[gnso-vi-feb10] Selection of Appropriate Competition Authority

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

Scott, Richard Anthony, et al.

 

You and others have asked the very valid question in connection with the MMA
proposal of which competition authority should Vertical Inquiry questions be
referred. While we continue to expand our research to other competition
authorities beyond the US DOJ, I think the bigger question this group should
be asking ICANN legal counsel is what is ICANN's standard for indentifying
/selecting appropriate government competition authorities since this is a
key element of approximately 15 gTLD contracts over the last five years that
encompass over 110 million second level  gTLD names under management.

 

Listed below is the relevant text from the registry agreement:

 

In the event ICANN reasonably determines during the 15 calendar day
"preliminary determination" period that the Registry Service might raise
significant competition issues, ICANN shall refer the issue to the
appropriate governmental competition authority or authorities with
jurisdiction over the matter within five business days of making its
determination, or two business days following the expiration of such 15 day
period, whichever is earlier, with notice to Registry Operator.  Any such
referral communication shall be posted on ICANN's website on the date of
transmittal.  Following such referral, ICANN shall have no further
responsibility, and Registry Operator shall have no further obligation to
ICANN, with respect to any competition issues relating to the Registry
Service.  If such a referral occurs, the Registry Operator will not deploy
the Registry Service until 45 calendar days following the referral, unless
earlier cleared by the referred governmental competition authority.

 

Now what I find totally ironic is that some of the potential applicants
raising concerns about how referral of this matter to competition
authorities may represent an unreasonable delay to the new gTLD process seem
to have no concern about being bound to a registry contract that directly
involves a place holder for competition authorities. 

 

Therefore,  the question I think this group needs to formally raise with
ICANN is what is the standard they are currently using for potential
referrals to governmental competition authorities. I think we need to have
that answer for two reasons. First, it would allow for a more informed
discussion of the MMA proposal . Second, it would be irresponsible for ICANN
to open up the new gTLD floodgates when it did not have an appropriate
standard for review to handle several hundred new gTLD and the flood of
registry services requests that they might propose.

 

Best regards,

 

Michael