NCUC statement on "Procedure for use by ICANN in considering requests for consent and related contractual amendments to allow changes in the architecture or operation of a gTLD registry." NCUC observes that by initiating this procedure, ICANN is assuming that its contracts alone are not sufficient to provide a predictable and stable basis for the industry. It is assuming that it needs an ongoing form of oversight to supplement its contracts and contractual modifications, because the contracts cannot deal with all possible developments in the future. Thus, ICANN is expanding into additional areas of industry regulation, although no one wants to admit that. In formulating its response, NCUC begins by asking: How are noncommercial domain name users specifically affected by this change? The answer, NCUC believes, is that there is no commercial/noncommercial angle to this issue. It is more a question of: a) consumer protection; i.e., how users/consumers relate to suppliers and what kind of regulatory procedures are needed to protect consumers given the high switching costs associated with changing registry suppliers after a domain name is well-established. b) technical coordination; i.e., what kind of technical regulation or specifications are needed to protect third parties using domain names on the Internet from harmful changes made in registry operation, while preserving as much as possible the freedom of suppliers to respond to the market and innovate. NCUC notes that whether consumers or users are commercial or noncommercial has little bearing on these issues. We also note that a) and b) are distinct policy issues. a) Involves protection of the parties buying service from a gTLD registry, who may have options, while b) involves protection of third party users of a domain name, who probably do not have any options if they want to connect to the party using the affected registry. We also note that a) involves economic forms of regulation which also involves competition policy concerns, while b) is more a matter of technical coordination. NCUC strongly recommends that the PDP distinguish clearly between a) and b) in its consideration of the new process. Is the object of the process economic regulation or technical coordination? The document we are asked to comment on proposes no policies, so our comments can only suggest questions or problems for the PDP process to consider. 1. One question the PDP should consider is whether all issues related to a) above should be handled by national regulatory authorities instead of ICANN. We support ICANN's need for technical coordination related to matters under b). We are less confident of ICANN's ability and right to engage in a). We are also not convinced of ICANN's ability to engage in competition policy-related forms of regulation. We recognize, however, that it may be difficult for consumers to obtain adequate protection in a transnational business context. Additionally, registries and registrars can and do hide behind their contracts with ICANN. The structure of ICANN's contracts allows a willful registry or registrar to "hide the ball" by pointing to a different contracting party as responsible for the conduct the registrant complains of. Thus, registries maintain that contracts imposed by ICANN bar them from certain courses of action, registrars likewise claim that contract provisions imposed by ICANN prevent them from acting, and ICANN says it is not a regulator and that any remedy lies in the contracts which it claims are negotiated freely. At this moment, when we discuss the introduction of new regulatory procedures, ICANN has to make clear what its position precisely is vis-a-vis consumer protection. The new procedures developed in this PDP should certainly not worsen the situation described in this paragraph. While there is a case for a global governance regime, we note that ICANN invested most of its effort in protecting trademarks and domain name supplier interests, and has shown very little interest in protecting consumers and users. For ICANN to become an effective consumer protection agency significant changes would have to be made in its representational structure and decision making processes. 2. The PDP document refers to a "quick look" process followed by a more involved process if a change fails the "quick look." A question the PDP needs to face squarely is: What is a subject to a "quick look" and what is not? What is a "new registry service"? How is that defined? Who will make that determination initially? What happens when the registry and ICANN disagree on that issue? If a process is created, there should be guidelines as to when an issue is important enough to put it before ICANN bodies, invite public comment etc. Some issues will be too important to leave to ICANN staff. 3. The NCUC recognizes the danger that a registry can make damaging changes, such as in the Sitefinder case. We support clear, well-defined specifications for registry operation that make DNS a neutral platform for Internet functions. We also recognize a threat that innovative changes will be stifled by a central organization such as ICANN which may have incentives to prevent useful changes in order to maintain its control over the industry. 4. The PDP should consider whether there should be a distinction between policies applied to sponsored and unsponsored TLDs. NCUC believes the answer will be usually no. There have to be good reasons to make a distinction. If the justification for regulation is economic; i.e, that users are locked in to a supplier and cannot switch service providers without incurring damaging costs, then the same fundamental economic problem applies regardless of whether the registry is sponsored or not. In some respects, switching costs are more serious with sponsored TLDs, since they are supposed to represent a community identity and not just an individual company/organization's identity. If the justification for the review process is technical, the answer is the same: there is no relevant technical distinction between sponsored and un-sponsored registries. We do, however, believe that sponsored TLDs could be and should be required to consult their "community" before making changes in operation of the sort contemplated by the PDP. 5. The PDP should consider whether there should be a distinction between the treatment of dominant and non-dominant TLDs? In this case NCUC believes there is a stronger case for a distinction. A major dominant registry may have the power to move the entire industry and technology, whereas smaller ones would not. However, the lock-in problem of consumers applies regardless of whether the registry is dominant or not. As the Internet and DNS grow, larger numbers of users will be affected by TLD registries regardless of their overall share of the market. Thus, the policy must identify carefully what problem it is trying to solve. 6. We wish to emphasize that public consultation, and consultation of constituencies, must be a regular part of dealing with the most important issues. We do not want ICANN staff to handle substantive policy issues on their own.