"feasible and appropriate" reliance on market mechanisms
All - As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows: Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment. The CCWG dropped the introductory “where feasible and appropriate” when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language. Based on our call on Tuesday I would characterize the mood as follows: * Most folks are indifferent * Some folks feel very strongly that it is very important to retain the “where feasible and appropriate” * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5: 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. Thoughts? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
On Fri, Jan 29, 2016 at 07:49:03PM +0000, Burr, Becky wrote:
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
[elided] I can support that (speaking personally). A -- Andrew Sullivan ajs@anvilwalrusden.com
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 On Fri, Jan 29, 2016 at 2:57 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Fri, Jan 29, 2016 at 07:49:03PM +0000, Burr, Becky wrote:
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
[elided]
I can support that (speaking personally).
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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.
I would be surprised if it were otherwise. Joe was evident during the VI work, and he has associates. I concur, though for another reason, with Greg's second point (authority). I share Greg's uncertainty as to the meaning of some competition related consequence of the RSEP program, as I recall the RSEP being motivated by a desire to ensure unusual registry proposals, or under-funded ones, were given more scrutiny than registry proposals that simply offered to follow the VGRS business model. I do differ on whether policy must arise "bottom up". We criticise Board and Staff when policy arives out of the clear blue sky, e.g., the VI flip flop Peter shared with us. Removing it would remove the current basis for criticising policies, and processes, which don't quite pass the smell test. Eric Brunner-Williams Eugene, Oregon
I feel Becky's proposal to revert to existing bylaws text is a good one. As to the explanatory text I think that Becky and Greg perhaps could be able to hammer out a compromise solution... Regards Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Eric (Maule) Brunner-Williams Gesendet: Montag, 1. Februar 2016 07:32 An: Greg Shatan <gregshatanipc@gmail.com> Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms
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.
I would be surprised if it were otherwise. Joe was evident during the VI work, and he has associates. I concur, though for another reason, with Greg's second point (authority). I share Greg's uncertainty as to the meaning of some competition related consequence of the RSEP program, as I recall the RSEP being motivated by a desire to ensure unusual registry proposals, or under-funded ones, were given more scrutiny than registry proposals that simply offered to follow the VGRS business model. I do differ on whether policy must arise "bottom up". We criticise Board and Staff when policy arives out of the clear blue sky, e.g., the VI flip flop Peter shared with us. Removing it would remove the current basis for criticising policies, and processes, which don't quite pass the smell test. Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Greg, On point 3: One component of ICANN’s new registry service review process (RSEP), which was the product of a policy development process, involves ICANN making a preliminary reasonable determination of whether the proposed Registry Service "could raise significant competition issues.” If so, ICANN, through the General Counsel, will refer the matter to the appropriate competition authority or authorities with jurisdiction of the matter. If that referral takes place, the Registry must wait for 45 days before deploying the new service, giving the relevant authority the opportunity to act if it sees a problem. https://www.icann.org/resources/pages/registries/rsep/policy-en. I don’t know if ICANN has every exercised this authority, but Alan expressed concern that elimination of the “where feasible and appropriate” language would call this policy and practice into question. On points 1 and 2: The fact that ICANN can hire an antitrust lawyer does not give it antitrust competence. I continue to feel that the text of our proposal must make clear that while ICANN can play a role in promoting competition by expanding the domain name space it has no authority or competence with respect to correcting the marketplace. I don’t think your language addresses my concern in that regard. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, February 1, 2016 at 12:23 AM To: Andrajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms 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 On Fri, Jan 29, 2016 at 2:57 PM, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> wrote: On Fri, Jan 29, 2016 at 07:49:03PM +0000, Burr, Becky wrote:
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
[elided] I can support that (speaking personally). A -- Andrew Sullivan ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=BErmUMUdM4xqCUqoH2hjDlfI8ynZbwmscci15gfnSWg&s=sGlLSiNnqZFKv9caZpJYDnZIleTa7YSEqqzg0iDD8Jc&e=>
Thanks Becky, I and I am sure the ALAC appreciate your flexibility. I have no problem with the description text being added, and I presume that you and the other lawyers will come to colsure on its wording. Alan At 29/01/2016 02:49 PM, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory "where feasible and appropriate" when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the "where feasible and appropriate" * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / <http://www.neustar.biz>neustar.biz _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Becky, after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view. Best regards Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory “where feasible and appropriate” when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the “where feasible and appropriate” * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
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Thank you Becky. While ICANN should not be an authority, the simple fact of assigning small but well defined “unique” resources in the DNS space, requires a lot of common sense and technical knowledge of the implications on the impact of those assignments, be it in the agreements or in the compliance follow up, or in consumer protection issues. How to express this responsibility without risking to be called an authority I have no suggestion. But the previous wording has to be revised or a new external point for those issues defined, be it IRP or something else. Best regards Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 1 Feb 2016, at 10:39, Burr, Becky wrote:
I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
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Carlos and Becky, I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.). If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...) Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms." I'm sure there are economists and others who can define this better than me.... Greg On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
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:) .piru Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 1 Feb 2016, at 11:05, Greg Shatan wrote:
Carlos and Becky,
I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.).
If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...)
Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms."
I'm sure there are economists and others who can define this better than me....
Greg
On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
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Yes, this appears to be semantic, but I’m not sure we are moving the ball forward by asserting that “my” (or “your”) definition of a term is “the” definition. For example, I would say an auction is fundamentally a “market mechanism” and since you cannot have an auction without having auction rules, those rules are also “market mechanisms.” This distinguishes them from the kind of “command and control” “thou shalt not” authority that sovereign regulators possess – and that IMHO, ICANN does not. I’m beginning to feel that no one is willing to compromise, but I’ll give it another try. How about: “While acknowledging that ICANN does not possess is not an 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 and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).” J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, February 1, 2016 at 2:05 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms Carlos and Becky, I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.). If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...) Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms." I'm sure there are economists and others who can define this better than me.... Greg On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz> On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://neustar.biz><http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org>
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Much better Becky. But I still don´t understand the first (negative) part of the sentence up to the first comma. Would´t it be possible to assert that ICANN recognises its responsibility (trough AoC type of Review commitments), while not being an authority to solve conflicts on competition issues……. Best Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 1 Feb 2016, at 11:34, Burr, Becky wrote:
Yes, this appears to be semantic, but I’m not sure we are moving the ball forward by asserting that “my” (or “your”) definition of a term is “the” definition. For example, I would say an auction is fundamentally a “market mechanism” and since you cannot have an auction without having auction rules, those rules are also “market mechanisms.” This distinguishes them from the kind of “command and control” “thou shalt not” authority that sovereign regulators possess – and that IMHO, ICANN does not.
I’m beginning to feel that no one is willing to compromise, but I’ll give it another try. How about:
“While acknowledging that ICANN does not possess is not an 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 and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).”
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, February 1, 2016 at 2:05 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms
Carlos and Becky,
I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.).
If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...)
Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms."
I'm sure there are economists and others who can define this better than me....
Greg
On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://neustar.biz><http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org>
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I’m sorry, I really cannot accept that ICANN is an antitrust regulator J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 2/1/16, 2:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org> wrote:
Much better Becky. But I still don´t understand the first (negative) part of the sentence up to the first comma. Would´t it be possible to assert that ICANN recognises its responsibility (trough AoC type of Review commitments), while not being an authority to solve conflicts on competition issues…….
Best
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 1 Feb 2016, at 11:34, Burr, Becky wrote:
Yes, this appears to be semantic, but I’m not sure we are moving the ball forward by asserting that “my” (or “your”) definition of a term is “the” definition. For example, I would say an auction is fundamentally a “market mechanism” and since you cannot have an auction without having auction rules, those rules are also “market mechanisms.” This distinguishes them from the kind of “command and control” “thou shalt not” authority that sovereign regulators possess – and that IMHO, ICANN does not.
I’m beginning to feel that no one is willing to compromise, but I’ll give it another try. How about:
“While acknowledging that ICANN is not an Antitrust 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 and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).”
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, February 1, 2016 at 2:05 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community
<accountability-cross-community@icann.org<mailto:accountability-cross-com munity@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms
Carlos and Becky,
I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.).
If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...)
Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms."
I'm sure there are economists and others who can define this better than me....
Greg
On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://neustar.biz><http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list
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That would be ironic, since in the past ICANN asserted that it had antitrust immunity (the courts didn't buy it). Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, February 01, 2016 3:14 PM To: Carlos Raúl Gutiérrez G. Cc: cct-review; Accountability Community Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms I’m sorry, I really cannot accept that ICANN is an antitrust regulator J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 2/1/16, 2:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org> wrote:
Much better Becky. But I still don´t understand the first (negative) part of the sentence up to the first comma. Would´t it be possible to assert that ICANN recognises its responsibility (trough AoC type of Review commitments), while not being an authority to solve conflicts on competition issues…….
Best
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 1 Feb 2016, at 11:34, Burr, Becky wrote:
Yes, this appears to be semantic, but I’m not sure we are moving the ball forward by asserting that “my” (or “your”) definition of a term is “the” definition. For example, I would say an auction is fundamentally a “market mechanism” and since you cannot have an auction without having auction rules, those rules are also “market mechanisms.” This distinguishes them from the kind of “command and control” “thou shalt not” authority that sovereign regulators possess – and that IMHO, ICANN does not.
I’m beginning to feel that no one is willing to compromise, but I’ll give it another try. How about:
“While acknowledging that ICANN is not an Antitrust 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 and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).”
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, February 1, 2016 at 2:05 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community
<accountability-cross-community@icann.org<mailto:accountability-cross-com munity@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms
Carlos and Becky,
I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.).
If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...)
Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms."
I'm sure there are economists and others who can define this better than me....
Greg
On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://neustar.biz><http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list
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I also think Becky's revision improves the language: “While acknowledging that ICANN does not possess is not an 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 APPROPRIATE authorities under the RSEP program and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).” Thank you for clarifying the RSEP reference. I'm still not convinced that referring competition-related questions to the appropriate authorities is at odds with relying on market mechanisms, but I'm not going to die in a ditch over it. (I think the preliminary determination of competition issues might be, but no need to gild the lily -- these are only examples.) I would prefer to change "competent" to "appropriate" to track the language in the RSEP, and because "competent" is one of those funny words with different meanings ("a court of competent jurisdiction" just means the appropriate court and is not a comment on whether they are a bunch of incompetents, while "competent" in other contexts is very much linked to their level of expertise and skill). I have made this change above I'll also freely admit that I'm no economist, and it seems that even in economic circles, the term "market mechanisms" is not so easy to define. In the interests of not beating a dead horse, I can live with this language, preferably with my small change. Greg On Mon, Feb 1, 2016 at 2:59 PM, Carlos Raúl Gutiérrez G. <crg@isoc-cr.org> wrote:
Much better Becky. But I still don´t understand the first (negative) part of the sentence up to the first comma. Would´t it be possible to assert that ICANN recognises its responsibility (trough AoC type of Review commitments), while not being an authority to solve conflicts on competition issues…….
Best
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 1 Feb 2016, at 11:34, Burr, Becky wrote:
Yes, this appears to be semantic, but I’m not sure we are moving the ball
forward by asserting that “my” (or “your”) definition of a term is “the” definition. For example, I would say an auction is fundamentally a “market mechanism” and since you cannot have an auction without having auction rules, those rules are also “market mechanisms.” This distinguishes them from the kind of “command and control” “thou shalt not” authority that sovereign regulators possess – and that IMHO, ICANN does not.
I’m beginning to feel that no one is willing to compromise, but I’ll give it another try. How about:
“While acknowledging that ICANN does not possess is not an 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 and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).”
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz< http://www.neustar.biz>
From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com
Date: Monday, February 1, 2016 at 2:05 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms
Carlos and Becky,
I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.).
If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...)
Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms."
I'm sure there are economists and others who can define this better than me....
Greg
On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote: I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz>
On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto: crg@isoc-cr.org>> wrote:
Dear Becky,
after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote:
All -
As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows:
Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language.
Based on our call on Tuesday I would characterize the mood as follows:
* Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it
I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5:
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.
Thoughts?
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://neustar.biz><http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: Accountability-Cross-Community@icann.org>
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I’m fine with Greg’s change J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, February 1, 2016 at 3:33 PM To: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms I also think Becky's revision improves the language: “While acknowledging that ICANN does not possess is not an 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 APPROPRIATE authorities under the RSEP program and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).” Thank you for clarifying the RSEP reference. I'm still not convinced that referring competition-related questions to the appropriate authorities is at odds with relying on market mechanisms, but I'm not going to die in a ditch over it. (I think the preliminary determination of competition issues might be, but no need to gild the lily -- these are only examples.) I would prefer to change "competent" to "appropriate" to track the language in the RSEP, and because "competent" is one of those funny words with different meanings ("a court of competent jurisdiction" just means the appropriate court and is not a comment on whether they are a bunch of incompetents, while "competent" in other contexts is very much linked to their level of expertise and skill). I have made this change above I'll also freely admit that I'm no economist, and it seems that even in economic circles, the term "market mechanisms" is not so easy to define. In the interests of not beating a dead horse, I can live with this language, preferably with my small change. Greg On Mon, Feb 1, 2016 at 2:59 PM, Carlos Raúl Gutiérrez G. <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> wrote: Much better Becky. But I still don´t understand the first (negative) part of the sentence up to the first comma. Would´t it be possible to assert that ICANN recognises its responsibility (trough AoC type of Review commitments), while not being an authority to solve conflicts on competition issues……. Best Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype: carlos.raulg On 1 Feb 2016, at 11:34, Burr, Becky wrote: Yes, this appears to be semantic, but I’m not sure we are moving the ball forward by asserting that “my” (or “your”) definition of a term is “the” definition. For example, I would say an auction is fundamentally a “market mechanism” and since you cannot have an auction without having auction rules, those rules are also “market mechanisms.” This distinguishes them from the kind of “command and control” “thou shalt not” authority that sovereign regulators possess – and that IMHO, ICANN does not. I’m beginning to feel that no one is willing to compromise, but I’ll give it another try. How about: “While acknowledging that ICANN does not possess is not an 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 and to establish bottom-up policies for allocating top-level domains (e.g., auction rules, community preferences, etc.).” J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz><http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Date: Monday, February 1, 2016 at 2:05 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz><mailto:becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>> Cc: "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org><mailto:crg@isoc-cr.org<mailto:crg@isoc-cr.org>>>, cct-review <cct-review@icann.org<mailto:cct-review@icann.org><mailto:cct-review@icann.org<mailto:cct-review@icann.org>>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms Carlos and Becky, I think this is a semantic issue. Relying on market mechanisms essentially means taking a "hands-off" position with regard to the market. Under this approach, the market is allowed to define itself and to use such "market mechanisms" as supply and demand. It does not mean the opposite (having an entity exercise control over the market through timing, availability, objection proceedings, approval of potential buyers, etc.). If ICANN relied solely on market mechanisms, the AGB would be 20 pages long and you could walk up to the window today and buy .piru (and so could I). (That might be an exaggeration...) Everything that ICANN does to define the market, to control entry into the market, to define how the market works, to introduce reservation, objection and protection processes, etc., is a step away from relying on "market mechanisms." I'm sure there are economists and others who can define this better than me.... Greg On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz><mailto:Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>> wrote: I am sorry that you have seriously misunderstood my comment. I am a strong advocate for ICANN relying on market mechanisms to increase competition, and I believe that should be very clear from my comment. ICANN is not an anti-trust authority. That is simply a statement of fact. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932><tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367><tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz><http://neustar.biz> <http://www.neustar.biz> On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G." <crg@isoc-cr.org<mailto:crg@isoc-cr.org><mailto:crg@isoc-cr.org<mailto:crg@isoc-cr.org>>> wrote: Dear Becky, after signing the AoC in 2008 as a step toward a new round, going trough a round of new gTLDs charging rather high applicant fees (or at least high enough so as to create barriers to entry for underserved areas) and solving competing applications trough pure actions, creating a new GDD and greatly increasing the name space, arguing that ICANN does not rely on market mechanisms or does not posses the necessary knowledge in the implications of competition, is an understatement I can hardly believe in February 2016. Hope the CCT reviews will give us all a more realistic view. Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176><tel:%2B506%208837%207176> Skype: carlos.raulg On 29 Jan 2016, at 11:49, Burr, Becky wrote: All - As a follow up to our call on Tuesday regarding the language for Core Value 5/4: The language in the current Bylaws reads as follows: Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment. The CCWG dropped the introductory ³where feasible and appropriate² when we issued the 1rst Draft Proposal. The ALAC, and now some additional members/participants, have objected to that change. I objected to the reinsertion of that language. Based on our call on Tuesday I would characterize the mood as follows: * Most folks are indifferent * Some folks feel very strongly that it is very important to retain the ³where feasible and appropriate² * Some folks would probably prefer to drop the language, but no one feels as strongly as I do about it I would propose to resolve the situation by reverting the existing Bylaws language and adding the following language to the explanatory text of Recommendation 5: 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. Thoughts? J. 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participants (8)
-
Alan Greenberg -
Andrew Sullivan -
Burr, Becky -
Carlos Raúl Gutiérrez G. -
Eric (Maule) Brunner-Williams -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Phil Corwin