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

["Kathy Kleiman" <kKleiman@xxxxxxx>]

Milton wrote: "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."

Sorry Milton, but I don't think the Orphan TLD is meaningless... and
what we are proposing is not a floundering for a year or so, but a clear
pre-launch mechanism to allow a new gTLD Registry to show that it does
not have adequate Registrar distribution to be successful (and let's
define that together) and to take its case to ICANN to allow it to sell
directly to Registrants.

But we can't allow the misuse of the Orphan TLD system - the gaming of
it. That would be the allegation upfront to ICANN  by a new gTLD
Registry that "no registrar will distribute my domain names" - and then
the intentional cherrypicking of the best names by the new gTLD Registry
for its use, auction, sale, etc. We can't have that either.

So how do we know what new gTLDs will serve niche audiences and which
won't? We can let the pre-launch marketplace determine that. 

And no, the new gTLD Registries definitely don't have to fail in order
to get the right to do their own distribution. They also don't have to
become widely popular to succeed. 

I truly believe there will be small gTLDs that do not fall into the very
narrowly-defined categories of Single Registrant TLD or Community TLD.
Thus, we offer this third category, also narrow, for those gTLDs who do
not seek to serve large markets, but underserved communities, and try to
give them a good chance at success. 

It's a balance, and a great example where the overlap of
registry/registrar functions within a single entity will serve the
public interest well. 

Best,
Kathy

-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx
[mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Milton L Mueller
Sent: Tuesday, April 13, 2010 9:29 AM
To: 'Avri Doria'; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Joint Proposal - MMA


> 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>
> >
>