ICANN/GNSO GNSO Email List Archives


<<< Chronological Index >>>    <<< Thread Index >>>

[council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden

  • To: George Kirikos <gkirikos@xxxxxxxxx>
  • Subject: [council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
  • From: Ross Rader <ross@xxxxxxxxxx>
  • Date: Wed, 23 Aug 2006 11:33:49 -0400
  • Cc: domains-gen@xxxxxxxxxxxxxxxxxx, council@xxxxxxxxxxxxxx, registrars@xxxxxxxxxxxxxx
  • In-reply-to: <mailman.475.1156344891.2743.domains-gen@discuss.tucows.com>
  • Newsgroups: tucows.services.domains.general
  • Organization: Tucows Inc.
  • References: <mailman.475.1156344891.2743.domains-gen@discuss.tucows.com>
  • Reply-to: ross@xxxxxxxxxx
  • Sender: owner-council@xxxxxxxxxxxxxx
  • User-agent: Thunderbird (Windows/20060719)

George - I understand what you've laid out, but your analysis ignores the fact that the contract is for the provisioning of initial registration and renewal of those registration of domain names, not specific domain names. I don't see how one could possible interpret the definition of these services to include tiered pricing for the services based on new criteria that don't fix the existing definition of the current registry services.

In other words, the registries have a contract to provide registration services for all names in the namespace at the prices included in the agreement.

They do not have a contract for the provision of some of these services at one price, and the provision of the same service to other people at a different price. i.e. there is no registry service that provides for the sale of specific domain names, there is only a registry service that provides for the sale of new registrations and renewed registrations in the entire namespace. There is a huge difference between the sale of a domain name, and registration in a namespace.

I can't believe that Vint has lost track of this distinction. And if he has, if ICANN has, we are all in much worse shape than we thought.

George Kirikos wrote:
Hi Ross,

Here's my analysis of the .biz variation of the contract (the .info and
.org are similar, albeit different page numbers, etc.).  I'm not a
member of the Registars Constituency or Council lists, so you'd need to
forward this reply to them.

You can confirm with John Jeffrey or Vint Cerf that they don't disagree
with the interpretation, namely that nothing in the new contracts
forbids tiered/differential pricing on a domain by domain basis:

A] The contract between the registry and registrars must be "non
discriminatory", as per Article 7 (section 7.1) of the main contract
(page 17 of the .biz version):


But, if you read the language very carefully, all it talks about is
equal access, equal treatment. It does not forbid a pricing schedule
for different domain names (i.e. .tv has this differential pricing).
B] When one views pages 80 and 81 of the Appendix document (Exhibit E):


the last sentence does not prescribe any restriction on how prices can
increase, or forbid differential pricing. Indeed, a profit-maximizing
registry could immediately announce that the fees in Appendix E are
replaced by a table of values, e.g. sex.biz = $100,000/yr, music.biz =
$50,000/yr, gsjkhgkjshgs.biz = $1/yr, and so on, or other formulas.
Remember, volume pricing is already allowed by the existing contracts.
That volume pricing is a schedule, too (albeit of a different style).
There's no restriction on the type of schedule, it just must be
consistent with A] above (i.e. registry can't have a different price
schedule for Tucows, GoDaddy, NSI, etc.).

C] Nothing  in Section 4.1 (page 64) prevents it either. And since
3.1(b)(V)(A) [page 4 of the main contract] prevents consensus policies
from influencing pricing, one can't fix this problem later.

D] The only place I could find where fees are fixed on a domain by
domain basis are the fees the registry operator pays to ICANN (i.e.
page 18 of the main contract, section 7.2). Of course, the registries
seek cost certainty and non-discrimination for themselves. :) This
doesn't affect pricing to registrars, though, and through them to
registrants --- it would still
appear that the registries could introduce price schedules on a
differential domain-by-domain basis (in any manner they choose; e.g. if
they don't like the owners of pussy.org, a porn site, they  could make
the price be $1 billion/yr to force out the owner, albeit after a
10-year time lag), if my interpretation is correct and I didn't miss

E] There are lots of other problems with these new contracts (i.e.
presumptive renewal, elimination of price caps, use of traffic data, etc.), so even if the above issue is "fixed", I'd be against them,
especially before the DoC  rules on the .com settlement agreement, and
the lawsuits (e.g. by www.cfit.info) are concluded.

ICANN's lawyers have even said in the CFIT court case documents that
price controls in a single supplier market are pro-competitive, so
lifting the price caps is very hypocritical. These bad new contracts
would create a dangerous precedent for VeriSign to exploit in future
contract negotiations over operation of the .com registry. I elaborated
on this at:


Note that this issue could easily be solved, the loophole removed, by
having ICANN add one sentence to each contract, dictating that renewal
prices must be identical for all domains. Ask yourself why ICANN and
the registries won't add that sentence. I've been pressing them for 3+
weeks on this issue, and they're sticking to their guns, even after
agreeing on my interpretation of what's not forbidden. Their position
is that the 6-month price increase notice period and the ability to
renew for 10 years is sufficient to prevent a "suicide" move by
registries. Ask yourself if you're willing to trust registries won't
open Pandora's Box. I'll be around in 10+ years, God willing. I'll bet
current ICANN Board members won't be on the board in 10 years.

BTW, see the eloquent comments of Frank Schilling (of
NameAdministration), who has also posted on this matter:



George Kirikos

--- Ross Rader <ross@xxxxxxxxxx> wrote:

(I have cc'ed this to both the Council and Registrar lists as
George's message has popped up on both of these lists and I would like to hear

more from my colleagues in those circles on this subject...)

George Kirikos wrote:

--- JB <info@xxxxxxx> wrote:
Or holding an auction for a popular name to find it's market
My reading of the contracts is that they wouldn't be allowed to
hold a
traditional English auction for the domain name, because they'd
have to
set a price on an equal basis for all registrars. It might be
though, as the contracts are so poorly written.
Poorly written indeed.

I would like to hear the basis for ICANN's opinion. My read of these contracts is very different (keep in mind that IANAL, NDIPOOTV) in that the combination of the registry services provisions, and the definition of the registry service itself prevents per domain price discrimination, in the absence of a different registry service specifically intended to allow for this type of pricing.

i.e. the new contracts state;

Main Agreement,  "3.1 (d)(iii) Registry Services are, for purposes
of this Agreement, defined as the following: (a) those
services that are both (i) operations of the registry critical to
the following tasks: the receipt of data from registrars
concerning registrations of domain names and name
servers; provision to registrars of status information relating
to the zone servers for the TLD; dissemination of TLD zone
files; operation of the registry zone servers; and
dissemination of contact and other information concerning
domain name server registrations in the TLD as required by
this Agreement; and (ii) provided by the Registry Operator
for the .biz registry as of the Effective Date as set forth on
Appendix 9; (b) other products or services that the Registry
Operator is required to provide because of the establishment
of a Consensus Policy (as defined in Section 3.1(b) above);
(c) any other products or services that only a registry
operator is capable of providing, by reason of its designation
as the registry operator; and (d) material changes to any
Registry Service within the scope of (a), (b) or (c) above.

Appendix 8, "4.1.1 Registrar agrees to pay Registry Operator the fees

set forth in Exhibit E for initial and renewal registrations and
other services provided by Registry Operator to Registrar (collectively, "Fees"). Registry Operator reserves the right to increase the Fees prospectively upon six (6) months prior notice to Registrar."

Exhibit E to Appendix 8, "Initial Registration Fe(Per Domain Name) US

$5.30, Renewal Fee (Per Domain Name) US $5.30"

In other words, one of the existing Registry Services is providing initial registrations in the .biz namespace. The price for this service is currently $5.30. This price for this service may be revised with six months notice.

There are no provisions for any service that provides the registry
with the capability to reserve specific names and make them available through other means. There are only provisions for registry services for initial and renewal registrations. The wording of these provisions makes it very clear that the pricing of these services is for all initial and renewal registrations, not for specific initial or renewal registrations based on the string of the domain.

I can't for one second believe that Vint's interpretation is in any
way correct and I'd like to hear an absolute official determination based on the existing definition of registry services as outlined in these proposed agreements. If your interpretation is correct, the entire definition of registry services is flawed in that it would basically mean that Registry Services includes variations on Initial and Renewal registrations that aren't specifically covered in the existing agreement (i.e. the registry can provide whatever variations on these two services it wants without going through the Registry Services Approval




                 "Don't be too timid and squeamish about your
                                            All life is an
                             The more experiments you make the
                         - Ralph Waldo Emerson

Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org
domains-gen mailing list




                "Don't be too timid and squeamish about your actions.
                                           All life is an experiment.
                            The more experiments you make the better."
                        - Ralph Waldo Emerson

Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org

<<< Chronological Index >>>    <<< Thread Index >>>