Re: [council] ICANN Board Action on WLS

["Harold J. Feld" <hfeld@mediaaccess.org>]

Louis:

I observed that, like any good lawyer, you look to precedent in your 
analysis and compared this case to that of the .name email.

As a lawyer that does regulatory proceedings, I have been deeply 
troubled by the fact that we have no guide to the proper standard for 
analysis.  For example, most regulatory agencies in the United States 
operate under a "public interest" standard (any action must further the 
"public interest").  Others, such as the FTC or the DoJ antitrust 
division, operate under an "impairment of competition" standard (would a 
proposed merger likely have the effect of substantially reducing 
competition).

In WLS in particular, the question of whether an affirmative showing 
("does WLS benefit the public and not just VRSN?  If not, then don't 
permit it") for approval was required, or whether opponents should 
demonstrate the likelihood of harm ("only if opponents can show WLS is 
substantially likely to reduce competition should the Board deny the 
service") was a matter of considerable debate.

Is it your sense, or the sense of the Board, that a standard is emerging 
and, if so, what is it?  It would simplify work for everyone enormously 
if all parties had a reasonable expectation as to what they must prove 
to achieve their desired result.

Harold

Louis Touton wrote:

> To the Names Council:
> 
> This morning the ICANN Board met to consider VeriSign's 21 March 2002 
> request for certain amendments to the .com and .net registry services to 
> permit the offering of a Wait Listing Service for a fee.  As you are 
> aware, in response to the Board's earlier request the DNSO gave advice 
> on various aspects of the VeriSign request.
> 
> At this morning's meeting, the ICANN Board authorized the ICANN 
> President and General Counsel to conduct negotiations with VeriSign 
> toward appropriate revisions to the .com and .net registry agreements to 
> provide for the offering of a wait-listing service as proposed by 
> VeriSign, with six additional conditions.  As you will note from the 
> resolution, the Board drew heavily from the advice developed by the task 
> force's efforts, which it found to be very helpful in establishing the 
> conditions.  The Board is grateful to the Names Council and the task 
> force for coordinating this work.
> 
> The resolution adopted is posted at
> <http://www.icann.org/minutes/prelim-report-23aug02.htm#VeriSignWLSProposal> 
> 
> 
> I'd like to add my personal thanks to those of the Board for the hard 
> work and constructive advice that the Names Council, task force, and 
> DNSO participants gave on this issue.
> 
> Best regards,
> 
> Louis Touton
> 
> 
>