Bipartisan DOTCOM Act Compromise in Negotiations, House Communications Leaders Say

Rep. John Shimkus, R-Ill., HR-805's main sponsor, said during the House Communications hearing that he's hopeful that the ongoing bipartisan negotiations will be successful. The DOTCOM Act's goal has always been to ensure that ICANN planned the IANA transition correctly, he said. “We get one bite at the apple with this.” HR-805 would prohibit NTIA from approving ICANN's final IANA transition proposal until the GAO completes an ongoing study of the plan.

House Communications ranking member Anna Eshoo, D-Calif., said she and other subcommittee Democrats have been critical of HR-805 because of confusion over whether the bill would require GAO to restart its current study once ICANN finalizes its IANA transition proposal. “If you wait until the end and start all over again, I don't think that's a good way to go,” she said. Thorough congressional oversight of the IANA transition planning process would negate the need for an additional evaluation of the final plan, Eshoo said.

“I am not so concerned about any drop-dead date,” Eshoo told us in an interview. NTIA Administrator Larry Strickling has said he now believes the IANA transition process will extend beyond the Sept. 30 date when NTIA's current contract with ICANN expires, necessitating a contract extension (see 1505110051). All witnesses at Wednesday's hearings said they also expect the transition won't meet the Sept. 30 deadline, with most expecting it to occur next year. Witnesses at the House Communications hearing “demonstrated very clearly how much work has been accomplished,” Eshoo said, adding that Congress should “let the work keep going.” Congressional oversight in parallel with continued ICANN work on the IANA transition plan will produce a “work product that's worthy of the people of our country,” Eshoo said. NetChoice Executive Director Steve DelBianco urged GAO to release its analysis of a proposed transition plan currently under evaluation by ICANN's IANA stewardship cross-community working group (see 1504280060) while the proposal is open for comment.

DelBianco and other witnesses at the House Communications hearing pushed back against suggestions that IANA transition planning be halted entirely, saying maintaining the status quo indefinitely will generate ill will internationally. Rep. Joe Barton, R-Texas, said he has concerns that there wasn't an international enforcement mechanism that compared with current U.S. oversight of IANA. “We've got a system that's not broke,” he said, saying bodies like the U.N. aren't “a paragon of efficiency.” ICANN's IANA transition planning is “a process that can't be reversed,” said Brett Schaefer, Heritage Foundation senior research fellow-international regulatory affairs. The U.S. generated significant goodwill internationally when NTIA voluntarily announced the start of the transition process last year, and the U.S. is “in a strong position right now to set the terms” of that transition plan, said Danielle Kehl, New America's Open Technology Institute senior policy analyst.

Members of the House IP Subcommittee framed their concerns about ICANN's readiness for the IANA transition in the context of ICANN's jurisdiction on IP issues, particularly in the context of the controversy over Vox Populi Registry's pricing of .sucks domains for trademark holders during a sunrise period for the new generic top-level domain (gTLD). ICANN asked the FTC and Canada's Office of Consumer Affairs in April to investigate Vox Populi's pricing practices, prompting Vox Populi to send a letter Monday demanding ICANN take no further action to impede the registry's ability to operate the gTLD registry. House Judiciary Committee Chairman Bob Goodlatte, R-Va., said ICANN's decision to pass enforcement of the .sucks pricing controversy to government agencies “demonstrates the absurdity and futility of ICANN’s own enforcement processes.”

The .sucks controversy is a “glaring example of ICANN's ineffective oversight of the new gTLD program,” said Fox Entertainment Senior Vice President-Intellectual Property Mei-lan Stark, speaking on behalf of the International Trademark Association. “ICANN had the opportunity to preclude the type of behavior described today but, instead, chose to forge ahead with a program that contains too many avenues for abuse and too few mechanisms for redress.” Amazon.com Vice President-Global Public Policy Paul Misener told House IP that ICANN's denial of Amazon's application for ownership of the .amazon gTLD is evidence that ICANN “is not free from government control.” ICANN denied the application amid objections from Brazil and other Latin American countries because it references a geographic region (see report in the July 17, 2013, issue). Misener, Stark and other witnesses at the House IP hearing said they generally believe the best solution to issues like the .sucks controversy is to ask ICANN to more consistently enforce terms in its contracts with registrars and that requiring ICANN to adopt multistakeholder proposals on ICANN accountability as part of the IANA transition will aid in that effort.

The House Communications hearing was a positive for ICANN since it detailed much of the IANA transition planning process thus far, said Jamie Hedlund, ICANN vice president-strategic programs, in an interview. ICANN officials didn't testify at either hearing Wednesday but did send letters to the House Communications and House IP subcommittees outlining ICANN's progress on IANA transition planning. ICANN's letter to House IP also detailed its 2013 registrar accreditation agreement and defended ICANN's actions related to the .sucks pricing controversy. “ICANN can enforce the terms and conditions of our contracts with registries, but it is the responsibility of governmental regulatory agencies, law enforcement and the courts to police illegal activity,” ICANN said.

The House Appropriations Committee's Commerce Subcommittee Republicans released their FY 2016 budget for the Department of Commerce, which includes a provision that would extend the ban on NTIA use of its funds for IANA transition purposes through the end of that fiscal year (see 1505130047). Similar language in the department's FY 2015 budget similarly barred NTIA spending on the transition before the end of that fiscal year. House IP Subcommittee Chairman Darrell Issa, R-Calif., and multiple House Communications members noted the provision during Wednesday's hearings. DelBianco cautioned during the House IP hearing against completely prohibiting NTIA from using its funding for IANA transition work. The department “needs to have enough leeway to spend the resources necessary to answer your questions and to make sure the stress tests have been applied and to make sure their conditions have been met,” he said.