RE: [gnso-vi-feb10] Competition authorities

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

Kathy,

Please refer to my previous email. You need to look at the Department of
Justice and their Business Review letter, see 
http://www.justice.gov/atr/public/busreview/201659a.htm 

I believe PIR's previous concerns have primarily centered in the sharing of
business information a registry operator obtains, notice how the Business
Review Letter is specifically designed for the very concern that PIR has
raised, "Two of the most frequent types of business review requests the
Department has received have involved proposals to form joint ventures or to
collect and disseminate business information."

With regard to pre-approval and national competition authorities I would
specifically reference you to 3.1(d)(iv)(E) of the PIR .ORG registry
contract which states the following, " 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"

See http://www.icann.org/en/tlds/agreements/org/registry-agmt-16jul08.htm 

This is why I respectfully put forward in my last email, if the MMA proposal
is fundamentally flawed because there is no way for ICANN to refer a matter
to an appropriate national competition authority then we have much bigger
problems because the very contracts PIR, VRSN, Afilias, Neustar. etc have
entered into are fundamentally flawed.

When I was on the ICANN Board my favorite Chinese saying that use to drive
Paul Twomey and ICANN senior staff up the wall is that true gold does not
fear the refiner's fire. I appreciate the scrutiny that you and others
continue to subject the MMA proposal to, however, I respectfully submit that
it was withstood more factual based scrutiny than any other proposal. In
fact with continued research our proposal appears to grow stronger and more
viable with each passing day.

Turning to the protection of registrants which Team MMA and PIR fully
advocate and support, can you please indentify how the proposed MMA
safeguard audit would not accomplish the same common goal we both seek to
achieve. 

Best regards,

Michael

-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Kathy Kleiman
Sent: Wednesday, April 21, 2010 6:28 PM
To: Avri Doria; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Competition authorities


Hi Avri, Milton and Mike,
I wish I saw this happening, but I don't. I do not know of any procedure by
which we can approach the Federal Trade Commission, a leading US consumer
competition authority, to ask for upfront permission for a new company or
startup to go forward. 

That's not the way the system works -- you do something, and then get called
on the carpet. Only the largest companies, particularly in merger
situations, go before the FTC for per-clearance and evaluation, and then
only by virtue of their size and dominance in the field. I don't see the
FTC, or any equivalent, having the time or resources for a pre-clearance
process for new gTLDs. I wish I did, but I don't.

Best,


Kathy Kleiman
Director of Policy
.ORG The Public Interest Registry
Direct: +1 703 889-5756  Mobile: +1 703 371-6846

Visit us online!
Check out events & blogs at .ORG Buzz!
Find us on Facebook | dotorg
See the .ORG Buzz! Photo Gallery on Flickr
See our video library on YouTube

CONFIDENTIALITY NOTE:
Proprietary and confidential to .ORG, The Public Interest Registry.  If
received in error, please inform sender and then delete.



-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Avri Doria
Sent: Wednesday, April 21, 2010 3:10 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Competition authorities


Hi,

yes.  

Anything over the cross-ownership threshold currently set by the Board (i.e.
zero%), goes to the appropriate competition authority(ies).

And my assumption is, or at least has been, that cross ownership is the
exception, not the rule.

a.

On 21 Apr 2010, at 14:48, Richard Tindal wrote:

> Avri,
> 
> I think in your revised proposal any application with greater than 0%
cross ownership goes to the competition authority(s).      Is that right?
> 
> RT
> 
> 
> On Apr 21, 2010, at 5:11 AM, Avri Doria wrote:
> 
>> 
>> Hi,
>> 
>> I would think that if any competition authority has a problem with the
degree of cross-ownership then it would not be allowed.
>> 
>> Personally I would prefer it if there had been one place every
application could be sent for checking with competition authorities (e.g.
The WTO as a supranational competition authority) , but as far as I can tell
there isn't one.  And like with most laws, if you come under several
jurisdictions you are bound by the laws of the most restrictive. 
>> 
>> At one point I had suggested that instead of the competition authority,
yet anther review panel of International competition experts could be used
for these reviews, but was told by several people that this would not work.
Not sure I understand why, but I do accept that we are starting to create a
lot of those external review panels and that in itself is might be
worrisome.
>> 
>> BTW, we are talking like everyone is going to want to be involved in
cross-ownership whereas I had originally thought it to be the exception.
Why do people think that there will lots of application that include
cross-ownership?  for example in AVC message I felt like this was going to
be a road block for every poor little new registry and I did not understand
that.
>> 
>> a.
>> 
>> 
>> 
>> 
>> On 21 Apr 2010, at 01:18, Richard Tindal wrote:
>> 
>>> Avri,
>>> 
>>> What would happen if the two national competition authorities made
differing judgments?
>>> 
>>> RT
>>> 
>>> 
>>> On Apr 20, 2010, at 3:57 PM, Avri Doria wrote:
>>> 
>>>> 
>>>> 
>>>> On 20 Apr 2010, at 18:17, Michele Neylon :: Blacknight wrote:
>>>> 
>>>>>> 
>>>>>> That said,  I don't know what would stop an applicant from
incorporating in a jurisdiction where competition 
>>>>>> authorities are known to be extremely liberal, or non-existent.  
>>>>> 
>>>>> Which is what anyone who wanted to "game" a system would do.
>>>>> 
>>>> 
>>>> 
>>>> One of the thoughts that I had on that was that since ICANN is
incorporated in the US, the US competition authorities would always end up
being consulted as well as any local ones.  
>>>> 
>>>> a.
>>>> 
>>>> 
>>> 
>> 
>> 
>