RE: [gnso-vi-feb10] Joint Proposal - MMA

[Milton L Mueller <mueller@xxxxxxx>]

> I personally do not think predictability includes knowing whether one's
> application will be successful, and I also do not  think predictability
> includes knowing whether ones request for a waver would be approved.

My view is a bit different. I think applicants for over 15% cross-ownership 
ought to have a very good idea in advance of applying for the waiver what the 
criteria for acceptance are, and thus what their chances are. They should 
certainly be able to know in advance whether they are over or under the 40% 
market share cutoff. Of course wherever there is a boundary there will always 
be boundary-line cases, but if the criteria are clear, applicants should know 
full well that they are a boundary line case and therefore that the outcome is 
uncertain. 

It was our anticipation that the vast majority of applicants would be eligible 
for >15% cross-ownership, simply because the 15% limit is arbitrary and there 
are very few market actors currently with >40% market share. And as long as 
registry-registrar separation is maintained and the auditing procedures we 
describe are used, allowing this kind of cross-ownership, even up to 100%, has 
numerous benefits (encouragement of new entry, mainly) and no discernable harms.

Let me contrast this with the PIR proposal. The PIR exception for "orphan TLDs" 
is quite meaningless, in my opinion. It admits that registrars may not take up 
new, smaller TLDs and then says: you can only escape these failing market 
structure requirements AFTER YOU FAIL. In other words, you are not only 
expected to spend $1 million or so to enter the market, you are then expected 
to waste another several million failing in the market for a year or so, and 
after you demonstrate this failure to ICANN you can get out of those 
arrangements. I appreciate the intent behind the proposal, and I know that 
Kathy is sympathetic to the cause of new and smaller TLDs, but the proposal is 
derisory in its concession to encouraging market entry. 

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
------------------------------
Internet Governance Project:
http://internetgovernance.org

> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-
> feb10@xxxxxxxxx] On Behalf Of Avri Doria
> Sent: Tuesday, April 13, 2010 7:05 AM
> To: Gnso-vi-feb10@xxxxxxxxx
> Subject: Re: [gnso-vi-feb10] Joint Proposal - MMA
> 
> 
> 
> Hi,
> 
> I personally do not think predictability includes knowing whether one's
> application will be successful, and I also do not  think predictability
> includes knowing whether ones request for a waver would be approved.
> While we discussed this during yesterday's meeting, I do not believe
> the WG decided that knowing whether a waver would be approved was
> something that would have to be dealt with before the application.  I
> think predictability means that if you know the cross-ownership is less
> than the cap, in this case 15%, you have no problem and that if it is
> over 15% you have to get a waver.  That would be predictable and that
> would, in my view, meet the conditions of the GNSO recommendations.
> 
> And it was definitely not our intention "that applicants would have to
> prematurely reveal their plans."
> 
> a.
> 
> On 13 Apr 2010, at 04:22, Richard Tindal wrote:
> 
> > MMA,
> >
> > Thanks for the briefing last night.
> >
> > The more I think about the 'competition referral' portion of your
> proposal the more difficulties I'm having with it   (this is the piece
> where applicants who want more than 15% cross ownership submit a
> written request -- which is then subject to public comment and
> competition authority analysis) .      I understand the concept behind
> it,  but I'm struggling with the practicality of implementing it.
> >
> > To give new TLD applicants predictability in the process
> (Implementation Guideline 1) this competition referral would have to
> happen before the TLD application window opens.  I think we agreed that
> last night.
> >
> > The public and the competition authority will not be able to make
> informed comments or judgements unless the applicant's written request
> contains a reasonable amount of detail.  I think the request would have
> to include the applicant's full ownership details, business plan and
> intended string.    Without that information I don't think the public
> or the competition authority could make a meaningful analysis.
> >
> > Given that, we would be putting applicants in the position of
> revealing sensitive data prior to the application window opening.  For
> example,  another party could see the request and decide to also apply
> for the string.
> >
> > Was it your intention that applicants would have to prematurely
> reveal their plans?  Or do you see a way around this problem?
> >
> > RT
> >
> >
> >
> > On Apr 12, 2010, at 2:18 AM, Michael D. Palage wrote:
> >
> >> Hello All,
> >>
> >> Attached is the proposal which is being jointly submitted by Avri,
> Milton and myself to the working group for consideration.  We look
> forward to formally presenting this concept to the group on tomorrow's
> call, and answering any questions that you may have.
> >>
> >> Best regards,
> >>
> >> Michael Palage (on behalf of Team MMA)
> >> <Vertical Integration Co-Ownership Joint Proposal.pdf>
> >
>