RE: [nc-transfer] Posting of relevance to Transfer TF Recommendations on WLS, clarification of inaccurate information, and schedules

["Ross Wm. Rader" <ross@tucows.com>]

> However, I am not encouraging the TF to take up a debate regarding WLS

> again.I recommend that we consider at this point, that our work in
> assessing, analyzing and recommending has resulted in an 
> extensive report which provides the 
> requested advice to the Board.  

Marilyn,

Although the work of the Task Force is largely complete as it relates to
the WLS, I strongly feel that it is important to enter the following
comments into the record in response to Susan's evaluation of our
recommendations. I offer these comments not as a representative of the
Registrar Constituency, but as a member of the DNSO.

If you have any questions or comments, please don't hesitate to drop me
a line.

Regards,

Ross Wm. Rader
Director, Policy, Research & Innovation
Tucows Inc.
T. 416.535.0123
F. 416.531.5584

---

July 31, 2002
Public Comments Re: SnapNames Memorandum for the ICANN Board:  Response
to Names Council WLS Report of July 26, 2002 
Prepared by Ross Wm. Rader (ross@tucows.com)

At this point in the evolution of the discussion surrounding Verisign’s
proposed Wait List Service (WLS), it is appropriate to ensure that all
of the cards are fully laid out on the table. The recent submission
tendered by Susan Crawford on behalf of SnapNames distracts sufficiently
from the real issues that further clarification is required.

This submission, while impassioned and lengthy, does not adequately deal
with the true facts of the matter. Speaking as an individual who that
has closely followed the discussion as it evolved, participated in the
work of the Task Force and pored over hundreds of submissions on the
issue, I feel particularly compelled to ensure that the record has been
set straight in advance of the ICANN Board’s deliberations on the
matter.

This submission makes three arguments:

1. The WLS constitutes a fundamental change in the domain names market
which permanently advantages one player. 
2. The safeguards recommended by the Task Force to allay some of these
advantages are reasonable and should receive the support of the Board. 
3. The Board of ICANN should deny Verisign’s request to amend the
contract until such time that Verisign can actually agree to and
practically implement the necessary changes to the functional
specification of the WLS.

There are two matters that deserve the attention of the Board; the
inaccuracies of SnapNames’ recent submission and second, Verisign’s
contractual right not to adopt differing functional standards prior to
November 10, 2002. These issues are dealt with in Parts I and II of this
analysis.

I. SnapNames minority report to the ICANN Board.

http://forum.icann.org/cgi-bin/rpgmessage.cgi?wls;3D41DE6D00000358

Central to the thesis of this report is the contention that “the Board’s
sole role is to approve or disapprove the price…Verisign is planning to
charge…for the WLS.” This position completely ignores ICANN’s
contractual responsibility under II.4 of the “.com Registry Agreement”
that clearly states that, during the term of the agreement, ICANN shall;

A. exercise its responsibilities in an open and transparent manner; 
B. not unreasonably restrain competition and, to the extent feasible,
promote and encourage robust competition; 
C. not apply standards, policies, procedures or practices arbitrarily,
unjustifiably, or inequitably and not single out Registry Operator for
disparate treatment unless justified by substantial and reasonable
cause;

The process of evaluation and commentary that has occurred as the result
of Board resolutions 02.53 - 02.56 are perfectly consistent with these
contractual terms. 

Crawford further states that the “imposition of conditions on this
straightforward contractual amendment process will set a bad precedent
for the Board’s ability act quickly in the future…to amend its contacts
with registries…” Given the implications and seriousness of the terms of
II.4, it cannot be seriously maintained that the priority of the Board
is to “act quickly” in matters such as these. Rather, the Board must
continue to act in a deliberate, consultative and considerate manner
when weighing the relative merits and drawbacks of the various
propositions that they face – regardless of whether or not the matter is
related to “Registry Services”.

Another key contention of Crawford’s expository is that it is not
“legally appropriate for the Board to condition or delay approval of a
price for a new registry service on changes to that service that the
registry has not itself proposed…” While I do not propose to dispute the
legal components of this opinion, I would like to offer a further
insight on the matter for the consideration of the Board. 

Clear precedent exists for a consideration of this nature.

In the past where community consensus has been unclear, the ICANN Board
has undertaken consultation designed to uncover what the true consensus
actually is. The evaluative processes concerning the WLS thus far have
almost exactly paralleled the work undertaken by the Board during the
new gTLD evaluation and implementation process. While these processes
may be foreign to Verisign and SnapNames (given that they did not
participate in them generally), it cannot be seriously argued that the
level of consultation, disclosure and compromise was not appropriate. It
is therefore entirely logical to conclude that it is completely
appropriate for the Board to implement a very similar evaluative and
consultative process in the matter of the proposed WLS, given that the
proposed WLS is a Registry Service similar to those evaluated during
when the new gTLD were being assessed.

Crawford indicates that “the conditions suggested in the NC report are
neither practical, of real benefit, nor appropriate…” This demonstrates
SnapNames’ lack of understanding concerning the community consultation
and the work conducted by of the Names Council Task Force.

A. “We do not believe that requiring Verisign to inform current owners
when someone has wait-listed one of their domain names is a sensible
suggestion. Registrants will be able to find out themselves if a WLS
order has been taken out on their name…such notification is exactly the
sort of service differentiation in the WLS that registrars should be
allowed voluntarily to offer their customers in a competitive
environment.”

SnapNames, on one hand, indicates that the “Notice” recommendations of
the TF are “not sensible”, but on the other suggests that this is a
feature that Registrars should innovate to fulfill a market need. The
fact is that launching the WLS without support for “Notice” capabilities
would preclude Registrars from further innovating this feature – if the
technical infrastructure provided by the Registry does not exist, then
neither can the innovation that Crawford proposes.

Further on, SnapNames indicates that “Notice” is “expensive”, unworkable
and undesirable with the attendant implication that the Task Force and
the Names Council have not appropriately considered the implications of
the recommendation. Speaking as member of the Task Force, I was fully
satisfied with not only with the basis for the recommendation (ensuring
that Registrants were aware that a third party now held an option on
their name that might be exercised if the Registrant let it expire) but
also with the feasibility of the recommendation, given current
technology and the capabilities of the industry and the registry.
Tucows, for one, has operated similar transparent “Notice” technology
for at least the last two years.

B. “We do not think that it makes sense to require that current owners
of domain names be provided with contact information for WLS
subscribers”

Why not provide this information publicly?

In the interests of ensuring global coordination of the DNS, Registrant
information is published in the Domain Name Whois system. For precisely
the same reasons, it is desirable to publish the contact information for
WLS subscribers. Further, Crawford’s statements on this matter are both
technically and factually inaccurate. As with the Whois system, there is
any number of technical solutions available that would allow the
publication of this data. These methods need not be expensive or
complicated. Additionally, a directory of this nature will not “violate
the privacy of the party taking the wait-list subscription” or
“discourage people from making WLS orders” anymore than the current
implementation of the Whois does. The Board should consider requesting
further information from the standing NC Whois Task Force as to what the
actual implications of a service of this type might be.

C. “The TTF Report does not indicate that the Task Force had any special
expertise in assessing the costing and pricing of services generally…”

Neither the Task Force, nor the Names Council formally made the
recommendation that SnapNames has commented on. In fact, the Task Force
recognized that the DNSO does not possess any special expertise in
assessing the costing and pricing of services generally. The Task Force
formally requested that, if the board in fact approved the WLS, that
“WLS should be cost based, consistent with previous considerations for
approval of Registry services by the ICANN Board.” In other words, the
Task Force requested that the Board look at the pricing questions
related the WLS in a manner similar to which they have historically
evaluated proposals of this nature. Again, the new gTLD application
evaluation process is probably the strongest analogy.

D. Claims that the WLS will eliminate services competitive with the WLS
are “without merit”; 
	a. “Competition over the timing and strategy for “ADD” commands
will be no different under the WLS”; 
	b. The “introduction of a new, optional service cannot
reasonably be considered “anti-competitive”; 
	c. “ICANN should allow the market to work”

SnapNames continues to ignore (or worse, deny) the fundamental nature of
the service that they are proposing. Under the WLS proposal, WLS
subscriptions will be processed against the list of “names to be
deleted” prior to these names being made available to the community for
re-registration. This fundamental fact guarantees that WLS subscribers
will be given preference over potential registrants that might wish to
use a “competitive” service that simply attempts to use the “ADD”
command to re-register a domain name. Further, only the WLS will receive
this processing preference – all other competitive services must stand
in line behind the WLS.

SnapNames is correct in its statements regarding ADD competition, that
introduction of new services is not automatically anti-competitive and
that ICANN should let the market “work”. Nevertheless, the WLS proposal
is not competition in the market. It is a re-jigging of the market so
that one player is permanently advantaged. As on a tilted billiard
table, the balls will flow to one pocket. Names in the WLS will receive
a permanent processing preference unavailable to rival registrars or
services. Unless and until all similar services have *equal* access to
newly dropped names, the anti-competitive, and therefore anti-consumer,
attributes of the WLS will remain. It is upon this basic fact that the
ICANN Board must continue to ensure that the community remain involved
on a consultative basis with the evaluation of these and similar
propositions.

II. Verisign’s contractual option not to adopt differing functional
standards prior to November 10, 2002

The Names Council Task Force on Transfers made several conditional
recommendations to the Names Council (and ultimately the Board) based on
the notion that the Board may not consider the primary recommendations
of the Task Force to be appropriate for any number of reasons.
Accordingly, alternate recommendations were included that outlined the
conditions upon which the community might find the implementation
acceptable, despite the overwhelming opposition to the proposal.

Verisign sought amendment of Appendix G to the .com Registry Agreement
in order to implement its proposed Wait List Service based on the
grounds that the WLS, as proposed, was a “Registry Service” according to
the definition set forth in I.9 of the Registry Agreement. Pursuant to
II.36 of this same agreement, no amendment of this agreement will be
considered binding unless executed in writing by both parties. Further,
according to the analysis of the request as set forth by ICANN’s
Counsel, “ICANN has not yet developed a well-defined procedure for
considering requests by registry operators to amend… [the agreement]”
Counsel further recommends that “the Board should not seek to decide how
to deal with this request without invoking the formal consensus
development processes currently established within ICANN”

Accordingly, the board passed resolutions 02.53 – 02.56 which further
encouraged the consensus policy development process.

At its most basic level, the Wait List Service proposal describes an
additional set of functional standards that will be adopted by the
Registry and sold to Registrars. Accordingly, it is entirely appropriate
that Verisign seeks ICANN’s cooperation in amending its contract.

However, further review of this agreement illustrates the flaw in this
argument Section II.20 of the “.com Registry Agreement” between Verisign
and ICANN, prescribes that 

“In the event ICANN adopts different performance and functional
standards for the registry as a Consensus Policy in compliance with
Definition 1 and Section 3, Registry Operator shall comply with those
standards to the extent practicable,” …but that…“ In no event shall
Registry Operator be required to implement any different functional
standards before November 10, 2002.” 

In other words, Verisign has absolutely no obligation to adopt any of
the alternate recommendations of the Task Force recommendations should
the Board require them to be included as mandatory conditions required
for the acceptance of the requested amendment until November 10, 2002.

This uncomfortable clause leaves the board with one option as it relates
to the WLS. Verisign, according to II.20, must continue to operate the
registry in accordance with the agreed functional specifications until
such time as they are appropriately amended. Until Verisign presents the
board with a WLS proposal that substantially addresses the concerns in
the Task Force and Names Council recommendations, the Board cannot
require Verisign to adopt the consensus recommendations. Accordingly,
they should deny the request to amend the contract until such time that
Verisign can actually agree to and practically implement the necessary
changes to the functional specification.

Leaving Verisign to implement elements of the conditional proposal in
its sole discretion is both inappropriate and inconsistent with the
desires of the community.  It is my hope that the Board recognizes the
undue leverage that Verisign has in this matter and takes no further
steps until such time that the optional requirements of II.20 have
expired, or are no longer relevant.

Finally, in agreement with SnapNames, we urge the Board to complete its
consideration of this important matter as expediently as possible in
order that the DNSO community can move on to consideration of the many
more important issues that we are faced with.

Sincerely,


Ross Wm. Rader
Director, Policy, Research & Innovation
Tucows Inc.
T. 416.535.0123
F. 416.531.5584