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

["kidsearch" <kidsearch@xxxxxxxxxxxxx>]

Comments below. Also I did read your post and understand you are trying hard
to really look at this and its appreciated.

----- Original Message ----- 
From: "Michael D. Palage" <Michael@xxxxxxxxxx>
To: <ga@xxxxxxxxxxxxxx>
Cc: "'Thomas Narten'" <narten@xxxxxxxxxx>
Sent: Thursday, August 24, 2006 1:42 PM
Subject: RE: [ga] The End of Domain Tasting and its Consequences


> Chris:
>
> The domain name industry is very dynamic, and you are correct that no
> registry contract cannot account for every variable. That is why as I
> stated in my original email the referral to national competition
> authorities in the new registry contracts is so important. Even ICANN
> with a 40 million dollar annual budget lacks the skill set (in house or
> through outside consultants) to function as a registry price regulator
> and enforcer.

Yet they wish to police the business plan of everyone who wants to run a
TLD. I know its two different issues, but ICANN needs to have a consistant
policy. Either they are policing the industry or they are not. They cannot
choose to police one area while saying they cannot regulate in another. We
are simply asking for some consistancy to ICANN policy here.

>
> Article I, Section 2, subparagraph 6 clearly states part of ICANN's Core
> Values is "[i]ntroducing and promoting competition in the registration
> of domain names where practicable and beneficial in the public
> interest." It is not tasked with regulating competition or setting price
> controls. I often recall a quote by ICANN's formal general counsel,
> Louis Touton, ICANN is about protecting competition, not individuals
> competitors.

But it does review business plans when deciding to "award" the operation of
a new TLD to someone. The ICANN BoD also makes policy decisions as to
whether or not the new TLD is viable or not. These are policy and regulating
issues that are curently regulated. Why is it that now ICANN's position in
regards to the registries is so hands off? Why is it that prior to becoming
a registry ICANN's BoD is very much involved in setting policy and deciding
whether or not to award a contract, then once some company does become a
registry its suddenly hands off?

>
> I want a competitive marketplace, and part of that competitive
> marketplace is one in which consumers have the choice to choose between
> new TLD offerings, especial if a dominant registry operator seeks to
> abuse its power. As Thomas can tell you, during my time on the Board I
> was a vocal advocate regarding the expanse of the name space. However, I
> found it sad that so few people commented on the public forum for the
> new gTLD PDP. I think ICANN staff, particularly Liz Williams has done an
> admirable job conducting outreach and producing documents to move this
> important task forward.

I do applaud your efforts there and agree totally that new TLDs are needed.
Commerically viable TLDs, TLDs that help with the whole TM issue, and other
appealing TLDs. This would increase competition, yet we wait another round
of TLD creation that is sure to disappoint once again due to the way this is
done currently. We need change. While you also may applaud these outreach
efforts, ICANN's BoD has yet to create a mechanism that was as effective as
the GA. Bring it back.

>
> I am not asking you to trust either my or Vint's judgment/opinion.
> Instead I would ask you to place your trust on two mechanisms. First is
> in the market to resolve pricing fluctuations /variations over the long
> term. Many people have talked about what if VeriSign was to charge
> Google 1 million dollars for google.com. Assuming that VeriSign somehow
> put forth a registry service pricing model that passed both ICANN and
> government approval, here is likely what would happen in my humble
> opinion. Google would pay the money, and would simultaneously submit an
> application for a new .GOOGLE or .G TLD to ICANN. Then guess how much
> money VeriSign makes in year two of the million dollar pricing model?

I'm all for the market forces principle if it was being allowed to take
place. If I want to start a new TLD and the ICANN BoD says that my business
plan isn't one they consider viable or necessary, therefore denying my
application, then it is restraint of trade and anti-competitive. There is no
other way to look at it that I can see. Enlighten me.

If I go apply for a business license to operate a clothing store, the city
does not ask; Do we need another clothing store in this city? What is your
business plan for this clothing store? What if you go out of business and
cannot deliver clothing to customers who paid you for the clothing? Is your
store someplace people will want to shop?

I understand the need to make sure someone is technically capable of running
a TLD. Do you believe Karl capable of doing so? If everyone or a majority of
the ICANN BoD believes Karl is technically capable of running a TLD, then as
Karl asked before, What right does ICANN have to deny him doing so?
Especially with the quotes I am seeing how ICANN should not be regulating
the registries.

>
> My second trust is in the referral process to the national competition
> authorities. However, as noted in my previously emails, I am concerned
> about the functionality of this safeguard given the shortness of the 45
> day window.
>
> Thanks for your comments. I hear your concerns, but I do believe that
> there are adequate safeguards to address them if mechanism two (national
> competition authorities) is ironed out.
>
> Best regards,
>
> Michael D. Palage

Again Michael, thank you for participating here and addressing our concerns.
We are the vocal minority, but just because the silent majority of Internet
users are not posting to the list does not mean they agree with policy as
some board members seem to indicate is their belief. It seems many times
when speaking to board members, they fall back on "well we represent all
Internet users and they are not complaining. it is only this small group
that is complaining so that proves we are doing a good job."

It doesn't mean that at all. it means there has NEVER been a concerted
effort to really get people involved that originated within ICANN. Even the
GA can't be considered as such. Members joined it because other members
urged them to do so. ICANN could email every domain name name owner in the
world and urge them to participate in Internet Governance if they really
wished to hear from Internet users. It could be done. People could opt-out
if they want. Those who opted in would get regular updates. if they chose
then to participate then ICANN could actually say they are trying to create
a bottom-up consensus on these issues. The fact they have not made this
attempt proves that there is no desire within ICANN to do so in my honest
opinion.

Chris McElroy aka NameCritic
http://icann.thingsthatjustpissmeoff.com

>
>
>
>
>
>
>
> -----Original Message-----
> From: kidsearch [mailto:kidsearch@xxxxxxxxxxxxx]
> Sent: Thursday, August 24, 2006 12:33 PM
> To: Michael D. Palage; 'Thomas Narten'
> Cc: ga@xxxxxxxxxxxxxx; vint@xxxxxxxxxx
> Subject: Re: [ga] The End of Domain Tasting and its Consequences
>
>
> "As Vint properly noted in his email, it would be virtual suicide for
> "most" registry operators to abuse this discretion."
>
> That is the equivalent about what gw bush said about giving 15 years of
> back taxes to the corporations. Congress wanted to put in a stipulation
> that if the US Gov gave them this tax break they have to create x number
> of new jobs with it since it was meant or sold as being for the creation
> of jobs. Bush's reply was that you don't need to have strings attached,
> these corporations will do the right thing.
>
> Sorry but contracts are not in place because we assume everyone will do
> the right thing. If that were the case why have any contract for the
> registries at all. Why not just trust them to do the right thing always?
> You cannot assume they will not do something because YOU or VINT thinks
> it would not be in their best interest to do it, therefore meaning they
> will not do it.
>
> A contract is put into place and you attempt to cover every scenario you
> can think of. You cannot imagine every possibility in the world, but
> this one has been brought to your attention and you can do something
> about it by placing it into the contract.
>
> Chris McElroy aka NameCritic http://icann.thingsthatjustpissmeoff.com
>
> ----- Original Message ----- 
> From: "Michael D. Palage" <Michael@xxxxxxxxxx>
> To: "'Thomas Narten'" <narten@xxxxxxxxxx>
> Cc: <ga@xxxxxxxxxxxxxx>; <vint@xxxxxxxxxx>
> Sent: Thursday, August 24, 2006 12:27 PM
> Subject: RE: [ga] The End of Domain Tasting and its Consequences
>
>
> > 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
> >
> >
> >
> >
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