Re: [wg-c] Eureka?

[Milton Mueller <mueller@syr.edu>]

Kent Crispin wrote:

> If ICANN grants a single franchise for a TLD registry, Chris claims
> that he can sue ICANN for restraint of trade.  As I recall the
> PGMedia case mooted the issue because NSI was working as a government
> contractor.  But the issue of whether ICANN would be vulnerable to
> such a claim is, to my limited legal knowledge, still open -- ICANN
> will be a private entity, not a gov contractor.

It is not an open issue. The White Paper specifically raised the
antitrust issue and explicitly included language ICANN is subject to
antitrust challenges. There is no immunity.

> At that point a precedent will be set.  Any company capable of
> meeting the objective standards for a registry will be able to demand
> entry on the same basis.  That is, any company with network
> infrastructure equal to or greater than IODesign can claim to be a
> TLD registry.

Not quite. ICANN would have to prove that its exclusion of any particular
business from the root had some justification other than merely
restraining trade, and was executed in a nondiscriminatory fashion. There
could be neutral, technical grounds for limitations. But protecting the
economic viability of, say, registries run by CORE or IBM would not be a
valid reason.

> There are tens of thousands of such companies,
> probably hundreds of thousands.

Ridiculous. You yourself calculated the meager revenue stream that could
be expected from registration of domain names in an open market. There
might at most be a few hundred.

--
m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
syracuse university          http://istweb.syr.edu/~mueller/