Senate's Path Forward on DOTCOM Act Unclear, Despite Optimism
Prospects for enactment of the Domain Openness Through Continued Oversight Matters (DOTCOM) Act remain unclear, despite recent optimism the Senate might be nearing a deal to pass its version of S-1551 after months of stymied progress, said stakeholders and legislators in interviews. ICANN CEO Fadi Chehadé said during a recent conference call with Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) leaders that he was optimistic that the Senate would "likely" pass S-1551 in December, several stakeholders told us. Chehadé didn't cite the source for his optimism, but stakeholders noted perceived behind-the-scenes movement to find a way to pass S-1551. ICANN didn't comment.
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S-1551 and its House-passed counterpart (HR-805) would give Congress 30 legislative days to review a report from NTIA certifying that ICANN’s Internet Assigned Numbers Authority (IANA) transition plan meets U.S. goals on maintaining Internet openness before NTIA could relinquish its IANA oversight authority. Chehadé didn't indicate whether officials expected the Senate to pass S-1551 as a stand-alone bill or via language attached to another legislative vehicle, parties said. A legislative vehicle would be the likelier scenario given the Senate's tight December schedule, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. The FY 2016 omnibus funding package or a continuing resolution has "been a live possibility for a while" for moving S-1551 but isn't the only possible legislative vehicle, he said. Still, the omnibus would make sense since the stopgap continuing resolution to extend FY 2015 funding through Friday that passed in September also extended an existing freeze on NTIA funding for IANA transition activities, Corwin said. Any FY 2016 omnibus would need to address whether the IANA funding freeze continues, he said.
Attaching the DOTCOM Act's language to another bill like the FY 2016 omnibus would provide a viable end-run around Sen. Ted Cruz's, R-Texas, ongoing objections to S-1551 that halted Senate progress on the bill, an industry lobbyist said. Cruz placed a hold on S-1551 in July after the Senate Commerce Committee cleared the bill without his proposed amendment that would have required Congress to hold an up-or-down vote on approving the IANA transition (see 1507200068 and 1506250059). Attaching the DOTCOM Act's language to the omnibus could be a way to both address the IANA funding freeze question and assuage Cruz's concerns, perhaps by giving Congress “the right to halt the transition if it finds anything troubling in its review” of ICANN's IANA transition plan, an industry lobbyist said.
Senate Commerce Chairman John Thune, R-S.D., told us Tuesday that prospects for attaching S-1551's language as a rider to the omnibus package are largely “up to the appropriators.” Thune said he and other S-1551 supporters “would like to get the DOTCOM Act to the finish line, but we've had some objections to that here in the Senate. We'll see what the year-end package looks like, but at this point it's not a certainty.” A spokesman for Rep. John Shimkus, R-Ill., who sponsored HR-805, said Shimkus and other House supporters of the bill would “be happy to see it included, but I do not have any information as to whether that will or will not happen.”
Other ICANN stakeholders told us they're eager to see a resolution on the DOTCOM Act. “Senate members are keenly interested in having the opportunity to review [the IANA transition plan] and NTIA's assessment of whether it meets those requirements,” said NetChoice CEO Steve DelBianco. Another industry executive noted that a final decision on the DOTCOM Act would give ICANN stakeholders more certainty about Congress' future response to the IANA transition.