A Comment on the .NET auto-renew, against public interest on competition policy grounds

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

The statement of ICANN's position, "ICANN's gTLD registry agreements 
provide for presumptive renewal so long as certain requirements are 
met", fails to distinguish between legacy contracts, established 
before ICANN's existence, and contracts entered into subsequent to the 
2001 and 2004 rounds of the new gTLD process, and prospective 
contracts from any continuation of ICANN's new gTLD process.
This is unfortunate as there are substantive differences of market 
power exercised by the holder of pre-ICANN registry agreements, and 
the holders of ICANN registry agreements, and one of ICANN's core 
public purposes arose from a competition policy goal, which 
necessitates distinguishing between actors in a market with market 
power and actors lacking market power.
It is also unfortunate as it negates the public policy purpose in 
having conducted two open, objective competitions for re-delegations 
in 2002 and 2004, however problematic each of those were. It is worth 
noting that one act of redelegation accomplished more in one year than 
ten years of awarding new registry contracts has towards realization 
of those original competition policy goals.
The public interest in stability and predictability for new registry 
operators is self-evident. None of the 2001 round and subsequent 
operators, with the possible exceptions of the .INFO registry, and the 
certain exception of the .CAT registry, are clearly "viable" as is 
after almost 10, respectively 5, years of operation.
Where there is a clear pattern of mismanagement, as there has been for 
several years for the .TRAVEL registry, and currently for the .JOBS 
registry, and as there was in the initial years of the .BIZ registry 
operations, corrective action, including non-renewal and competitive 
re-delegation, or temporary "fail-over" operations, are appropriate.
Absent those circumstances, re-award of a limited term operating 
contract is commercially reasonable, perhaps even necessary.
However, where the contract has been held for more than three five 
year periods, the presumption of re-award absent adverse circumstances 
is incompatible with the original, and continuous, competition policy 
goal.
Eric Brunner-Williams
Unaffiliated Member Representative
North American Regional At Large Organization
At Large Advisory Group