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

[Burr, Becky]

Greg,

On point 3:  One component of ICANN’s new registry service review process (RSEP), which was the product of a policy development process, involves ICANN making a preliminary reasonable determination of whether the proposed Registry Service "could raise significant competition issues.”  If so, ICANN, through the General Counsel, will refer the matter to the appropriate competition authority or authorities with jurisdiction of the matter.  If that referral takes place, the Registry must wait for 45 days before deploying the new service, giving the relevant authority the opportunity to act if it sees a problem.  https://www.icann.org/resources/pages/registries/rsep/policy-en.  I don’t know if ICANN has every exercised this authority, but Alan expressed concern that elimination of the “where feasible and appropriate” language would call this policy and practice into question.

On points 1 and 2:  The fact that ICANN can hire an antitrust lawyer does not give it antitrust competence.  I continue to feel that the text of our proposal must make clear that while ICANN can play a role in promoting competition by expanding the domain name space it has no authority or competence with respect to correcting the marketplace.   I don’t think your language addresses my concern in that regard.


J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Monday, February 1, 2016 at 12:23 AM
To: Andrajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>>
Cc: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms

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<mailto: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<mailto:ajs at anvilwalrusden.com>
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