Process and substantive problems with new .biz/.info/.org contracts

["Jordyn Buchanan" <jordyn.buchanan@xxxxxxxxx>]

To Whom It May Concern:

I am writing to express my sincere disappointment with the porposed
contracts for the .biz, .info, and .org registries currently posted for
public comment.  These agreements represent a further departure from ICANN's
supposed bottom-up policy development process and remove significant
protections currently granted to individual registrants.

I make these comments in my personal capacity as an individual domain name
registrant, incorporating my perspective as a long-time participant in the
ICANN process and the current chair of the GNSO's Whois privacy task force.
I have tried to summarize my concerns into two general categories, one
relating to the process by which these agreements were developed and another
relating to substantive concerns with the removal of price controls in the
proposed contracts.

(1) Problems with the process by which the contracts were created

These contracts incorporate a number of the substantive policy changes that
were introduced in the recent .com and .net contracts.  Although it is
perhaps "fair" to put these new TLDs on an equal playing field with the
massive TLDs that VeriSign operates, doing so (and incorporating a new
approach to pricing) completely disregards the ongoing policy development
process that seeks to establish the key contractual terms for TLD
operators.  The ICANN community, working closely with ICANN staff, is
attempting to address many of the issues defined in these contracts.  For
ICANN to simply ignore this policy work and encode a number of policy
assumptions made by various members of the ICANN staff is a slap in the face
to those participating in this policy development process.  What is the
point of participating in a policy development process if ICANN staff will
make an end run around that process by rushing new contracts through
bilateral negotiations before the PDP can be completed according to a
timeline developed in close conjunction with other members of the ICANN
staff?

These contracts continue the disturbing trend of making these contractual
assumptions permanent by granting registry operators presumptive renewal of
their agreements, and allowing future agreements to incorporate faulty
policy assumptions in their renewal process.  Consequently, this lack of
process effects not only these TLDs in the short term, but in all likelihood
will set precedents for all future TLDs.  As a result, it simply sweeps
aside countless hours of community effort and further proves that ICANN is
completely uninterested in a bottom-up approach to policy development.  If
this is truly the case, we should simply make it clear and stop wasting so
many people's time.

(2) Problems with removing pricing restrictions

These contracts remove the price caps currently imposed on registries.
There are several problems with this approach.  First, and most importantly,
these price caps act as an important protection for consumers who have
developed significant brand equity in their existing domain names.  Allowing
a registry to raise the fee on a popular domain that has built a business
around Internet traffic associated with a domain name allows the registry
operator to rob the registrant of the equity that they have built in the
name.  It is possible that price caps are not as important for new
registrations as they are for renewals, but at the very least all existing
registrations should be protected by continuing price caps on renewals.

Secondly, each of the registry operators affected by these agreements bid
for the TLD they operate on a fixed price basis.  ICANN should not allow
them to retroactively change the price under which they were awarded the
contract until the existing term of their contracts have run, at a minimum.

Thirdly, registry operators that are allowed to charge the full market value
of a domain name will suck the life (actually the revenue stream) out of the
one successful arena of competition within the domain name space--domain
name registrars.  Until now, registrars have flourished by offering a
variety of business models with different approaches to pricing.  If
registries are able to capture essentially all of the value of a domain name
registration, registrars will be forced to race to the bottom in terms of
both pricing, services and innovation in order to stay in business.  It
seems likely that we would see a rapid return to much higher domain name
prices, fewer registrars, fewer domain names and substantially less
innovation on the Internet.

This change may be reasonable once true competition exists within the
registry space.  ICANN should not put the cart before the horse and enter
into contracts that assume the presence of competition when it does not yet
exist.

Thanks for taking the time to consider these comments,

Jordyn