The deputy could have served as acting administrator while Redl awaited confirmation. But White House Counsel Don McGahn advised the administration to generally refrain from naming anyone to acting positions administration-wide, Republican lawyers said. The White House didn’t comment.
A former NTIA top official noted Sen. Elizabeth Warren, D-Mass., opposes Delrahim's nomination and that’s a less serious problem than opposition by conservative Republicans. The administration is unlikely to install an acting administrator out of deference to the Senate, the former official said: “Anybody that you put in as a deputy, and make them acting, they still have to deal with the Senate. … I think more time will have to be consumed before they cross that line.”
The agency without an acting administrator has “zero political leadership, so the agency is sort of limping along,” said a second former top NTIA official. A public interest lawyer said Cruz’s continuing opposition to Redl over the IANA transition is almost inexplicable: “IANA is now water under the bridge.”
Cruz’s “fixation on the long-planned IANA transition is harming the ability of NTIA to get more spectrum into the hands of free market competitors,” said Richard Bennett, free-market blogger and network architect. “It’s wonderful for members of Congress to champion free speech, but it’s even better when their advocacy is focused on things that matter,” Bennett said. “Political theater is getting in the way of economic progress.”
NTIA is “not going to be able to do their job to the best of their ability” as long as a permanent NTIA administrator isn't in place, said R Street Institute Tech Policy Manager Tom Struble. Cruz “seems to be relitigating a fight that was lost long ago,” which won’t reflect well on him, Struble said.
A swift resolution on Redl is imperative because “we need senior U.S. political leadership on international internet governance issues,” said Wiley Rein telecom and internet governance lawyer David Gross. “Russia, China and others are advancing internet policies that are adverse to U.S. interests and we need to have our leaders in place to address these issues.” Although it’s “more important to look ahead as to what we can and should be doing going forward, I can appreciate why people have been concerned about" the October IANA transition, he said. But “I hope we don’t hurt ourselves by continuing to look backwards.”
The path forward on Redl’s nomination may depend on the response Cruz receives to his concerns, officials and lobbyists said. “There’s no additional information to be provided,” so Cruz is more interested in hearing “some admission or credit that he was justified in his concerns” about the handover, a tech lobbyist said. “If that’s the price to pay, go ahead and pay it.” Redl may need to “say that ICANN will absolutely” retain its headquarters in the U.S. and therefore keep itself under U.S. courts’ jurisdiction, said Shane Tews, visiting fellow at the American Enterprise Institute’s Center for Internet, Communications and Technology Policy. U.S. interests have at times raised concerns about an ICANN working group’s work on recommendations about the organization's jurisdictional issues, though officials have become increasingly confident the group won’t seek to move ICANN's place of incorporation out of Los Angeles (see 1701030021 and 1704140063).