Hi Phil, We agree with your point. ICANN rules are permissive, but not a shield against national laws and regulations. It will be up to national authorities to determine compliance on an ex post basis based on actual conduct for a particular registry. None of this should involve costs to ICANN, only the registries at issue. Competition laws involve many loaded and nuanced elements (that differ based on jurisdiction), and for ICANN to try to shoehorn in an overbroad proxy for such protections based on speculation about future activities as well as an assumption that all applicants and business models are the same - that would be a mistake, in my humble opinion. Best, Andy On Wed, Feb 20, 2013 at 9:12 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
Mike, I think you hit it on the head.****
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No matter how one reads the Registry Code of Conduct and whether it requires an exemption request for a closed generic and what the public interest test should be for getting the exemption, none of that will matter if national competition authorities speak up because real law trumps ICANN rules.****
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And it’s not just DOJ/FTC that can intervene, but the EU competition authority and that of every other major nation within the GAC. ****
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*Philip S. Corwin, Founding Principal*****
*Virtualaw LLC*****
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*From:* owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] *On Behalf Of *Mike Roberts
*Sent:* Wednesday, February 20, 2013 3:04 PM *To:* Andy Abrams *Cc:* Steve DelBianco; bc - GNSO list *Subject:* Re: [bc-gnso] Closed Generic TLDs: a straw poll of BC member views****
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There is here, as in some other ICANN issue areas, the question of whether remedies for anti-competitive monopoly behavior should be applied prospectively or retroactively.****
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One of the reasons for ICANN's creation was to give the little guy in Internet DNS commerce a fairer shake than would be the case with leaving the issue/question to the legal system. Thus, UDRP, etc.****
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In the present instance, we are all mentally constructing models of registry behavior on closed names that would be found not only unfair, but illegal. ****
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The hard sell would be, "Hey, leave that to DOJ/FTC, that's what they are for. " ****
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A more ICANN-centric view might be, "OMG, that's ten years of misery and $$$, especially when neither the legal system nor we have any facts to back up our opinions. Let's not go there, let's increase the administrative, i.e., Guidebook, a priori restraint on bad behavior."****
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- Mike****
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On Feb 20, 2013, at 11:39 AM, Andy Abrams wrote:****
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Dear Steve,****
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Thank you very much for your work on this issue. I think we had a productive discussion at last week's BC meeting, and we look forward to further dialogue leading up to Beijing. As we discussed last week, from Google's perspective, we respectfully believe it is inappropriate to address this issue with the broad brush stroke of "closed generics" given the multitude of different business models, industries and applicants involved as well as the numerous ways to interpret this phrase. Some of these business models represent the very type of innovation that was envisioned for the new gTLD program and would not be possible under the same "pure open" framework that has existed with every TLD to date. This does not mean that we believe all potentially affected applications are equally meritorious or should be given a free pass - far from it, we strongly believe in the existing ICANN process of public objections and GAC Advice, and are taking concerns regarding our own particular applications into very careful consideration.****
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However, we believe that the broader issue ultimately comes down to fairness. We have heard from individuals that were in the room that this issue was in fact directly discussed, and an explicit determination was made to allow closed registries for non-brand terms. Based on our calls with other companies and BC members, we also know that a large number of businesses have spent the last year preparing various single-registrant or restricted business models in reliance on the undisputed fact that the Guidebook currently allows for such practices. ****
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Given this context, I respectfully have some concerns with the formulation of the straw poll. To us, the issue of the ROCC exemption versus the 1(b) "reasonably necessary" distinction are a mere subset of the threshold issue of (1) Change the Guidebook or (2) Don't Change the Guidebook. ICANN should eventually address the former question as it works through the details of registry operation, but from the perspective of business users, I suspect that the details of whether a single registrant must allow multiple registrars to sell domains to itself are less relevant than the larger policy issue. For our part, we are still agnostic on this and will continue to explore it further - we do believe that there is a reasonable argument in favor of either Outcome #1 or #2 of the straw poll (but nothing in the Guidebook to support #3, as through the ROCC lens there is no reasonable way to distinguish different "types" of closed registries in the Guidebook). We also respectfully object to the characterization of Outcome #1 as "anything goes," (though I do like that as the new title of the public forum!) ****
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For these reasons, perhaps it makes sense to restructure the poll in a manner which reflects the binary discussions we have had in the BC thus far? To the extent people do have strong feelings about Outcome 1 v. 2, perhaps that can be a subcategory of the status quo position? I appreciate your consideration.****
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Best,****
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Andy****
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On Sun, Feb 17, 2013 at 8:50 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote:****
BC Members:****
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ICANN just opened a public comment period (link<http://www.icann.org/en/news/public-comment/closed-generic-05feb13-en.htm>) asking whether to classify certain TLD applications as "closed generic", and to deter me "circumstances under which a particular TLD operator should be permitted to adopt open or closed registration policies." ****
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As written, this comment solicitation steers away from the question of whether a registry can own all the domain names in a TLD. Instead, ICANN is asking whether we need new policies regarding who may register a domain, as is apparent from this "background" statement under the public comment:* ***
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"it should be clarified that the Code of Conduct refers to registry-registrar interactions, rather than eligibility for registering names in the TLD. Rather than the Code of Conduct, the true issue of concern being expressed appears to be that in certain applications, the proposed registration policies are deemed inappropriate by some parties."* ***
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That points us to the Registry Code of Conduct (attached), which was created partly in response to BC concerns about allowing vertical integration of registries and registrars. Here's the section most relevant to this discussion:****
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1. In connection with the operation of the registry for the TLD, Registry Operator will not, and will not allow any parent, subsidiary, Affiliate, subcontractor or other related entity, to the extent such party is engaged in the provision of Registry Services with respect to the TLD to: ****
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b. register domain names in its own right, except for names registered through an ICANN accredited registrar that are reasonably necessary for the management, operations and purpose of the TLD ****
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Reasonable people interpret 1b differently. Does 1b prohibit a registry from owning names in its own TLD, except for limited circumstances? Or does 1b allow a registry to own any and all names that suit the purpose of their TLD? ****
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ICANN legal may further clarify its interpretation of 1b, but I believe they see 1b as permitting a "closed generic" TLD to own all its own names. ****
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Whatever the thoughts of ICANN legal, we have an opportunity to comment on what *should* be the interpretation and implications for closed generic TLDs. ****
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As we discussed last Tuesday, the BC may not arrive at a consensus or majority view, in which case we could submit just background information.* ***
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My goal with this email is to to conduct a "straw" poll of BC members to assess convergence around a desired policy outcome that would form the basis of a BC Comment on closed generics.****
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First, I compiled a 3-page history on the BC's support for closed TLDs, starting in 2007 with sponsored TLDs and then for dot-brand TLDs starting in 2009. (See attached) BC members with long memories may want to improve on that history, but its only here for background so let's not get too wrapped-up in that. ****
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So, here are the 3 potential outcomes we proposed on the BC call last week. * Please reply with your views and preferences by 21-Feb-2013 and we'll see whether there's enough support to do a BC position on this before ICANN's deadline of 7-March.*****
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Outcome #1: *Anything Goes*. The registry Code of Conduct clearly allows a TLD operator to have control over who registers domains in their TLD, *and* the operator can own all the domains if they wish. Under this outcome, a registry could own all the domains in their TLD without having to ask ICANN for an exemption from the Code of Conduct.****
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Outcome #2: *Exemption Required*. The registry Code of Conduct prohibits a TLD operator from registering names in its own TLD, except for names reasonably necessary for operating the TLD. Under this outcome, the 1b "except for" does not swallow the rule and thereby allow control of all domains in the TLD. A registry that wants to own all the domains in its TLD can still do so, however, if it obtains an exemption from the Code of Conduct, as provided in Para 6 of the Code:****
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6. Registry Operator may request an exemption to this Code of Conduct, and such exemption may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator demonstrates to ICANN’s reasonable satisfaction that (i) all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use, (ii) Registry Operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an Affiliate of Registry Operator, and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest.****
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All that remains is for ICANN to develop & publish the process and criteria they will use to determine whether giving an applicant this exemption is "in the public interest" as required by para 6. Presumably, the public interest would include considerations of consumer protect, freedom of expression, competition, innovation, and relevant pledges made by ICANN in the 2009 Affirmation of Commitments.****
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Outcome #3. *Only dot-brands may get an exemption*. Only dot-Brands should get the Code of Conduct Exemption. That would allow .Hilton, .Apple, .Google to pursue the exemption, and they should have no trouble getting it. But Goodyear would not be eligible for an exemption that allow it to own all names in .tires TLD, for example.****
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If this straw poll reveals no significant support for any of the above, the BC would *not* draft a position on this public comment period. Instead, the BC might submit just background information and analysis, and perhaps a Reply comment later on.****
--****
Steve DelBianco****
Executive Director****
NetChoice****
http://www.NetChoice.org and http://blog.netchoice.org ****
+1.202.420.7482 ****
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-- Andy Abrams | Trademark Counsel *G**o**o**g**l**e* | 1600 Amphitheatre Parkway, Mountain View, CA 94043*** *
(650) 669-8752 <https://www.google.com/voice#phones>****
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-- Andy Abrams | Trademark Counsel *Google* | 1600 Amphitheatre Parkway, Mountain View, CA 94043 (650) 669-8752 <https://www.google.com/voice#phones>