Re: [wg-c] Separating the Sheep from the Goats

[Milton Mueller <mueller@syr.edu>]

Excellent start!

A few comments:

Kevin J. Connolly wrote:

> Three-phase rollout:
> (A) Proof of concept phase.
> Anticipated duration: six weeks
> Domains to be added: .per, .nom, and at least one other non-commercial
> domain.
>
> Registries: Iperdome, CORE, and one other (ideally, a for-profit registry allowing
> multiple registrars write access to the zone file).

Beautiful. Who can object? The first two are the safest TLDs
a TM owner could imagine and we agree that three new registries
should be authorized. Can you clarify what you mean by a "non-
commercial" domain name?

> (B) Controlled RollOut Phase
> Anticipated Duration: Six Months
> Domains to be added: Those elected by the qualifying registries (not more than
> three each in addition to the proof of concept domains), subject to certain
> qualifications:

I like the 9 registries, and I like the registry selection of the name.
Do the 9 have to be different from the first 3, or can any of the
first 3 propose to add gTLDs?

> (1) The registry must articulate a plan for preventing it from reaping monopoly
> profits during the controlled rollout phase.  These could include (but other
> possibilities are invited) (a) CORE-paradigm shared registration with registry
> operated on strict cost-recovery regime, (b) Informal tariff-filing under which
> compensation of registry/registrar is fixed during the Controlled RollOut Phase.

If we are talking about six months, and the ICANN plan to
continue adding registries and TLDs (absent problems) is made clear,
I am not very concerned about monopoly profits. New registrants can
wait six months, or they can register under a shared-registry com, net or
org, which should have competitive prices.

> (2) The TLD must not be one which is the same as or confusingly similar to any
> famous trademark, unless the holder of the trademark assents irrevocably to
> the delegation of the TLD.

Of course. This would be illegal regardless of what ICANN does.

> (3) In the event of a conflict over delegation of TLDs (e.g., .web) the TLD will
> not be delegated unless the ICANN Board determines that the adverse claims
> to the TLD are not bona fide or otherwise without merit.  Note that California
> has an expedited method for court review of the determinations of corporate
> boards.  There is one legal trick to making this work: ICANN will need to waive,
> by amendment to its certificate of incorporation, the right to assert that the
> decision to add a TLD to the root falls within its exclusive business judgment.
> This change will make it possible for adverse claimants actually to be heard in
> court on the actual merits of their claims to the TLD in question.

I don't understand the above. It seems that resolution of the conflictover .web would occur in the course of application or, as I suspect,
be worked out among the competing applicants.

> (4) All domains delegated prior to the full competition phase are subject to
> reallocation and re-award on the basis prevailing during the full competition
> phase.

Sounds good

> Number of Registries: up to nine.  Qualification of registries to be based on
> stable, objective criteria established at the outset of the program.
>
> (C) First Stable Plateau
>
> This is the hard part.  Most of the problem will evaporate once entry into the
> domain name business becomes unrestricted.  For the most part, annual
> redelegation of domains based on bids will not be necessary, because a new
> registry can simply get a new TLD.
>
> However, there are always going to be some uniquely hot domains. .xxx, .sex,
> and .law come to mind most immediately.  These domains will generate
> monopoly profits for their operators, and some of us have a lingering discomfort
> about allocating this kind of economic power on a lottery or first-come basis.
>
> One idea: if a registry is operated on a strict cost recovery basis and allows
> write access to registrars without unreasonable restraint (and I reiterate that
> CORE does not meet this criterion because the price of the admission ticket to
> the club is unreasonably high) then the registry can keep the domain as long as
> it satisfies technical criteria and it remains subject to periodic audit (at the
> expense of the registry) to keep it honest.  If the registry is operated on a for-profit basis, then the domain will be re-awarded periodically on the basis of a
> bidding process.  What the period should be, we can work on (I'm thinking
> annual).

I think annual is a bit short

> How we select the winning bidder is also debatable.  I'm thinking that ICANN
> should take into account not only the license fee proposed by the bidder for
> being delegated the domain, but also what commitment the registry makes with
> respect to end-user fees.  If the domain is reasonably expected to capture
> 1,000,000 SLD registrations per annum and the market will bear a charge of
> $50.00 per name-year, a bidder who offers $10MM up front should be treated
> the same as one who offers $5MM up front and agrees to limit charges to
> $45.I00 per name-year.

I think ICANN needs to stay far, far away fromtrying to be an economic regulator.

--
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/