[registrars] FW: Further comments from Jeff Neuman

["Bhavin Turakhia" <bhavin.t@xxxxxxxxxxx>]

  _____  

From: Neuman, Jeff [] 
Sent: Wednesday, July 27, 2005 7:06 PM
Subject: RE: 


All,

 

I would like to respond to some of the items I have observed on the Council
list and in particular the comments by Philip and Marilyn.  Again, please
feel free to post.

 

Let me first state that none of us like the position we are in.  As  Bruce
could probably tell you, when the whole topic of Registry Services came up a
year or so ago, I was the one who submitted a draft process that was used as
a model for the current process proposed by the Council in the final report.


 

That said, let me point out a couple a facts.

 

1.	One of ICANN's core missions is the promotion of competition,
including competition amongst registries.  It is my personal belief that
adopting one set of procedures for some registries and not others is a
violation of that core mission.  

2.	When looking at the .net agreement, one needs to ask themselves, why
did VeriSign put in a 3 year restriction on changing the process?  I will
give you my theory and leave it to you all to assess.  Three years from now
will be 2008.  The .com agreement comes up for renewal in 2007 (before the
2008 date).  The .com agreement clearly provides that any new agreement with
VeriSign for .com contain terms that "shall be in substantial conformity
with the terms of registry agreements between ICANN and operators of other
open TLDs then in effect." The words "then in effect" is critical.  At the
time the .com agreement is renegotiated, the terms of the .net agreement
"then in effect" will be the process for new registry services set forth in
the .net agreement (despite whatever "consensus policy" we all come up
with).  Although the ICANN staff could argue that all of the other
agreements other than .net must follow the consensus process, and therefore
the new .com agreement should reflect the consensus process, if I were the
attorney for VeriSign, I would make the legal argument that the .com
agreement could not contain any process other than what is set forth in
.net. This would set up yet another legal battle and as we all know,
Verisign is not afraid to sue the ICANN and waste a plethora of ICANN
resources on and end up with a settlement on the subject (one which again
would ignore the conditions applicable to other registries). I admit this is
my theory and I would love a written commitment by verisign that this is not
the case and that they would agree to abide with whatever the consensus
policy is at the time, but somehow I doubt that will happen. 

3.	For several years now, we have allowed ICANN staff to continually
treat all of the registries other than those controlled by the largest (some
would argue monopoly) registry operator more favorably than the other
registries.  As one example, the .com (and now .net) agreement has a
presumptive renewal clause, while .info, .biz, .org, .pro, .name, .museum,
.aero and .coop do not.  A request to equalize those terms was flatly
rejected by the ICANN CEO.  When asked why VeriSign was allowed to have such
a clause and the others were not, the response was basically that VeriSign
in 2001 had significant market power to get that clause, while we did not.
In addition, other terms and conditions, involving different arbitration
clauses, definitions of "Registry Services", etc. have also favored
VeriSign. 

4.	I challenge the ICANN staff to get a written commitment from
VeriSign that it will agree to change the current .net Agreement and their
future .com agreement to reflect the Consensus process set forth in the
proposed final report.  If the ICANN staff is able to get this signed
written commitment from VeriSign, I will withdraw my opposition of the
recommendation. 

 

None of us like the situation we have been put in, but we cannot ignore it
because we do not like it.  The ICANN regulatory regime is governed by
contract whether we like it or not.  Our contract states that there will be
no disparate treatment of the .biz registry and we fully expect that ICANN
honor its contractual commitments to us just as we have continually honored
our obligations to them.

 

Please keep in mind that the .net agreement is fully executed.  It cannot
change without the express written consent of both VeriSign and ICANN no
matter how much the Council, the community or even the ICANN Board would
like to change the terms.  Given this reality, we have no choice but to
insist on being treated equitably.

 

Jeff Neuman

 

DISCLAIMER:  Some of the opinions expressed herein represent my own personal
opinions and may not necessarily be the opinion of NeuStar and/or NeuLevel.