Steve, I absolutely agree that the community should keep working on the Proposal and WS2 measures because the best assurance of seeing the transition take place is timely delivery of a sound accountability Proposal and accompanying implementation, including the necessary Bylaws revisions. And if everything is in place on September 30 there is probably no need to extend the contract to have a transition occur on October 1 (unless the Administration decides to postpone the action until post-election, or Congress again extends the prohibition)..

Respectfully, while I have heard the “just let the contract expire” scenario before I don’t buy it for three reasons.

First, ICANN has been “hired” under the contract and when it expires it no longer has any right to manage IANA, no more than any other contractor has a right to keep performing the work it was doing after its contract terminates.

Second, Secretary Strickling is already on the public record saying this in January 2015 about the FY 2015 prohibition, which is identical to the one in the FY 16 bill:

We take that seriously. Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract's current expiration date of September 30, 2015. Nor will we use appropriated dollars to amend the cooperative agreement with Verisign to eliminate NTIA's role in approving changes to the authoritative root zone file prior to September 30. On these points, there is no ambiguity.

That language puts on NTIA on record as viewing the transition as something that requires it to actively perform two separate actions.

Third, and most important, the whole concept of the “transition” includes NTIA transferring its role to the global multistakeholder community which has acquired adequate accountability powers, and that implies an active handoff and not a passive contract expiration.

But we have lots of other lawyers and policy wonks on this list, so opinions may vary.

Best regards, Philip

Philip S. Corwin, Founding Principal

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From: Steve DelBianco [mailto:sdelbianco@netchoice.org]
Sent: Wednesday, December 16, 2015 8:18 PM
To: Phil Corwin; Greg Shatan; Jordan Carter
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act

Phil — I don’t think the Congressional appropriations language would prevent the transition “event". NTIA could simply allow the IANA contract to expire 30-Sep-2016 without spending any resources whatsoever. The contract could just expire, leaving in question who has the authority to operate the IANA functions. But no question who would be operating the root, numbers and protocols the next day — ICANN would.

So we (the community) should continue developing accountability mechanisms so we can hold ICANN accountable if/when it takes control of IANA functions. It could happen on 30-Sep-2016 so let’s be ready.

From: <accountability-cross-community-bounces@icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com>
Date: Wednesday, December 16, 2015 at 7:56 PM
To: Greg Shatan <gregshatanipc@gmail.com>, Jordan Carter <jordan@internetnz.net.nz>
Cc: Accountability Cross Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act

NTIA can continue to prepare for the transition, including leading an interagency review of any Proposal it receives from ICANN. But it is prohibited from actually effecting the transition until October 1, 2016.

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, December 16, 2015 5:07 PM
To: Jordan Carter
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act

As I read this, it does not slow anything down. We were targeting a transition around September 30, 2015 in any event.

Greg

On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Milton,

My understanding of the steps in the timetable was that finalising our proposal in January was what gave space for a transition in September at the earliest.

Are you suggesting that instead it means one of the earlier steps can't start when it was intended?

I.e. If NTIA could not start its consideration until 30 Sep then that does materially change things, timing wise. But if it could still do its review as part of preparing for a transition, then that wouldn't.

Maybe we could ask NTIA for their view of the situation too?

Cheers

Jordan

On Thursday, 17 December 2015, Mueller, Milton L <milton@gatech.edu> wrote:

This is good news, and I hope the co-chairs of the CCWG all sit down and read former Congressman Boucher's message out loud - better yet, sing it to the tune of Jingle Bells! - together. The idea that we have to truncate our process and twist ourselves into pretzels or cave to unreasonable demands from the board in order to meet an arbitrary schedule is now, I think, officially dead.
--MM

> -----Original Message-----
> It's also noteworthy that (b) has been added saying that the restriction shall
> not apply in fiscal year 2017. That's a nice statement of intention by the
> drafters of this provision that by the commencement of fiscal year 2017 in
> October of next year the transition will be complete.
>
> I don't believe that the adoption of this language in any way reflects a stepping
> back by Congress from the bipartisan consensus which has now been formed
> in both the House and the Senate to support the IANA transition as long as the
> NTIA’s originally announced 4 principles for ICANN accountability are in place
> and are enforceable as part of the transition plan.
>
> Please let me know if you have questions.
>
> Rick
>
> SEC. 539. (a) None of the funds made available by
> 21 this Act may be used to relinquish the responsibility of
> 22 the National Telecommunications and Information Ad ministration, during
> fiscal year 2016, with respect to
> 24 Internet domain name system functions, including respon-
> 1 sibility with respect to the authoritative root zone file and
> 2 the Internet Assigned Numbers Authority functions.
> 3 (b) Nothwithstanding any other law, subsection (a)
> 4 of this section shall not apply in fiscal year 2017.
>
>
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--
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan@internetnz.net.nz

Sent on the run, apologies for brevity

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