first, somewhat lame response to pdp-feb06

[Milton Mueller]

NCUC Task Force Members' Preliminary Discussion of "Contractual Conditions of Existing  gTLDs" 

These are preliminary positions developed by the NCUC Task Force members. They are put  forward to stimulate discussion and debate, both within NCUC and across other  constituencies. 


1.	Registry agreement renewals

We believe that it is in the public interest for there to be a renewal expectancy for parties who  have been delegated generic top-level domains. By "renewal expectancy" we mean that  those who were originally assigned a top level domain should retain the assignment unless  there is a significant problem, such as criminal activity, breach of contract, repeated failure to  meet service standards, or serious noncompliance with applicable ICANN rules and  policies. In this view, reassignment of the domain is punishment for malfeasance -- not an  attempt to run a periodic beauty contest to determine who is the "best" operator.

We believe that presumptive renewal as described above is required for a long-term view of  value-creation and investment in a domain name and the associated infrastructure.  Continuity and stable expectations about who will be in control is required for the  development of a community. This is especially true for sponsored or nonprofit domains.  Operators who succeed in creating value, identity or a community around a domain should  not have that taken out from under them. They should be able to reap the benefits of their  creation of value, and be able to build on it into the future.

We accept the importance of the principle of competition. We do not, however, believe that it  requires taking established domains and throwing them up for grabs every five years or so  when there are no major problems with the operation of a domain. Registrar-level  competition helps to ensure that retail services associated with any gTLD registry will be  competitive, and cross-gTLD diversity will ensure users a variety of naming alternatives (or  "intermodal" competition). Those are the most important forms of competition. Reassigning  a gTLD simply substitutes one operator with exclusive control of the domain for another.  While this can put pressure on the incumbent to perform better in a short-term time horizon,  we believe that on the whole the amount of time and resources spent on fighting over the  control of the domain would outweigh the prospective benefits. We also note that achieving  improved performance from a new operator can only be a promise, and that transfers of  control inherently involve costs and risks. 


2. Relationship between registry agreements and consensus policies

This is an issue that NCUC feels has not been discussed or debated adequately. Our only  point is that we must distinguish carefully between the problems raised by one dominant  operator's registry agreement (.com) and policies that are appropriate as a general rule for  all rgeistries. We look forward to listening to the views of other constituencies and the public  on this question.

We believe that existing sponsored domains should retain the policy-making authority. We  say this not because we support the concept of sponsored domains per se, but because we  support greater diversity and decentralization of policy making authority. 


3. Policy for price controls for registry services

We recognize that price caps can be justified as a way of protecting consumers in markets  with high switching costs. Domain name registrations do have high switching costs. Rather  than making specific policy recommendations, we make these observations:

a) We must not assume that ICANN contracts are the proper mechanism for price controls.  Regulatory authorities in national governments have some ability to respond to this problem,  either through antitrust laws or through sector-specific regulations. We believe that the pros  and cons of a global vs. national approach should be debated and discussed in this pdp. 

b) The case for or against price controls must recognize the difference between the interests  of end users/registrants and the interests of intermediaries in the domain name supply chain,  and not let the latter speak for the former. 

c) Permitting increases in the price of .com registrations may have the salutary effect of  encouraging users to migrate to new gTLDs and discouraging the concentration of users in  .com. 

d) Permitting registries to sell registrations for much longer terms, or registrations that do not  expire, is another way to handle the lock-in problem in a way that helps consumers. 

4. ICANN fees

The fees and budget of ICANN are policy issues in and of themselves. Control of the purse  strings is the most important form of leverage over policy. ICANN fees should be applied to  registries on a uniform basis and not individually negotiated. This is important for the  accountability of ICANN as well as for registries. 

5.	Uses of registry data

We oppose nondiscriminatory access to registry traffic data. It would make Internet users'  activities an unending target of data mining. 

6.	Investments in development and infrastructure

It is completely inappropriate for ICANN to dictate specific investment levels in infrastructure.  Investment levels per se are an inappropriate metric, what matters is performance. Clevel  applications of technology could provide better performance with less investment. ICANN  contracts should not attempt to micromanage registry infrastructure development. If ICANN  dictates infrastructure levels it will either thwart competition and innovation by imposing a dull  uniformity on the industry,