[CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms

[Greg Shatan]

I support reverting the existing Bylaws language.  I have some problems
with the explanatory text, though.  The suggested language is:

While acknowledging that ICANN does not possess antitrust expertise or
authority, on balance the CCWG elected to retain the introductory language
to ensure that ICANN continues to have the authority, for example, to refer
competition-related questions regarding new registry services to competent
authorities under the RSEP program, to establish bottom-up policies for
allocating top-level domains (e.g., community preference),  etc.

First, I wouldn't say "ICANN does not possess antitrust expertise."  I'm
sure that ICANN is really well advised on antitrust matters by Jones Day;
Joe Sims, the partner behind the Jones Day relationship, is a first-rate
antitrust lawyer and Jones Day has a strong antitrust practice.  I think
ICANN has all the antitrust expertise it needs available to it.

Second, I would not say that "ICANN does not possess antitrust ...
authority."  Not because it isn't true (it is; only governments and
regional authorities (e.g., the EU) have antitrust authority), but because
I don't see how it's relevant.  I don't think anyone has ever asserted that
ICANN has antitrust authority. ICANN doesn't need to be an antitrust
authority to take action (or to take no action) under this Bylaw.

Third, I am just uncertain what is meant by "the authority, for example, to
refer competition-related questions regarding new registry services to
competent authorities under the RSEP program."  Is this something that
ICANN has done?  I am not aware of any system by which the US antitrust
authorities (DOJ and FTC) take questions and provide advisory opinions or
no action letters or anything similar, except with regard to
Hart-Scott-Rodino Act questions (which is irrelevant here).

I do agree with the very last part, that ICANN needs to have the authority "to
establish bottom-up policies for allocating top-level domains (e.g.,
community preference), etc."  This is an example of one type of action
where ICANN is not just letting the market find its own level; there are
certainly others, and not only relating to the TLD marketplace.  Many of
ICANN's actions and policies have an effect on the marketplace (RPMs,
reserved names at both levels, name collision reservations, etc., etc.)  (I
will note with some sympathy Alan Greenberg's concern that not every ICANN
policy is categorically "bottom-up.")

I would suggest the following revised language:

While acknowledging that ICANN does not possess unlimited latitude to take
actions relating to markets, on balance the CCWG elected to retain the
introductory language to ensure that ICANN continues to have the ability to
establish policies (consistent with antitrust/competition and other
applicable laws) such as those for allocating top-level domains (e.g.,
community preference),  etc.

Greg




On Fri, Jan 29, 2016 at 2:57 PM, Andrew Sullivan <ajs at anvilwalrusden.com>
wrote:

> On Fri, Jan 29, 2016 at 07:49:03PM +0000, Burr, Becky wrote:
> > I would propose to resolve the situation by reverting the existing
> Bylaws language and adding the following language to the explanatory text
> of Recommendation 5:
> >
> [elided]
>
> I can support that (speaking personally).
>
> A
>
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
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>
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