Amended statement on gTLD service changes

[Marc Schneiders]

On Mon, 12 Jan 2004, at 19:08 [=GMT-0500], Milton Mueller wrote:

> Marc:
> Amazed that you are still awake - it must be late in
> Netherlands, because it is too late here and I need
> to go home!!!!

> So I am happy to let you take over
> this process. You, Jisuk and Carlos were elected to
> do it, so from here on in please take it over - just be
> sure to publish to the list what you do.

Of course I will.

> for what it's worth, I agree with your comments below,
> except I think that it is not correct to put PIR's
> IDN stuff in the same category as Sitefinder.

I will amend the text accordingly and send it here soon.

Marc

>
> Good night!
> --MM
>
> >>> Marc Schneiders <marc at SCHNEIDERS.ORG> 01/12/04 06:33PM >>>
> On Mon, 12 Jan 2004, at 17:03 [=GMT-0500], Milton Mueller wrote:
>
> > Please comment TODAY if you can
> >
> > Proposed 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 can hide behind their contracts with ICANN.
> If ICANN doesn't protest, it must be OK. Registries can use this in
> court. Consumers are out of luck.
>
> > 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.
>
> Good!
>
> > 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.
>
> Very good!
>
> > 3. The NCUC recognizes the danger that a registry can make
> > damaging changes, such as in the Sitefinder case.
>
> We should add PIRs handling of IDNs here. Also because it is the
> result of ICANN redelegating .org. It is bad 'stability' and bad
> consumer protection.
>
> > 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, such as multilingual domain
> > names, 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.
>
> I do not understand what this multilingual part refers to.
>
> > 4. The PDP should consider whether there should be a distinction
> > between policies applied to sponsored and unsponsored TLDs. NCUC
> > believes the answer is no: 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.
>
> I find this too strong. I'd like to make it a bit softer. "There have
> to be good reasons to make a distinction..."
>
> > 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.
> >
>