RE: [gnso-vi-feb10] RE: Consolidated Response to Jeff & Anthony

["Austin, Scott" <SAustin@xxxxxxxxx>]

Jon:

Thank you for providing direction to resource consensus documents to focus this 
forum on the true issues at hand. As a newcomer that is most helpful, 
especially since although I am new to this group I have been participating in 
these issue on the sidelines for a number of years. While I am still learning 
who is who on the power curve and so as not to step on anyone's toes or waste 
the time of veterans with wheelspinning on the wrong issues, I would appreciate 
identification of any specific most recent version documents that could help 
analyze the two key issues you raise for this working group, namely:

1. Whether registries must accept services from all accredited registrars.

My initial impression is that the RAA is of great value as a baseline document 
that all parties have accepted as useful and can be relied upon across many 
cultures and business models of registrars so if accreditation is not at issue 
why not accept customers through as many distributors/brokers as possible? 
Unless the battle is over a registry having its own employee or captive 
registrar team (manufacturer's reps?) and giving preferential second level 
domain name availability to them over 3rd party registrars. Is that the real 
issue. 

2. Whether small (as in dollars or potential second level domains?) or brand 
registries can become accredited registrars

This appears preferable to me from an efficiency standpoint but has this 
created a turf battle with registrar constituents who would prohibit registry 
registrar combinations for job security. Which is the more efficient economic 
model registries serving as their own registrar, or encouraging a specialized 
distributor class to flourish that has more local contact and representation as 
in the slides offered by Jothan. 

My preference is to use a "prefer, permit, prohibit, preclude" paradigm as a 
baseline approach to the development of rules. So if any prior analyses have 
considered points where it is preferable for registries to accept all 
registrars, or merely be permitted to use all registrars; have registry 
stakeholders spoken to the issue of whether all registries should be permitted 
to become accredited registrars, should some be prohibited (due to conflict, 
antitrust issues, economics/funding) or even precluded (which I define as 
having power denied versus prohibit which I would define as the power being 
present to do something but the rule limits or denies its use.)   

Although Michael's list of hypotheticals may have been a substantial and 
apparently provocative homework assignment, I applaud his boldness to be a 
catalyst for responses, which included your insightful distillation of issues 
Jon. I tend to believe that heat when fanned by the proper amount of 
inspiration can brighten our path to a solution.  


Scott R. Austin 
Roetzel & Andress
Email:  saustin@xxxxxxxxx

  
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-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Jon Nevett
Sent: Friday, March 26, 2010 11:36 PM
To: Jeff Eckhaus
Cc: Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] RE: Consolidated Response to Jeff & Anthony


Folks:

Let me expand on Jeff's comment below.

The GAC Communique says nothing about use of registrars.  That issue already 
has been decided by the GNSO in 2008.  All names must be registered by an 
entity that is bound by the requirements of the Registrar Accreditation 
Agreement (RAA) with all of its obligations.  Those entities are called 
registrars.  To register names outside the bounds of the requirements and 
protections in the RAA, for example, would mean that some names would be under 
a requirement to provide accurate Whois information, while others might not; 
some names would fall under the terms of the UDRP -- which specifically binds 
registrars -- while others might not have the same requirements; some names 
would have specific data retention requirements, while others might not.  We 
could go on and on.  I think that it is fair to assume that the GAC would not 
want names to fall outside of Whois and UDRP requirements, as well as any other 
consensus policy.  

If a single registrant TLD registry, or any registry for that matter, signed on 
to all of the requirements in the RAA, then guess what, they would be 
considered registrars as well.  Thus, the real issue at hand is not whether 
registries must use registrars, but whether registries or their affiliates 
should be permitted to sign on to the obligations of the RAA, making them 
registrars.  We need to stop thinking that all registrars need to look like a 
Network Solutions, Go Daddy, eNom, or Tucows.  The only thing that binds all 
registrars is that they all have signed and are bound by the terms of the RAA.  
A distributor of single registrant names would not be any different in that 
regard.  

Therefore, I agree with Jeff and others that we should not reopen an issue that 
already has been approved by the GNSO.  To do so, only would cause needless 
delays and open a Pandoras Box worth of issues.  Indeed, we would have to 
review every Consensus Policy enacted since the start of ICANN to evaluate the 
impacts on the market requirements and protections there would be if there were 
no registrars in the chain.  

I agree with Mike that we should get it right.  I believe that the GNSO did get 
it right in 2008 with regard to the use of registrar requirement.  GNSO 
Recommendation 19, which achieved an overwhelming consensus of the GNSO, is 
clear that names must be registered by registrars.  It does not say, however, 
that every registry must use every registrar, nor does it prohibit a single 
registrant registry or a small registry from being accredited as a registrar.  
Those are the issues that we should be discussing to reach resolution not 
issues that were decided years ago.  

Thanks.

Jon

On Mar 26, 2010, at 10:11 PM, Jeff Eckhaus wrote:

> 
> Michael,
> 
> I know you may be surprised to hear this but I agree with you some of your 
> arguments and even more surprising is that I agree with what the GAC stated. 
> I do believe that this WG should explore the regime applicable to single 
> registrant TLDs and there is no need to run to the GAC and notify them we are 
> going against their advice.
> 
> What I was stating below in my original email is that we should continue to 
> explore vertical integration and the issues of cross -ownership, but we 
> should not introduce the issue of not using an ICANN accredited Registrar to 
> distribute the domains, whether they charge for them, give them away for free 
> or have a single registrant. If we do decide that it is OK for a single 
> entity to handle all of the functions then that entity should be 
> contractually bound by the RAA as it should be bound by the applicable 
> Registry Agreement. That was the point I was making in my email below. 
> 
> 
> Jeff
> 
> 
> 
> ________________________________________
> From: Michael D. Palage [michael@xxxxxxxxxx]
> Sent: Friday, March 26, 2010 6:32 PM
> To: Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx; 'Antony Van Couvering'
> Subject: Consolidated Response to Jeff & Anthony
> 
> Jeff/Anthony,
> 
> Let me respond jointly to your concerns.
> 
> When ICANN first decided to "revisit" vertical separation, was it done as 
> part of the ICANN bottom up consensus process, was it done in connection in 
> the original new gTLD PDP? The answer to these questions is NO. It was 
> unilaterally undertaken by ICANN staff as part of the new gTLD 
> "implementation" process in response to concerns not from registries, not 
> from consumers, but from registrars that were looking to expand their 
> business operations in connection with new gTLDs.
> 
> Now the CRAI report which was part of the ICANN staff's implementation 
> process specifically referenced two models to move forward in a controlled 
> responsible manner. One of those models was single registrant TLDs, and CRAI 
> recognized the market inefficiencies in requiring the same entity to secure a 
> separate ICANN accreditation to deal with itself. However, no one was happy 
> with these results so ICANN then went out and got some new economists that 
> miraculously agreed with some of the modified proposals that the registrars 
> put forward in response to the CRAI report.
> 
> Now when you talk about the limited scope of this Working Group, I would 
> respectfully point the both of you to the following excerpt from the GAC 
> Nairobi communiqué "The GAC draws attention to the need to explore further 
> the regime applicable to single registrant TLDs should they be authorized."  
> I understand that you both want the new gTLD process to launch ASAP. While I 
> also have a number of clients eagerly waiting to submit their applications 
> with ICANN, I remain supportive of ICANN's Government Advisory Committee 
> (GAC) advice on the need for ICANN to take some extra time and get it right.
> 
> Anthony you may recall in connection with our recent public exchanges in 
> connection with the EOI, I firmly believe that the ICANN Board has an 
> obligation under its bylaws and the Affirmation of Commitment to consult with 
> the GAC on important public policy issues. I believe a number of the hypos 
> present clear important public policy considerations.  Now if the consensus 
> of this working group is to reject the potential information gathering 
> exercise put forth in the survey that Milton, Avri and I jointly developed 
> and if it is the further consensus of this group that true vertical 
> integration in connection with single registrant TLDs is not under 
> consideration/out of scope, then the co-chairs should promptly notify the GAC 
> of this unfortunate development.
> 
> Best regards,
> 
> Michael
> 
> 
> 
> 
> 
> 
> From: owner-gnso-vi-feb10@xxxxxxxxx 
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Jeff Eckhaus
> Sent: Friday, March 26, 2010 6:45 PM
> To: Gnso-vi-feb10@xxxxxxxxx
> Subject: RE: [gnso-vi-feb10] 360 Degree Market Analysis with a focus 
> on the consumer
> 
> I have been following this line of discussion and reading and re-reading the 
> survey and its examples and have hesitated on commenting until the end of the 
> "two week period"  but am a little concerned about the direction of the 
> arguments and where we are heading.
> 
> I understand the need to think outside the box and explore scenarios and do 
> 360 degree market analysis , but believe we still need to keep within the 
> Objectives of this WG. This Working Group is here to analyze and review 
> options for registry- registrar separation and equivalent and 
> non-discriminatory access. I see the line of questioning here pointing toward 
> an option of not having to use an ICANN accredited registrar. This is not an 
> option and believe it was resolved with Recommendation 19. The requirement 
> that all new TLD registries are required to use ICANN accredited registrar as 
> distributors of their service. This should not be a new or offensive thought, 
> since all it means is the entity would need to sign and be bound by an RAA.
> 
> Now I know there are certain people in this working group that were very much 
> against Recommendation 19 and strongly argued against it. I hope that this WG 
> is not being used as an avenue to re-open that discussion for people who were 
> not happy with the decisions.
> 
> I am not saying that we should not undertake analysis and do what this WG 
> feels is best for the consumer, but we must focus on the tasks at hand and 
> avoid scope creep. I personally have an issue with the question regarding my 
> company eNom. While I understand it is hypothetical , I do not see the 
> question relating to registry - registrar separation. The question that I am 
> reading, and is asking this WG if I am concerned with on Hypothetical # 8 is 
> if it is OK for eNom to keep premium names for its exclusive use.  All this 
> hypothetical does is put eNom in an unflattering position and not address 
> separation.
> While I know there is a disclaimer in the beginning saying that this 
> hypothetical and only meant to stimulate conversation, that disclaimer to me 
> is the equivalent of saying "With all due respect" right before you insult 
> someone.
> 
> I do appreciate the steps to think outside the box and have people look at 
> hypothetical scenarios, all I ask we look at ones that are germane to this 
> working group.
> 
> Thanks
> 
> Jeff
> 
> 
> From: owner-gnso-vi-feb10@xxxxxxxxx 
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Ron Andruff
> Sent: Friday, March 26, 2010 2:17 PM
> To: 'Michael D. Palage'; Gnso-vi-feb10@xxxxxxxxx
> Subject: RE: [gnso-vi-feb10] 360 Degree Market Analysis with a focus 
> on the consumer
> 
> Mike,
> 
> I think you've nailed my perspective on this matter.  Best interest of 
> consumers first.  What improves their experience is what we are after.  What 
> is quickly becoming apparent, however, is that one size VI will not fit the 
> myriad of possibilities.  How long is that list of scenarios?  When you, 
> Milton and Avri created your scenarios, did you have a sense that you covered 
> the spectrum of possibilities or were just scratching the surface?
> 
> Kind regards,
> 
> RA
> 
> Ronald N. Andruff
> 
> ________________________________
> From: owner-gnso-vi-feb10@xxxxxxxxx 
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Michael D. Palage
> Sent: Friday, March 26, 2010 4:15 PM
> To: 'Jothan Frakes'; Gnso-vi-feb10@xxxxxxxxx
> Subject: [gnso-vi-feb10] 360 Degree Market Analysis with a focus on 
> the consumer
> 
> Jothan,
> 
> I think as a working group we need to undertake a 360 degree analysis of the 
> marketplace . Than being said I think the primary focus should be on what is 
> in the best interest of consumers.
> 
> Getting back to the examples used in the survey. I selected .COMCAST as an 
> hypothetical TLD because they are my current ISP of choice. I am generally 
> happy with the service that Comcast provides me, therefore why do I need to 
> interject another party between me and my ISP? While I would view this as a 
> nuisance, what would the impact/inconvenience  be on less sophisticated 
> users. In the PENDR Working Group I often used the benchmark of does this 
> proposed policy make this easier or more difficult for my mom to use the 
> Internet?
> 
> Another hypothetical omitted from the survey was that of a .LAW TLD.  As an 
> attorney I pay annual membership fees to the State Bar, it would be a lot 
> more convenient for me as a consumer to interact with them to ensure that any 
> additional whois elements necessary for my inclusion into the .LAW TLD were 
> taken care of by them since they already have that data.  While I am happy 
> GoDaddy customer in connection with my  existing gTLD registrations, having 
> GoDaddy stand between me and the .LAW registry does not represent my best 
> interests, does not increase my user experience, and is likely to impede 
> innovation and choice.
> 
> Just my two cents.
> 
> Best regards,
> 
> Michael
> 
> 
> 
> 
> 
> 
> From: owner-gnso-vi-feb10@xxxxxxxxx 
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Jothan Frakes
> Sent: Friday, March 26, 2010 1:28 PM
> To: Gnso-vi-feb10@xxxxxxxxx
> Subject: [gnso-vi-feb10] Looking at this from the Registrars as Channel 
> Perspective and that benefit...
> 
> Hi-
> 
> In our efforts within the VIWG, I have noticed and it has been brought to my 
> attention that we're looking at things through the prism angle of the 
> registry.
> 
> I am in no way expressing the Registrar Stakeholder perspective on this, nor 
> have I vetted this message with them.  I want only to aid the dialog within 
> this working group by taking a perspective of the registrar channel into 
> consideration in the process of our efforts.
> 
> For the benefit of the list activities, I would encourage people 
> interested in some of the things that a registrar might be taking into 
> consideration in the new TLD launch process to view a presentation that I did 
> in October of 2008 at the CENTR General Assembly in Piza, Italy.
> 
> The presentation is from an aggregated applicant perspective and discussions 
> that had occurred in Paris at the 2008 meeting and takes into consideration 
> bullet points from conversations with many of the applicants and communities 
> seeking to apply for new TLDs.
> 
> Applicants (not to me confused with registries or registry service providers) 
> look to the registrars as a channel to reach a larger audience, adoption, and 
> ultimately natural use.  Registrars come in a variety of types of services 
> and business models, support a variety of languages, and offer cultural and 
> local advantages due to geographical diversity.
> 
> Slides 7-10 are related to 'Channel' and worth a look because they focus in a 
> little bit on those areas.
> https://www.centr.org/main/lib/g1/4622-CTR.html (click download)
> 
> I'll caveat the slides to state that there was no DAG available at the time 
> the presentation was made, and that presentation predates the 2009 RAA and 
> any nuances that it contains which might have changed since would not be 
> reflected.
> 
> Still, the information contained in it might prove helpful for our 
> discussions, take what you like and leave the rest.
> 
> -jothan
> 
> Jothan Frakes
> +1.206-355-0230 tel
> +1.206-201-6881 fax
> 


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