Re: [wg-c] Pre-sold TLDs

[Paul Garrin <pg@name-space.com>]

> 
> 
> > > If ICANN claims immunity from monopoly concerns as a result of its
> > > government umbrella, I would wonder where the government agency involved
> > > has the statutory power to grant such a monopoly right to make what, as I
> > > mentioned above, is a purely policy decision that is devoid of any
> > > technical content.
> > 
> > The decision in Name.Space v. NSI depends on the acceptance/recognition
> > by the court of the "statutory power" of the DoC to grant NSI immunity
> > for their "conduct in this case". How would the situation differ under
> > ICANN, since the issue of access to the root is essentially the same as
> > it was in our antitrust claim against NSI?
> 
> Your case was based on the power of NSF, as exercised by its successor
> agency to the contract, NTIA with regard to a contract/cooperative
> agreement with NSI.
> 
> Here we have a situation in which NTIA, without any participation of NSF,
> entered into a contract/cooperative agreement with ICANN.
> 
> So as you see, the legal context is entirely distinct and different.
>  
> 		--karl--
> 


Given that the NTIA's 9th inning play, to TAKE OVER the
Cooperative Agreement from the NSF (in Sept. 1998) and write
Amendment 11, was the decisive factor in the court's ability to
"find" immunity for NSI, the legal context is NOT so distinct and
different, in fact it's the SAME.

The NTIA took over the contract because immunity under NSF was dubious
at best. Given that the NSF is a government FUNDED agency, but not a
government AGENCY as is the NTIA (see the law regarding so-called "federal
instrumentality" and immunity) immunity under an agreement with the NSF
would likely not apply.

The decisive factor in the court's decision came not from the
involvement of the NSF but precisely from the role assumed by
the NTIA which minimized and superceded the role of the NSF.
If the NTIA had not taken control of the Cooperative Agreement
and the case remained between Name.Space and the NSF (and NSI),
it is very unlikely that the court would have been able to "find"
immunity for NSI.  The DoJ knew this, NTIA knew this, and that
is why the NTIA takeover of the CA was engineered--to bring
NSI one notch up the hierarchy so as to come within the range of
potential "federal instrumentality" immunity.  The court did
not exactly find NSI immune under their imaginitive defense
of "federal insrtumentality" since finding such immunity would
have been too broad,  so the Appellate panel managed
to cook up a "conduct-based" immunity to protect NSI's illegal
conduct of breaking the antitrust laws by denying access to the root.

The question remains however, does the statutory power exist
within the NTIA to grant ICANN, NSI, or any other private
company the monopoly right to make policy decisions that are
devoid of any technical content?  In our case, the court granted
them that right.  Will it stand up in the future?  You can be
sure that the NTIA will be right there to protect ICANN in the
same way that they protected NSI in making just such policy decisions.

regards,

Paul