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

Mon Feb 1 20:44:07 UTC 2016

That would be ironic, since in the past ICANN asserted that it had antitrust immunity (the courts didn't buy it).

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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
Sent: Monday, February 01, 2016 3:14 PM
To: Carlos Raúl Gutiérrez G.
Cc: cct-review; Accountability Community
Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market mechanisms

I’m sorry, I really cannot accept that ICANN is an antitrust regulator

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>

On 2/1/16, 2:59 PM, "Carlos Raúl Gutiérrez G." <crg at isoc-cr.org> wrote:

>Much better Becky. But I still don´t understand the first (negative)
>part of the sentence up to the first comma. Would´t it be possible to
>assert that ICANN recognises its responsibility (trough AoC type of
>Review commitments), while not being an authority to solve conflicts on
>competition issues…….
>
>Best
>
>Carlos Raúl Gutiérrez
>+506 8837 7176
>Skype: carlos.raulg
>On 1 Feb 2016, at 11:34, Burr, Becky wrote:
>
>> Yes, this appears to be semantic, but I’m not sure we are moving the
>> ball forward by asserting that “my” (or “your”) definition of
>> a term is “the” definition.   For example, I would say an auction
>> is fundamentally a “market mechanism” and since you cannot have an
>> auction without having auction rules, those rules are also “market
>> mechanisms.”   This distinguishes them from the kind of “command
>> and control” “thou shalt not” authority that sovereign
>> regulators possess – and that IMHO, ICANN does not.
>>
>> I’m beginning to feel that no one is willing to compromise, but
>> I’ll give it another try.  How about:
>>
>>
>>        “While acknowledging that ICANN is not an
>> Antitrust  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 and to establish bottom-up policies for
>> allocating top-level domains (e.g., auction rules, community
>> preferences, etc.).”
>>
>>
>>
>> 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 2:05 PM
>> To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>
>> Cc: "Carlos Raúl Gutiérrez G."
>> <crg at isoc-cr.org<mailto:crg at isoc-cr.org>>, cct-review
>> <cct-review at icann.org<mailto:cct-review at icann.org>>, Accountability
>> Community 
>> 
>><accountability-cross-community at icann.org<mailto:accountability-cross-com
>>munity at icann.org>>
>> Subject: Re: [CCWG-ACCT] "feasible and appropriate" reliance on market
>> mechanisms
>>
>> Carlos and Becky,
>>
>> I think this is a semantic issue.  Relying on market mechanisms
>> essentially means taking a "hands-off" position with regard to the
>> market.  Under this approach, the market is allowed to define itself
>> and to use such "market mechanisms" as supply and demand.  It does not
>> mean the opposite (having an entity exercise control over the market
>> through timing, availability, objection proceedings, approval of
>> potential buyers, etc.).
>>
>> If ICANN relied solely on market mechanisms, the AGB would be 20 pages
>> long and you could walk up to the window today and buy .piru (and so
>> could I).  (That might be an exaggeration...)
>>
>> Everything that ICANN does to define the market, to control entry into
>> the market, to define how the market works, to introduce reservation,
>> objection and protection processes, etc., is a step away from relying
>> on "market mechanisms."
>>
>> I'm sure there are economists and others who can define this better
>> than me....
>>
>> Greg
>>
>> On Mon, Feb 1, 2016 at 1:39 PM, Burr, Becky
>> <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>> wrote:
>> I am sorry that you have seriously misunderstood my comment.  I am a
>> strong advocate for ICANN relying on market mechanisms to increase
>> competition, and I believe that should be very clear from my comment.
>> ICANN is not an anti-trust authority.  That is simply a statement of
>> fact.
>>
>>
>>
>>
>> J. Beckwith Burr
>> Neustar, Inc. / Deputy
>> General Counsel & Chief Privacy Officer
>> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
>> Office: +1.202.533.2932<tel:%2B1.202.533.2932>  Mobile:
>> +1.202.352.6367<tel:%2B1.202.352.6367> /
>> neustar.biz<http://neustar.biz>
>> <http://www.neustar.biz>
>>
>>
>>
>>
>> On 2/1/16, 12:59 PM, "Carlos Raúl Gutiérrez G."
>> <crg at isoc-cr.org<mailto:crg at isoc-cr.org>> wrote:
>>
>>> Dear Becky,
>>>
>>> after signing the AoC in 2008 as a step toward a new round, going
>>> trough
>>> a round of new gTLDs charging rather high applicant fees (or at least
>>> high enough so as to create barriers to entry for underserved areas)
>>> and
>>> solving competing applications trough pure actions, creating a new
>>> GDD
>>> and greatly increasing the name space, arguing that ICANN does not
>>> rely
>>> on market mechanisms or does not posses the necessary knowledge in
>>> the
>>> implications of competition, is an understatement I can hardly
>>> believe
>>> in February 2016. Hope the CCT reviews will give us all a more
>>> realistic
>>> view.
>>>
>>> Best regards
>>>
>>> Carlos Raúl Gutiérrez
>>> +506 8837 7176<tel:%2B506%208837%207176>
>>> Skype: carlos.raulg
>>> On 29 Jan 2016, at 11:49, Burr, Becky wrote:
>>>
>>>> All -
>>>>
>>>> As a follow up to our call on Tuesday regarding the language for
>>>> Core
>>>> Value 5/4:  The language in the current Bylaws reads as follows:
>>>>
>>>> Where feasible and appropriate, depending on market mechanisms to
>>>> promote and sustain a competitive environment.
>>>>
>>>> The CCWG dropped the introductory ³where feasible and appropriate²
>>>> when we issued the 1rst Draft Proposal.  The ALAC, and now some
>>>> additional members/participants, have objected to that change.  I
>>>> objected to the reinsertion of that language.
>>>>
>>>> Based on our call on Tuesday I would characterize the mood as
>>>> follows:
>>>>
>>>>
>>>> *   Most folks are indifferent
>>>> *   Some folks feel very strongly that it is very important to
>>>> retain
>>>> the ³where feasible and appropriate²
>>>> *   Some folks would probably prefer to drop the language, but no
>>>> one
>>>> feels as strongly as I do about it
>>>>
>>>> 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:
>>>>
>>>> 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.
>>>>
>>>> Thoughts?
>>>>
>>>> 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://neustar.biz><http://www.neustar.biz>
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