Need for Greater Precision in Definition of "Registrar"
I am an attorney in private practice currently working with several potential applicants considering applying to operate a top-level domain registry. After reviewing the Initial Report on Vertical Integration Between Registrars and Registries ("Initial Report"), now open for public comment, I believe further work is needed on one of the fundamental terms in the report: "registrar." Let me provide an example that illustrates my concern. One of my clients is the holder of an ICANN registrar accreditation that it uses to manage a set of mission critical domain names registered to a sister company. It does not sell domain names to the public, and it has no intention of ever using its registrar accreditation to sell domain names to the public. This registrar would not be a registrar for any TLD for which it was selected as the registry operator. For all practical purposes, this entity is simply a domain name registrant that uses an ICANN registrar accreditation as a management tool for its own domain names. In spite of the fact that it holds an ICANN registrar accreditation, it is not a "registrar" as that term is commonly used in the Initial Report. Nevertheless, the Initial Report's lack of differentiation among the various types of entities holding ICANN registrar accreditations poses the risk that my client could be barred from the registry services market for no compelling policy reason. Most of the proposed solutions in the Initial Report use the word "registrar" broadly, encompassing all registrars, when the policy concerns underlying those solutions are aimed principally at registrars that sell to the public, either directly or through resellers. I recommend that the next iteration of the Vertical Integration report define the term "registrar" in a way that takes account of this comment. The report may need to take account of different types of registrars, with defined terms for each, rather than the blanket definition now in the Initial Report (See, Definition of "ICANN Accredited Registrar" at page 134). I read in the Initial Report a suggestion that one proposed solution for applicants affected by a vertical integration issue is to petition ICANN or some other body in an exception process. A petition and exception process is an unreasonable barrier to market entry, as it requires a potential applicant to do all the work, and incur all the cost, necessary to prepare an application while holding the outcome of that application in doubt. To the greatest extent possible, ICANN should ensure that the Applicant Guidebook contains clear, bright line rules for applicant eligibility, avoiding situations where one class of applicant is not given a reasonable set of standards to evaluate objectively its likelihood of success. Thank you for the opportunity to comment, and I would welcome the opportunity to provide further feedback on this issue upon request. Very truly yours, Bret A. Fausett Adorno, Yoss, Alvarado & Smith