PAB: public comment

[Oleg Serebrennikov <oleg.serebrennikov@xxxxxxxxx>]

A registry’s policies essentially all boil down to eligibility. The
eligibility to register, retain and use a domain in the registry’s zone.
Whether the domain (or the zone) is related with a regulated field might
affect the eligibility criteria, but, fundamentally, it is all about
eligibility, regulated or not. Eligibility, in turn, is the realm of
Specification 11 of the Registry Agreement, also known as Public Interest
Commitments (PIC), which makes registries wholly subordinate to
intentionally not fully specified - that is to say, “open ended” - PIC
policies and possible future resolutions of ICANN in the PIC sphere, and
which also stipulates the PICDRP mechanism. The latter is the mechanism of
submitting complaints on a registry with respect to PIC, reviewing the
complaints by ICANN and, if deemed necessary, enforcing the registry’s
compliance with PIC. In so doing, ICANN can appoint a “standing panel” to
review a case. This mechanism is very much alike ICANN’s other mechanisms
for dispute resolutions, and there is by now a significant body of
expertise and experience in the implementation and application of such
mechanisms.

The PAB proposal, on the other hand, introduces a completely different
mechanism. A mechanism that is costly for both ICANN and registries and
that is, at least in its current edition, self-controversial (c.f. the
commentary by Christopher Wilkinson). A mechanism, moreover, which is
redundant, since ICANN is already in possession of a full spectrum of
regulatory options as regards PIC (summarised above). In that spectrum, if
need be, ICANN can even introduce a form of PAB, when, for example, the
PICDRP process factually reveals that certain registries violate PIC
significantly or systematically. This eventuality, unlike the proposed PAB
solution, will be based on actual performance of registries, rather than a
blatant presumption of guilt (which seems to be at the heart of the PAB
proposal).

Finally, if the PAB mechanism is introduced for the new TLDs, the question
arises: what about the existing TLDs? A very large number of the existing
domains are registered by organisations that are regulated: banks,
hospitals, and so on. If registration in the existing TLDs is not governed
by any sort of PAB, while registration in the new TLDs is, the new TLDs
will be very clearly and distinctly disadvantaged, which puts
“innovation”,“diversity” and “competition” of ICANN’s core values in
jeopardy.

For example, consider the following situation. A bank, such as the Bank of
America, already has a domain in the .com TLD: bankofamerica.com. The
bank’s customers already know and trust the bank’s domain in the .com TLD.
The bank need not follow any special procedures to continue using the .com
domain. Now, a new TLD such as .bank becomes available, and is regulated by
PAB, which will likely impose certain scrutiny on the registrants. If
registration under .bank is available only to banks, would the Bank of
America worry that someone except the Bank of America itself can register
the name and, thus, why should the Bank of America register a .bank domain,
when it already has a well-known name under .com that requires none of the
additional scrutiny?

We feel, therefore, it is sufficient for the community at the current stage
to stay within the PIC framework as set forth in the Registry Agreement and
postpone the PAB discussion till (if ever) there is credible evidence that
the PIC framework is inadequate.

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Best regards

Oleg Serebrennikov
DOTPAY SA