Re: [gnso-vi-feb10] My thoughts on the proposals

[Carlton Samuels <carlton.samuels@xxxxxxxxx>]

....this is an interesting 'for instance'.  It is also intriguing in context
with its recognition of the futility of policing these kinds of
arrangements.

Now see, I think the way to get yourself out of that business - of analyzing
business models and determining those that might participate, even succeed
in the domain market - is to, um.....stay out of it!

We do not have any experience of this or other such associations being
inimical to the public interest. The rule of reason then says to me that
anything that is done to create a preemptive disability for a business to
organize in that way can only be construed as an a priori restraint on its
trade.

This behaviour to my mind ought, of right, to be declared impermissible for
any regulatory framework.

Carlton Samuels

==============================
Carlton A Samuels
Mobile: 876-818-1799
Strategy, Planning, Governance, Assessment & Turnaround
=============================


On Thu, Jun 3, 2010 at 5:13 PM, Alan Greenberg <alan.greenberg@xxxxxxxxx>wrote:

>
> Jeff, I guess I don't see it that way. Aside from the obvious requirement
> to audit that in fact a registrar is not authorized to sell it's own domain,
> the issue of resellers confuses the issue several times over. Resellers can
> be wholly owned subsidiaries of registrars, and resellers can have
> relationships with multiple registrars at once.
>
> So in the simplest case, the YYY Registry has a Registrar RRR which does
> not market the YYY domain. But RRR has a reseller subsidiary SSS. SSS is
> also a reseller for an unrelated registrar GGG (which does market YYY). You
> can now have SSS selling YYY (via GGG). This is virtually impossible to
> audit given that ICANN has no information about registrar-reseller
> relationships (and registrars have said that it should stay that way).
>
> Since this is a "simple" case, perhaps you get the idea.
>
> As I said in my note, perhaps in the long term, we can find a way to
> finesse this. But in the short term it adds complexity and uncertainty and
> is just too subject to gaming. And perhaps ICANN compliance not being up to
> the job in this brave new world is a matter for another day. But if what we
> propose makes it even harder for them to function effectively, then I don't
> think we have the luxury of ignoring that.
>
> Alan
>
>
> At 03/06/2010 04:40 PM, Jeff Eckhaus wrote:
>
>> Alan,
>>
>> Thanks for the note and I do have one specific point on your note and an
>> issue you brought up. On the subject of cross-ownership rules where the
>> related parties do not market the TLDs you are sympathetic to it but have
>> concerns about ICANN enforcement. I believe the idea of why proposal writers
>> brought this scenario in as a compromise, is that it would not add any
>> additional enforcement needs above and beyond if it was an applicant who did
>> not have cross-ownership.  But would not restrict a class of applicants just
>> because they are an ICANN accredited Registrar.
>>
>> This is a subject that I really want to be clear on because some believe
>> that if it is a Registrar that applies it will require additional scrutiny
>> even if they do not distribute the TLD. I do not believe that  is true, as
>> it requires the same exact level of scrutiny as any other applicant whether
>> they are co-owned or not.
>>
>> Now whether or not you believe ICANN compliance is up to the task on new
>> TLDs is a another matter for another day
>>
>>
>>
>> Jeff
>>
>>
>>
>> -----Original Message-----
>> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
>> On Behalf Of Alan Greenberg
>> Sent: Thursday, June 03, 2010 11:25 AM
>> To: VI
>> Subject: [gnso-vi-feb10] My thoughts on the proposals
>>
>>
>> Since we are getting close to the point where we must decide what we will
>> say in Brussels, I thought I would state my position. To be clear, this is a
>> personal position and not a formal ALAC position.
>> Although I have discussed aspects with some ALAC members who support my
>> views, there are clearly others who do not.
>>
>> First, with regard to timing, although we clearly have to give a report
>> and it is important for the community and the Board to understand where we
>> are heading, I do not see Brussels as a drop-dead decision point. The Board
>> gave us the task of providing an alternative to their "zero cross-ownership"
>> default in sufficient time to allow it to be used in the first round of new
>> gTLDs without delaying that launch. Since we are optimistically looking for
>> a launch near the end of this calendar year, that means that our
>> recommendation needs to be locked in by *about* August to allow for public
>> comment and GNSO/Board approval.
>>
>> I am approaching this from the point of view of registrants and the
>> overall community. I specifically am not looking at it from the perspective
>> of business opportunities. I favour security and stability of the gTLD
>> ecosystem over innovation at this point.
>> Moreover, I am looking at this as a solution for the first round of new
>> gTLDs. The PDP WG can continue to work on a long-term solution which might
>> be quite different. For that reason, I think that it is important to not
>> implement something that may need to be either turned back when the final
>> recommendation is made, or worse, have those who participated in the first
>> round be working under different rules than those who come in later.
>>
>> Of the proposals on the table, I support the latest one submitted by Brian
>> Cute on behalf of Afilias and others, although I would like to see some
>> modifications to it prior to final acceptance.
>>
>> I support this proposal because it makes minimal changes to an already
>> complex environment, but it plugs some loop-holes that are already there. I
>> would like to see some exceptions built in to accommodate SR TLDs and small
>> cultural or not-for profit TLDs, but I agree that defining these may be a
>> challenge. Hopefully we can do it before my suggested August date.
>>
>> At this time, I reject the proposal to relax the cross-ownership rules as
>> long as the related parties do not market their own TLDs. I am sympathetic
>> to it in theory, if it could be credibly enforced. But I believe that it
>> will make an already complex environment even more complex, with absolutely
>> no chance of ICANN being able to monitor or take action on infractions. As
>> others have noted, ICANN compliance may be getting more effective, but they
>> still have a long way to go when you factor in how much the TLD space they
>> are responsible for will grow. The issue of resellers has been mentioned,
>> and I think that it is important, particularly since ICANN compliance does
>> not consider them within their scope at the moment.
>>
>> I cannot consider supporting the CAM model without a well-defined
>> definition of the "market" that I agree with. I strongly believe that there
>> is not just one homogeneous TLD or even gTLD market, a core assumption of
>> many of the economists who would be the arbitrators in this proposal. The
>> really successful new gTLDs (and I do think that there will be some), will
>> be markets unto themselves. But that level of success will be impossible to
>> determine ahead of time when the CAM model says the evaluations will first
>> be made. Once a decision is made for integration, later success cannot undo
>> it, except by forced divestiture and that is not something we should build
>> into our system. Moreover, I still question whether the appropriate
>> competition authorities would participate in a timely fashion as the
>> proposal anticipates.
>>
>> Lastly, I reject the arguments raised by some that many ccTLDs are
>> vertically integrated and it works for them. While not denying the truth of
>> this statement, I note that these TLDs operate in a totally different
>> environment. Many or most are not-for profit, often with active or passive
>> government involvement. They often set rules far more stringent than ICANN
>> does (or perhaps can) and then they often diligently enforce those rules.
>> But as noted, I believe that there are certain classes of gTLDs for which
>> this could be both desirable and viable.
>>
>> Alan
>>
>
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