[gnso-vi-feb10] Competition Authority Update

["Michael D. Palage" <michael@xxxxxxxxxx>]

Hello All,

There were several questions posed about the scalability of the MMA proposal
on Monday. Listed below is an update on our research.

Richard asked whether it would be permissible to seek approval from a
competition authority pre-application. Under US law it is possible for a
company to approach the DoJ and get a "Business Review" letter, see
http://www.justice.gov/atr/public/busreview/letters.htm  It is my
understanding based on my research today that it takes approximately 90 days
after the last requested information is submitted to the DoJ. Given that
ICANN has proposed a 4 month notification window between the finalization of
the DAG and when applications are submitted this should allow a suitable
time window for an applicant to get a Business Review letter. In fact it
would probably not even hurt to include it in connection with some of the
business questions an applicant will be required to answer. 

With regard to the other question about can the competition authorities
handle hundreds of notices that ICANN could/would send. The preliminary
research to that questions is yes/but.  The US DoJ has created a new hotline
where individuals/third parties can submit a case for review, see
http://www.justice.gov/atr/contact/newcase.htm. Now before ICANN just
started flooded this email with applications for review, there is probably a
greater need for ICANN to drill down in the Applicant Guidebook on questions
to help screen potential problem cases. 

The other fact which is becoming increasingly clear is the need for ICANN to
complete the comprehensive economic analysis which to date it has failed to
do. Without this economic analysis, national competition authorities will
likely have to start from scratch since there is not a lot of economic
analysis of this evolving marketplace. By having this initial benchmark
data, ICANN should be able to ask the appropriate questions in the Applicant
Guidebook, and national competition authorities should be able to more
timely review cases referred to it. 

I understand those critics of our proposal will cite the US centric nature
of our research to date. My proactive response to them is two-fold: (1) we
have probably provided more factual analysis that any other proposal to date
and (2) we are trying to research the practices of other competition
authorities. 

Best regards,

Michael Palage