Fwd: Re: [ga] FW: Comment from the gTLD Registry Constituency

[Leah Gallegos <jandl@jandl.com>]

Karen and Don:

In reality, IMO, the bottom line is that ICANN should have little or nothing
to do with dictating how a registry should operate, nor should it have
anything to do with pricing or consumer protection.  The only area where
ICANN should be involved is determination of whether the registry can operate
technically to provide the required service to the community.

As in any other business, the consumer will decide whether he wants to do
business wth a particular company.  If they get
good service for reasonable prices, they will come back.  If not, they will
leave.

I think the only possible exception would be in the case of of the .com
registry since it was handed to a firm by the USG.  That seems to imply some
sort of control or regulation.  However, if there are many (not just four or
five) gtlds available for the public and the one original registry is then
just one of many, there should be little regulation necessary.  They will
sink or swim based on the service they provide.  Consumer protection is built
into US law.  For companies outside the US, there are laws governing their
actions as well, and it is up to the consumer to learn what protections they
might have with those companies in those countries.

With the advent of "registrars" mandated by ICANN, all we have is a vertical
monopoly in one tld - .com, which has now been extended for who knows how
long.  So be it.  However, with other registries, there are different rules,
different criteria and different pricing and different business models.

Let the market decide. Let ICANN stay out of dictating business and just
introduce a gazillion tlds for the public to choose from.  Even though most
people on this list don't like it, there are thousands of tlds available now.
It hasn't hurt servers one bit.  It works just fine.  Include all of them in
all the roots and just watch people enjoy choice.

Leah

On Monday 30 September 2002 10:02 am, Karen Elizaga wrote:
> Dear Don,
>
> The current form of the registry agreements that the gTLD registries are
> subject to in the current ICANN forum is not an "inequitable deal."  As you
> might imagine, no business could have created a justification for signing a
> deal which gives another party complete control over what we are obligated
> to do.  In fact, the current form provides the gTLD registries with certain
> protections from exactly that - we are only required to adopt policies that
> have been devised based on "consensus" among Internet stakeholders in the
> ICANN process.  As Internet stakeholders under the current structure, we
> theoretically have a say in these policies and therefore have not given up
> total control over what we are obligated to do.
>
> As this restructuring process continues to evolve, we believe that the
> distinction between users and providers within the GNSO is of paramount
> importance to maintain the protection that was contemplated in the registry
> agreements.  This protection will be made obsolete if the GNSO composition,
> where contracting parties are outnumbered by user groups, results in
> consensus being determined by the majority within that GNSO structure -
> where the user groups would be able to simply dictate "consensus"
> notwithstanding the fact that the contracting parties are the ones who are
> materially affected in implementing new policies.
>
> Thus, your interpretation of the deals struck between any of the registries
> and ICANN is not entirely accurate.  They were not bad deals at their
> execution; rather, the deals will have devolved by virtue of external
> forces outside of our control.
>
> Regards.
> KE
>
> -----Original Message-----
> From: Don Brown [mailto:donbrown_l@inetconcepts.net]
> Sent: 30 September 2002 01:40
> To: owner-ga@dnso.org; Peter Dengate Thrush
> Cc: ga@dnso.org
> Subject: Re: [ga] FW: Comment from the gTLD Registry Constituency
>
>
> Jeff,
>
> I completely understand your dilemma of having potentially "moving
> target" contractual obligations.
>
> Frankly, it's not very good business to sign a contract which gives
> the other party control over what you are obligated to do, from time
> to time and at their sole discretion, as well as the ability to
> dictate what you can charge for doing it. Conceivably, you could find
> yourself with an eroded margin and even operating at a loss in a worse
> case scenario. I'd say that is a very big business risk.
>
> Understanding the risk, as no doubt you do from your post below, what
> was the motivation to sign such an inequitable deal? Was it an
> abundance of faith at the time, dollar signs which blurred the vision
> or something else which I can't imagine right now?  Certainly, no one
> duressed a signature, I'm sure.  At least, there is no complaint about
> that below.
>
> Having a contract is, indeed, very different.  It gives contractual
> rights and imposes obligations.
>
> I'd bet that most people in the GA wished that the GA had a contract
> for those reasons, as well. I'd bet that most would, in fact, welcome
> it, right now.
>
> ICANN's consensus building process is a joke, in light of WLS. The
> ICANN Board will do whatever they want and the contract holders, like
> you, certainly seem to have much more power than the grass root domain
> name holders - ala GA, et al. They completely ignored the top
> recommendation from the NC (task force) and all input from the
> outreach, to approve WLS, regardless. Perhaps, due to the concerns
> express below, Chuck can be available to you for some moonlight
> consulting.
>
> Market forces will dictate contract negotiations with ICANN, just like
> any other firm.  If the deal isn't right, that's a business decision
> to make.  However, signing an inequitable deal is not sufficient
> justification for more representation and control than the grass roots
> domain name holders.  If you make a bad deal, well, shame on you, but
> that's not my fault or anyone elses' fault.  Consequently, it is not
> equitable for us to pay the price for a problem that you created and
> brought upon yourself.
>
> In the final analysis, it's the grass-roots stakeholders who have the
> most to lose, who merit equitable representation and who have been
> denied it. They didn't "knowingly" make a bad or risky deal. If you
> did, well, that's too bad. You can always bow out at the end of the
> contract, though, but the grass roots will still be the grass roots.
> Without them, heck, none of this would matter, anyway.
>
> Thanks,
>
>
> Sunday, September 29, 2002, 5:05:04 PM, Peter Dengate Thrush
> <barrister@chambers.gen.nz> wrote: PDT> comments below
> PDT>   ----- Original Message -----
> PDT>   From: Neuman, Jeff
> PDT>   To: 'ga@dnso.org'
> PDT>   Sent: Saturday, September 28, 2002 10:24 AM
> PDT>   Subject: [ga] FW: Comment from the gTLD Registry Constituency
>
>
> PDT>   This is from the gTLD Constituency and has been sent to the ERC
> Committee.  I know this should spark some interesting debate.
>
> PDT>   Subject: Comment from the gTLD Registry Constituency
>
>
> PDT>   >The Registry Constituency has been a vocal supporter of reform from
> its inception.  In fact, many of the Registries joined in a letter to the
> Department of Commerce expressing our support for PDT> the reform efforts.
> One of the main reasons that we supported ICANN reform from the beginning
> was because of the perceived inefficiencies of the current DNSO. The result
> of such inefficiencies PDT> has led those parties that have contracts with
> ICANN (namely, the gTLD Registries and gTLD Registrars) to become
> disenfranchised with the current policy development process.
>
> PDT>   Jeff - there's some irony in this. Its not the inefficiency of the
> DNSO which you were objecting to, it seems, buts its efficiency in
> "disenfranchising" you and the registrars.
>
> PDT>   >Too often, political games have been played to overshadow the
> voices of the Registries and the Registrars in the current process, even
> though it is recognized that most, if not all, of the PDT> proposed
> policies affect the contracted parties in a way that is much different than
> those parties that are not under contract with ICANN. Unfortunately, as the
> ERC process has evolved, the PDT> inefficiencies of the current DNSO appear
> to be re-emerging.
>
> PDT>   Again, you describe a political result you don't like as an
> "inefficiency".
>
> PDT>   >As the ERC properly realized, not all stakeholders are equally
> affected.
>
> PDT>   >The registrars and registries are contractually bound to comply
> with any ICANN consensus policies.  New or changed policies can have a
> significant financial impact on their operations.  We PDT> believe that the
> protection of registrar and registry rights as contracting parties within
> the proposed GNSO is an important and essential safeguard.
>
> PDT>   Here is where your argument becomes more difficult for me to follow.
> You seem to be elevating the contract between you/registrars and ICANN to a
> different level of political importance than PDT> the contract beteen a
> registrant and a registrar. Why?
>
> PDT>   Given that all the funding flows from registrants to registrars,
> that the conditions of end use, and that much of the ICANN policy
> discussion is about the impact on users of names and address PDT>
> procedures, why isn't the view of the vast numbers of registrants
> significantly more important than the views of the providers??
>
> PDT>   Why shoudn't the g registries be obliged to adopt at least a little
> of the ethos (which we regard as contractually binding via RFC 1591, as
> well as socially appropriate) binding the cc PDT> registries, that the
> registry has to serve the community its provided to serve? Why shouldn't
> the structure require the registries and registrars to sit around the table
> with their user PDT> community?
>
> PDT>   If the conditions of the user community result in a business which
> is unprofitable, or unsuited, those entities running them can take a
> busines decision to leave that business. If, on the PDT> other hand, the
> conditions imposed by registries and registrars are unsuitable for users,
> where can they go?
>
> PDT>   My personal preference would be to ensure that users rights should
> be more carefully protected that those of registries and registrars,
> precisely because they are typically small, individual, PDT> disparate and
> the economic effect per person makes any issue uneconomic to fight. OTOH
> registries and registrars have well-known economic and political
> advantages.
>
> PDT>   You blur this issue to speak of "contracting parties" while ignoring
> the end user contracts.
>
> PDT>   There is a need to balance the undoubted importance of successful
> and innovative registries and registrars, competing in an economic battle
> for business, with the needs of users.  Considerable PDT> clarity of
> thinking is need to ensure all interests are kept in balance.
>

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