Stakeholder Perceptions of IANA Transition Set as Spotlight Issue in Wednesday's ICANN House Hearings

Rep. John Shimkus, R-Ill., HR-805’s main sponsor, said he believes “there may be an opening for some better collaboration” with House Democrats on that bill or other legislation on federal oversight over the IANA transition than was evident earlier this year or when Shimkus originally introduced the DOTCOM Act last year. “I don’t think you’ll see the visceral reaction against” the bill now, Shimkus said. Reps. Mike Doyle, D-Pa. (see 1502110014), and Anna Eshoo, D-Calif. (see 1405230034), have been among the lawmakers who have opposed the DOTCOM Act on claims that it would undermine efforts to dispel international criticisms that the U.S. controls major Internet governance bodies. Doyle and Eshoo didn’t comment before the hearing, though an industry lobbyist told us he expects both will continue to oppose HR-805. “I think there’s more reception to our proper oversight role” on the transition, Shimkus said. “Our involvement has led to more questions, not less. I think that’s healthy.”

It will be “interesting to see where members come out [on the IANA transition] and if they’ve softened their initial concerns” about the transition, said Donuts Executive Vice President-Corporate Affairs Jon Nevett. Members of Congress raised “immediate concerns” about the IANA transition when NTIA announced the process last year, “and I think over time some of that has been alleviated, though there are still certainly concerns out there and legitimate calls for discussion and consultation,” said Nevett, a member of ICANN’s IANA Stewardship Transition Coordination Group, which is evaluating stakeholders’ recommendations for the IANA transition plan. “We have to make sure as a community that we do it right and that we ensure ICANN has the appropriate accountability mechanisms in place prior to transition and that the community reaches a consensus on a model on how the transition should look.”

“The key is not to rush” the IANA transition process, Nevett said. “It seems obvious to everyone at this point” that NTIA will need to extend its current contract with ICANN well past the existing Sept. 30 expiration date, he said. “The question is, how long will it take to do it and do it right.” Congress is “still waiting for more transparency to have a better understanding about what’s occurring, how and why,” Shimkus said. Congress is continuing to examine ICANN’s multistakeholder definition and issues with the ICG and the ICANN accountability stress tests, he said.

NetChoice CEO Steve DelBianco is expected to support increased congressional oversight of the IANA transition, in testimony during the House Communications Subcommittee and IP Subcommittee hearings, including passage of HR-805. DelBianco will urge House Communications to ask the GAO to “quickly publish” its analysis of the implications and risks that should be considered in planning the IANA transition. He will also ask Congress to “insist” that NTIA require ICANN to accept and fully implement the multistakeholder proposals for the IANA transition “as a condition” of transition approval. ICANN should also examine the .sucks controversy as a set of additional stress tests that ICANN has been using to evaluate its accountability mechanisms, DelBianco said in prepared testimony for the House IP Subcommittee hearing.

Congress shouldn’t “get distracted by issues like .sucks” in the midst of the IANA transition process given that process’s status as the endgame of 15 years of work on spinning off federal oversight of the IANA functions, Nevett said. The controversy over administrator Vox Populi’s “exorbitant” sunrise prices for .sucks domains before the generic top-level domain’s public rollout culminated last month with ICANN asking the FTC and Canada’s Office of Consumer Affairs to investigate Vox Populi’s pricing practices (see 1504140049). Vox Populi CEO John Berard’s attorneys at Fish Richardson pushed back Monday against ICANN’s criticisms of its pricing practices, saying in a demand letter to ICANN and U.S. and Canadian officials that ICANN “refrain from taking any further action in the future to impede Vox Populi's ability to operate the new TLD .SUCKS registry in accordance with its contractual rights and obligations.” ICANN’s letters to the FTC and the Canadian OTC fail to identify “any manner in which any law might actually have been broken,” the demand letter said. ICANN didn’t comment on the demand letter. The .sucks controversy is an understandable concern for the companies affected by that practice, but “I think people are making a bigger deal out of it than is necessary,” Nevett said.

ICANN has faced a backlash over the .sucks pricing controversy because it had concluded in advance of the rollout of .sucks and other new gTLDs that price caps on the new gTLDs weren’t necessary amid concerns that caps would inhibit the adoption of the new gTLDs, said ICANN Chief Contract Compliance Officer Allen Grogan. ICANN instead implemented a series of rights protection mechanisms like the Uniform Rapid Suspension System to address trademark owners’ concerns. ICANN officers can’t unilaterally revisit the pricing issue without additional community input, he said. The concerns trademark owners are now voicing in response to the .sucks pricing model aren’t “something that is new to most brand owners,” Grogan said. “They’ve always had to analyze the issue” and decide whether to register “all conceivable variations” of a brand name or “accept the fact that some critics are probably going to start websites critical of you.” ICANN takes trademark owners’ concerns about pricing seriously, but it’s “not a law enforcement agency,” Grogan said. “It’s not our job to interpret or enforce laws and regulations, nor are we necessarily competent to do that."