I support reverting the existing Bylaws language. I have some problems with the explanatory text, though. The suggested language is:
While acknowledging that ICANN does not possess antitrust expertise or authority, on balance the CCWG elected
to retain the introductory language to ensure that ICANN continues to have the authority, for example, to refer competition-related
questions regarding new registry services to competent authorities under the RSEP program, to establish bottom-up policies for allocating top-level domains (e.g., community preference), etc.
First, I wouldn't say "ICANN does not possess antitrust expertise." I'm sure that ICANN is really well advised on antitrust matters by Jones Day; Joe Sims, the
partner behind the Jones Day relationship, is a first-rate antitrust lawyer and Jones Day has a strong antitrust practice. I think ICANN has all the antitrust expertise it needs available to it.
Second, I would not say that "ICANN does not possess antitrust ... authority." Not because it isn't true (it is; only governments
and regional authorities (e.g., the EU) have antitrust authority), but because I don't see how it's relevant. I don't think anyone has ever asserted that ICANN has antitrust authority. ICANN doesn't need to be an antitrust authority to take action (or to
take no action) under this Bylaw.
Third, I am just uncertain what is meant by "the authority, for example, to refer competition-related
questions regarding new registry services to competent authorities under the RSEP program." Is this something that ICANN has done? I am not aware of any system by which the US antitrust authorities (DOJ and FTC) take
questions and provide advisory opinions or no action letters or anything similar, except with regard to Hart-Scott-Rodino Act questions (which is irrelevant here).
I do agree with the very last part, that ICANN needs to have the authority "to establish bottom-up policies for allocating top-level
domains (e.g., community preference), etc." This is an example of one type of action where ICANN is not just letting the market find its own level; there are certainly others, and not only relating to the TLD marketplace. Many of ICANN's actions and policies
have an effect on the marketplace (RPMs, reserved names at both levels, name collision reservations, etc., etc.) (I will note with some sympathy Alan Greenberg's concern that not every ICANN policy is categorically "bottom-up.")
I would suggest the following revised language:
While acknowledging that ICANN does not possess unlimited latitude to take actions relating to markets, on balance the CCWG elected to retain the introductory language to ensure
that ICANN continues to have the ability to establish policies (consistent with antitrust/competition and other applicable laws) such as those for allocating top-level domains (e.g., community preference), etc.
Greg