Re: [council] ICANN Board Action on WLS

[Louis Touton <touton@icann.org>]

Harold,

I think the proposed Mission Statement and Core Values (as stated in the 
Blueprint), which the Board endorsed in Bucharest, serves as a helpful 
guide to the Board's sentiments regarding the standard of analysis.
<http://www.icann.org/committees/evol-reform/blueprint-20jun02.htm#2>

Beyond that general observation, it may be premature to try to generate 
a detailed synthesis of principles followed on the standard of review. 
Although many principles could be gleaned from the Board's actions until 
now (in general, ICANN strives to limit its interference with business 
activities, particularly those involving offering new services to 
consumers, absent a specific reason), the principles by which ICANN will 
operate in the future are very much subject to shaping in the evolution 
and reform process currently underway within the community.  A major 
goal of the evolution and reform process is to reach a clearer 
articulation of ICANN's mission/core values, reflecting a vision that is 
broadly shared within the community, and to develop processes that 
appropriately express and implement those mission/core values.  This is 
important work, and I hope you will continue to devote your time and 
talents to the effort.

Best regards,

Louis Touton


Harold J. Feld wrote:
> 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
>