Re: [ga] RE: Antitrust Violations: Fact versus Fiction

[Jeff Williams <jwkckid1@ix.netcom.com>]

Michael and all assembly members,

Michael D. Palage wrote:

> Danny:
>
> I have known you for a long time and it would have been much better for your
> to ask me these questions privately as I could have easily clarified your
> misconceptions. First I think you have been drinking some of the Business
> Constituency Kool Aid. Specifically I am referring to a recent post by a
> Business Constituency member that has referred to the Registrar and Registry
> Constituencies as "mafia". Sorry, Philip and Marilyn but I still cannot
> agree that all is well and good within the Business Constituency.

  It is and has been clear for some time that all certainly is not well
with the BC as you rightly state here.

>
>
> Regarding the minutes, I will talk to Tim the registrar constituency
> secretariat about the minutes and ask him to clarify the minutes to remove
> any confusion that might exist. For the record Tim, Ken Stubbs and I sat at
> the head table on the stage in front of the meeting. During the all day
> meeting which was open to the public (as usual and unlike certain other
> constituencies) there were some slow points during which both Tim and I
> played competing games of minesweeper, at least Bill Gates knows how to
> build in entertaining features into his OS. Now I know how the ICANN Board
> Directors must be able to make it through the meetings. Unfortunately we did
> not have a wireless Internet connection as it was not within our budget.
>
> Although I am an attorney I do not claim to be an anti-trust expert,
> however, I have always taken seriously potential anti-trust concerns. This
> was why during our Dulles meeting in February we had an anti-trust attorney
> speak to us. A handy rule that she provided us to stay away from anti-trust
> concerns was more stuff, better stuff and cheaper stuff. However, my
> personal favorite reference can be found on
> http://www.antitrust.org/aei/Guidelines.htm.

  Good points here Michael.

>
>
> Turning to what was said. The morning session dealt with ICANN reform. The
> Registrars have vehemently argued in the past that they must continue to
> retain the contractual obligations to pay ICANN directly and approve ICANN's
> annual budget. I have also advocated the current 50/50 voting split in the
> proposed GNSO as a mechanism to protect contracting parties interests within
> ICANN. Although others seek to distort this mechanism as a sword, I believe
> it is merely a shield. Another positive mechanism in the GNSO proposal that
> I discussed was the requirement that ICANN's general counsel approve
> something as policy prior to the new GNSO body undertaken the investment of
> time and resources. This is what I call the Marilyn Cade safeguard, as
> Marilyn always seems to have a way of taking a round peg and making it fit
> into a square hole. I believe Marilyn Cade was successful in an earlier ERC
> working group incorporating a veto provision into the GNSO process whereby
> they could still take up an issue even if ICANN said it was not policy.
>
> The events of the last past year also show the fundamental flaws in your
> logic. If you look at the hotly debated topics of the last year WLS and
> transfers, the registrar and registry contracting parties have not been on
> the same side of the fence. In fact they have generally been diametrically
> opposed. The purpose of registrars retaining the current contractual
> provisions in the agreements was viewed as one of the most effective ways to
> ensure that ICANN continues to act (grow) in a responsible manner. Best the
> increase of ICANN fees to registrars domain name registration fees continue
> to drop. Although certain people like to view the registrars and registry as
> mere tax collectors, the misconception ignores reality. When a registrant
> obtains a multi-year registration that service is provided regardless of any
> increased ICANN fees that might be imposed upon the registrar. If we were
> truly tax collector we would be going back to the registrant and asking for
> additional funds which does not happen. One of the things that is
> interesting to note that despite the increase in ICANN's fees to registrars
> prices for domain names continue to fall, and the services offered to
> registrants continue to increase. In summary, more stuff, better stuff and
> cheaper stuff.
>
> The specific example that I referenced during this discussion regarded a
> hypothetical policy mandate that all ICANN accredited registrars be required
> to retain actual proof of payment terms by the end registrant. This question
> was in part based upon certain discussions that registrars and registries
> had with FTC, DOC, SEC, IRS while in Washington the day before. Certain
> Registrar business models (TUCOWS, Bulk, ENom) rely on a diverse reseller
> network which has this payment information residing with the reseller. These
> registrars generally only have payment terms and information regarding the
> reseller/channel partner, not the end registrant. The point I was trying to
> make is that the current DNSO Names Council and the proposed GNSO body to a
> large degree does not have the ability to understand the various nuisances
> that exist within the domain name registration business, and that there is a
> danger when grossly unrepresentative constituencies attempt to micromanage
> or impose their viewpoints without understanding the basics.
>
> Time to head back to bed a catch a hour of sleep. Funny I was enjoying a
> nice good night sleep when my ICANN Spider Senses kicked in, and somehow
> drew me to my computer. Hopefully this email will put this issue to rest,
> but knowing this list I doubt it. In fact, I was not even going to response,
> but I take allegations with potential criminal implications serious.
> Although there will never be a shortage of ICANN nay Sayers (including
> myself at times) the fact remains there does not exist a better mechanism in
> place to resolve global diverse and complex issues. For the record, I
> respectfully disagree with Tim's paraphrase of my discussion regarding ICANN
> reform and I did not approve the minutes prior to their posting.
>
> Best regards,
>
> Mike
>
> P.S. For those conspiracy theorist, Amadeau an ICANN Board director was also
> in attendance. Was he using a secret Vulcan mind meld to influence the
> discussion? No, but it does make for good fiction.
>
> P.P.S. Marilyn I have saved you the trouble and forwarded a copy of this
> email to NTIA :-)
>
> -----Original Message-----
> From: DannyYounger@cs.com [mailto:DannyYounger@cs.com]
> Sent: Wednesday, September 25, 2002 12:24 AM
> To: ga@dnso.org
> Cc: michael@palage.com
> Subject: Antitrust Violations
>
> The registrar constituency recently held a meeting in Amsterdam.  By
> definition such a meeting is a collaboration of competitors which per se is
> not a violation of antitrust law.  However, if such a meeting results in the
> collusion among parties to an agreement to reduce services below what would
> likely prevail in the absence of the relevant agreement, this would
> constitute a violation of the "Antitrust Guidelines for Collaborations Among
> Competitors" issued by the Federal Trade Commission and the U.S. Department
> of Justice, and might well be actionable.
>
> The minutes of this meeting (posted on the registrars' website) contain the
> following statement:
>
> "Palage: Current ICANN structure allows some people to have influence over
> how we conduct our business. Nothing prevents the IP or other constituency
> from framing rules that make impossible a diverse reseller network. Several
> slippery slopes we are looking at. Therefore it is vital that registrars be
> perceived as holding the power to pay the bills. Registries and registrars
> have not seen eye to eye on many issues. However, contracting parties can
> agree to have certain proposals not become policy."
>
> A collusion on the part of registrars with registries to not allow certain
> proposals to become policy is assuredly an antitrust violation, as without
> such collusion such proposals might well result in enhanced Community
> services.  I would like to give Michael Palage an opportunity to discuss
> this
> matter in depth before it becomes necessary to take further action.
>
> --
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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