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Username: Spectral Web, Inc.
Date/Time: Sun, November 18, 2001 at 9:49 PM GMT
Browser: Microsoft Internet Explorer V6.0 using Windows 98
Subject: “Spectral Web, Inc.’s Comments Regarding Image Online Design, Inc.”

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Spectral Web, Inc.
19 November 2001
“Spectral Web, Inc.’s Comments Regarding Image Online Design, Inc.”
 

      Introduction
I.    History 101 – IANA to the Present
II.   History 102 – The Examiners’ Report: A Study in Investigative Misperception and Error
III.  Logic 101 – What ICANN Needs to Do in the Next Application Process
      Conclusion
      About Spectral Web, Inc. 


Introduction

Namespace has been congested for far too long. While overpopulation in the real world is difficult to deal with because of three dimensional realities, virtual real estate is far more flexible. The main determining factors in Internet expansion reside with the policy-makers and the special interest groups that exert disproportionate pressure in order to get their ways. As is so often the case, it is the individual and the small company that are made to cope with resultant conditions. This is ironic, for many in the early days of the Internet identified the World Wide Web as the great equalizer.

Namespace congestion exists as a result of procedural lethargy in ICANN's system and of corporate self-interest. IP constituencies reinforce that lethargy. Yet if the world was in need of Internet expansion a decade ago, it is starving for it now. As the online community grows, this situation will not abate. 

Truth be told, in technical terms, only one TLD needs to exist, with web developers cramming all the spaces between logical, generic descriptors. A given company, organization or individual is welcome to establish operations on ZXTERLETZ-123-XYZ.com, for instance. That plot of land exists and is almost certainly available for registration.

Certainly, scores upon scores of similar web addresses are available as Internet locales. That is not in dispute. Still, for companies, organizations and individuals that want to stand out in namespace, there is little that such locations offer. Branding, marketing and advertising costs increase as URLs stray further and further from logical linguistic strings. Recent global events make the matter even more urgent. With eCommerce failing -- and now brick-and-mortar commerce joining that quandary -- businesses, organizations and individuals are in dire need of quality, memorable, and useful domains.

Business analysts understand that as the consumer base becomes increasingly hesitant to shop in the concrete world due to security fears, online vendors will assist in bolstering economies.  The need for adding quality TLDs is less abstract and theoretical than it ever was before, and the Department of Commerce should further urge ICANN to move at a more reasonable pace, and to employ a fairer, unbiased hand whilst moving the TLD market towards genuine competition.

Image Online Design, Inc. (IOD) has functioned as the .WEB registry since 1996, when it was requested by IANA to go live and prove the technical concept. By the time ICANN cut the ribbon on its application process in November 2000, IOD was the most proven, most successful applicant.  Its infrastructure, unlike those of the other applicants, was active and tangible; conversely, the systems detailed in the other applications were nothing more than mere proposals. They were ideal projections at best and baseless promises at worst.

Spectral Web, Inc., a .WEB registrant and supporter of IOD, is the author of this statement. Spectral Web is a New York City-based company, devoted to building online forums and communities, publishing eZines and eBooks, and providing information in a number of fields. Towards that end, Spectral Web has registered its .WEB domains. It now awaits the fulfillment of IANA’s promise to IOD via ICANN’s approval of IOD's .WEB registry.



I.        History 101 – IANA to the Present

On 16 November 2000, ICANN resolved to enter seven new gTLDs into the Internet's Legacy Root. This decision occurred after many years of discussion on matters relating to technical stability, the marketplace, trademarks concerns, policy and procedure. The rhetoric that ensued in these areas predates ICANN and cropped up after IANA’s commitment to expanding namespace took its first breath. At first, though, things were much simpler . . .

In late 1995, a number of individuals working with Dr. Jon Postel and other members of IANA began the process for the introduction of new Internet Top-Level Domains. Included in this group was Christopher Ambler, founder and now CTO of IOD.

On 31 July 1996, Mr. Ambler met with a number of other participants in this process at the IANA offices in Marina Del Rey, California. At that time, IANA staff (including Bill Manning and Dr. Postel) confirmed that IOD’s application for .WEB had been received by IANA and instructed Mr. Ambler to activate the .WEB registry as a proof of concept. It was represented that the procedure was almost complete and that the new extensions could be entered into the Internet root, hopefully by the end of October of that year.

Within 24 hours, IOD made the .WEB registry available to the Internet. A disclaimer was included on IOD’s site, which indicated that the process was new and, while October 1996 was the target date, it could feasibly take some time longer. IANA representatives suggested wording for the disclaimer and assured Mr. Ambler that all was proceeding well. 

Once IOD demonstrated technical viability, the .WEB application would be approved and .WEB registrants would be able to develop Websites in the main (Legacy) root using the .WEB domains they registered.

As is often the case, matters of policy and procedure were derailed in the face of conflicting interests; stakeholders began to impose undo pressure upon those in power and IANA’s application process came to a screeching halt. To make matters more complicated, IANA stepped down as the controlling body and ICANN took over. In the meantime, the period of evaluation IANA had established was entirely ignored by ICANN rather than concluded in a fair manner. A fair conclusion would have resulted in the insertion of IOD’s .WEB into the Internet root, as this registry had proven, unequivocally, that its infrastructure and operational base more than met the minimal requirements of the process guidelines. One might have expected that ICANN would have resolved IANA’s unfinished business, for the terms of the transition of power required that ICANN adopt the contracts and agreements that IANA had previously held.

Needless to say, it did not and, as stated, ICANN ignored the process IANA had initiated. Further still, many within ICANN have since discounted IOD and have disparaged it as an irrelevant, illegitimate and unviable outsider. While no doubt various directors, presidents and board members have a right to question any participant on legitimate matters, it is quite another thing to revise history, misquote applications and make decisions according to bias. Sadly, a couple of ICANN’s directors have maligned IOD and ignored both its history and track record. Despite any attempt to disparage IOD or gloss over its accomplishments, the facts are clear and verifiable.


IOD

a)   Entered IANA’s legitimate process in a legitimate manner
b)   Began taking registrations only after being told to do so by IANA
c)   Has operated in good faith within the new processes initiated by ICANN
d)   Has consistently modernized its infrastructure, processes and customers’ self-management interface
e)   Has conducted business in an ethical manner, avoiding corruption, impropriety and prejudice
f)    Has demonstrated superior customer support

As the officers of Spectral Web watched with interest the live telecast of ICANN’s discussions on 14-16 November 2000, profound dismay set in as some of ICANN’s directorial board made their bias patently clear. The words they used whilst speaking of IOD were belittling at best and inflammatory and slanderous at worst.

It was apparent that these directors had for a long time harbored prejudice against IOD, maintaining, against all fact and logic, that IOD was an affront to the process of gTLD selection. During this meeting a year ago, board Directors Hans Kraaijenbrink and Franz Fitzsimmons overtly stated that IOD was antithetical to a single root system, simply because it functioned in a test-bed root. Not surprisingly, both directors ignored the historical fact that IOD brought .WEB into the test-bed root under the prerequisite instruction of IANA. The much-overused term “alternative root” became their mantra as they spent considerable energy in trying to shackle this perceived dishonor around the neck of IOD.

On the basis of this invented infamy, Hans Kraaijenbrink stated that he would have no problem turning over .WEB to another applicant – namely, Afilias, a conglomeration of 19 companies already established within the domain industry. The handing over of .WEB to Afilias would have spelled ill-fate for the business of namespace, competition and consumer choice, for the .COM registry would have been the same as the .WEB registry, albeit masked behind a different corporate name. During the Fall and Winter of 2000, many opponents of Afilias predicted that the impropriety, incompetence and dearth of customer support evidenced by the .COM registry would have translated over to .WEB namespace if Afilias was successful in hijacking .WEB from IOD. While Afilias never did get its hands on .WEB, it was granted .INFO and all the predictions have come true: sadly, competition, consumer choice and diversity are casualties of ICANN’s November 2000 selections.

Any charge that implies that IOD has willy-nilly or presumptuously set up shop in an alternative root (thereby fragmenting the Internet, intentionally or otherwise) is misleading and specious. This registry’s goal since Day One was to work within the system and to be entered into the existing root servers. IOD has always endorsed a single root system and merely established .WEB in an alternate root under the guidance of IANA. IOD’s official position on the matter of a single root system is available at https://www.webtld.com/singleroot.asp. IOD never intended to operate in an alternate root system beyond the established testing period. The plan was always to demonstrate unquestionable viability and then be entered into the main root via the established process. Hence, the reasoning of Directors Fitzsimmons and Kraaijenbrink is something of a mystery.

The .WEB registry has always played by the rules, in good faith – first with IANA and then with ICANN. IANA wanted a proof-of-concept and IOD complied. ICANN replaced IANA, and almost immediately Kraaijenbrink and Fitzsimmons disparaged IOD simply for existing.

While much damage was done when ICANN selected Afilias as a registry, .WEB remains in the hands of IOD, though it has not as yet been approved by ICANN for inclusion into the main root system. It was Dr. Vinton Cerf who insisted on recognizing IOD’s proprietary rights over .WEB, and the majority of the Board, with the exception of Kraaijenbrink and Fitzsimmons, inevitably voted in favor of this recognition.


Vint Cerf:   (Time Index: 05:37:20):

”The IOD guys . . . I am not ready to give up on them. However, if the rest of the board disagrees, then I of course I will have to stop. But it seems to me, that my concern is with, that they’ve worked with .WEB for quite a long time and to assign that to somebody else, given that they’re actually functioning, still makes me uneasy.”
(Audience applause)
 
(Time Index: 06:10: 37)
“I continue to harbor some concern and discomfort with assigning .WEB to Afilias, not withstanding the market analysis they did, which I entirely understand and appreciate. I would personally be a lot more comfortable if we were to select a different string for them and to reserve .WEB.”

Hans Kraaijenbrink: 
“I believe that we should award .WEB (to Afilias) knowingly, that IOD has been in operation as an alternative root with .WEB for some time; but I remind and fully support what Franz Fitzsimmons said a few minutes ago -- that taking account of alternatives will open an unwanted route to pre-registration of domain names and domains -- so I am fully aware of what I am doing in voting in support of awarding Afilias .WEB.”


Audio/Video feed:
(http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-111600&start=0-09-04)

Examine Mr. Kraaijenbrink’s assertion. Listen to it and analyze it in the context of .WEB’s history. Spectral Web is disheartened that one who is commissioned to take part in the TLD selection process should make such a blatantly egregious statement. While ICANN has repeatedly stated that its operations, choices and decisions are made according to fairness and honesty, Director Kraaijenbrink’s reasoning was entirely inadequate and has seriously damaged the credibility of ICANN. At the very least, the professionalism and propriety of the application process has been seriously compromised.

Spectral Web now suggests that many of the problems Afilias currently experiences with its .INFO systems could have been avoided if it had operated in a test-bed root prior to approval (much the way IOD has for the past five years). However, the core problem is that Afilias itself was formed in haste just two months prior to the application process of November 2000.  Amazingly, at the time Afilias was hailed as a superior registry choice and swiftly approved, it had no base of operations. There was no headquarters, no operational base and no indication where the promised pan-global support offices would be established. In fact, while other applicants correctly indicated a genuine address in their respective applications, the address Afilias offered was that of its lawyer’s office in New York City.

Only after Afilias was approved did it go ahead and purchase its operating systems. Only while its contract with ICANN was being set to ink were databases plugged in, turned on and tested. This is an entirely backwards approach, akin to giving a child a driver’s license before he has passed the driving exam. The results are now clear: like that child sitting at the wheel of an SUV, Afilias’ systems are predictably crashing.

It certainly leaves the observer dumbfounded: by the time ICANN’s application process came around,  IOD had been operating its registry for five years with a functional infrastructure that is constantly monitored and regularly upgraded. Still, IOD was rejected by ICANN while Afilias – newly formed and absent operating systems – was overwhelmingly approved.

Does anyone contest that ICANN’s process is flawed?

II.         History 102 – The Examiners’ Report: A Study in Investigative Misperception and Error

Currently, Spectral Web would like to comment on the examiners’ report on IOD. A version of this report was submitted to ICANN prior to the proceedings of November 2000.

While Spectral Web appreciates that all aspects of all applications need to be scrutinized, Spectral Web is distressed by the seeming lack of objectivity evidenced by the examiners in their report. In fact, looking not merely to the report on IOD but to all reports, it is clear that analysis is often erroneous, inconsistent, biased, illogical, superficial and unreasonable. 

With so much careless, clumsy and flippant work having been generated by the examiners, so much that was unsubstantiated, so much that was glossed over, so much in error, so much clear irregularity and potential for impropriety, ICANN's procedural future comes into question. Given the sketchiness, hastiness and partiality of the respective reports, Spectral Web notes that the $50,000 application fee seems altogether unwarranted.

The examiners’ treatment of IOD’s application was particularly distressing. Considering the multitude of errors and misstatements generated by the examiners therein, it is entirely possible that the examiners held as a conscious, biased and predetermined objective, the disqualification of IOD. Spectral Web notes that even opponents of IOD have come to this conclusion after examining the events of the last eighteen months.

This does not bode well for ICANN. Credibility and evidence of fairness are essential if ICANN expects respect and support. Spectral Web holds that further abuses will inevitably move the Department of Commerce to restructure ICANN, replace it, or impose upon it an oversight committee.

The examiners’ report of November 2000 illustrates that the examiners  

· fabricated data
· left opinions unsubstantiated
· speculated baselessly
· ignored the apparent strengths of IOD’s application – the precise strengths that they identified in other applications
· held IOD to a higher standard than it held all other applicants


Here are the facts:

1) Technical Matters

a.    Registrar Protocol

Initially, IOD stated that there would be a six-month timeframe for accepting registrars other than IOD. IOD thought that six months would be required to finish testing the registrar protocol system. In its flexibility, IOD reassessed and determined that a 30 to 60 day time frame was feasible.

Firstly, Spectral Web thinks that the original six-month projection was itself acceptable. Network Solutions enjoyed many being the singular registry for many years.
Secondly, compare IOD’s time estimates with the length of time it takes for ICANN to bring the approved gTLDs online.

· Using IOD’s original estimation of 6 months as a guideline, ICANN took twice that time to bring .INFO and .BIZ online once those gTLDs were approved.
· Using IOD’s revised estimation of 30 – 60 days as a guideline, ICANN took 6 – 12 times that time to bring .INFO and .BIZ online once those gTLDs were approved. In other words, had ICANN approved IOD in November 2000, the protocol in question would have been available nine to ten months prior to ICANN’s target date.


Where does this lead one? It leads one to the conclusion that all the noise ICANN made a year ago regarding IOD’s registrar protocol projections was baseless, disingenuous, irrelevant and diversionary.  

Thirdly, a comparison of IOD's six month protocol projection with Neustar's six to nine month protocol projection demonstrates questionable attention to the mechanics and details of the process. (To review, Neustar was the third competitor for .WEB and, like Afilias, is operated by pre-existing namespace players.)

Fourthly, the examiners’ reaction to IOD’s 6-month protocol projection with its unequivocal acceptance of the fact that Afilias originally wanted to exclude all registrars not currently members of the Afilias conglomeration would almost seem elitist. This meant that no universal protocol would ever have been made available.

Fifthly, the examiners ignored the fact that IOD’s application indicated an existing registrar protocol that merely required testing; instead, the examiners incorrectly stated that IOD had yet to develop the protocol. 

Bearing all this in mind, there seems to be no explanation of the reasons ICANN accepted the examiners’ assessment of IOD's application as being flawed for the original six-month projection.

Spectral Web is also deeply disheartened by ICANN itself. When IOD indicated to ICANN that it would commit to a 30 to 60 day registrar protocol timeframe, ICANN chastised IOD for making an amendment to the application. This is another example of the "Damned If You Do, Damned If You Don't" principle. Spectral Web requests that ICANN be reasonable and fair, and recognize that such flexibility in an applicant should be commended, not condemned. Furthermore, Spectral Web finds nowhere that Afilias was similarly condemned when it modified its own application to suddenly include registrars outside of its own members.  

Even more to the point – if IOD was condemned for making a minor change in its application, why has Afilias been allowed to abandon its own application in favor of the plan eventually detailed in its contract with ICANN? Is this fair to any of the applicants of 2000?  It is proper to say that if ICANN demands rigidity, it must itself adhere to it.

b.    Existing Infrastructure Versus Theoretical Infrastructure

IOD brought to ICANN’s application process something that its .WEB competitors could not; it brought a working infrastructure. In fact, IOD was the only applicant among the forty-four gTLD applicants that had this very substantial component. Every other applicant offered ICANN nothing but verbiage and assurances when it came to their technical plans. However, Spectral Web maintains that an infrastructure should exist on more than mere paper if an applicant is to be deemed credible. Matters became surreal in November 2000 when the examiners praised Neustar, which, in the end, was supported by no infrastructure whatsoever. This alone brings the credibility of the examiners into full question.

No doubt, the problems being experienced by Afilias with its .INFO rollout are based largely in the fact that Afilias’ own infrastructure was non-existent when ICANN approved it as a new registry.

It will indeed be interesting if, as a result of the current inadequacies being demonstrated by Afilias, ICANN will henceforth require that, prior to approval, a prospective registry must first demonstrate technical viability in an alternative root system. This is the most logical, most responsible method of demonstrating infrastructure strength and stability. It is also the procedure established by IANA for IOD in 1996 – and it is the exact procedure that Directors Kraaijenbrink and Fitzsimmons have condemned IOD for being a part of. Without a doubt, Spectral Web expects that both directors would vote against such a proposal. If they instead vote in favor of this requisite, they will, in effect, be admitting that the principle upon which they condemned IOD, was in fact flawed.

It should be further noted that, when Afilias brought its infrastructure live in September 2001, its systems were incomplete. An error-message that registrants typically received whilst trying to modify nameserver information, reported that the domain in question belonged to a new extension and that the modification interface for this extension was still in development. Registrars indicated that the problem was due to Afilias’ inability to send nameserver updates and that an additional month was projected.

This inability to handle some of the most basic matters in registry operations is unacceptable and is an embarrassment to all parties involved, including ICANN. IOD’s registry has been a complete registry since 1996 and has been an embarrassment to no one.
 

c.    Scaling

The examiners reported that IOD was not prepared to scale. This is particularly frustrating because even prior to November 2000, IOD’s systems were prepared to scale both horizontally and vertically.


d.    Registrant Base

The examiners’ report stated that 20,000 registrants represented too low a registration base for the purposes of determining the viability of the .WEB infrastructure. However, this statement,

· negates the years that the .WEB infrastructure has been seamlessly running
· condemns every applicant from the word “go” as the examiners feel that a prerequisite for being approved registry status is having been a registry. Given the cautionary declaration from the Names Council in October 2000 on the matter of “pre-registrations,” Spectral Web respectfully suggests that all reasoning here is in accordance to the “Damned If You Do, Damned If You Don’t” principle.

This circular reasoning  brings us back to the matters of industry monopolization and an unfair selection process. If an applicant is to be disfavored for not being Verisign or a rich registrar, nor for having strong ties to said entities, one wonders just how open the “open application process” is, and how justifiable the $50,000 fee is.

If IOD's 20,000-registration base does not prove viability, then ICANN must never approve an applicant with anything less than ten times that amount. Or is 200,000 also too short a track record? Where shall the arbitrary line be drawn?

Curiously, the examiners did not condemn other applications for having no evidence of technical viability in the absence of a registration base.

e.     TPS

The examiners' report inaccurately stated that IOD's registry will provide 28.6 TPS, when IOD’s application indicates clearly stronger numbers. ICANN's subsequent rejection of IOD was based, in part, on this erroneous information. To so judge an application is not only unethical; Spectral Web questions the legality.


f.     ICANN Cancelled the Consultation Period

As part of the consultation period detailed in the application process, ICANN was invited to tour IOD’s facilities in order to witness first-hand, the viability of the .WEB registry. This never took place because ICANN cancelled the consultation period.

While an applicant is strongly admonished for making subtle changes in its application (even those that improve matters), ICANN itself can suspend any part of the application process. This hardly seems acceptable after the remittance of a $50,000 fee, with the assumption that the process would be fair, thorough, accurate and supportive.

g.     Circular Reasoning

The examiners’ report stated, "It is not clear if IOD can manage the higher level of capacity. Its simulations suggest it can, but IOD has no experience operating any kind of system at this scale."

Spectral Web finds this statement to be specious, as the only entity that has formal experience in this matter is Verisign. In essence, the logic that was used is predicated on the principle that no entity should be granted rights to a popular TLD other than Verisign. This reasoning brings us back to square one regarding monopolies, competition and the credibility of the application process.

 
2) Financial Matters

a.     Available funds

The examiners’ report was in error with regard to IOD’s financial strength in November 2000. While $450,000 was available in the form of cash, IOD had commitments of $2 million imminently, and an additional $6 million upon approval. Furthermore, IOD had a credit letter that promised to discuss the possibility of extra funds.

By the time IOD entered ICANN’s application process, it had already spent more than $1 million developing and improving its infrastructure. This is a necessity that other applicants did not secure. While the overwhelming majority of the applicants held off buying their systems prior to hearing ICANN’s decision, IOD’s registry was immediately available for incorporation into the main Internet root. The revenue expenditure is a matter of IOD’s operational history; it is not confined to mere speculative promise giving.

The  $450,000 that the examiner quoted is very obviously in error. What remains to be answered is "How credible is the examiner, given the frequency of these errors?”
 

b.     Unsubstantiated Claim

The examiner stated that IOD's financial projections were questionable – yet no explanation or counter-projection was provided. This makes the examiners’ statement relatively meaningless.

 
3) Market Matters

a.     Recognized Need for Competition in the Domain Market

In the past, ICANN recognized that competition in the TLD industry needed to be established.
(http://www.icann.org/yokohama/new-tld-topic.htm#IIC1).

This necessity was furthermore very significantly detailed by the National Telecommunications and Information Administration.
(http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm).

Therefore, when ICANN’s directors approved Afilias, they ensured that said competition was systematically obliterated. The players have not changed very much, but have merely joined in the cloak of a new corporate name. There is no competition in today’s market. Quite simply, the registry and registrar players of 12 months ago are the registry and registrar players of the current industry. Verisign is on both sides of the net, rivaling pretty much itself.

True competition is derived from permitting new blood into the arena. IOD should receive accolades for representing healthy balance in the domain market.

While it is simple and easy to make broad claims of anti-trust and anti-competitiveness, a quick review of how namespace is divided among registries sheds considerable light on the underlying evidence:


· Verisign owns .COM, .NET and .ORG.
· Verisign owns .INFO through Afilias.
· Neustar and Melbourne IT own .BIZ.
· Neustar owns .US
· Register.com owns .PRO. Register.com was an industry player prior to being awarded .PRO.
· Educause owns .EDU. (Mike Roberts, former president of ICANN, is also a representative to Educause.)
· CORE, an industry player, back-ends two other approved TLDs. CORE is also a member of Afilias.


This is not adequate competition, particularly in the case of the two primary unrestricted TLDs, .COM and .INFO, for Verisign’s competition is Verisign.


b.     Proof of Concept

In 2000, ICANN asked all applicants for a proof of concept for their respective gTLD proposals. IOD, through its labors for four years, had already proven the concept of WEB. If ICANN ever grants .WEB to a registry other than IOD, it would be awarding that registry a product whose concept was proven by IOD.


c.     Suggested Fee

The examiners' report condemned the $15 registration fee for .WEB. Though the examiners and ICANN remain free to issue their opinions on the matter, it is not within ICANN's charter to regulate price. Where the market is concerned, ICANN should only provide competition – true competition – and allow the market to determine ultimate pricing. A $15 fee, or even a $35 fee, is hardly exorbitant.

The examiner stated, "(The $15 price) is at least two and a half times the registry price anticipated by others in this category. This higher price is likely to deter registrars and potential registrants. Firstly, with the initial registration fee of $70, Network Solutions did remarkably well in its early days. The examiners’ logic is also contrary to all analysis that recognizes the significant strength of the .WEB gTLD. Quite simply, because .WEB has been identified by ICANN, applicants, the examiners and the Internet public as being a superior gTLD, it is senseless to assert that strong .WEB domains won’t sell for $35 (gross). The market is ripe for an incalculable number of interested parties. With all due respect, Spectral Web does not think that the examiners had a grasp of the magnitude of this industry. 
 

4) Business Matters

a.     Preparedness

Though IOD has been a part of the process for such a long time and has pioneered the .WEB registry under direct instruction to do so, it has never sat on its laurels, but rather has constantly moved its operations forward. ICANN continues to ignore the history of IOD. Given that ICANN will no doubt, today and in a future rollout, award TLDs to less tested, less tried, less proven and less prepared applicants, it is incumbent upon ICANN to finally acknowledge IOD's record. The alternative has too many repercussions not merely for IOD, its thousands of registrants, the Internet community and industry fairness, but upon ICANN itself; every time ICANN awards a gTLD to an entity less prepared than IOD, it will initiate a revisit to an anti-IOD ruling.

Conversely, by bringing in new blood, ICANN will illustrate to the world that this industry and ICANN's operations are not fettered by inbreeding and the turning of blind eyes.


b.     Robustness and Longevity

IOD has been in operation since 1996, not merely surviving, but flourishing. Given the sharks that occupy these waters, Spectral Web maintains that IOD's history of endurance is a testament to its viability.


c.     Strength of Management

The examining team criticized IOD's CEO and COO for not having technical skills. This is not a prerequisite, nor is it relevant. Their roles are to function as business managers, not as technicians. The logic the examiners used here is akin to logic that mandates that the manager of a bakery know how to build and fix ovens. This person does not need to know these matters. He needs to know how to run and manage a business, which clearly IOD’s CEO and COO have proven for the past 5-plus years. As for the technical knowledge: that is why specialists are hired and contracted. Certainly, no one expects the CEO of Ford Motor Company to also be a mechanic.

To illustrate this point, pardon the following irreverence – but how equipped to run the day-to-day technical operations of the root are the ICANN directors? Can they handle failures? Instability? Can they troubleshoot?  Respectfully, Spectral Web does not believe that many of the said persons are specialists in these areas; no doubt, Vinton G. Cerf is, but Dr. Cerf is the exception rather than the rule. For the most part, non-specialists within ICANN preside over the Internet itself.

Furthermore, Spectral Web does not find in the examiners' report on Afilias or Neustar or anywhere else, that the respective CEOs and COOs are required to have technological expertise. Even more condemning is the matter of Afilias' technical personnel: at the time ICANN approved Afilias for .INFO, it had none. This is a reality that is currently demonstrating itself; .INFO is plagued with inadequacies and technical problems. 

Additionally, it is unrealistic to expect that any applicant should be operating with 1,000 or more employees in the field prior to approval. The report offers paradoxical reasoning. Clearly, the only entity within the domain registry field with that kind of existing employee base was Verisign and a handful of registrars. This not only negates competition; it negates ICANN's open application process in which ICANN has, to date, garnered $50,000 per applicant. In short, why did ICANN accept these fees if ICANN does not care to regard non-players?

While the examiners criticize IOD for identifying a 70-person staffing need, the examiners do not bother to identify this same matter in the competing applications. They nowhere explain the reasoning for their bizarre double standard.

d.     Fallacious Statements and Unsupported Assertions

The examining team stated "A failure to service a global customer base on a 24 - 7 basis, particularly during the initial startup period, could fatally damage the reputation of the new TLD."

Firstly, given the history of IOD’s systems, Spectral Web does not believe that said systems are likely to fail. Conversely, Afilias’ systems have proven to be grossly deficient.

Secondly, the above quote is entirely speculative and unsubstantiated. Follow-up logic is not even employed.

Thirdly, ICANN's charter does not include monitoring the reputation of various TLDs. It has not monitored the branding, marketing or subsequent reputation of .TV .MD, .BZ,

.FM, .WS, .CC, etc.
.TV is for Tuvala, not for matters related to the television industry.
.MD is for Moldova, not for matters related to the medical profession.
.BZ is for Belize, not for matters related to the medical industry.
.FM is for Micronesia, not for matters related to radio broadcasting.
.WS is for Western Samoa, not for “World Site,” “Web Site” or any such thing.
.CC is for Coco Islands, not for “Commercial Company”

Fourthly, to the outer world, the reputation of a TLD is not determined by a registry's 24 - 7 status; it is determined by how the TLD is developed by individuals and businesses, and how said individuals and businesses market their websites and develop their operations. This, more than any other element, is what will impact the general Internet user. Given the self-evidence of this point, the examiners’ above quote seems so obviously incorrect that Spectral Web questions the care the examiners devoted to providing a flawless investigation. 

Still, Spectral Web maintains that IOD will be able to operate at, or extraordinarily close to, a 24 - 7 basis. They will certainly perform substantially better than Afilias to date has and will not embarrass itself or ICANN with lack of readiness.

Conclusion to Part II --  Spectral Web is saddened that, despite a $50,000 application fee, the only document that ICANN provided as part of its rationale to reject IOD in November 2000, was a 10-page examiners’ summary, flawed with misinformation, unsubstantiated interpretations, half-analysis, shallow divination, hokey mathematics and general misdiagnosis. Though ICANN promised in November 2000 to provide 300 pages of source material, to date – one year later – it has not done so. 

Bear in mind that this statement by Spectral Web is longer and more analytical than was the examiners’ report – and Spectral Web provides it to ICANN significantly cheaper than the examiners’ fee.
 

III.         Logic 101 – What ICANN Needs to Do in the Next Application Process

ICANN needs a success story now more than ever before. Throughout the course of its history, many fair-minded people and watch-groups have provided convincing arguments that ICANN is motivated by the continuance of the existing TLD monopoly, rather than by the principles of namespace diversity.

Very simply – ICANN must demonstrate that it is capable of being fair, open and committed to bottom-up decision-making. It needs to take stock of the damage Verisign, Afilias and NeuLevel have incurred on its reputation and should seek measures of counteracting that damage with more prudent decisions. 


Matters to Consider:

1)  Sunrise Period – It hardly seems possible that after over six years of discussion and debate on the matter of IP rights, the resulting sunrise period was executed in such a slipshod manner. Though a sunrise period in principle is fundamentally flawed – given the amount of verbiage exhausted in its name, it is astounding that Afilias let things turn out so badly.

The vast majority of .INFO domains registered during the sunrise period were fraudulently registered. Afilias chose a sunrise process that was inherently flawed, and then under very vocal admonishment and demonstration of inadequacy, refused to improve matters.  There are two possible interpretations that analysis of the facts renders:  

a)  If Afilias genuinely lacked the foresight to anticipate the easily anticipated problems inherent in its sunrise procedures, its competency must be called into question

b)  If Afilias was incapable of providing a coherent, effective sunrise process (not necessarily a perfect one), its competency must be called into question

Which of the above two possibilities is more palatable? A reasonable argument can even be made that Afilias intended the outcome that the process ultimately wrought. It had much to gain from a failed process, as did one of its partners.

a)  By permitting fraudulent registrations to accumulate in the .INFO registry, Afilias ensured itself a significant amount of revenue that would have otherwise not transacted.

b)  By permitting fraudulent registrations to accumulate in the .INFO registry, Afilias ensured that its  partner, the World Intellectual Property Organization (WIPO) would receive multiple arbitration cases, thereby lining its own pockets.

c)  Once arbitration results in the termination of all challenged .INFO domains, said domains would either return to the pool of available domains and be subsequently registered by another party, or the arbitration disputant would remit registry fees once the domain is transferred.

The case for impropriety is no more comforting than is the case for incompetence. Neither Afilias n or any of its members should be henceforth permitted to serve as the registry for yet another TLD.

Remedy for the future:  Eliminate the concept of a sunrise period. It is not only procedurally challenged, it is also ideologically challenged. Trademark law does not guarantee IP holders monopolization rights over a descriptor – particularly generic ones.  Caterpillar, Inc. should not have special rights to the descriptor “CAT.”

A reasonable replacement model is the one IOD detailed in its application of November 2000.  As opposed to the sunrise period as traditionally conceived, IOD’s application offers a "phase-in" period in which IOD proposes to give trademark holders preemptive rights to challenge existing .WEB registrations. Certainly, this seems a fair compromise between the IP constituency and the average individual, business or organization. It is a sober means of recognizing both the scope and limitations of trademark law itself.
 

2) Lottery System – The lottery systems evidenced by both Afilias and NeuLevel were calamitous. We have already seen a judgment against NeuLevel in a court on the grounds that its lottery, however described, was illegal. This casts a shadow, not only on NeuLevel, but also upon ICANN that approved the registry and allowed the proposed lottery system to make its way into the contract.

Afilias itself instructed registrars to take “applications” for domains, the average being priced at around $5.00. In the vast majority of the cases, the fee was non-refundable, as it was construed an administrative fee.

This practice fed both the registry and the community of registrars, for each domain name was inherently assured disproportionate financial mileage.

It is fair to state that many people spent far more than $35 or $70 for a given .INFO domain in their participation of Afilias’ own lottery system. This ultimately sits in opposition to the trepidation ICANN felt with regard to IOD’s projected SLD gross cost of approximately $35. Quite simply, if ICANN can authorize the lottery system that became a part of Afilias’ and NeuLevel’s business plan, all trepidation regarding IOD’s fee must logically evaporate.

The inconsistency is further amplified when one considers that a person could potentially spend hundreds or thousands of dollars attempting to acquire a single desirable .INFO or .BIZ domain without any luck and without being granted a refund – while $35 for a guaranteed .WEB domain is regarded by the ICANN directors to be exorbitant. 

Remedy for the future: Though a first-come, first-served system represents other problems, it is the least exploitive, filled with the least technical complications and is demonstrable of efficacy in a way that a round robin is not. We have seen the lottery system. That “proof of concept” has proven to be grossly flawed. When ICANN approves the next group of gTLDs, it should implement a different system – the tried and true, first come, first served.
 

3) Require Test-bed Operations – Roland La Plante, chief of marketing for Afilias admitted to The Register that the story of .INFO’s rollout has been replete with problems, entirely related to operations and technical viability: “It has not been the smoothest, most error-free launch: “If we did it again, before we went live we would test it under a more significant load" (http://www.theregister.co.uk/content/6/22151.html).

As a result of not being prepared and of having an incomplete infrastructure, Afilias experienced numerous problems, significant downtime, a variety of registrar interface errors, ambiguous, faulty whois records, etc.

Remedy for the future: La Plante’s admission is refreshing. However, When La Plante discussed what Afilias would do if given a second chance at its first chance, he alluded to a process that IOD has, for the past five years, implemented under the approval, instruction and guidance of IANA; IOD operates .WEB in a test-bed root to ensure that everything is functional, smooth, adaptable, predicable, objectively verifiable and demonstrable. 

This is ironic when one considers the recommendation of ICANN’s director, Hans Kraaijenbrink, cited in Section I above. To repeat, Kraaijenbrink declared,


“I believe that we should award .WEB (to Afilias) knowingly, that IOD has been in operation as an alternative root with .WEB for some time; but I remind and fully support what Franz Fitzsimmons said a few minutes ago -- that taking account of alternatives will open an unwanted route to pre-registration of domain names and domains -- so I am fully aware of what I am doing in voting in support of awarding Afilias .WEB.”


Spectral Web maintains that it is wise for a registry to test its infrastructure in a test-bed root. The wisdom and sobriety of this has been made evident by Kraaijenbrink’s and Fitzsimmons’ Registry of Choice, Afilias. Implicit in their admonishment of IOD for using the “alternative root” as a test-bed is the assertion that Afilias’ method of testing is the preferred course. Perhaps these gentlemen will now realize how grossly in error their analysis was, how mistaken their admonishment of IOD was and how damaging their reasoning was to the November 2000 gTLD selection process.
 

4)   Registrants versus “Pre-registrants”
Some voices have brought into question the legitimacy of .WEB registrations; however, Spectral Web finds the validity of every .WEB registrant to be self-evident.

When a registry (either one originally residing in the Legacy root or one initially residing in an alternate root) opens its doors for registrations and charges a fee for its service, the registrant becomes a customer of that registry and the registration itself must be deemed a contract. Subsequent approval of that registry into another root does not and must not constitute an invalidation of the standing registrations. Simply put, Spectral Web and all the other thousands of .WEB registrants are customers of the .WEB registry, IOD, and are not customers of ICANN. Rather, ICANN is merely the technical body that conducts business with registries, and has no right to disqualify registrants that are protected by registry policy.

Current .WEB registrations have the added legitimacy of being children of the IANA/IOD agreement of 1996. IOD was told by ICANN’s predecessor to begin taking genuine registrations in anticipation of being added to the main root. Those registrations were made by paying customers; there were no theoretical transactions or simulations involved.

In light of this, ICANN should refrain from using the word “pre-registrants” when referring to IOD’s registrant base. In the context of .WEB registrants, this word has no basis in legal, historical, pragmatic or technical truth.

Perhaps ICANN might consider reserving the term “pre-registrants” for those individuals who submit domain applications to the various registrars, but which have not yet been recorded in the registry in question. As for all of IOD’s registrants – we are already in the registry and are therefore rightfully called “registrants.”

Regardless of the terminology, one thing is certain: IOD’s registrants are the earliest registrants of any of the gTLDs formally proposed one year ago. .WEB registrants predate any registrant in either the .INFO or .BIZ database.  .WEB registrants predate ICANN itself.
 

Conclusion

Clearly, Afilias founder company, PSI-Japan, knows something is wrong with Afilias; it quit the conglomeration as a result of the impropriety evidenced. PSI’s representative, Robert F. Connelly, made this unprecedented decision, even though he personally enjoyed a comfortable position on the Afilias board.

ICANN needs to be wiser when it chooses the .WEB registry. In fact, the .WEB registry already exists, so ICANN needs to act fairly in finally recognizing this fact. IOD has never been the rogue that some on the ICANN board have gone on record to opine. In fact, it is far more competent, customer-centered and ethical than its .COM, .INFO and .BIZ counterparts. This reputation will only spill over onto ICANN’s currently tainted reputation, and will provide genuine evidence that ICANN can play fairly, honestly and in accordance with Netizen interests.

It was not long ago that W.J. Tauzin and John D. Dingell of the Committee on Energy and Commerce, and Fred Upton and Edward J. Markey of the Subcommittee of Telecommunications wrote the Honorable Donald L. Evans of the Department of Commerce, supporting further expansion of namespace. The writers of the letter advocated for .WEB and asked that ICANN “act without discrimination or bias against any worthy applicant, including those applicants from the last selection round as well as those organizations that have opted to utilize alternative roots to propagate their TLDs”
(http://energycommerce.house.gov/107/letters/08062001_361.htm).

The urging of Tauzin, Dingell, Upton and Markey underscores the dire need for fairness in the process. Spectral Web appreciates that there are those within the United States government who do not join the vilification of alternative roots that some within ICANN provoke. However, make no mistake about it. Despite many claims to the contrary, IOD has operated within ICANN’s process from the very beginning, endeavoring always to gain approval into the Legacy root. IOD began operations in 1996 under the instruction of IANA, the then-sanctioned ruling Internet body. It never sought permanent residency in an alternative root, but simply entered one in order to demonstrate viability, as required by IANA. IOD accomplished its mission five years ago and has more than earned a place for its .WEB in the main Internet.

Finally, beyond its interests in IOD, Spectral Web recommends that ICANN look for alternate examiners when it commences its second application round. Those serving ICANN during Round One seem to have lacked objectivity.
 

About Spectral Web, Inc.

Spectral Web, Inc. (www.spectralweb.com) is a New York City-based company devoted to all fields of knowledge. It is developing an extensive network of sites, forums and ePublications in the areas of education, business, health, science, law, social science, entertainment, language, literacy, arts and humanities, etc.

Spectral Web's first project is its ePublication, AmericanWriters.com eZine (ISSN 1534-9209) that is devoted to the craft of writing and to the canon of American literature.  The eZine is available at www.AmericanWriters.com.

Much of the work currently being done remains behind the scenes while Spectral Web is in the process of developing network architecture, writing content and contacting field specialists. 

Spectral Web will
 
· build forums in the hopes of catalyzing connectivity and interactivity among people of similar interests and needs
· shape its communities around the interests of merchants, non-profit organizations, educators and students, professionals, businessmen, scientists, technicians, healers, specialists, artisans, hobbyists and the general Internet user
· promote literacy and student education in school-outreach programs
· compose and sponsor meaningful, educational content wherever possible
· devote resources to human rights, civil rights, child advocacy and general human-interest initiatives
· create family-friendly/child-safe forums
· promote the humanities, partnering with galleries, museums, artists, writers, musicians, etc.
· produce low-cost specialty e-Zines. Spectral Web is looking into the possibility of producing eZines in partnership with schools throughout the world, to be offered to subscribers free of charge. These eZines would focus on major content areas as well as teen culture
· provide free or low-cost email, message board and bulletin board services



Additional:  
“Spectral Web, Inc.’s Comments Regarding the Choice of New Top-Level Domains and Registries”  (04 November 2000:
http://forum.icann.org/tldapps/3A057DFA00001157.html)
 
Image Online Design, Inc.'s Reconsideration Request:
http://www.icann.org/committees/reconsideration/iodesign-request-15dec00.htm
 
       
     
     
     

 


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