[NA-Discuss] Public Comment on the .NET auto-renew, against public interest on competition policy grounds
ebw at abenaki.wabanaki.net
Mon May 9 21:40:05 UTC 2011
I'm submitting two comments, the FIRST of which follows, observing
that presumptive renewal of .NET is contrary to the public interest on
competition policy grounds.
The public announcement is here:
If anyone wants to co-sign, you'll have to explicitly let me know.
I'll be submitting the comment around 9am EDT tomorrow.
The statement of ICANN's position, "ICANN's gTLD registry agreements
provide for presumptive renewal so long as certain requirements are
met", fails to distinguish between legacy contracts, established
before ICANN's existence, and contracts entered into subsequent to the
2001 and 2004 rounds of the new gTLD process, and prospective
contracts from any continuation of ICANN's new gTLD process.
This is unfortunate as there are substantive differences of market
power exercised by the holder of pre-ICANN registry agreements, and
the holders of ICANN registry agreements, and one of ICANN's core
public purposes arose from a competition policy goal, which
necessitates distinguishing between actors in a market with market
power and actors lacking market power.
It is also unfortunate as it negates the public policy purpose in
having conducted two open, objective competitions for re-delegations
in 2002 and 2004, however problematic each of those were. It is worth
noting that one act of redelegation accomplished more in one year than
ten years of awarding new registry contracts has towards realization
of those original competition policy goals.
The public interest in stability and predictability for new registry
operators is self-evident. None of the 2001 round and subsequent
operators, with the possible exceptions of the .INFO registry, and the
certain exception of the .CAT registry, are clearly "viable" as is
after almost 10, respectively 5, years of operation.
Where there is a clear pattern of mismanagement, as there has been for
several years for the .TRAVEL registry, and currently for the .JOBS
registry, and as there was in the initial years of the .BIZ registry
operations, corrective action, including non-renewal and competitive
re-delegation, or temporary "fail-over" operations, are appropriate.
Absent those circumstances, re-award of a limited term operating
contract is commercially reasonable, perhaps even necessary.
However, where the contract has been held for more than three five
year periods, the presumption of re-award absent adverse circumstances
is incompatible with the original, and continuous, competition policy
To be sent to net-agreement-renewal at icann.org. Forward as you see fit.
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