[NA-Discuss] The .NAME contract expiry: Competition Policy and Agency Capture

[ebw at abenaki.wabanaki.net]

Collegues,

In my Statement of Interest for the (elected) North American Representative
to the At-Large Advisory Committee I mentioned the NAME contract renewal.

The period for public comments on the proposed changes to the .NAME registry
contract has concluded. I made the comment I suggested earlier in my SOI --
briefly that the public interest (competition policy) is clear, that competent
alternatives to the incumbent contract holder exist, and a change of contract
operator while meeting stability and security goals is feasible.

In this note I wish to suggest that while the size of the .NAME registry is
modest, and a great deal of attention is focused on the nearly two thousand
applications awaiting evaluation, that the .NAME contract expiry does present
an issue of the first importance.

The DoC/NTIA RFI for the IANA Function and the follow-on RFP instructions
for bidders addressed metrics for the contractor performance of the IANA
Function.

I pointed out in a note to this list on 8/14 that the addition of performance
metrics makes repetition of the abuse of administrative delays to requested
changes in the IANA root zone file for the purpose of compelling obligations
from foreign governments to the current contractor unlikely. [Thanks to John
Levine for asking "what the point of the exercise was", and to Brett Fausett
for his comment.]

The DoC/NTIA RFI proposed a separation of the operational and policy making
roles. The follow-on RFP instruction for bidders required the separation of
the operational (IANA) role from the policy making (ICANN) role of the
contractor.

The import of this is that the separation of policy development from root
zone change management is no longer limited to entries corresponding to ISO
3166 code point assignments.

IANA root zone change management is an operational role, distinct from the
policy role of access control and generic policy development and compliance.
It is an IANA Function to make changes to existing records in the IANA root
zone. The operational nature of this role is now unrestricted as to origin
of any particular delegation and code point or string assignment.

The proposed changes to the .NAME contract, the proper subject of the policy
making and compliance role (ICANN), is independent of the selection of the
contractor to execute the terms of the original, or modified contract, which
is the proper subject of the (IANA Function) operational role. The selection
of the contractor manifests in a change to existing records in the IANA root
zone.

The present expiry of the .NAME contract is the first gTLD contract to be
subject to re-policing by the policy making and compliance role (ICANN), and
subject to contractor selection, manifested by a change to existing records
in the IANA root zone, under the specific terms of the new IANA Function
contract, recently awarded for a three year period to the Corporation.

Public comment may, or may not, inform the Corporation's Board on any of the
specific changes proposed to the existing .NAME contract, and the terms and
conditions of the final contract are properly policy and compliance
considerations. However, the selection of the party with which to contract
is not Verisign by default, as other operational equivalent vendors exist,
and the means of selection of a contractor among several operationally
equivalent vendors by an agency of government or an entity exercising
delegated authority by government is via the competitive award process, as
the government did when soliciting vendors to provide the IANA Function
earlier this year.

In sum, the separation of policy from operations allows for the terms
of the .NAME contract to be modified by the Corporation, if it follows
a transparent and accountable process. However, it does not allow the
Corporation to arbitrarily select the party to perform the .NAME contract,
nor to arbitrarily select the parties to perform registry fail-over in the
near future, as some, perhaps most, of the 2012 new gTLD round speculations
fail to meet their investor goals and are abandoned.

The public interest is thus more fundamental than the policy goal of
advancing competition, originating in the Green and White Papers of
the late 1990s.  It is the independence of the public entity from the
private interests it regulates or coordinates, originating in the
various historic corruption reforms and modernly standardized in the
Administrative Procedures Act of 1946.

Eric Brunner-Williams
Former Candidate, NARALO ALAC Rep. election 2012