[ga] Thoughts/question on the WLS

[Bret Fausett <fausett@lextext.com>]

I've been following the debate on the proposed waiting list service for some
time, and while I initially thought it was a good idea, I've come to see
that both side have compelling arguments as to why the service should/should
not be allowed. Aside from the merits of the service itself, this debate is
particularly important, at least in my mind, because it stands to set some
precedent for how future issues of registry services are resolved. With that
point in mind, it seems to me that it would be better for ICANN to look for
some bright-line approach so that resolution of similar issues in the future
doesn't require the same machinations required to reach this point in the
WLS debate.  

I'm particularly concerned that many of the arguments against the WLS focus
on the fact that it is allegedly anticompetitive. It strikes me that ICANN,
with its limited staff resources and its necessary reliance on volunteer
policy contributions from the stakeholder community, ought not be placed in
the position of deciding what is or is not "anticompetitive." Surely even
those registrars who most oppose the WLS appreciate the danger in creating
an ICANN that becomes a market regulator.

Here's where I'm going with all this. If the WLS is anticompetitive, why is
it not preferable to have ICANN take no position on the WLS? Verisign is
free to implement the WLS, but if the service is anticompetitive, Verisign
runs the substantial risk that the registrars will file a lawsuit. That
would leave the anti-competition issue to a more appropriate forum -- a
court -- where experts, economists and others could weigh in on the effects
of the service. When I say ICANN should remain neutral, I mean just that. It
should be careful to ensure that Verisign cannot argue later that ICANN
either required or blessed the WLS. (And we should ensure that the registrar
accreditation contracts don't require the registrars to waive any private
law remedies they may have for a registry's anticompetitive acts.)

This strikes me as a better approach for ICANN as a whole, but I wanted to
float it here so people could help me think it through. I don't have time
today to do a lot of follows up, but I'll look forward to reading any
responses this evening.

    -- Bret

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