i'd like to add something to the scope of this discussion -- the question of whether the consensus decision-making model is really the best one to use in all cases. the early ICANN documents talk about a "bottom-up process" for quite a while. then, at some point which is hard to pin down, that language changed to "bottom-up consensus-based process." i've had a hard time figuring out why that choice was made. there are all kinds of decision-making processes with different strengths and weaknesses. the primary weaknesses of consensus are a) it's not well suited to making decisions quickly or on a schedule and b) it can lead to a no-decision outcome (which can be gamed). what would be neat, in my view, would be an addition to the chartering process which decided what policy-development model AND decision-making approach would be used when launching a PDP, with some guidelines to help people decide... mikey On Aug 11, 2010, at 2:46 AM, Philip Sheppard wrote:

In the context of the VI debater Mike R has made a telling comment:

"I do not think it possible to get the support of parties who have a vested economic interest in the status quo"

This to my mind is one of the key flaws of the WG model of policy development. Incumbents are able to manipulate future markets. This has anti-trust implications.

A User House project could usefully take this up for broader discussion. First steps would by CSG agreement to do so. Sarah - would you be willing to take this forward?

Philip

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web http://www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

Dear all, I take issue with Mike R’s comment: “To me it seems obvious that large incumbents are not keen to have competition from outsiders, as they haven’t offered any good reason why these models shouldn’t be allowed, and there are plenty of good reasons why they should be allowed.” This is patently untrue. The RACK proposal proposers [Tim Ruiz (Go Daddy), Ron Andruff, Brian Cute (Afilias) and Kathy Kleiman (PIR)] reasoned that it is inopportune to allow an open VI regime at this time due to (1) the clear threat of gaming that can be done by nefarious registrars with unfettered access to registrant data and clear advantages regarding “drop” information and the like; (2) the lack of a fully-formed/budgeted compliance department that has the capabilities (should the VI WG be able to establish appropriate policy recommendations for compliance to police) to give the user community confidence in the institution of ICANN; and (3) with the potential for hundreds of new gTLDs being added into the DNS in the coming decade, ICANN needs to gain the benefit of experience with a tenfold increase in gTLDs BEFORE throwing open the doors to a no restrictions environment. This group of proposers included a registrar, two registries and me, and all of us are taking the longer view to ensure that any changes in policy serve the interests of Internet users at large, rather than a specific group that comes from within ICANN -- registrars. RACK does not preclude any registrar investing in and owning up to 15% of a registry or registry service provider. Which is the same as saying that new registries are welcome to the marketplace, but registrars cannot have a controlling interest in them – invest: YES; control: NO. To make a blanket statement that incumbents are blocking competition is not only misleading, it is categorically false. So, Philip, before the BC goes off on a fool’s errand vis-à-vis anti-competitive practices, a considerable amount of factual dialogue needs to take place on this list. I’ll kick it off here with a question to Mike R: Who exactly are the “outsiders” you note above? Registrars like ENOM that are at the heart of VI, or are there other “outsiders” that I may have missed hearing about during these last months of thousands of VI WG emails and hundreds of hours of calls? Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 _____ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Tuesday, August 10, 2010 6:51 PM To: 'bc - GNSO list' Subject: RE: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) John, The WG has moved extraordinarily quickly, covering a large number of big issues, leaving almost all of them in its wake for further discussion because no consensus could be reached – there was “substantial opposition” to almost every proposition! Regarding SRSU and SRMU models, it was clear from the outset that there is substantial opposition to both, but less for SRSU so, to the extent there was focus on any sort of “Single Registrant” models, the focus was there. It was quickly apparent that there would be no consensus about SRSU, either. To me it seems obvious that large incumbents are not keen to have competition from outsiders, as they haven’t offered any good reason why these models shouldn’t be allowed, and there are plenty of good reasons why they should be allowed. Nevertheless, to this point there hasn’t been much WG discussion about any sort of ‘Single Registrant’ models in particular, other than to note substantial support for the notion of SRSU… if consensus can be reached as to details. The IPC has put forward some variations but none of them have got substantial support as of yet. I do not think it possible to get the support of parties who have a vested economic interest in the status quo, so there will have to be enough consensus without their consent, or they and the status quo will prevail for this next round of TLDs. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: john@crediblecontext.com [mailto:john@crediblecontext.com] Sent: Tuesday, August 10, 2010 12:43 PM To: Frederick Felman Cc: Ron Andruff; Steve DelBianco; bc - GNSO list; icann@rodenbaugh.com Subject: RE: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) All, I am confused on the point made by Mike and supported by Fred. Note this from page 32 of the VI report (the bold italics are mine): "11 Although the Working Group also initially discussed a single-­‐registrant, multiple-­‐user (SRMU) subcategory, there was substantial opposition due to its complexity. Instead, the working group focused on a Single Registrant Single User Exception. Accordingly, only SRSU is identified in the main body of the report." I think we would be on firmer ground to carve out a VI waiver based on size rather than ownership. At a certain size, even a captive gTLD could benefit from outside, expert technical support, no? Cheers, John Berard -------- Original Message -------- Subject: Re: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) From: "Frederick Felman" <Frederick.Felman@markmonitor.com> Date: Tue, August 10, 2010 10:24 am To: <icann@rodenbaugh.com> Cc: "Ron Andruff" <randruff@rnapartners.com>, "Steve DelBianco" <sdelbianco@netchoice.org>, "bc - GNSO list" <bc-gnso@icann.org> I'd agree with Mike in this case. It's the model that many Big brands are considering. Sent from +1(415)606-3733 On Aug 10, 2010, at 9:53 AM, "Mike Rodenbaugh" <icann@rodenbaugh.com> wrote: I disagree that Single Registrant – Multiple User models have no support in the WG. To the contrary, those models would be freely allowed under the “free trade” proposals that have garnered a lot of support in the WG – in fact receiving more support than either of the other major alternatives in the last straw poll of the WG. More importantly to our Members, such models may very well be desirable for many businesses who wish to own and operate a new gTLD, and so we should support that flexibility as there does not appear to be any additional or substantial harm that would be caused by those business models. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Monday, August 09, 2010 12:34 PM To: 'Steve DelBianco'; 'bc - GNSO list' Subject: RE: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) Steve, Thanks for the updated comments. I have made a couple of edits/comments, as noted in the attached draft. I specifically commented on the Single Registrant Multiple User (SRMU), which has not gotten any traction, rather only push back from the broader working group. The BC should take note of this and perhaps modify its language in this regard. Thanks. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 _____ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Friday, August 06, 2010 1:24 PM To: 'bc - GNSO list' Subject: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) To: BC members From: BC executive committee On Thursday 5-Aug, your executive committee held a call with several BC members who are devoting much of their time to the Vertical Integration (VI) Working Group. ( Ron Andruff, Berry Cobb, Mike Palage, and Jon Nevett ) The discussion revealed that the Working Group is not likely to reach consensus for any single plan. However, there are principles which may emerge with significant support. The initial report of the Working Group is presently posted for public comment, with a due date of 12-Aug. (see http://icann.org/en/public-comment/#vi-pdp-initial-report ) The BC already has an approved position on VI, which was posted in Sep-2009. However, we believe that the BC needs to make key clarifications of our Sep-2009 position in order to make it more relevant the VI Working Group’s initial draft report: 1. define what the BC meant by “status quo” in our statement “the BC opposes any change to the status quo for all TLDs intended for sale to third parties” 2. define what the BC meant by “internal use” in our statement “The BC believes that uniquely for domain names intended for internal use, the principle of registry-registrar vertical separation should be waived.” 3. encourage continued work to define eligibility and scope for Single registrant – Single User exception. We drafted a comment along these lines and have posted it here for your review and comment. The executive committee plans to file these comments by 12-August deadline. (comment attached) Again, these are meant to be clarifications of existing position — not a new comment that would be subject to the 14-day review period required by our charter. But as you review these comments, please feel free to raise new issues that go beyond clarifying our Sep-2009 position, since your thoughts will be extremely helpful to the BC members on this working Group and to our GNSO Councilors. For example, please think about how to distinguish ‘registered users’ of a dot-brand owner from ‘registrants’ of an ICANN-accredited registrar. --Steve DelBianco

This deserves some further response now, though I am sure plenty more discussion to come as the Vertical Integration Working Group continues its work. You list 3 reasons in favor of continued cross-ownership restrictions: 1) undefined “gaming” potential of “nefarious registrars” -- but what specific harms are you seeking to avoid, are they prevented by cross-ownership restrictions, and should all registrars be prevented from competing in the newTLD operations market, simply because you might imagine a relative few “nefarious actors”? 2) ICANN’s compliance function does not instill confidence in ICANN – this is a meaningless red herring, first must identify the harms you seek to prevent (other than “competition from registrars, some of whom might be nefarious”), and 3) ICANN should wait til after this round to consider lifting restrictions – but a next round may not occur for 3-5 years, and ICANN already has the benefit of 10 years experience with hundreds of TLDs in the root, including fully vertically integrated business models, so again this is just an argument to benefit incumbent players and protect their markets for another several years. I look forward to further discussion, particularly once the VI-WG publishes the recent work on ‘harms’ alleged to be caused by these restrictions, as well as the ‘harms’ that allegedly would be caused if they are eliminated. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 <http://rodenbaugh.com/> http://rodenbaugh.com From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Wednesday, August 11, 2010 8:10 AM To: 'bc - GNSO list' Subject: [bc-gnso] RE: Vested interests - status quo - market incumbents - anti trust Dear all, I take issue with Mike R’s comment: “To me it seems obvious that large incumbents are not keen to have competition from outsiders, as they haven’t offered any good reason why these models shouldn’t be allowed, and there are plenty of good reasons why they should be allowed.” This is patently untrue. The RACK proposal proposers [Tim Ruiz (Go Daddy), Ron Andruff, Brian Cute (Afilias) and Kathy Kleiman (PIR)] reasoned that it is inopportune to allow an open VI regime at this time due to (1) the clear threat of gaming that can be done by nefarious registrars with unfettered access to registrant data and clear advantages regarding “drop” information and the like; (2) the lack of a fully-formed/budgeted compliance department that has the capabilities (should the VI WG be able to establish appropriate policy recommendations for compliance to police) to give the user community confidence in the institution of ICANN; and (3) with the potential for hundreds of new gTLDs being added into the DNS in the coming decade, ICANN needs to gain the benefit of experience with a tenfold increase in gTLDs BEFORE throwing open the doors to a no restrictions environment. This group of proposers included a registrar, two registries and me, and all of us are taking the longer view to ensure that any changes in policy serve the interests of Internet users at large, rather than a specific group that comes from within ICANN -- registrars. RACK does not preclude any registrar investing in and owning up to 15% of a registry or registry service provider. Which is the same as saying that new registries are welcome to the marketplace, but registrars cannot have a controlling interest in them – invest: YES; control: NO. To make a blanket statement that incumbents are blocking competition is not only misleading, it is categorically false. So, Philip, before the BC goes off on a fool’s errand vis-à-vis anti-competitive practices, a considerable amount of factual dialogue needs to take place on this list. I’ll kick it off here with a question to Mike R: Who exactly are the “outsiders” you note above? Registrars like ENOM that are at the heart of VI, or are there other “outsiders” that I may have missed hearing about during these last months of thousands of VI WG emails and hundreds of hours of calls? Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 _____ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Tuesday, August 10, 2010 6:51 PM To: 'bc - GNSO list' Subject: RE: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) John, The WG has moved extraordinarily quickly, covering a large number of big issues, leaving almost all of them in its wake for further discussion because no consensus could be reached – there was “substantial opposition” to almost every proposition! Regarding SRSU and SRMU models, it was clear from the outset that there is substantial opposition to both, but less for SRSU so, to the extent there was focus on any sort of “Single Registrant” models, the focus was there. It was quickly apparent that there would be no consensus about SRSU, either. To me it seems obvious that large incumbents are not keen to have competition from outsiders, as they haven’t offered any good reason why these models shouldn’t be allowed, and there are plenty of good reasons why they should be allowed. Nevertheless, to this point there hasn’t been much WG discussion about any sort of ‘Single Registrant’ models in particular, other than to note substantial support for the notion of SRSU… if consensus can be reached as to details. The IPC has put forward some variations but none of them have got substantial support as of yet. I do not think it possible to get the support of parties who have a vested economic interest in the status quo, so there will have to be enough consensus without their consent, or they and the status quo will prevail for this next round of TLDs. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: john@crediblecontext.com [mailto:john@crediblecontext.com] Sent: Tuesday, August 10, 2010 12:43 PM To: Frederick Felman Cc: Ron Andruff; Steve DelBianco; bc - GNSO list; icann@rodenbaugh.com Subject: RE: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) All, I am confused on the point made by Mike and supported by Fred. Note this from page 32 of the VI report (the bold italics are mine): "11 Although the Working Group also initially discussed a single-­‐registrant, multiple-­‐user (SRMU) subcategory, there was substantial opposition due to its complexity. Instead, the working group focused on a Single Registrant Single User Exception. Accordingly, only SRSU is identified in the main body of the report." I think we would be on firmer ground to carve out a VI waiver based on size rather than ownership. At a certain size, even a captive gTLD could benefit from outside, expert technical support, no? Cheers, John Berard -------- Original Message -------- Subject: Re: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) From: "Frederick Felman" <Frederick.Felman@markmonitor.com> Date: Tue, August 10, 2010 10:24 am To: <icann@rodenbaugh.com> Cc: "Ron Andruff" <randruff@rnapartners.com>, "Steve DelBianco" <sdelbianco@netchoice.org>, "bc - GNSO list" <bc-gnso@icann.org> I'd agree with Mike in this case. It's the model that many Big brands are considering. Sent from +1(415)606-3733 On Aug 10, 2010, at 9:53 AM, "Mike Rodenbaugh" <icann@rodenbaugh.com> wrote: I disagree that Single Registrant – Multiple User models have no support in the WG. To the contrary, those models would be freely allowed under the “free trade” proposals that have garnered a lot of support in the WG – in fact receiving more support than either of the other major alternatives in the last straw poll of the WG. More importantly to our Members, such models may very well be desirable for many businesses who wish to own and operate a new gTLD, and so we should support that flexibility as there does not appear to be any additional or substantial harm that would be caused by those business models. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1 (415) 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Monday, August 09, 2010 12:34 PM To: 'Steve DelBianco'; 'bc - GNSO list' Subject: RE: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) Steve, Thanks for the updated comments. I have made a couple of edits/comments, as noted in the attached draft. I specifically commented on the Single Registrant Multiple User (SRMU), which has not gotten any traction, rather only push back from the broader working group. The BC should take note of this and perhaps modify its language in this regard. Thanks. Kind regards, RA Ronald N. Andruff President RNA Partners, Inc. 220 Fifth Avenue New York, New York 10001 + 1 212 481 2820 ext. 11 _____ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Steve DelBianco Sent: Friday, August 06, 2010 1:24 PM To: 'bc - GNSO list' Subject: [bc-gnso] Proposed BC Comment on Vertical Integration Working Group Initial Report (to be filed 12-Aug) To: BC members From: BC executive committee On Thursday 5-Aug, your executive committee held a call with several BC members who are devoting much of their time to the Vertical Integration (VI) Working Group. ( Ron Andruff, Berry Cobb, Mike Palage, and Jon Nevett ) The discussion revealed that the Working Group is not likely to reach consensus for any single plan. However, there are principles which may emerge with significant support. The initial report of the Working Group is presently posted for public comment, with a due date of 12-Aug. (see http://icann.org/en/public-comment/#vi-pdp-initial-report ) The BC already has an approved position on VI, which was posted in Sep-2009. However, we believe that the BC needs to make key clarifications of our Sep-2009 position in order to make it more relevant the VI Working Group’s initial draft report: 1. define what the BC meant by “status quo” in our statement “the BC opposes any change to the status quo for all TLDs intended for sale to third parties” 2. define what the BC meant by “internal use” in our statement “The BC believes that uniquely for domain names intended for internal use, the principle of registry-registrar vertical separation should be waived.” 3. encourage continued work to define eligibility and scope for Single registrant – Single User exception. We drafted a comment along these lines and have posted it here for your review and comment. The executive committee plans to file these comments by 12-August deadline. (comment attached) Again, these are meant to be clarifications of existing position — not a new comment that would be subject to the 14-day review period required by our charter. But as you review these comments, please feel free to raise new issues that go beyond clarifying our Sep-2009 position, since your thoughts will be extremely helpful to the BC members on this working Group and to our GNSO Councilors. For example, please think about how to distinguish ‘registered users’ of a dot-brand owner from ‘registrants’ of an ICANN-accredited registrar. --Steve DelBianco