Thomas,
I'm happy to concede the point that contract language
may be challenged. However, I have also noted that
the current contract requirements to abide by a
"Procedure for Subsequent Agreement" in the
.com,
.biz, .info and .org contracts have not been honored,
and that the Community stands outside the process as a
third-party beneficiary to these agreements with no
rights under law.
Another area of concern pertains to the actual impact
of equal nondiscriminatory access to registry traffic
data on nonexistent domain names. I can envision 800+
registrars simultaneously pounding on a registry's
system in order to secure the registration of millions
of typosquatting domains. I would ask if the
registries are sufficiently robust to handle such an
event.
Unfortunately, we may not get the answer to this
question since the above-cited four registries have
chosen not to honor their obligation to provide a
detailed report of the Registry Operator's operation
of the Registry TLD as part of the Renewal Proposal
that they were supposed to provide to the Community.
I had hoped that Vint, Veni or John Jeffries would get
back to us with an update on this issue, but thus far
we have heard nothing.
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Hello All:
In the interest of efficiency I have tried to consolidate a
number of
discussions into a single email. I would like to start off
by saying
that things have been remarkably civil which is a positive
thing. I
think when people engage in a constructive dialog without
personal
insults and attacks much more gets accomplished.
So before continuing lets start with the perspective of the
various
participants.
Myself - Michael Palage. As most of you should know based
upon my
numerous abstentions during my tenure on the Board. I am
consultant to
various registrations authorities (registrars and
registries), including
Afilias which currently has its contract up for review. I
have had no
discussion with Afilias in connection with these posts. In
fact they
would probably disapprove of my comments to date as they
have taken a
very low key approach since the posting of the contracts.
The principle
reason I responded to these posts was George's initial
strongly worded
email in response to Vint's email. Listen, Vint and I do
not agree on
several issues, during the three years on the board there
were a number
of issues in which we were in violent disagreement.
Notwithstanding
these differences of opinion, I always respected him. As
previously
stated I agree with Vint's statement, and I have just tried
to
articulate the reason why.
George Kirikos, successful businessman because unlike myself
he does not
qualify for the small business discount within the business
constituency. George has a portfolio of around 500 domain
name which are
mostly registered in the .COM TLD. John Berryhill calls him
brilliant so
that is a good enough endorsement for me to listen and
respect what he
has to say. George is also an active participant within the
business
constituency and is very knowledge of domain name matters.
Tim Ruiz. Vice President of Domain Services for GoDaddy, the
largest
domain name registrar in the world. I also hold Tim in high
regard based
upon the number of years we spent together in the registrars
constituency.
Danny Younger. The closest representation to an at large
stake holder
that I know of. Very knowledgeable on ICANN matters and its
history.
Does not own any domain name portfolio that I am aware of,
and is not
currently employed by any registration authority.
Chris McElroy. Do not know Chris, nor if he has any domain
name
portfolio, but he seems to be involved in helping clients
select domain
names. He also seems knowledgeable on DN related matters.
Karl Auerbach. Former ICANN Board member. I have known Karl
for many
years, and having completed a three year term on the ICANN
Board, he is
someone that I hold in much higher regard prior to my
service on the
board. Karl provides an important reference point to when
things were
much simpler in the domain name space. Although he can be
noisy and loud
at times, he is a good person whom I also respect.
So with regard to the topic of the proposed (biz, .info and
.org)
registry contracts which have no price control provisions
here are the
various position as I understand them based upon the
discussion to date.
George is a strong advocate of an air tight contract that
would regulate
price, and would require a competitive rebid on a periodic
basis. Based
upon some email exchange on the business constituency list.
George has
also expressed concern for a registry operator to offer
discount pricing
to different registrars. George is a strong advocate of
Karl's statement
that you should not repeat the same mistake twice.
Just to the right of George is Tim which expresses concern
about the
ability of a registry operator to raise the price of
services. However,
unlike George, Tim and the other large registrars are not
opposed to
registry operators from giving them volume discounts.
On the opposite end of the spectrum is the proposed .BIZ,
.INFO and .ORG
contracts as well as the existing .MOBI, .JOBS, .TRAVEL,
.CAT and .TEL
which have no price caps/controls, and include preferential
renewal.
To the left of that is the .NET and proposed .COM registry
contracts
which have price caps on the number and size of increases,
but include
preferential renewal terms.
Where I find myself is somewhere in the middle between the
.NET/.COM
contracts and the proposed .INFO, .BIZ and .ORG contracts,
and let me
explain why.
Back in 2001 I vehemently opposed the VeriSign renegotiation
contracts
which provided VeriSign with its current preferential
renewal term, just
ask anyone in attendance at the Melbourne meeting. However,
once that
provision was done, it set in process a logical progression
where all
contracts would have that provision. Now although George and
Karl argue
that you should not repeat the same mistake twice, it is
kind of hard to
create competition within the registry space if only the
dominate player
holding the crown jewel (.COM) has preferential renewal
terms, and no
one else does. Things have only become further complicated
with the
preferential renewal term being incorporated into the
.TRAVEL, .JOBS,
.CAT, MOBI, .NET and .TEL contracts. I just can't see how
to unring this
bell. Some people say it is easy, just do it, but I
seriously question
how to do it and withstand the potential legal challenges.
So to me the preferential renewal terms are a non-starter.
Now some people will point to the current contractual PDP
process
underway. The problem with that is that General Counsel has
stated that
it was outside of scope from the beginning, although his
recommendation
was overridden by a supermajority vote of the council. The
question the
community needs to ask itself, who do you think the board
will listen to
ICANN's General Counsel or the community?
Turning to the removal of price controls. I had significant
reservations
about how the decision to remove price caps arose, however,
I lost that
argument as well. Given, that scenario I find myself in a
situation
where the ICANN Board has taken certain steps which I
believe limit the
scope of what they can do in connection with the current
.INFO, .BIZ and
.ORG contracts as well as the VeriSign .COM agreement.
Now many people have argued that we need to undo the
mistakes and
correct the contracts, as previously stated, I do not see
this as a
viable legal option. Obviously some may call me a defeatist
or paid
shill of the registries, hopefully the constructive dialog
will prevent
that from happening.
Where I have tried to focus my energies is on how to tweak
the
existing/proposed contracts to seek the common goal which I
believe most
people have expressed. How to prevent a sole source provider
from
abusing their power within the market. I believe the focus
needs to be
on the referral to national competition authorities. As Tim
properly
notes this is a chicken and an egg scenario because ICANN
controls the
initial decision of referral.
Unfortunately there is a general lack of trust among the
community for
the ICANN staff to do the right thing. However, I have an
idea which I
would like to circulate. ICANN could create a Competition
Office, not
unlike the Ombudsman that would be independent from ICANN
staff
oversight and report directly to the Board. This Competition
Office
would be tasked with reviewing new registry service requests
and making
referrals to the national competition authorities. This
Competition
Office would in NO WAY impact any review by the standing
technical
committee which has its own mandate. This independence
competition
office would act as an important safeguard to prevent a
registry
operator from trying to exert undue influence on the staff
during its
consideration of a funnel request. The elegance of this
approach is that
it would not need any tweak to the registry contracts just
an amendment
to the bylaws to create this office.
The one area where I believe some addition change in the
registry
contract should take place is in connection with the 45 day
window. I
believe that is just too small of a window to serve as an
important
safety net.
Turning to Danny's question about why metadata from the
zone is outside
the current PDP, I do not have an answer that I can share.
However, I do
believe the non-discriminatory access provision to this data
which
Thomas pointed out is an important safeguard to prevent any
abuse.
Karl, answering your email on new TLD would take a lot
longer and I have
already exceeded my non-billable ICANN allotment for the
past couple of
days. Perhaps a phone call to catch up on things after I
release my new
TLD implementation framework white paper?
In closing, I understand the anger and frustration that the
community
feels with regard to how we got here. It is the same anger
and
frustration that I tried to articulate during the Luxemburg
meetings.
Over the past year, I have tried to focus on making the best
out of the
current situation. I respect that some people will go down
with the ship
arguing that ICANN needs to correct its past mistakes and
redo the
registry contracts and re-insert price caps and competitive
rebids.
What I am trying to articulate is how can we enhance the
current
contracts to provide the community with additional
safeguards against a
sole source provider that may potentially abuse its position
in the
marketplace.
I need to get some billable work done as well as some work
around the
house. This will probably be my last email until next week,
so no cheap
shots in the mean time. Thanks again for the constructive
dialog that
the community has engaged in with regard to this discussion.
Best regards,
Michael D. Palage
|
yahoo.com> writes:
> Registries may take the view that an auction process
> allows for nondiscriminatory access.
And they might also take the view that the earth is flat.
If others believe that an auction would be discriminatory,
the action
could be challenged, since the wording I quoted is in the
proposed
contract.
I'm not going to argue how this would play out should it
happen (since
it would depend a lot on the specifics), but I have doubts
that the
hypothetical scenarios you raised would go unchallenged.
Especially if
the community raised a stink about it!
> An auction would allow them to maximize their ROI to a
far greater
> degree than by employing other equal access procedures.
Maybe, maybe not. In any case, orthogonal to whether they
would or
would not be allowed to do so.
Thomas