1. This plan presumes that all registries now or in the future must provide reliability on par with today's .com. Why is that so? Might not some new TLD services chose to create business models that reduce costs (to informed consumers) for names that are not burdened with the costs of the systems envisioned by this plan? Might not there be future TLDs that offer registrations for short periods (for instance, for events that are born, occur, and fade from memory within a few days or few weeks)? Why burden that kind of registry with the costs of this plan? The key matter is that consumers know in advance of their purchase so that they may know the nature and quality of the support of the name they are acquiring. 2. This plan envisions yet another growth (cancerous growth?) of the already huge ICANN bureaucracy. Why should ICANN be involved at all? Might it be much better to give the domain name registrants a direct means to enforce their contractual rights against a troubled registry by explicitly designating domain name registrants as third party beneficiaries to any and all contracts and agreements between ICANN and registries? 3. Rather than imposing the rigid (and expensive) machinery of this plan onto registries why not adopt the following alternative, an alternative that allows flexibility, innovation, and allows costs to match consumer needs: Require each registry to publish on its website (and allow ICANN to republish) a yearly statement, signed by an independent expert auditor, that attests that the registry has, performs, and periodically tests systems and procedures of business asset preservation that, in the opinion of the auditor, are adequate to allow speedy resurrection of the registry, most particularly of the name resolution system, and to a lesser degree the name registration system, in the hands of a successor in interest, if any. This approach gets ICANN out of the business of imposing this plan's complex, rigid, and expensive procedures onto new TLD ideas that don't need them or upon consumers who don't need names that are encumbered with the costs of this preservation system. 4. This plan presumes that registry failure is a bad thing. That is a proposition that has not been proven. What is bad is when consumers who do not have a choice to make a knowing decision are misled into believing that their name provider has guaranteed permanency. But knowing consumers ought to have the ability to make informed choices whether to buy a name from a high-preservation registry/TLD or from one that offers a less expensive but less protected alternative. Some might scoff at the idea that consumers might be able to make informed choices. But at least in the area of airline flights, people have become quite accustomed to the idea that prices will vary and that buyers have a choice. And in that same airline ticked marketplace, there is no overriding body of governance that assures ticket buyers that the airlines will not go out of business and that the tickets will be forever usable. Why should ICANN adopt the kind of heavy and expensive consumer protective regulatory scheme that was abandoned decades ago in the airline industry? 5. This plan seems to envision that a registry that fails, or simply choses to cease business, will find a willing and able buyer for its assets. That is an unproven presumption. Moreover, section 7.14 of the plan seems to suggest that a registry that choses to cease, eithervoluntarily or involuntarily, will be in breach of its contracts with ICANN. Are registries really signing contracts that obligate them to remain in business forever?
6. I see that section 8 covers "closure" of a registry. However, history of some TLDs, particularly .pro, .name, and .travel, indicate that TLD owners many need, and certainly will try, to restructure a non-performing product. This plan does not seem to contemplate that kind of flexibility. 7. How does this plan dovetail with the obligations of US and non-US laws of bankruptcy, bulk transfer of assets (including fraud against creditors), e-discovery rules, or the privacy of registrants? 8. Since this plan purports to protect domain name registrants certain initial questions need to be answered, but are not even asked, by this report: A. Where is the voice of domain name registrants within ICANN? I note that there is no formal structure within ICANN that gives domain name registrants any formal power in the formation of this plan. Yet we know that those domain name registrants will indirectly pay the costs of this plan. B. This report presumes that domain name buyers are naive childlike creatures who have no ability to engage in intelligent choices among providers of domain name products (i.e. registries) even if those buyers were given adequate information before the time of the purchase. So, the question must be asked, on what basis has ICANN moved from technical coordination to become a consumer protection regulatory agency? In closing these initial comments, I again bring your attention back to my point #3 above which I believe is a better alternative. To my mind the proposal in ICANN's plan is far to rigid, too expensive, will increase ICANN's size (a size that is already reaching the scale of cost of the ITU), and impose unrealistic constraints on the ability of TLD operators to adjust their product offerings to what the marketplace wants to buy. --karl-- Karl Auerbach Former Elected ICANN Board Member for North America