15 June 2001
MORRISON & FORRESTER LLP
ATTORNEYS AT LAW
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105-2482
TELEPHONE (415) 268-7000
TELEFACSIMILE (415) 268-7522
| NEW YORK
Telephone: (415) 268-7455
Telefacsimile: (415) 276-7455
June 15, 2001
By Overnight Delivery and Electronic Mail (firstname.lastname@example.org)
Amadeu Abril i Abril.
Members of the Reconsideration Committee of the
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, CA 90292
Re: Request for Reconsideration
and Stay of New Policy Limiting Marketing Uses of Whois Data Acquired
through Bulk Access.
Dear Committee Members:
On May 17, 2001, ICANN unveiled
a new Registrar Accreditation Agreement to be signed by all accredited
registrars for the .biz and .info gTLDs, and which is available to electing
registrars in the .com, .net, and .org gTLDs. Like the existing Registrar
Accreditation Agreement for current registrars in the .com, .net, and
.org gTLDs (hereinafter, the "Existing Accreditation Agreement"),
this new Accreditation Agreement requires all registrars to make Whois
Data available in bulk to all who request such access and pay a fee. In
stark contrast to the existing Whois Data Bulk Access requirements, however,
the new Accreditation Agreement requires registrars to prohibit many marketing
uses of Whois data.
Verio respectfully requests
that ICANN reconsider the new policy set forth in the recently posted
new Registrar Accreditation Agreement limiting the marketing uses of Whois
data acquired through bulk access. Verio further requests a stay of the
implementation of this new policy in that it will cause irreparable harm
to Verio and to the competitive environment for domain name registrations
and related services.
Verio objects to these new
limitations on the marketing use of Whois data acquired through bulk access
for the following reasons:
- ICANN failed to follow
the promised consensus-based procedures set forth in the Existing Accreditation
Agreement in adopting the new policy. In the Existing Accreditation
Agreement, ICANN promised it would not change any policy with respect
to permissible uses of Whois data without following a process whereby
its Board would first adopt the new policy. The policy would then be
referred to an ICANN supporting organization for a vote. Finally, ICANN
would submit a written report and supporting materials documenting the
process. None of this was done here.
- ICANN failed to follow
the procedures set forth in its Bylaws for adopting such a new policy.
This new policy restricting competitive use of Whois data was adopted
without public notice on ICANN's web site explaining what policy was
being considered for adoption and why. This new policy was adopted without
any opportunity for parties to comment on the adoption of the proposed
policy, to see the comments of others, and to reply to those comments.
This new policy was adopted without holding a public forum at which
the proposed policy could be discussed. Finally, this new policy was
adopted without majority Board resolution.
- ICANN should have waited
for the forthcoming report of the DNSO's Whois committee before making
changes to the Whois policy. Before implementing a new policy on
bulk access, it would have been appropriate for ICANN to have awaited
the forthcoming report of the DNSO's Whois committee. The comment period
on this matter is not scheduled to close until July 31, 2001.
- The new policy is unnecessary.
Although Verio agrees that the prohibition on the use of mass unsolicited
email (spam) should be retained because of the threat it could pose
to the operational stability of the Internet, no such concerns exist
with the use of Whois data for marketing by other means. Privacy concerns
also do not support the new policy, since registrars are free to adopt
"opt-out" policies so that individuals that do not want to
be contacted with marketing solicitations by telephone or facsimile
can simply "opt-out" of bulk access, thereby ensuring that
and no one (including, importantly, the registrar involved) will contact
them with unwanted marketing information. Furthermore, with the introduction
of the ".name" registry, individual privacy interests can
be protected without placing limits on the marketing uses of bulk Whois
data obtained from registries that are designed to serve commercial
entities and organizations.
- The new policy is anti-competitive.
The new bulk access policy reverses the carefully crafted regime providing
for equal access to Whois data. It effectively provides registrars with
exclusive use of registrant information for marketing purposes. With
this new policy, ICANN has effectively given registrars permission to
spam "their" customers with commercial solicitations, while
effectively barring competitors from contacting these registrants by
any effective means.
- The new policy seriously
implicates the freedom to public information embodied in United States
copyright laws. Although ICANN at its inception took the position
that it would work to protect the availability of Whois data for all
to use for nay lawful purpose, ICANN now reverses course. ICANN has
in effect given intellectual property rights in information to a select
group of incumbent registrars, despite ICANN's earlier written representations
that no one could claim such rights in the data.
For the reasons outlined above,
Verio respectfully requests that ICANN reconsider its new policy. Furthermore,
based on the serious impact that this new policy will have on Verio's
business operations, Verio respectfully requests that ICANN stay the implementation
of this new policy until its full effects can be debated within the Internet
I. ICANN Adopted Its New
Policy Limiting Uses of Bulk Access In Breach of its Promise to Adopt
Any Such New Policy Only After Following Explicit Consensus-Based Procedures
Carefully Designed to Include All Stakeholders in the Decision-Making
On May 17, 2001, ICANN posted
the new Accreditation Agreement on its website.1
ICANN made no public announcement that a change had been made. ICANN did
not even include the new agreement in its "New and Noteworthy"
section on its home page. Verio happened upon the new agreement, which
ICANN had buried deep in its web site, only by chance.
The new agreement includes
sweeping new limitations on the use of Whois data acquired through bulk
access. It provides that "Registrar shall provide third-party bulk
access [but that] Registrar's access agreement shall require the third
party to agree not to use the data to allow, enable, or otherwise support
the transmission by e-mail, telephone, or facsimile of mass, unsolicited,
commercial advertising or solicitations to entities other than such third
party's own existing customers." New Accreditation Agreement
§ 3.3.6. (emphasis added).
The Existing Accreditation
Agreement provides that "Registrar's access agreement shall require
the third party to agree not to use the data to allow, enable, or otherwise
support the transmission of mass unsolicited, commercial advertising
or solicitations via e-mail (spam)." Existing Accreditation Agreement
§ II.F.6.c. (emphasis added). The Existing Accreditation Agreement
did not prohibit marketing use of Whois data by means of the telephone
The Existing Accreditation
Agreement further provides that a registrar's obligations under the bulk
access provisions shall remain in effect until the earlier of:
(a) replacement of this policy
with a different ICANN-adopted policy governing bulk access to the data
subject to public access under Section II.F.1 or
(b) demonstration, to the
satisfaction of the United States Department of Commerce, that no individual
or entity is able to exercise market power with respect to registrations
or with respect to registration data used for development of value-added
products and services by third parties.
Existing Accreditation Agreement
Thus, in the absence of a finding
by the DoC that "no individual or entity is able to exercise market
power with respect to registrations or with respect to registration data
used for development of value-added products and services by third parties,"
ICANN was obligated to follow its consensus-based process set forth in
the Existing Accreditation Agreement in order to adopt any new policy
regarding use of bulk Whois data. See Existing Accreditation Agreement
These consensus-based procedures
are set forth in detail in the Existing Accreditation Agreement: ICANN's
Board of Directors would first need to adopt the proposed new policy.
ICANN would then need to obtain a recommendation that the policy should
be adopted, by at least a two-thirds vote of the council of the ICANN
Supporting Organization to which the matter is delegated. Finally, ICANN
would need to submit a written report and supporting materials documenting
the process. Id.
As far as Verio is aware, none
of these procedures have been followed with respect to the new policy
regarding use of bulk Whois data. Verio has searched ICANN's web site
and found no evidence that such a process took place. Thus, in adopting
the new policy restricting marketing uses of Whois data without resort
to the consensus-based process, ICANN has breached the Existing Accreditation
Agreement and has failed to solicit or consider the views of all Internet
II. ICANN Adopted the New
Policy Without any Notice and Comment Period or a Majority Vote by the
Board In Violation of ICANN's Bylaws.
A. ICANN's Bylaws require
notice and comment and other procedures prior to implementing a new
bulk access policy.
In addition to the consensus-based
procedures set forth in the Existing Accreditation Agreement, ICANN's
Bylaws require a notice and comment period and a majority vote of the
Board for decisions that will have such far reaching effects on third
ICANN's Bylaws provide that
"with respect to any policies that are being considered by the Board
for adoption that substantially affect the operation of the Internet or
third parties, including the imposition of any fees or charges, the Board
(i) provide public notice
on the Web Site explaining what policies are being considered for adoption
(ii) provide a reasonable
opportunity for parties to comment on the adoption of the proposed policies,
to see the comments of others, and to reply to those comments; and
(iii) hold a public forum
at which the proposed policy would be discussed.
Bylaws Art. III, § 3(b).
Although this new policy limiting the uses of Whois data acquired through
bulk access "substantially affects" Verio's operations, it
does not appear that these procedures were used when adopting the new
ICANN's Bylaws further provide
that "[w]ith respect to any matters that would fall within the requirements
of Article III, Section 3(b), the Board may act only by a majority vote
of all members of the Board." Bylaws Art. IV, § 1(a). Once again,
this does not appear to have happened.
On May 7, 2001 at a special
meeting of the Board, resolution number 01.62 was adopted providing that:
the President is authorized
to implement the [.biz and .info registry agreements] once they are
signed, including by accrediting registrars for the .biz and .info top-level
domains (in that regard, registrars already accredited and in good standing
for .com, .net, and .org may be accredited for .biz and/or .info without
additional qualifying procedures upon entering an accreditation agreement
that the President determines is consistent with the existing accreditation
agreement for .com, .net and .org , conformed to variations in contractual
terminology and circumstances of the new TLDs).
This Board resolution did not
contemplate or approve the adoption of a new Accreditation Agreement that
makes such sweeping changes to the bulk access program. Although apparently
expecting the new agreement to conform to contractual terminology and
circumstances of the new TLD's, the Board explicitly stated its belief
that the new Accreditation Agreement would be consistent with the Existing
Accreditation Agreement. As set forth above, the new restrictions on marketing
use of Whois data set forth in the new Accreditation Agreement are inconsistent
with the Existing Accreditation Agreement, and thus appear to be well
outside the scope of Resolution 01.62.
In that this new policy limiting
the uses of Whois data acquired through bulk access "substantially
affects" Verio's operations, ICANN was obligated to comply with the
procedural requirements set forth in Article III, Section 3(b) and adopt
it by Board resolution in accordance with Article IV, Section 1(a) of
its Bylaws. ICANN apparently complied with neither provision.
B. Adoption of the new
registry agreements did not change ICANN's existing policy on the use
of Whois data acquired through bulk access.
Verio is aware that the United
States Department of Commerce recently approved the new agreements between
ICANN and VeriSign for .com, .net and .org domain name registries.4
ICANN and VeriSign subsequently signed the new agreements.5
Verio is also aware that ICANN recently adopted new TLD Unsponsored Registry
Agreements for the .info and .biz registries.6
Upon review of the relevant
provisions of these agreements, it appears that the provisions requiring
the registry to provide free public query access to obtain Whois data
were revised to include additional marketing restrictions on use of Whois
data that were not present in the previous Registry Agreement between
ICANN and VeriSign.7 Section
II.11.C of the new .com Registry Agreement contains the following provision:
In providing query-based
public access to registration data as required by this Subsection
11(A), Registry Operator shall not impose terms and conditions on use
of the data provided except as permitted by policy established by ICANN.
Unless and until ICANN establishes a different policy, Registry Operator
shall permit use of data it provides in response to queries for
any lawful purposes except to: (a) allow, enable, or otherwise support
the transmission by e-mail, telephone, or facsimile of mass unsolicited,
commercial advertising or solicitations to entities other than the data
recipient's own existing customers.
(emphasis added). Sections
3.10.3 of the proposed Unsponsored TLD Registry Agreement and the ".net"
and ".org" Registry Agreements contain almost identical language.
These new provisions, however,
did not address the permissible uses of Whois data acquired through bulk
access. Until May 17, 2001 when ICANN posted the new Accreditation Agreement
on its web site, ICANN made no mention of adopting a new policy regarding
bulk access to Whois data.
III. ICANN Should Have Awaited
the Report of the Whois Committee Before Implementing A New Whois Bulk
The issue of public access
to Whois data for marketing purposes is currently being discussed within
the Whois committee of the Domain Name Supporting Organization ("DNSO").
On June 8, 2001, ICANN announced the DNSO's study of the Internet domain-name
system's Whois system.
With that announcement, the
DNSO invited comments by way of a survey. The stated purpose of the survey
1. solicit input from as
many people as possible concerning the use of Whois service, and
2. assess whether changes
should be considered to the current Whois policy adopted by ICANN.
Questions 5, 16, and 17 of
the survey specifically address the use of Whois data for marketing purposes.
The comment period is scheduled
to close on July 31, 2001. At the very least, ICANN should have awaited
the results of the DNSO Whois Committee's report before changing the policy
on bulk access to Whois data.
IV. Bulk Whois Data Should
Remain Available for Marketing Purposes Except Through Spam Email.
A. In light of the "opt-out"
option in the bulk access program, ICANN has no reason to further limit
the uses of Whois data acquired through bulk access.
Both the existing and new versions
of the Accreditation Agreement allow registrars to adopt policies that
permit individuals to "opt-out" of the bulk access program.
The agreements provide that:
Registrar may enable [domain
name holders] who are individuals to elect not to have Personal Data
concerning their registrations available for bulk access for marketing
purposes based on Registrar's "Opt-Out" policy, and if Registrar
has such a policy, Registrar shall require the third party to abide
by the terms of that Opt-Out policy; provided, however, that Registrar
may not use such data subject to opt-out for marketing purposes in its
own value-added product or service.
Existing Accreditation Agreement
§ II.F.6.f.; New Accreditation Agreement § 188.8.131.52.
Registrars have the ability
to implement an "opt-out" program to protect those customers
that elect not to receive marketing information from third parties. Thus,
no threat exists that Verio, or other parties provided with bulk access,
would contact anyone that does not wish to be contacted. There is simply
no reason to further limit the permissible uses of Whois data acquired
through bulk access.
Moreover, despite its well-meaning
intention of protecting the privacy rights of individuals, ICANN's new
policy is needlessly over-inclusive. Individual registrants are a small
minority of the domain name holders in the .com, .net, and .org spaces.
"It is estimated that well over 70% of domain names are registered
by businesses or organizations."9
The opt-out provision sufficiently protects individual registrants without
smothering competition in the marketing of value-added services to businesses.
B. With the introduction
of the ".name" Registry, the need to place limits on marketing
uses of Whois data to protect individual privacy interests are less
Verio understands that one
of the reasons that ICANN may have adopted these new restrictions on the
use of Whois dataobtained through bulk access is to protect individuals
from being contacted with marketing solicitations. Verio understands this
concern but feels that the ability to "opt-out" of the bulk
access program effectively addresses these concerns. To the extent that
ICANN feels that the "opt-out" policy does not adequately address
individual privacy concerns, ICANN should limit the new restrictions to
TLD's designed for use by individuals as opposed to TLD's designed for
use by commercial entities and organizations.
The recently approved ".name"
TLD Registry is designed specifically for use by individuals. If ICANN
had limited its new policy restricting the use of Whois data acquired
through bulk access to the ".name" registry, individuals who
sought to avoid any commercial solicitations would have a place to register
a domain name without any concern for their individual privacy. They could
simply register their domain name with the ".name" registry
and feel certain that they would receive no commercial solicitations.
If they, however, decided to register a domain name with another registry,
they could elect to "opt-out" of the bulk access program.
The other registries, like
the .aero, .biz, .com, .coop, .info, .museum, .net, .org, and .pro registries,
were designed for use by commercial entities and organizations or for
unrestricted use. ICANN need not place additional restrictions on the
use of bulk Whois data for domain names in these TLD's.
Without placing any further
restrictions on the use of Whois data acquired through bulk access, ICANN
already has sufficient measures in place to protect the privacy interest
of individual registrants. ICANN should let the ".name" registry
serve its purpose of giving individuals a place to register a domain name
and have their privacy interests protected.
C. The new policy restricts
marketing uses of Whois data that are wholly unrelated to the operational
stability of the Internet.
The original bulk access policy
prohibited use of Whois data for spam email because of the threat spam
poses to the operational stability of the Internet. It was thought that
spam email could cause serious system drains. No such concerns exist with
the newly banned marketing uses, which have absolutely no effect on the
operational stability of the Internet.
ICANN simply had no need to
prohibit using Whois data acquired through bulk access to make telephone
sales calls. In the United States, both federal and state laws already
extensively regulate unsolicited telephone sales.10
For example, many states publish statewide "do-not-call lists"
upon which individuals can ask to be listed and which companies must honor.
Many states also have laws dealing with facsimile solicitations. Furthermore,
industry trade groups like the Direct Marketing Association publish "do-not-call
lists" that reputable companies agree to honor.
Prohibiting lawful marketing
tools other than spam email is not necessary and would seriously decrease
competition in the marketing of domain name renewals and value-added products
and services. In the Existing Accreditation Agreement, the DoC and ICANN
sought only to prohibit conduct that threatened the operational stability
of the Internet and to allow all other lawful conduct. Without any showing
that new considerations require prohibiting other lawful marketing tools,
the original policy should be followed in the new Accreditation Agreement
D. The new policy is at
odds with a carefully crafted regime developed under considerable public
scrutiny geared towards creation of a "level playing field."
This new policy restricting
use of Whois data for marketing purposes does not apply to a registrar
marketing to "its" customers. It applies only to third parties
marketing to these individuals. Thus, this new policy is directly at odds
with a former policy that arose out of a deliberative process, in which
ICANN and the DoC recognized the dangers inherent in giving anyone a monopoly
over the marketing use of Whois data.
At one point during the privatization
of the domain name management system, Network Solutions attempted to impose
a restrictive regime on use of Whois data similar to that which ICANN
has just adopted. ICANN and the DoC, however, rejected NSI's proposal.
The rejection was based on the premise that Whois data is not the property
of registrars but is the property of the individual registrants and the
public at large. Thus, ICANN and the DoC properly concluded that registrars
should not be allowed to profit from Whois data to the exclusion of others.
For example, on July 22, 1999,
Andrew J. Pincus, General Counsel of the Department of Commerce, submitted
a statement for the record before the United States House of Representatives
Commerce Committee's Subcommittee on Oversight and Investigations.11
Mr. Pincus stated:
NSI and the Department of
Commerce also must resolve issues regarding the availability of the
WHOIS database, and the .com, .net, and .org zone files. NSI took certain
actions earlier this year without the consent of the Commerce Department
that restricted access to this information, which had previously been
widely and readily available to the Internet community. We strongly
support the prohibition of uses that adversely affect the operational
stability of the Internet, but we oppose other restrictions on third-party
use of this information, which has been compiled by NSI in the course
of its operations under the authority of the U.S. Government.
In February and March of
this year, NSI implemented certain substantive changes in its provision
of registration services. These actions, which have competitive implications,
have not been resolved on a permanent basis.
- First, NSI denied bulk
access to information in the .com, .net and .org zone files for any
purpose other than caching. (NSI later agreed to permit bulk downloads
for trademark searches.)
- Second, NSI blocked the
date creation field in the WHOIS database and attempted to make access
to all information in the WHOIS database subject to a license prohibiting
any commercial use of the data.
These actions were taken
without the consent of the Department of Commerce. Zone file and WHOIS
data had been freely available to the Internet community for years.
Numerous people have built legitimate businesses that enhance the Internet
using WHOIS and zone file data, which was compiled by NSI while it operated
under the authority of the United States Government, through the Cooperative
Agreement, as the exclusive provider of registry and registrar services
in the .com, .net and .org gTLDs. The White Paper specifically endorsed
the continued availability of that data to "anyone who has access
to the Internet."
(emphasis added). Mr. Pincus
went on to state that "NSI agreed to provide free bulk access to
zone file data until July 23, 1999, under the terms of a Department of
Commerce-approved agreement that would prohibit objectionable uses
such as spamming but would allow all other lawful uses." (emphasis
That free access to Whois data
was a top policy objective cannot be disputed. In a Press Release dated
August 6, 1999, the DoC announced that it had forced NSI to "remove
restrictions on the use of WHOIS data for third-party development of value-added
products and services pending resolution of all outstanding issues"12
On September 28, 1999, Secretary
Of Commerce William M. Daley announced the DoC's approval of the agreements
on domain name management, including the Accreditation Agreement that
ICANN has just revised. In that statement, Secretary Daley specifically
mentioned the fight to keep Whois data open to the public. Secretary Daley
In order to make all of this
happen, ICANN, NSI and the Department needed to reach agreement on a
number of important and -- and I have to say contentious -- issues in
order to create a level playing field for competition and to create
bottom-up management of the domain name system. We also had to address
concerns about the availability of WHOIS data. As with any negotiations,
compromises had to be made. But we never compromised on the President's
desire to give the public more choices and to ensure the stability of
the Internet so that electronic commerce could grow and flourish.
(emphasis added). This ample
record demonstrates the significant policy attention given to open use
of Whois data, and the strongpolicy tilt in favor of open access and use
and away from assertions of a proprietary interest in Whois data.
In view of the degree of attention
focused on this issue during the original privatization process, ICANN
should reconsider this newpolicy on the use of Whois data acquired through
bulk access. No convincing rationale exists for upsetting the balance
that was struck only a few short years ago.
E. The new policy grants
registrars exclusive rights to use Whois data for commercial marketing
purposes, thereby inhibiting open, robust competition.
As ICANN and the DoC understood
when crafting the bulk access policy contained in the Existing Accreditation
Agreement, keeping Whois data available to all on equal terms for all
lawful purposes, as opposed to providing registrars sole or superior access
to the data, promotes competition in the domain name renewal and value-added
products and services markets.
In contrast, with the new policy,
registrars are granted the exclusive right to market "their"
customers with mass unsolicited commercial advertising or solicitations
by e-mail, telephone, or facsimile. The net effect of providing registrars
such exclusive marketing use of Whois data will be an increase in the
price the consumer ultimately pays for value-added products and services
and domain name renewals. By limiting access to this data, registrars
will effectively prevent third parties from cost-effectively contacting
consumers in the market for Internet services. The only voice offering
these services to the consumers will be their own registrar, who will
have less incentive to compete on price with others offering the same
V. The New Policy Conflicts
with Prior Representations of ICANN and Has Serious Implications for the
Intellectual Property System.
The new bulk access policy
seriously implicates the freedom to public information embodied in United
States copyright laws. Early in its history, ICANN gave testimony to the
United States Congress that Whois data would be available to all. Now,
ICANN reverses course.
On June 22, 1999, as Chairman
of the House Commerce Committee, Representative Tom Bliley wrote ICANN
requesting ICANN to state whether it has "conducted, or had conducted
on its behalf, a legal analysis of its authority to retain intellectual
property rights over registrar data?"13
In its July 8, 1999 response
to the House Commerce Committee's questions, ICANN stated:
During the process of domain-name
registration, registrars collect various data typed in by registrants.
This data includes the domain name itself, identifying information about
the registrant, the registrant's designation of administrative, technical,
zone, and billing contacts for the domain name, and technical information
concerning the Internet "nameservers" that are associated
with the domain name. Historically, this data has been freely available
to those operating and using the Internet on a query basis through a
service known as "WHOIS," to assist them in resolving
problems that may arise with domain names.
Under current United States
law, it is highly doubtful that collection by registrars of this factual
information gives rise to any enforceable intellectual property rights.
Under Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340 (1991), copyright may not be claimed in factual information
itself, but only in the selection, coordination, or arrangement of the
information in a sufficiently original way. It therefore violates
no copyright for others to use the registrar data for their own purposes
according to their own selection, coordination, and arrangement. Similarly,
because the registrar data has long been available to the public for
the asking, both by Internet tradition and by U.S. Government requirements,
it would not seem to be subject to legitimate claims of trade-secret
Thus, in response to a formal request from the House Commerce Committee,
ICANN previously took the position that free access to Whois data cannot
be denied under United States law.
ICANN previously represented
that the factual information embodied in Whois data could not be bottled
up under copyright or trade secret laws but instead would be freely used
by any party for their own lawful purposes. The new policy effectively
provides registrars with intellectual property rights over Whois data.
Third parties are denied access to the data for most commercial marketing
purposes, while registrars are allowed unfettered use of the data, including
by spam email.
ICANN has reversed course without
a sound basis for doing so. There were no new facts, and certainly no
new legal principles, that support establishing a quasi-proprietary rights
regime over Whois data. ICANN should have adhered to its earlier commitments
and maintained Whois data in a competitively open environment.
VI. Verio Respectfully Requests
That ICANN Reconsider its New Policy and Stay its Implementation Pending
the Completion of the Necessary ICANN Procedures.
ICANN's Bylaws require that
ICANN make available a mechanism for review and reconsideration of its
actions. The Bylaws provide:
(a) Any person affected by
an action of the Corporation may request review or reconsideration of
that action by the Board. The Board shall adopt policies and procedures
governing such review or reconsideration, which may include threshold
standards or other requirements to protect against frivolous or non-substantive
use of the reconsideration process.
Bylaws, Art. III, Sec. 4(a).
Verio has been adversely affected by this action due to Verio's past use
of Whois data for lawful marketing purposes and its desire to continue
such use. Verio requests that ICANN review it and in the interests of
fairness, recommends to ICANN's Board that it retain the old policy embodied
in the Existing Accreditation Agreement.
As Verio understands ICANN's
Reconsideration Policy, a request for review or reconsideration must be
filed within 30 days after (a) the affected party or its affiliate receives
notice of the action, or (b) ICANN posts notice of the action on its web
site, whichever is sooner. In that ICANN first posted notice of its new
policy restricting bulk access to Whois data on May 17, 2001, Verio has
made a timely request for reconsideration.
In accordance with the Reconsideration
Policy, Verio further requests a temporary stay of the implementation
of this new policy limiting the use of bulk Whois data pending completion
of the procedures set forth in Article III, Section 3(b) and Article IV,
Section 1(a) of ICANN's Bylaws followed by the procedures set forth in
Section I.B. of the Existing Accreditation Agreement.
Verio has been adversely affected
by ICANN's new policy. With the understanding that bulk access would be
an acceptable alternative to query-based access for obtaining Whois data
for marketing purposes, Verio has expended considerable time and effort
negotiating bulk access agreements with a number of accredited registrars.
Verio has further paid tens of thousands of dollars to these registrars
to obtain bulk Whois data. Since this new policy can be interpreted as
applying to even existing signed agreements, ICANN has, without a word
of warning, deprived Verio of the marketing data for which it bargained
The Reconsideration Committee
indicates that it will endeavor to complete its work and submit its recommendation
to the Board within 30 days of the filing of the request and that its
recommendations will be made public on the ICANN web site. Verio requests
that the Reconsideration Committee complete its work within that proposed
time frame, so that ICANN's Board can make a decision on whether to either
retain the old policy or to comply with the procedures set forth in Article
III, Section 3(b) and Article IV, Section 1(a) of ICANN's Bylaws followed
by the procedures set forth in Section I.B. of the Existing Accreditation
Agreement in adopting a new policy.
If ICANN's internal reconsideration process has not been completed within
45 days after the filing of a request for reconsideration, Verio will
proceed directly to file a request for independent review in accordance
with Section 6.3.1 of ICANN's Independent Review Policy.
Verio respectfully requests
that ICANN reconsider its new policy limiting the uses of Whois data acquired
through bulk access. There is no need for this new policy, and it has
serious anti-competitive effects.
Michael A. Jacobs
cc: Louis Touton, Esq.
A copy of the new Accreditation Agreement as posted on May 17, 2001 is
available on ICANN's web site. (<http://www.icann.org/registrars/ra-agreement-17may01.htm>)
A copy of ICANN's bylaws as amended July 16, 2000 is available on ICANN's
web site. (<http://www.icann.org/general/bylaws.htm>).
A copy of the May 7, 2001 minutes of the Board is available on ICANN's
web site. (<http://www.icann.org/minutes/prelim-report-07may01.htm>).
A copy of the May 18, 2001 press release announcing the DoC's approval
is available on the DoC's web site. (<http://www2.osec.doc.gov/public.nsf/docs/icann-verisign-0518>).
A copy of this May 25, 2001 press release is available on ICANN's web
A copy of this May 15, 2001 press release is available on ICANN's web
Copies of the proposed ".com," ".net," ".org,"
and the Unsponsored Registry Agreements are available on ICANN's web site.
A copy of the June 8, 2001 announcement of the DNSO survey is available
on ICANN's web site. (<http://www.icann.org/dnso/whois-survey-en-08jun01.htm>).
See June 8, 2001 announcement of the DNSO survey. (<http://www.icann.org/dnso/whois-survey-en-08jun01.htm>).
In addition to numerous state laws regulating telephonic sales, both the
Telephone Consumer Protection Act, 47 U.S.C. § 227, which directed
the FCC to promulgate regulations governing telephonic sales (47 C.F.R.
§§ 64.1200-1201), and the Telemarketing and Consumer Fraud and
Abuse Protection Act, 15 U.S.C. §§ 6101-6108, which directed
the FTC to promulgate regulations governing telephonic sales (16 C.F.R.
§§ 310.1-310.8) regulate telephonic sales.
A copy of Mr. Pincus' July 22, 1999 statement is available on the DoC's
web site. (<http://www.ogc.doc.gov/ogc/legreg/testimon/106f/pincus0722.htm#N_26_>)
A copy of this August 6, 1999 press release is available on the DoC's
web site. (<http://www.ntia.doc.gov/ntiahome/press/dns08061999.htm>).
A copy of Chairman Bliley's June 22, 1999 Letter is available on ICANN's
web site. (<http://www.icann.org/correspondence/bliley-letter-22june99.htm>)
A copy of the ICANN's July 8, 1999 response is available on ICANN's web