RE: [gnso-vi-feb10] VI proposal

[Jeff Eckhaus <eckhaus@xxxxxxxxxxxxxxx>]

Brian  - let me work through this email, respond  and separate the facts from 
the fears.


·         The email below has some interesting points but does still not answer 
the basic question – why did Afilias and PIR change their long held position 
that Registrars should be able to compete if they do not distribute their TLD.

·         “We have consistently argued that allowing a registrar to have access 
to registry data and to distribute names in the TLD will create higher prices 
and unavailability of higher value names for registrants” – we agree with you 
here and that is not a topic we are looking for compromise on

·         The .eu and .info landrush issues you stated below all existed under 
the 15% limit that Afilias proposes. Also these were under systems that were 
set up and designed by the Registries and specifically affect how Registrars 
can apply for names in a new TLD  -  This has nothing to do with cross-ownership

·         Deletions – if a Registry owned a Registrar that could not be 
accredited in that TLD than the deletions gaming issue you claim would be moot. 
The JN2 proposal would actually be safe for Registrants

·         Taking higher value names out of the system. Can I point out Afilias’ 
s recent request to auction off 1&2 character domains. This you claim is 
anti-registrant gaming yet you are participating in it right now. I am with 
Afilias on this point and do not believe it is gaming, but even if I am wrong – 
This has nothing to do with cross-ownership

·         Use of multiple accreditations to capture names would actually be 
diminished in the JN2 proposal since the Registry could not distribute or use a 
Registrar in the TLD it is distributing. It is actually safer for Registrants.

·         What you are saying here when discussing shell registrations is that 
certain Registrars used accreditations in the past to game a system – so we 
must ban Registrars from participating as a class of participants.

·         The promise that a Registrar will not distribute the TLD is a 
contractual promise and one that everyone will sign,  a Registry agreement. It 
is the same promise that a Registry will sign and any individual who signs a 
contractual agreement with ICANN. A promise that they will not go against the 
agreement and penalties if they break that promise.  This has nothing to do 
with cross-ownership

·         As for number of accreditations eNom manages it is around 125 
accreditations and the specific reason is so we can acquire .COM names in the 
drop. Again this has nothing to do with cross-ownership.

Even though you did not really answer the original question I believe your 
email does clarify your point of view. Certain Registrars have done some acts 
that Afilias found unsavory, not illegal, so we must bar all Registrars from 
applying since they cannot be trusted. Registrars will not abide by any 
agreements they sign because they are rogue and crafty so to protect 
Registrants we must bar them from competing. As you can imagine I do not agree 
with this point of view , but at least I can now understand the genesis of the 
Afilias proposal.







From: Brian Cute [mailto:briancute@xxxxxxxxxxxx]
Sent: Thursday, June 10, 2010 11:08 AM
To: Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] VI proposal

Jeff,

We stand by the statements that you point to in your email. Our focus on the 
need to prevent harms to consumers has been consistent throughout.  To answer 
your question, what has become clearer over time is that ICANN’s ability to 
enforce against a registrar from distributing the TLD in a fully vertically 
integrated structure is untenable, at best.  We have consistently argued that 
allowing a registrar to have access to registry data and to distribute names in 
the TLD will create higher prices and unavailability of higher value names for 
registrants.  Indeed, this was a core concern raised in the October 2009 
Dengate Thrush letter, and a primary reason why, as that letter went on to 
explain, “the key policy of registry-registrar separation has been one of 
ICANN’s great organizational successes to date.”

Anti-registrant gaming comes in (at least) two forms: 1) use of data to 
identify higher value names; taking higher value names out of the 
first-come-first-serve registration system; monetizing the names through 
premium priced sale/auction to the benefit of the registrar; and 2) use of a 
multitude of ICANN registrar accreditations to maximize the volume of higher 
value names that can be controlled by a registrar in land rush, deletions and 
day-to-day selling of domain names.

When one reviews the history (facts; not conjecture, not speculation) of how 
some registrars have successfully gamed the registration system, it becomes 
clear that the scope and creativity of “shell game” registrar accreditations 
creates an enforcement challenge that would strain the investigative and 
enforcement resources of a government consumer protection agency, never mind 
ICANN with its relatively thin enforcement resources, length of experience and 
expertise.

One need only look at:


-          The .eu land rush where hundreds of “phantom” registrars were able 
to register over 70,000 domains to the benefit of the entity that controlled 
those registrars.  This had a negative impact on registrants (unavailability of 
names) and on competition (registrars who did not use multiple registrars had a 
greatly reduced probability of obtaining names for their registrants in the 
land rush lottery system.)



-          Deletions – Some registrars have revised registrant contract terms 
to ensure that the registrar takes control of a name that is about to delete to 
delay it from entering the delete pool.  A registry that controls a multitude 
of registrars would be able to obtain and move deleted names across its 
portfolio of registrars to warehouse or “hide” the registrations.



-          .info land rush – entities that controlled multiple registrar 
accreditations were able to significantly increase their chances of obtaining 
higher value registrations in the land rush round robin process and monetized 
them for their own benefit.


When one looks at the actual instances of gaming and then considers a newTLD 
landscape with potentially hundreds of new, vertically integrated 
registry/registrars, the scope and complexity of the enforcement challenge 
becomes clear.  Allowing vertically integration and access to registry data 
will enhance the ability to game the registration system to the detriment of 
registrants.  An enforcement program that could adequately and effectively 
police against gaming must be able to identify the gaming in a timely fashion 
(to prevent harm to consumers and the market), and must have the resources, 
expertise, experience and wherewithal to prosecute such cases.

If members of the Working Group are being asked to support a system that allows 
integration of registries and registrars on the promise that the registrar will 
not distribute the TLD in question because this system will best protect the 
registrants’ interest, then these, among other questions must be addressed.

Jeff, can you confirm for the Working Group exactly how many ICANN registrar 
accreditations eNom controls?  Can you explain why eNom needs to control the 
number of registrar accreditations that it controls?

Regards,
Brian


From: Jeff Eckhaus [mailto:eckhaus@xxxxxxxxxxxxxxx]
Sent: Thursday, June 10, 2010 12:08 AM
To: 'Gnso-vi-feb10@xxxxxxxxx'
Subject: Re: [gnso-vi-feb10] VI proposal


Brian,

After reading the updated Afilias signed proposal I had a question for Afilias 
and for PIR.

Reading previous correspondence between Afilias, PIR and both ICANN, GAC and 
the US House of Representatives, members of Afilias and PIR made adamant 
statements regarding the issues of co-ownership, which do not reconcile with 
the current proposal.

In the following letter to Peter Dengate Thrush from Hal Lubsen CEO of Afilias 
, http://www.icann.org/correspondence/lubsen-to-dengate-thrush-12oct09-en.pdf 
Mr. Lubsen states the following:
To reiterate our position, Afilias, Neustar and PIR welcome registrars as 
registries for new TLDs, and believe they should be permitted to own new TLD 
registries and/or providers of technical back-end registry services, provided 
they abide by the current rules and are restricted from selling second-level 
domain names in their own TLD. Further, we believe ICANN has failed to make an 
informed argument for removing that restriction.

In this letter from David Maher of PIR to Hon. Hank Johnson of the US Congress 
, http://www.icann.org/correspondence/maher-to-johnson-24sep09-en.pdf Mr Maher 
states the following:
Statements were made that the registries sought to prohibit registrars from 
owning and competing as back end registry service providers. This is not 
correct.

The registries support competition in the market for new gTLDs and firmly 
believe that all qualified back-end registry service providers – including 
providers affiliated with ICANN accredited registrars - should be permitted to 
compete to serve new and existing gTLDs

Similar statements were made in a letter from the Registries written by David 
Maher to the GAC 
http://www.icann.org/correspondence/maher-to-karklins-25sep09-en.pdf

These statements were made very recently and are very strong statements 
supporting competition and the position that Neustar made and continues to 
support. That there is no evidence of harms if a co-owned entity does not 
distribute the TLD. A position that many in this group, myself included have 
moved towards as a compromise and a path forward.

I know this is not a courtroom and you are not on the stand, and I am not even 
a lawyer, but I would like to know and maybe you could explain to the WG, why 
there is a such a drastic change in position from Afilias and PIR from the 
statements above and your long held position.

Thanks

Jeff Eckhaus

________________________________
From: owner-gnso-vi-feb10@xxxxxxxxx
To: Gnso-vi-feb10@xxxxxxxxx
Sent: Wed Jun 09 18:36:21 2010
Subject: [gnso-vi-feb10] VI proposal
Reposting the updated proposal which reflects the members of the Working Group 
who have indicated their respective support for the positions in the proposal.  
Could revise acronym to JRACKBOATDESK.