Comment today, please: Proposed final statement on gTLD service changes

[Carlos Afonso]

Thanks to Milton for pulling our ears well deservedly. Just got back from 
yet another trip. Like Jisuk and Adam I agree with Marc's statement and 
second Adam's opinion on the specifics of the PIR case being included in a 
policy recommendation.

But given the deadline, like Jisuk I also agree in sending it right now.

Thanks, Marc!

fraternal regards

--c.a.


At 10:37 13/01/2004, Marc Schneiders wrote:
>Below is the last version of the statement. Comments please fast,
>since it has to go out to the GNSO council today. Thank you.
>
>(I will get the >> out before submission. They serve now to see what
>changed from the former version.)
>
> > 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 it 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.
>Ideally they would help avoid situations like the secret deletion of
>multilingual .org domains by PIR. As things are consumers are trapped
>between ICANN never approving these domains when Verisign started a
>'testbed', ICANN redelegating .org, and PIR that will surely point to
>its contract, saying that it is not their fault but Verisign's. So
>thanks to the contractual structure used by ICANN, consumers have no
>recourse.
>
> > 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.
> >

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Carlos A. Afonso
Diretor de planejamento e estratégia
Rede de Informações para o Terceiro Setor - Rits
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