[ga] Re: Antitrust Violations

[DannyYounger@cs.com]

First set of comments in reply to Ray's question, with the following set in 
response to John Berryhill:

regarding the comment that "Therefore it is vital that registrars be 
perceived as holding the power to pay the bills." -- I take this to be a 
reference to the fact that the only "power" the registrars enjoy is the power 
of being perceived to be paying for 55% of ICANN's total budget.  

In reality, the registrars are aware that ICANN planned to shift payment 
responsibility away from the registrars and into the sole hands of the 
registries from whom collection would be far easier.  

Consider these excerpts from the Minutes of the May 4, 2001 Registrar 
Teleconference: 

"Concern over fee structure.  Attempting to remove registrars from ICANN 
billing, because certain registrars are not paying.  What registrars are not 
paying?  Under the proposed agreement the registry will be liable to ICANN 
for registrar fee component. Therefore, registry will bear enforcement 
obligations. Arguably registries 
could collect this new fee component upfront instead of in the rears." 
http://www.icann-registrars.org/pdfs/Minutes-teleconference-4-may-2001.PDF

Further comment on this topic was provided in the Stockholm Registrar minutes:

"Rob Hall then provided an update of the ICANN budget committee. He noted 
that the registrar representatives succeeding in maintaining the status quo 
regarding payment terms. There was a push by ICANN to shift payment 
obligations from the registrars to the registry. There was grave concern 
among registrars that this would dilute our voice in the process."  
http://www.dnso.org/clubpublic/registrars/Arc01/doc00034.doc 

Registrars like to think that its "their money" that is making these 
payments, even while we all know that it comes directly from the registrant 
registration fees.  They are scared by the prospect that they will lose power 
if all payments are instead collected by the registries.  In such a case they 
could no longer claim any special treatment based upon the fact that they 
allegedly provide ICANN with the bulk of its funding.

---------------------

John, you should well know that fixing prices is only one element in 
antitrust cases.  I refer you to 
http://www.usdoj.gov/atr/public/guidelines/redir5.htm for other relevant 
considerations.  Contrary to your assumption, Mr. Palage was driving at 
something other than the disconnect to which you have referred -- he was 
specifically commenting on the ERC proposal to grant contracting parties 
voting rights equivalent to the collective remainder of the GNSO 
constituencies.   This would allow registries and registrars effective veto 
power over the proposals put forth by the rest of the community (as the other 
constituencies could never attain the requisite two-thirds vote needed for a 
consensus policy if such a proposal was thwarted by this particular 
self-interested bloc).



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