RE: [gnso-pednr-dt] Anti-Trust Red Herring

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

Perhaps I was not sufficiently clear. If someone 
feels that getting this specific information is 
important to us addressing the problem that we 
have been given (as outlined by the charter), 
then I would expect them to say so, explain why 
there is relevance and importance, and we should 
seek legal opinion on whether we should go in 
that direction (which I presume would encompass 
both the within-scope issue as well as over-riding issues such as anti-trust).
Alan

At 17/08/2009 10:04 AM, Tim Ruiz wrote:
> Someone may feel the information is important, but the real
> question should be whether gathering such information is
> within scope of the charter.
>
> Tim
>
> -------- Original Message --------
> Subject: RE: [gnso-pednr-dt] Anti-Trust Red Herring
> From: Alan Greenberg <alan.greenberg@xxxxxxxxx>
> Date: Fri, August 14, 2009 3:32 pm
> To: PEDNR <gnso-pednr-dt@xxxxxxxxx>
>
> OK, let's not spend more energy on this for the moment. We know that
> some registrars will return a domain back to the RAE for their normal
> annual fee, and some greatly increase the price. Some registrars have an
> RGP fee just somewhat over the Registry fee, and others charge a lot
> more. I am not sure what is be gained at this time in identifying which
> registrar uses which model.
>
> If Michael (who initially raised the issue) or someone else feels that
> this information is important to us, we will have staff seek an initial
> legal opinion on the issue.
>
> Alan
>
> At 14/08/2009 02:43 PM, Mason Cole wrote:
>  I agree with Tim.  It certainly has been drummed into registrarsâ??
> heads as far back as I can recall that any discussion of pricing among
> two or more competitors, no matter how innocuous, is too risky to engage
> in.  Iâ??m not an attorney and canâ??t offer legal theory in reply to you,
> Mike, but must also err on the side of caution.  Further, itâ??s clear
> that pricing doesnâ??t fit the scope of this group in any way.
>
> The stated questions of the group are the following:
>
> 1. Whether adequate opportunity exists for registrants to redeem their
> expired domain names;
>
> 2. Whether expiration-related provisions in typical registration
> agreements are clear and conspicuous enough;
>
> 3. Whether adequate notice exists to alert registrants of upcoming
> expirations;
>
> 4. Whether additional measures need to be implemented to indicate that
> once a domain name enters the Auto-Renew Grace Period, it has expired
> (e.g., hold status, a notice on the site with a link to information on
> how to renew, or other options to be determined);
>
> 5. Whether to allow the transfer of a domain name during the RGP.
> I believe data for those questions is readily available, and if evidence
> exists indicating a problem extensive enough to warrant resources from
> ICANN, best practices can be employed to resolve them and registrars
> would be favorably disposed toward helping them become a reality.
>
>
>
> -----Original Message-----
> From: Tim Ruiz [mailto:tim@xxxxxxxxxxx]
> Sent: Wednesday, August 12, 2009 1:56 PM
> To: gnso-pednr-dt@xxxxxxxxx
> Cc: Michael D. Palage
> Subject: RE: [gnso-pednr-dt] Anti-Trust Red Herring
>
>
> Mike,
>
> You wrote:
>
> > Under your theory of anti-trust laws, registrars can hide from
> > prospective Registered Name Holders the price they may have to pay to
> > recover/renew a domain name?
>
> Your confusing the issue, I will assume unintentionally. Consensus
> policy
> requires registrars to publicly post their fee for recovering names from
> the registry RGP. However, there is nothing that requires registrars to
> post publicly or announce to their competitors what their pricing is for
>
> renewals or for recovering an expired name not yet in the registry RGP.
> Some registrars may, but it is not something we can or should expect
> just
> because we throw around terms like *transparency* and *openness.*
>
> Registrars, as was fully intended, are competitors. That brings with it
> a
> natural limit on how open and transparent they are willing to be on
> various issues when not required. That has nothing to do with
> anti-trust.
>
> While collecting such data does not raise anti-trust issues itself, the
> use of that data in various discussions here certainly could. Go Daddy,
> will error on the side of caution and not be involved in such
> discussions,
> and if past experience is any indication, so will many other registrars.
>
> Hopefully, that clarifies my concerns.
>
>
> Tim
>
> -------- Original Message --------
> Subject: RE: [gnso-pednr-dt] Anti-Trust Red Herring
> From: "James M. Bladel" <jbladel@xxxxxxxxxxx>
> Date: Tue, August 11, 2009 1:12 pm
> To: "Michael D. Palage" <michael@xxxxxxxxxx>
> Cc: gnso-pednr-dt@xxxxxxxxx
>
>
> Mike:
>
> Setting aside any anit-trust concerns, what could be done with this
> information? Presuming that it is beyond ICANN's remit to set or cap
> pricing/markup on the part of registrars. (Questions 9 & 10 in your
> proposed survey).
>
> Wouldn't it be less complex to focus on redemption fees charged by
> registries? These are public, correct?
>
> J.
>
> -------- Original Message --------
> Subject: [gnso-pednr-dt] Anti-Trust Red Herring
> From: "Michael D. Palage" <michael@xxxxxxxxxx>
> Date: Tue, August 11, 2009 1:00 pm
> To: <gnso-pednr-dt@xxxxxxxxx>
>
> Tim/Mason:
>
> I fully agree that competitors in a marketplace discussing pricing is a
> NO-NO, but that is not what I am proposing.
>
> What I am asking the group to investigate is what is the price
> consumers are paying to recover/renew a domain name. If we are all about
> openness, transparency and predictability regarding protecting the
> interests of registrants please explain the legal basis that anti-trust
> laws prevent the collection of this data that should be publicly
> available?
>
> Under your theory of anti-trust laws, registrars can hide from
> prospective Registered Name Holders the price they may have to pay to
> recover/renew a domain name?
>
> Please correct me if I am wrong.
>
> Best regards,
>
> Michael
>
>
>
>
>
>
> From: owner-gnso-pednr-dt@xxxxxxxxx
> [mailto:owner-gnso-pednr-dt@xxxxxxxxx] On Behalf Of Mason Cole
> Sent: Tuesday, August 11, 2009 1:19 PM
> To: Tim Ruiz; michael@xxxxxxxxxx
> Cc: gnso-pednr-dt@xxxxxxxxx
> Subject: RE: [gnso-pednr-dt] Additional Fact Finding and Proposed
> Registar Survey Questions
>
>
>
> I concur with Timâ??s request ­ a discussion of pricing is precluded
>
> for those reasons.
>
> I believe Mikeâ??s proposed registrar survey is premature ? there is
> insufficient claritty as to what demonstrated harm this group is working
> to cure. Until that data is known, it is irresponsible consider policy
> or survey registrars on their business practices. We have to know the
> extent of the problem, if in fact it does exist, and how it most often
> occurs if weâ??re to responsibly orient our actions.
>
> Further, I can predict some registrars will be extremely hesitant to
> reply to a survey if that kind of information is not made available, and
> may perceive this effort to be unnecessary regulation of their
> businesses. I believe this group will get better registrar cooperation
> in any effort if this group can talk about specific harms occurring to
> their registrants and enlist their suggestions in dealing with those
> harms, rather than moving immediately to changes in procedure that can
> be disruptive to customer relationships and are costly in terms of
> resources.
>
> To that end I need to ask for clarity:
>
> · Again, what is the precise problem? The initial issues
> report indicates itâ??s to prevent unintended loss of a name. Is that
> still the case? Or are there other hoped-for outcomes?
> o Corollary: I know thereâ??s a stated desire for more
> predictability. As a matter of further clarity, I would ask: Is the
> need for more predictability a way to prevent unintended loss of a name?
> Or is it desired for another reason?
> · What is the demonstrated extent of the problem? How often
> do registrants lose a name and cannot have it recovered in any scenario?
> · Where is the source of the problem and how does it occur
> specifically?
> o I heard quite a bit of discussion in Sydney about resellers being
> the real source of the problem. I still have not seen any kind of
> documentation about how this is the case. I would like to understand
> that better. How can that information be made available to this group?
>
> I firmly believe data beyond the anecdotal is necessary to be
> accurately informed. Proposing policy on the anecdotal, or on what
> might happen (as stated in the issues report request), is a waste of our
> time and ICANNâ??s resources. If information beyond the anecdotal is
> simply unavailable, I suggest itâ??s irresponsible to work toward policy
> that may or may not accomplish anything, and may in fact have unintended
> consequences.
>
> I read Williamâ??s report to this group and understand it may be
> difficult to document and/or categorize name recovery efforts. That is
> a challenge to this group, but if our efforts are to be accurately
> directed, itâ??s necessary.
>
> You may have seen that in the past few days, a study commissioned by
> ICANN to find evidence of â??front-runningâ?? found, in fact, that there
> is no evidence of front-running (as currently defined). This was after
> front-running was assumed to be happening and had been in active
> discussion in various parts of the community as a target of policy
> development. (Iâ??m no fan of front-running, but given the report,
> Iâ??d hope the community is focusing its attention on the myriad issues
> that do actually exist.)
>
> I want to be clear that I do not seek to delay or obstruct. I donâ??t
> speak for all registrars, but I believe I can say the distinct majority
> of registrars are very much interested in ensuring good treatment of
> their customers?as I mentioned in Syydney, the registrar business is
> extremely competitive and it simply costs too much in time and effort to
> attract customers simply to abuse that relationship for the sake of
> selling a name. I would hope this group understands that. There are a
> range of options available to us to encourage registrants to be aware of
> the need to maintain valuable names, encourage good reseller practices,
> etc.
>
> I look forward to a more refined look at the situation as it exists,
> and to todayâ??s call.
>
>
>
>
> -----Original Message-----
> From: Tim Ruiz [mailto:tim@xxxxxxxxxxx]
> Sent: Tuesday, August 11, 2009 4:50 AM
> To: michael@xxxxxxxxxx
> Cc: gnso-pednr-dt@xxxxxxxxx
> Subject: RE: [gnso-pednr-dt] Additional Fact Finding and Proposed
> Registar Survey Questions
>
>
> I apologize but I cannot make the call today. I will
> listen to the recording later. Regarding Mike's survey
> questions I ask that any questions related registrar
> pricing be removed for two reasons.
>
> 1. Pricing is excluded from consensus policy in the
> RAA.
>
> 2. Registrars cannot discuss it here due to antitrust
> concerns.
>
>
> Tim
> Sent from Go Daddy Mobile Mail.
>
>
>
> > -------- Original Message --------
> > Subject: [gnso-pednr-dt] Additional Fact Finding and Proposed
> Registar
> > Survey Questions
> > From: "Michael D. Palage" <michael@xxxxxxxxxx>
> > Date: Mon, August 10, 2009 9:42 pm
> > To: <gnso-pednr-dt@xxxxxxxxx>
> >
> >
> > Hello All:
> >
> > Just doing some additional
> > fact finding in connection
> > with Tuesday's PENDR Working
> > Group call.
> >
> > On the issue of creating
> > openness, transparency and
> > predictability for registrants
> > with regard to recovering
> > expired domain names, I share
> > the following information
> > regarding divergent practices
> > by gTLD registries. I submit
> > that these divergent practices
> > are neither a good or a bad
> > thing, but that their
> > existence does seem to suggest
> > the need for a predictable
> > safety net to protect
> > registrant interests.
> >
> > The Majority of registries
> > .COM, .NET, .NAME, .JOBS,
> > .INFO, .ORG, .ASIA, .MOBI,
> > .AERO, and .PRO debit the
> > registrar of record's account
> > the renewal rate, and then
> > give that registrar 45 days to
> > cancel the domain name and
> > receive a credit. During this
> > window the Whois associated
> > with this domain name will not
> > show the original expiration
> > date, but a date one year from
> > the expiration based upon the
> > money that was debited from
> > the registrar's account.
> >
> > There is a minority number of
> > registries, .BIZ, .TRAVEL, TEL
> > and .CAT that do not debit the
> > registrar account until the
> > end of the 45 day auto-renewal
> > grace period. During this time
> > the Whois will reflect the
> > original expiration date in
> > the Whois.
> >
> > The .COOP registry has a 5 day
> > grace period following
> > expiration where the domain
> > name still appears in the zone
> > file. After this 5 day grace
> > period the domain name is
> > removed from the zone file for
> > 40 days. Forty five days after
> > expiration the domain name is
> > made available for
> > re-registration.
> >
> > During the last call I
> > suggested the need to get some
> > data points from within the
> > registrar/reseller community.
> > In an effort to jump start
> > that effort, I have proposed a
> > list of survey questions that
> > the group may wish to discuss
> > tomorrow. I am sure some of my
> > former registrar colleagues
> > will propose some mark-ups to
> > these questions but given the
> > shrinking window between now
> > and Seoul, I thought I would
> > take a first crack at this
> > important fact gathering
> > survey. (see below)
> >
> > I look forward to tomorrow's
> > call and I want to thank
> > William and Tatyana for their
> > previous posts I found them
> > very constructive.
> >
> > Best regards,
> >
> > Michael
> >
> > Proposed Registrar Survey
> > Questions:
> >
> > 1) What is the registrar's
> > practice regarding a domain
> > name at the time of expiration
> > when the registrant gives
> > explicit instructions
> > regarding its intention NOT to
> > renew the domain names? (i.e.
> > does the registrar process and
> > delete command, does the
> > registrar change the whois
> > prior to expiration, does the
> > registrar allow the domain
> > name to auto-renew in those
> > registries that employ that
> > policy, etc.)
> >
> > 2) What is the registrar's
> > practice regarding a domain
> > name at the time of expiration
> > when the registrant is silent
> > regarding its intention to
> > renew a domain name? (i.e.
> > does the registrar process and
> > delete command, does the
> > registrar change the whois
> > prior to expiration, does the
> > registrar allow the domain
> > name to auto-renew in those
> > registries that employ that
> > policy, etc.)
> >
> > 3) Does the registrar
> > affirmatively change any of
> > the underlying Whois data
> > associated with the domain
> > name in or around the time of
> > expiration? (yes/no)
> >
> > 4) Does the registrar of
> > record have any contractual
> > terms in the original
> > registration agreement
> > regarding the treatment of the
> > domain name registration
> > service contract at the time
> > of expiration? If so what are
> > they?
> >
> > 5) If the registrar changes
> > the Whois data at the time of
> > expiration is that practice
> > dependent upon the TLD (i.e.
> > auto-renew v.s.
> > non-auto-renew) or is the
> > change in underlying Whois
> > data the same regardless of
> > the TLD?
> >
> > 6) Does the registrar or any
> > affiliate offer any value
> > added services regarding the
> > sale/auction of domain names
> > after their date of original
> > expiration, if so what are
> > those services?
> >
> > 7) Does the registrar or any
> > affiliate provide any revenue
> > share opportunities in
> > connection with any revenue
> > recognized in connection with
> > the value added services with
> > the registrant prior to
> > expiration? If so what are
> > they?
> >
> > 8) Does the registrar or
> > affiliate provide the
> > registrant prior to expiration
> > the right to remove a name
> > from this value added service
> > offering?
> >
> > 9) What is the cost to the
> > registrant to recover/renew a
> > domain name during the
> > Registry Redemption Grace
> > Period? (Note in providing
> > this cost do not include the
> > registry cost component which
> > may vary per TLD, only provide
> > the registrar mark-up?) Is
> > this mark-up the same across
> > all TLDs, or does it vary from
> > TLD to TLD? How many of your
> > domain name registrants pay
> > this fee on an annual basis?
> >
> > 10)What is the cost to the
> > registrant to recover/renew a
> > domain name post expiration
> > but prior to the imposition of
> > any Registry Redemption Grace
> > Period. (Note in providing
> > this cost do not include the
> > registry cost component which
> > may vary per TLD, only provide
> > the registrar mark-up?) Is
> > this mark-up the same across
> > all TLDs, or does it vary from
> > TLD to TLD? How many of your
> > domain name registrants pay
> > this fee on an annual basis?
> >
> > 11)Aside from these two
> > recovery/renewal windows does
> > the registrar impose any fees
> > on a registrant other than a
> > regular renewal price to
> > renew/re-register the domain
> > name? If so what are? How many
> > of your domain name
> > registrants pay this
> > additional fee on an annual
> > basis?
> >
> > 12)Does the registrar or
> > affiliate provide the
> > registrant the ability to
> > renew/re-register a domain
> > name once it has entered an
> > auction process? If so what
> > are the costs imposed on the
> > registrant?
> >
> > 13)Are participants in
> > registrar or affiliates
> > auction apprised of the
> > registrant's rights to
> > renew/re-register a domain
> > name during the auction? If so
> > how and what are the terms of
> > that notification?
> >
> > 14)For those registrars or
> > their affiliates that provide
> > auction services with the
> > ability of the registrant to
> > renew/re-register a name, what
> > number of registrants have
> > exercised that right?
> >
> > 15)What percentage of the
> > overall gTLD market does the
> > registrar responding to this
> > questionnaire represent?
> >
> > 16)Is the registrar responding
> > to this questionnaire part of
> > a family of registrars sharing
> > common ownership?