ICANN Negotiations -- A Play in Three Acts

[George Kirikos <gkirikos@xxxxxxxxx>]

Hello,

--- "Michael D. Palage" <Michael@xxxxxxxxxx> wrote:
> My personal opinion is that ICANN needs to focus on preventing a
> registry operator due to its sole source contract from abusing that
> position within the marketplace by allowing discriminatory pricing.
> If a
> registry operator is merely imposing an equitable pricing model on
> the
> same class of domain names, that is not discriminatory. As Vint
> properly
> noted in his email, it would be virtual suicide for "most" registry
> operators to abuse this discretion. George and I have discussed on

I think Vint (and it appears Michael, given he described it as
"properly noted") underestimates the determination of registries to
engage in discriminatory pricing. If it is supposedly "suicide", why
negotiate a power into a contract that one does not intend to use? If
it's a power one would never use, it means it is costless to remove
that term from the contract.

It's a simple negotiation.

"Registry: We would *never* do that.
ICANN: Great. Let's write it out of the contract.
Registry: Done."

Instead, we see something like the following, one might imagine:

ACT I: A fancy restaurant overlooking a beautiful harbour, lunchtime.
....
Registry: We would *never* do *that*.
ICANN: Great. Let's write it out of the contract.
Registry: (silence)
(more silence)
(the sound of crickets is heard chirping in the distant mountains)
ICANN: Sorry, I must have mumbled? Did you hear me? Let's write it out
of the contract.
Registry: Hmmm, I'm not sure I'm authorized to do that, today. 
(a bead of sweat rolls down his temple)
ICANN: But you just said you'd *never* do *that*?
Registry: Yes, you are *absolutely* correct. We did just *say* we would
*never* do that.
(winks) I am glad ICANN is listening to us.
ICANN: So, are we ready to write it out of the contract?
Registry: Let's not be too hasty. The contract might be perfect just
the way it is. We wouldn't want to meddle with perfection, would we?
ICANN: I think we all agree, we would not want to meddle with
perfection.
Registry: Great.
ICANN: So, we're not going to write it out of the contract?
Registry: I never said that. Maybe we can discuss this over dinner. We
all want to do the right thing. (smiles)
ICANN: Of course, we all want to do the right thing. (smiles) (pauses)
That is ICANN's mission!
Registry: Yes, it is. You are absolutely correct. I'm glad we are
discussing this. It demonstrates that ICANN is listening. The public
doesn't appreciate how well ICANN is listening!
ICANN: Thank you. We are always listening. We're happy that you agree
that we are listening. You've been so supportive publicly, saying that
we are listening. So, you're never going to do *that* right?
Registry: We've always *said* we would never do *that*.
ICANN: So, just to be clear. It will never happen or be introduced. Do
I have that correctly?
Registry: Doing that would be suicide! A registry who did that would
lose the trust of the public! How can you ask us whether it will
happen? (sits forward in seat, glaring)
ICANN: If it was suicide, it would be true, it could never happen.
(slumps back in chair)
Registry: I am glad you are listening to us. You make so many logical
points. It's a pleasure negotiating with you. (wink)
ICANN: Thank you. (blushes) So, it's impossible that *it* will happen,
then?
Registry: We have *said* it repeatedly, we would *never* do that. You
know, *anything* is possible. Martians might show up tomorrow, the
planet could explode, quantum uncertainty,....
ICANN: I'm glad you remembered I studied science! We know each other so
well, having spent so much time together. (smiles)
Registry: Yes, and how is the family?
ICANN: They're great, thank you for asking. (blushes) But, getting back
to the contract, you don't think it needs to have a new term added?
Registry: We never said that. We are open to a long-term fruitful
partnership with ICANN, and will always do the right thing. 
ICANN: Maybe we should study this issue further?
Registry: That's a great idea! But, rest assured, I think we agree, we
will always do the right thing. I think you can safely tell people,
without further study, it would be suicide and registries will always
do the right thing. We are willing to go on the record on that point!
ICANN: So, we can tell people, it would be *suicide*? But, it would
still be possible, right?
Registry: Anything is possible. You can tell people, it would be
*suicide*.

ICANN responds to George: "It would be suicide for a registry to do
that."

Act II: One year later.....ballroom of a five star hotel

Shareholder at Registry annual meeting: I'm proud that our management
has increased its profits by 500% in the past year, through the
introduction of tiered domain name pricing. They all deserve a raise!
Registry Management: You are all so kind. *beaming* I have said it so
many times before, but I'll say it again. We will always do the right
thing *for our shareholders*.

Act III: ICANN Meeting with Registry, at ICANN HQ

ICANN: We're taking a lot of heat from domain registrants and the
public now that you  raised prices so much, and introduced tiered
pricing. We have to do something! (look of desperation in eyes) You
betrayed us, and said it would never happen!
Registry: I distinctly remember saying that anything is possible.
ICANN: We have to do something!!
Registry: We have a contract. Period. We expect ICANN will respect
what's in the contract. Don't make me bring this up with our lawyers.
We feel we are solid on this point.
ICANN: Yes, but you told us you would *never* do *that*!!!!! (jumps up
and down)
Registry: Have a seat. You're making me nervous. Have a drink. (fills
glass). You are absolutely correct, we *did* say that. But,
circumstances change. What's important is that we have a contract. We
have a fiduciary duty to our shareholders to do the right thing to
maximize shareholder value.
ICANN: THE RIGHT THING??!!?? THE RIGHT THING?? (hyperventilating)
Registry: We have always said, we will do the right thing.
ICANN: What are we going to do!!!!!
Registry: Well, we *could* always open up the contract for
modifications. We see some possible improvements. We think a win-win
might be possible. We don't *have* to do this, but ICANN is our
partner, and we believe in a long and fruitful relationship.
ICANN: (breathing a sigh of relief) So, you're going to stop doing
*that*?
Registry: No, we never said that. We have a contract. That item is
non-negotiable. But, perhaps we can find other areas of improvement.
ICANN: Yes! I'm glad you are willing to offer us that olive branch.
Registry: You're like a member of the family to us. You are important.
We will do the right thing.
ICANN: Whew. I knew you were a good guy.
Registry: I am glad that ICANN is listening to our concerns, and values
our relationship.
ICANN: We are always listening. That's part of our mission!
Registry: Yes, and you fulfill that mission with EXCELLENCE. You are a
star!
ICANN: You are so kind. (blushes)
Registry: I figure we can spend a few months working on amending the
contract. Let's target the end of July, for a final draft. That'll give
you time for summer holidays to relax.
ICANN: That sounds great. You know I have family, and appreciate the
time off in August.
Registry: Yes, we know each other so well. You are almost a part of my
family. (wink)
ICANN: And we'll let the public have a comment period in August, and be
ready to make a recommendation to our distinguished Board in September.
Registry: Yes, we can't leave out the public comment period. I've said
it before, and I'll say it again, this registry appreciates that ICANN
is listening, and will take into account the views of the Public.
ICANN: That is our mission! 
(Curtain Closes) 

THE END

:)

> As I tried to discuss with George on the Business constituency list,
> I
> believe the provision in the new registry contracts to refer to
> "appropriate governmental competition authorit[ies]" matters
> involving
> new registry services (i.e. differential pricing) is very important.

And as I said on the Business Constituency list, a contract that
*requires* registrants to lobby governments in order to protect their
interests is fundamentally flawed. Registries spend a lot more on
lobbying (and on consulting for that matter -- what's a registry
consultant doing in the BC again?? I don't see much ecommerce happening
at the website www.palage.com with 2 words on it) than do individual
registrants, who would otherwise need to pool their resources to
challenge registry abuse. 

Furthermore, which government has the power to reign in registries?
Will Neustar be bowing down to the Government of Cuba's competition
bureau, or that of China? Or that of Canada? What will Canada do if
Neustar refuses, stop shipments of maple syrup to the USA?

> If I was still on the Board this is the one question that I would be
> asking. Given ICANN's recent decisions to extricate itself from
> overseeing registry pricing, are the governmental safeguards that it
> has
> in place adequate to protect domain name registrants. Given the

"ICANN's recent decisions to extricate itself from overseeing registry
pricing" -- Did that go through a GNSO Council review, or PDP? I don't
think so. Indeed, there's a current PDP on registry services. Thanks
for the insight that ICANN has already made a decision, and folks
engaged in the PDP are wasting their time.

Extricating itself from oversight of registry pricing is simply not
representative of any bottom-up consensus process, and represents an
ICANN failure, and an attempt by Staff to overthrow the wishes of
domain registrants, the public, and ICANN's constituencies. 

Saying that "the government will protect us", when instead ICANN can
negotiate proper bulletproof contracts that reflect the concerns of the
public is basically a win for lawyers and consultants (Mike is both of
those, what a coincidence....) at the expense of domain registrants, as
lawyers and consultants will have lots of opportunities in the future
defending registry abuses.

Sincerely,

George Kirikos
http://www.kirikos.com/