Comments on sTLD Proposal (HTML version, if suitable)|
- To: stld-rfp-comments@xxxxxxxxx
- Subject: Comments on sTLD Proposal (HTML version, if suitable)
- From: Karl Manheim <karl.manheim@xxxxxxx>
- Date: Tue, 25 Mar 2003 19:09:41 -0800
- Organization: Loyola Law School
Comments on Criteria to Be Used in the Selection of New Sponsored
Submitted by Karl Manheim, 3/25/2003
At the invitation of the Board, I respectfully submit the following
comments on the proposed selection process for a limited number of sTLDs.
My comments fall into the following 5 categories:
I appreciate that the first 2 points are technically outside the request
for comments; I will therefore keep my remarks very brief. These
and my other points are also addressed elsewhere. Please see gTLD-auctions.net
for further resources and analysis of the proposed gTLD allocation method
and alternative models.
The number of new gTLDs is artificially low
The decision to limit new gTLDs to sponsored/restricted groups suppresses
competition in the name space
The criteria for selection are unnecessarily cumbersome and costly to meet;
as a result only well-financed western-based submissions will qualify
The proposal to outsource the evaluation process, so as to avoid interest
group politics, is a recognition that the “beauty contest” model for allocating
scarce gTLDs is inherently flawed;
The suggestion that this selection process should be made “routine,” and
provide the template for future expansion, indicates that ICANN has moved
beyond “proof of concept” to a permanent and total exclusion of new unsponsored/unrestricted
gTLDs. This “static root” policy locks in incumbents in their quasi-monopoly
positions and locks out everyone else, to the special detriment of users
outside the United States and Western Europe.
There continues to be a concern among some parties that root expansion
is a perilous process that needs to proceed slowly and with painstaking
evaluation. Others, including the engineering community, feel that
the pace of expansion could pick up substantially without jeopardizing
the root or DNS. I see no evidence that the initial expansion in
Nov. 2000, or the regular addition of ccTLDs before and since, has had
any detrimental effect on technical operations. Rather, the snail’s
pace (now approximately 1 per year) of new gTLDs is unnecessary and serves
merely to inhibit the growth of the Internet. As the Final NTEPPTF
Report stated: “A complete evaluation of the new gTLDs is a formidable
undertaking that could stretch out indefinitely and could be extraordinarily
expensive.” New TLD Evaluation Process Planning Task Force, July,
2002. That seems to be the limbo we are in now. I believe it
is time to move ahead with a reasonable number of gTLD adds.
1. The number of new gTLDs is artificially low.
Sponsored gTLDs are, by design, used only by small sets of registrants
“from a well defined and limited community.” As a result, persons,
firms and interests that do not belong to a cohesive non-profit organization
are shut out from any expansion of the name space. This seems to
follow the Business Constituency Position Paper on new gTLDs:
2. The decision to limit new gTLDs to sponsored/restricted groups suppresses
competition in the name space.
“The BC sees no value in new unsponsored/unrestricted names and would
need to be convinced otherwise by the results of the evaluation process.
The BC’s current position is that all new names should be sponsored/restricted
within the ICANN categorization.” A Differentiated Expansion of the
Names Space, December 2002
Surely, this can’t be what ICANN agreed to in its MoU with the Department
of Commerce for the “development of robust competition in the management
of Internet names … in a manner that will permit market mechanisms to support
competition and consumer choice.” Rather, the freezing of the existing
top level domain space, except for limited purpose non-profit communities,
will stifle competition and keep consumer prices high.
The proposal suggests 6 broad criteria, with a total of 17 sub-criteria,
for selection of new sponsored gTLDs. These range in value from 4
to 30 points each. Some of these are beyond dispute, such as “ensur[ing]
stable registry operation.” But others purport to evaluate, hence
intervene in, the internal affairs of applicant organizations (e.g., “Appropriateness
of the sponsor;” “Responsiveness to community”). These are not matters
for an organization charged with management of Internet names and numbers.
Rather, they are policing functions, undertaken by ICANN solely because
it so greatly restricts entry into the root.
3. The criteria for selection are unnecessarily cumbersome and costly
to meet; as a result only well-financed western-based submissions will
Yet, the larger objection to the selection criteria is that they require
huge resources merely to qualify, and then additional resources to compete
in the ensuing “beauty contest.” Perhaps well-heeled organizations
such as museums can survive the gantlet, but the Getty, the Armand Hammer,
the Guggenheim, etc. hardly need special treatment by ICANN. The
proposal acknowledges that an applicant’s “economic viability” is an important
criterion. And the need to serve “broad global communities” means
that only organizations with large presences in the developed world will
The last expansion round was hardly a model of objective process.
Nor is it realistic to expect that from a constituency-dominated organization.
ICANN is comprised of interest groups, as it should be. Each group,
also as it should, represents its own interests. But there is inherent
tension between insiders and outsiders, especially when the former are
expected to judge the latter. Accordingly, the Proposal correctly
suggests that evaluation be accomplished by “external evaluation teams
… not involved in ICANN activities and … not subject to ICANN political
nuances and pressures.”
4. The proposal to outsource the evaluation process, so as to avoid
interest group politics, constitutes recognition that the “beauty contest”
model for allocating scarce gTLDs is inherently flawed.
This statement speaks for itself. It reveals an inherent flaw
in the use of subjective evaluation criteria. The “beauty contest”
method, employed so disastrously at the FCC for 75 years, despite its mandate,
similar to ICANN’s, to promote the public interest, is simply the wrong
way to go. Perhaps it is unavoidable in this case, especially where
the name space is kept artificially restricted, but it ought not to become
a model for future expansion. That leads to my final point.
There is a lot at stake in the dispute over gTLD expansion. Incumbent
registries have a quasi-monopoly position which allows them to extract
monopoly rents from registrants. Even though they may be paying too
much for registration services, incumbent registrants also have quasi-monopoly
positions in their unique second-level domain names. Addition of
new gTLDs jeopardizes both monopoly positions. Exclusion of competitors,
especially those without a voice in the bottom-up consensus driven ICANN
process, is the best way to preserve the advantages of incumbency.
5. The suggestion that this selection process should be made “routine,”
and provide the template for future expansion, indicates that ICANN has
moved beyond “proof of concept” to a permanent and total exclusion of new
unsponsored/unrestricted gTLDs. This “static root” policy locks in
incumbents in their quasi-monopoly positions and locks out everyone else,
to the special detriment of users outside the United States and Western
Such anti-competitive behavior might be tolerable for a short while,
as the dominant participants test out “proof-of-concept” measures.
But, the Proposal presages a permanent regime of exclusion. This
prevents the root from being put to its highest and best use; it locks
out innovation and new entrants, especially those from Less Developed Countries;
and it serves to artificially inflate the price of registration services.
The Board does not need to be reminded that ICANN is a California not-for-profit
corporation. As such, it has a fiduciary duty, not to its members,
but to the broader community. See Cal. Corp. Code § 5510.
A regime to permanently exclude new unrestricted gTLDs is inimical to the
public interest, and should be swiftly rejected.
Respectfully submitted, Mar. 25, 2003
Loyola Law School
919 S. Albany St.
Los Angeles, CA 90015
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