[gnso-vi-feb10] GROUP REALITY CHECK

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

Eric,

I think it is important to remember that we are not asking Salop and Wright
to implement DNSSEC on a Linux box running BIND. They are widely recognized
as experts on competition issues. Experts like themselves are not required
to understand every "material aspect of the name to address mapping service"
just like they are not required to know how to fly an airplane to provide
expert competition advice on the deregulation of the airline industry.

LEGAL REALITY CHECK TIME

As I have previously stated this is an issue which will have large financial
repercussions within the Domain Name Marketplace, likely on the order of
tens if not hundreds of millions of dollars. Parties that are not successful
in advancing their position are very likely to seek legal recourse through
the judicial system, see any number of the anti-trust claims that have been
filed over the years involving ICANN stakeholders. 

Therefore the questions I am looking out for in the bylaws and perhaps more
importantly in the Affirmation of Commitments are the following:

- ICANN commits to provide a thorough and reasoned explanation of decisions
taken, the rationale thereof and the sources of data and information on
which ICANN relied.

- To ensure that its decisions are in the public interest, and not just the
interests of a particular set of stakeholders, ICANN commits to perform and
publish analyses of the positive and negative effects of its decisions on
the public, including any financial impact on the public, and the positive
or negative impact (if any) on the systemic security, stability and
resiliency of the DNS.

To date almost every proposal put forward in this working group has been
from a contracting party to ICANN with the exception of Jon Nevett (although
I believe it was modeled after the one previously advocated while an
employee of a registrar), Phil Buckingham (prospective .ROYAL TLD applicant)
and Team MMA (although as a member of the team I do consultant with various
registrations authority clients). Given that the majority of the proposals
are being put forward by contracting parties, the ICANN Board and its
General Counsel need to ensure that proper safeguards are in place to
mitigate any potential claims of Cartel like activity. 

This is why I want experts in competition law to share their expert insight
even if I may not agree with it. If other economists want to present to the
group, great, the more the merrier. Should this issue find itself before a
court being asked to make a legal determination as to the validity of the
actions proposed by this Working Group or the actions that the ICANN Board
finally take, I want to make sure that we dotted every i and crossed every t
both in accordance with ICANN's bylaws but also its obligations under the
affirmation of commitments. That is why I find it so puzzling that Working
Group members are so opposed to having Salop and Wright speak. 

Best regards,

Michael









-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Eric Brunner-Williams
Sent: Thursday, April 29, 2010 10:51 AM
To: Roberto Gaetano
Cc: Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Notice: VI Call Thursday with the Economists
Salop/Wright at 20:UTC


Roberto,

Conflicting views among volunteers is normal, even desirable.

I appreciate your holding a view that how CRAI was instructed is of
little relevance to this Working Group.

I appreciate that Milton holds a similar view, interesting but not a
priority.

I appreciate that Avri holds a similar view, fascinating but not relevant.

That makes three volunteers.

Three who do not want to take up staff time looking for who, when,
where, how, and possibly why, a request for information and the Paris
resolution resulted in only a proposal that a registry may own a
registrar so long as the wholly-owned registrar does not sell
second-level domain names in the TLDs operated by the registrar, and a
proposal that single organization TLDs operate both the registry and
the registrar that sells second-level domain name.

Perhaps there are more with similar views. I can't say. Perhaps you
and Milton and Avri hold similar views regarding the project of Mssrs.
Salop and Wright, that their instructions have little relevance, are
not a priority, and not relevant, while their study, their
scholarship, is relevant, and a priority.

Both of the CRAI positions were utterly rejected in Nairobi by the
Board. The Board also had the benefit of Mssrs. Salop and Wright on
several prior occasions, and Resolution #5 appears to afford then the
same lack of credence.

For my own part, I am interested to know, as I've indicated by a prior
question to Margie, whether Mssrs. Salop and Wright are in any way
informed by any material aspect of the name to address mapping service
presently available.

Eric