RE: [ga] The End of Domain Tasting and its Consequences

["Michael D. Palage" <Michael@xxxxxxxxxx>]

Thomas:

Thanks for pointing this "nondiscrimatory" provision out to the GA list.
I agree that this would prevent against the specific scenario which
Danny has outlined in his email.

I also think it is important that this "nondiscriminatory" concept be
analyzed in connection with the pricing models which has been a recent
topic of discussion on the GA list as well. I appreciate Vint's
professionalism in providing the answer to George's  had sought in
advance of the close of the public comment period. 

I have some points of agreement and divergence with George's response to
Vint's email so let me begin from the top.

Under existing ICANN registry contracts, not all domain names are
created equal, this may surprise many people. For example, if you look
at the .MOBI registry contract Appendix S, Part 4 Attachment 1,
http://www.icann.org/tlds/agreements/mobi/mobi-appendixS-23nov05.htm,
you will see that the .MOBI registry operator currently has the legal
right to allocate domain names on an otherwise than first come first
serve basis at a uniform price.  Specifically, it can allocate "Premium
Names on a One time initial purchase", or as listed in the future
registry services section "Premium names sold via multi-year fee
structure." This is also consistent with the .MOBI launch which has done
so with multiple price points (sunrise, landrush, premium, post
landrush). 

My personal opinion is that ICANN needs to focus on preventing a
registry operator due to its sole source contract from abusing that
position within the marketplace by allowing discriminatory pricing. If a
registry operator is merely imposing an equitable pricing model on the
same class of domain names, that is not discriminatory. As Vint properly
noted in his email, it would be virtual suicide for "most" registry
operators to abuse this discretion. George and I have discussed on the
Business Constituency list how .COM is the dominant registry operator in
the marketplace. Being a lawyer I refrain from throwing around the "M"
word (monopoly) as it has significant legal consequences. But I believe
an email by Jeff Neuman on the GA list a couple of weeks ago
acknowledged the importance that VeriSign has on setting price within
the gTLD marketplace. 

The portfolio of most professional registrants (domainers) are composed
of .com domain names. They are probably only concerned with what happens
in .info, .biz or .org as the precedent that this may set for VeriSign
having that same legal right under the .COM contract. 

As I tried to discuss with George on the Business constituency list, I
believe the provision in the new registry contracts to refer to
"appropriate governmental competition authorit[ies]" matters involving
new registry services (i.e. differential pricing) is very important.
This change in the new ICANN registry contracts is important as it
recognizes ICANN's limited scope of authority, which ties into a recent
exchange I had with Karl regarding the scope and source of ICANN's
authority.

I think as ICANN gains experience with the new Funnel Process which went
live earlier this week, the real question needs to focus on is the 45
day referral window to the appropriate competition authority reasonable?
Additionally, are these competition authorities suitably tasked with
handling submissions from ICANN?

If I was still on the Board this is the one question that I would be
asking. Given ICANN's recent decisions to extricate itself from
overseeing registry pricing, are the governmental safeguards that it has
in place adequate to protect domain name registrants. Given the length
of the DoC/DoJ review of the VeriSign .COM agreement, I think the 45 day
period as currently contained in the base registry contracts may not be
suitable. However, these are questions not specifically directed to the
.BIZ, .INFO and .ORG contracts but to all the ICANN registry contracts
which have this important provision (.NET, .TRAVEL, .JOBS, MOBI, and
.CAT). 

Thanks again for your constructive comments and I hope my feedback is
equally constructive. I also appreciate both your and Veni's
contribution to the GA list.

Best regards,

Michael 




-----Original Message-----
From: owner-ga@xxxxxxxxxxxxxx [mailto:owner-ga@xxxxxxxxxxxxxx] On Behalf
Of Thomas Narten
Sent: Thursday, August 24, 2006 10:21 AM
To: Danny Younger
Cc: ga@xxxxxxxxxxxxxx; vint@xxxxxxxxxx
Subject: Re: [ga] The End of Domain Tasting and its Consequences 


Danny Younger <dannyyounger@xxxxxxxxx> writes:

> For example, what if VeriSign and/or others decided to
> sell this data for a high price to a single speculator
> that had a relationship with a single registrar.
> Would this violate current registrar equal access
> requirements created to ensure competition?  Probably
> not, as the registry would be selling data to a third
> party and not directly to the registrar community.

> What if these registries decided to put all their data (including data

> on existing domains) up for auction? Most likely a single party such 
> as Google or Yahoo would prevail at auction.  Is it appropriate for a
> single entity to have exclusive use of such registry
> data?

Wouldn't this run afoul of the last sentence of the clause relating to
"Traffic Data", namely:

> To the extent that traffic data subject to this provision is made 
> available, access shall be on terms that are nondiscriminatory.

Thomas