RE: [registrars] Revised Registry Approval Process

["Mitchell, Champ" <Cmitchell@xxxxxxxxxxxxxxxxxxxx>]

Hi Bruce,
 
I am not qualified to comment on most of your points. There is one, however, to which I might add a bit of light. That is the concept of going to external legal counsel for competition advice. Certainly the advice of counsel on the various national and EU competition laws should be sought. However, I do not think that will suffice in and of itself. 
 
In my 17 years as a lawyer, more than half of it was as a competition lawyer. I chaired two of the committees of the American Bar Association Antitrust Section during that time (the FTC committee and the Private Litigation Committee) as well as serving on the U.S. delegation that worked with the then ECC on the 1986 revisions to the Treaty of Rome, the fundamental European Community competition law. So I actually know a bit about the subject. 
 
With that background my comment is that I would think our community and ICANN itself poorly served if all that it relied on was outside counsel. This is not a negative comment in any way on Joe Simms, ICANN's outside counsel who happens to be a former Assistant Attorney General for Antitrust and highly qualified. I have known Joe for almost 20 years and think the world of him and his abilities. Rather it is a comment on how legal advice comes about. Any lawyer will tell you that the advice is only as good as the facts laid out for him or her by the client. Lawyer's do not try to hypothesize the direction that competition might take. 
 
I promise you that no lawyer would have ever envisioned some of the twists and turns we have seen secondary market competition take over the last two years. Indeed, many of us in the registrar community, including me, were not prescient enough to see them coming. However, the registrar community as a whole is clearly the group best suited to discuss, forecast and prognosticate on future competitive environments. Without that, the advice of any lawyer will have very limited utility. 
 
That is a long way of saying that I think both of you and Tim are right. We need registrar involvement to lay out alternative fact settings, alternative pathways of competition. We need legal counsel to advise ICANN of the impact of the various national and EU laws in this setting and how the ICANN staff should relate to the national enforcement agencies. I submit that we would be ill served by omitting either the registrar community or the lawyer's from this process. Best to all, Champ

________________________________

From: owner-registrars@xxxxxxxxxxxxxx on behalf of Bruce Tonkin
Sent: Mon 5/30/2005 5:51 AM
To: Tim Ruiz
Cc: registrars@xxxxxxxx
Subject: RE: [registrars] Revised Registry Approval Process




Hello Tim,

>
> The term "ICANN" is used throughout the process description.
> What does that mean? If it means the ICANN Staff, then that
> should be made clear at the outset of the document.

In the recommendations, ICANN refers to the legal entity that is the
contractual party in the agreement with registries.

ICANN the legal entity employs staff that would be responsible for
managing the process.

If an ICANN supporting organisation or advisory committee is involved -
it will be explicitly mentioned.

>
> Step 4 reads:
> "ICANN may seek expert advice during the preliminary
> determination period (from entities or persons subject to
> confidentiality agreements) on the competition, Security or
> Stability implications of the registry service in order to
> make its "preliminary determination." To the extent ICANN
> determines to disclose confidential information to any such
> experts, it will provide notice to Registry Operator (or sponsoring
> organisation) of the identity of the expert(s) and the
> information it intends to convey."

The experience of the ICANN staff to date, has been that most requests
are quite trivial in nature - e.g change of address etc.   So "must" get
external advice may raise costs unnecessarily.

The intent is that where there is a matter that may impact registrars,
or Internet end users, that some external advice should be sought.

With respect to advice on Security or stability - I expect such advice
to come form members of the Standing Panel.

With respect to advice on competition - I expect this to come from
external legal counsel.

I will get "expert advice" specified in more detail in the final
version.

>
> This section should read that "ICANN must seek expert
> advice." Or at the very least, that "ICANN should seek expert
> advice." And Expert Advice should then be defined.
>
> I see this as the most critical part of the process. If a
> misjudgment is made at this step the rest of the process is
> moot and the ICANN Staff finds itself embroiled in another
> mess. This step should not be fast-tracked. Given past
> events, I can't imagine why the Staff, the Board, or anyone
> would want this step to work any other way.
>
> Regarding the Registrars' Constituency statement, that was
> never voted on by the members, correct?

Yes.  It has always been in draft form.

The registrars constituency has a poor record on formally voting on
policy statements.

Most votes have been related to electing officials.

Regards,
Bruce