[alac] [Fwd: [governance] NCUC Statement on gTLD service changes.]

[Vittorio Bertola <vb@xxxxxxxxxxxxxx>]

-------- Messaggio Originale  --------
Oggetto: [governance] NCUC Statement on gTLD service changes.
Data: Wed, 14 Jan 2004 15:55:50 -0500
Da: Milton Mueller <mueller@xxxxxxx>
A: <governance@xxxxxxxxxxxxxx>

NCUC statement on

"Procedure for use by ICANN in considering requests for consent and 
related contractual amendments to allow changes in the architecture or 
operation of a gTLD registry."

NCUC observes that by initiating this procedure, ICANN is assuming that 
its contracts alone are not sufficient to provide a predictable and 
stable basis for the domain name registration industry. It is assuming 
that it needs an ongoing form of oversight to supplement its contracts 
and contractual modifications, because the contracts cannot deal with 
all possible developments in the future. Thus, ICANN is expanding into 
additional areas of industry regulation, although no one wants to admit 
that.

In formulating its response, NCUC begins by asking: How are 
noncommercial domain name users specifically affected by this change? 
The answer, NCUC believes, is that there is no commercial/noncommercial 
angle to this issue. It is more a question of:

a) consumer protection; i.e., how users/consumers relate to suppliers 
and what kind of regulatory procedures are needed to protect consumers 
given the high switching costs associated with changing registry 
suppliers after a domain name is well-established.

b) technical coordination; i.e., what kind of technical regulation or 
specifications are needed to protect third parties using domain names on 
the Internet from harmful changes made in registry operation, while 
preserving as much as possible the freedom of suppliers to respond to 
the market and innovate.

NCUC notes that whether consumers or users are commercial or 
noncommercial has little bearing on these issues.

We also note that a) and b) are distinct policy issues. a) Involves 
protection of the parties buying service from a gTLD registry, who may 
have options, while b) involves protection of third party users
of a domain name, who probably do not have any options if they want to 
connect to the party using the affected registry. We also note that a) 
involves economic forms of regulation which also involves competition 
policy concerns, while b) is more a matter of technical coordination.

NCUC strongly recommends that the PDP distinguish clearly between a) and 
b) in its consideration of the new process. Is the object of the process 
economic regulation or technical coordination?

The document we are asked to comment on proposes no policies, so our 
comments can only suggest questions or problems for the PDP process to 
consider.

1. One question the PDP should consider is whether all issues related to 
a) above should be handled by national regulatory authorities instead of 
ICANN. We support ICANN's need for technical coordination related to 
matters under b). We are less confident of ICANN's ability and right to 
engage in a). We are also not convinced of ICANN's ability to engage in 
competition policy-related forms of regulation. We recognize, however, 
that it may be difficult for consumers to obtain adequate protection in 
a transnational business context. Additionally, registries and 
registrars can and do hide behind their contracts with ICANN. The 
structure of ICANN's contracts allows a willful registry or registrar to 
"hide the ball" by pointing to a different contracting party as 
responsible for the conduct the registrant complains of. Thus, 
registries maintain that contracts imposed by ICANN bar them from 
certain courses of action, registrars likewise claim that contract 
provisions imposed by ICANN prevent them from acting, and ICANN says it 
is not a regulator and that any remedy lies in the contracts which it 
claims are negotiated freely. At this moment, when we discuss the 
introduction of new regulatory procedures, ICANN has to make clear what 
its position precisely is vis-a-vis consumer protection. The new 
procedures developed in this PDP should certainly not worsen the 
situation described in this paragraph.

While there is a case for a global governance regime, we note that ICANN 
invested most of its effort in protecting trademarks and domain name 
supplier interests, and has shown very little interest in protecting 
consumers and users. For ICANN to become an effective consumer 
protection agency significant changes would have to be made in its 
representational structure and decision making processes.

2. The PDP document refers to a "quick look" process followed by a more 
involved process if a change fails the "quick look." A question the PDP 
needs to face squarely is: What is a subject to a "quick look" and what 
is not? What is a "new registry service"? How is that defined? Who will 
make that determination initially? What happens when the registry and 
ICANN disagree on that issue? If a process is created, there should be 
guidelines as to when an issue is important enough to put it before 
ICANN bodies, invite public comment etc. Some issues will be too 
important to leave to ICANN staff.

3. The NCUC recognizes the danger that a registry can make damaging 
changes, such as in the Sitefinder case. We support clear, well-defined 
specifications for registry operation that make DNS a neutral platform 
for Internet functions. We also recognize a threat that innovative 
changes will be stifled by a central organization such as ICANN which 
may have incentives to prevent useful changes in order to maintain its 
control over the industry.

4. The PDP should consider whether there should be a distinction between 
policies applied to sponsored and unsponsored TLDs. NCUC believes the 
answer will be usually no. There have to be good reasons to make a 
distinction. If the justification for regulation is economic; i.e, that 
users are locked in to a supplier and cannot switch service providers 
without incurring damaging costs, then the same fundamental economic 
problem applies regardless of whether the registry is sponsored or not. 
In some respects, switching costs are more serious with sponsored TLDs, 
since they are supposed to represent a community identity and not just 
an individual company/organization's identity. If the justification for 
the review process is technical, the answer is the same: there is no 
relevant technical distinction between sponsored and un-sponsored 
registries. We do, however, believe that sponsored TLDs could be and 
should be required to consult their "community" before making changes in 
operation of the sort contemplated by the PDP.

5. The PDP should consider whether there should be a distinction between 
the treatment of dominant and non-dominant TLDs? In this case NCUC 
believes there is a stronger case for a distinction. A major dominant 
registry may have the power to move the entire industry and technology, 
whereas smaller ones would not. However, the lock-in problem of 
consumers applies regardless of whether the registry is dominant or not. 
As the Internet and DNS grow, larger numbers of users will be affected 
by TLD registries regardless of their overall share of the market. Thus, 
the policy must identify carefully what problem it is trying to solve.

6. We wish to emphasize that public consultation, and consultation of 
ICANN constituencies, must be a regular part of dealing with the most 
important issues. We do not want ICANN staff to handle substantive 
policy issues on their own.


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