[gnso-consumercci-dt] CCI: European Commission requests data on competition -- should we include these measures in CCI advice?

[Tobias Mahler <tobias.mahler@xxxxxxxxxx>]

Dear all,

As mentioned in the last CCI call, the European Commission recently sent 
a letter to ICANN requesting specific information about competition in 
the domain name market. Although this request primarily focuses on 
vertical integration issues, the proposed measures may also, in my 
opinion, be used to assess competition more generally in the context of 
new gTLDs. The EC asks for "recent figures on competition", based on 
measures described as follows:
"(1) *recent figures on competition at **registry *and registrar 
*level*, in particular
    (i) the total number of currently active registries and registrars 
accredited by ICANN,
    (ii) the total number of domain name registrations up to now,
    (iii) the distribution of domain name registrations by gTLD in 
terms of numbers and percentages, and
    (iv) the share of the twenty largest registrars of the total number 
of domain name registrations (see paragraphs 14 and 15 of our non-paper);"
See the letter: 
http://news.dot-nxt.com/sites/news.dot-nxt.com/files/de-graaf-mccallum-to-beckstrom-crocker-19jan12-en.pdf
*Comparison with our criteria*
-------------------------------------------
We already cover (i) above, but we have so far not directly included 
(ii-iii) . The latter can presumably be used to calculate market share, 
in order to assess whether there are dominant actors (rule of thumb >40 
% market share).

*Should market share of gTLD registries be included in CCI advice?*
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Market share is often used as indicator of effective competition. If we 
include these measures now, we may pre-empt possible future criticism 
from competition authorities (through the GAC).
I am aware of the possibility that the new gTLD program might not be 
able to significantly alter the existing market share (and potential 
dominance) of some market actors. However, I think we should distinguish 
clearly between our proposed measures and the realistic 3-year targets. 
Thus, in my view it would be best to include market share, but to be 
very realistic with respect to what can be achieved by the new gTLD 
program in a 3-years time frame.
Best regards,

Tobias

--
Tobias Mahler, PhD
Norwegian Research Center for Computers and Law (NRCCL)
Department of Private Law, Faculty of Law, University of Oslo
http://folk.uio.no/tobiasm/
Phone (office) +47 2285 0087