[council] Spec 13 / Rec 19 - additional informatio

[Thomas Rickert]

All,
as discussed during the last Council call, I have been asked to reach out to community members that have been involved at the time when the new gTLD policy recommendations were crafted. Below, you find my e-mail to them and the answers that I received. 

Thanks,
Thomas


I am contacting you today as you have been involved at the time when the
policy recommendations for the new gTLD Programme were developed and
adopted. 

As you can see from the attached letter, the ICANN Board has reached out to
the GNSO Council asking for advice with respect to Specification 13 to the
Registry Agreement, in which it is requested that .brand registry operators
can only nominate up to three exclusive registrars for registrations of
domain names in their TLD. The question is whether this is an inconsistency
with Recommendation 19 of the original GNSO policy recommendations
(registries must use only ICANN accredited registrars in registering domain
names and may not discriminate among such accredited registrars.). 

I have volunteered to reach out to you to help inform the Council's
deliberations. I guess we would be interested in background information on
the discussions on the subject of treating registrars in a
non-discriminatory manner and potential exemptions as well as whether you
think that this part of Specification 13 is a matter of policy or
implementation.

Kind regards,
Thomas



Marilyn Cade:

I do have a lot of recollection, but we should also think about checking with Bruce, who was chairing at the time/as you may recall.  

My recollection at this time, sort of  initially, though until I dig out notes and old notebooks, is that there wasn't a lot of discussion about brands, as most brands were then, highly skeptical about new gTLDs. That was also pre - waterfall approach -- e.g. we were in the early days, talking about a more 'managed' approach to introduction, if you recall.  

There was more of a focus on IDN prioritization, community facing gTLDs, and almost no speculative expressions about all the focus on proposing what, for the sake of discussion, I might call 'dictionary words' as developed later.

At the time, Patagonia and Amazon were not even visibly aware of or interested.  Nor was Travelers; or HSBC; or practically anyone else.  I was charing an ITAA Subcommmittee that actively followed ICANN 'governance', and also still active at the US Chamber, and the interest was excessively low. In 2009, I organized a day long event at the U.S. Chamber, and the brands who participated all urged caution, go slow, prioritize IDNs, community facing, such as gTLDs that create truly new space, etc. 

The financial services industry was recruited by me to join the BC, and through the Financial Services Roundtable, participated actively in the BC internal discussions.  Informal discussions within the BC and other groups indicated more concern about protection of registered trademarks at the second level. At the time of these discussions, cybersquatting was still a serious challenge to the brands.  Solutions within the ICANN community, improvement of enforcement mechanisms, etc. etc. were not in place at that time. Tasting and 'kiting' were high profile concerns, in the existing gTLDs.  

Creating a secondary market was a strong priority for some in the ICANN registrar community, if you recall, and speculation was considered a 'legitimate business model' by some, including such a statement by Vint Cerf, and Paul Twomey. A few companies -- a few of the larger Registrars [just some, so not trying to be hostile or negative here about practices] but a few were engaged in building the pyramid approach to pounding the .com to grab expiring names, buying additional registrar accrediations, which costs $4,000 and setting up what some in my community considered 'shells', to have more access to expiring names, so they could dump them into the resell market at marked up prices.  The ISPs, BC, and IPC did loads of work with ICANN to push forward on compliance /enforcement, and the relationship with the registrars was largely hostile and negative, over this small set of what was thought of bad actors, who were fighting hard against any kind of curtailment of cybersquatting/registrations. 

We don't need to debate who was right or wrong. In San Juan meeting, there was a panel where extremely bizarre behavior broke out, including a Board member actively criticizing any discussion about cybersquatting, kiting, tasting.  This led to a very stressful confrontation with the Board and General Counsel over ICANN's responsibilities. 

Active in the Council WG on new gTLDs, chaired by Bruce, were the guys that were also building the multiple registrar accreditations via a sort of holding company approach. 
There was a sense at that time, that there would be a 'round' and as I recall, we were pushing for no more than 300, or even less. 

So, registrars were actively concerned about fair and equal opportunity.

I had chaired the Transfers Task Force [for two years!] and clearly, intra registrar interactions were often highly anti-competition, and highly anti-registrant freedom of choice, by SOME registrars. GODADDY had not yet make its big move. 

Having said all that, the Registrars community, at that time, still had a serious concern about discriminatory treatment. I was viewed as both knowledgeable, and credible from my role on the Task Force. [I think]. 

The discussion about expertise of Registrars in specific kinds of registrations got some discussion, but possibly  not enough, given the state of awareness of how a .brand might function. 

Bruce Tonkin:

Hello Thomas,


>> I have volunteered to reach out to you to help inform the Council's deliberations. I guess we would be interested in background information on the discussions on the subject of treating registrars in a non-discriminatory manner and potential exemptions as well as whether you think that this part of Specification 13 is a matter of policy or implementation.

I was chair of the new gTLD policy committee at the time that recommendation 19 was agreed.   It was more than 6 years ago - so my memory may not be perfect.

The recommendation states:

"	"Registries must use only ICANN accredited registrars in registering domain names and may not discriminate among such accredited registrars."


We did discuss this in the context of community gTLDs.   There were some in the GNSO that were saying that communities should be able to appoint their own registrars that had knowledge of the various registration rules for that particular community.

The registrar reps on the committee at the time wanted to preserve the current registrar accreditation system as a level playing field.

So the idea was that it wasn't that hard to get a registrar accreditation, and that the first principle is that a gTLD operator must use ICANN accredited registrars.

It was recognized that a particular gTLD could require some additional criteria for selecting registrars - e.g a registrar may need to show their understanding of the registration rules, or put in place some additional eligibility checks.

The registrars reps were OK with some additional criteria for selecting registrars - but that this should be done on a non-discriminatory basis.   Ie the additional criteria should be public and objective, and any registrar could choose to decide whether to implement the additional criteria.

.travel is an example, where registrars had to show some understanding of the .travel policies, and collect and provide to the registry an authorisation code  to show that the registrant was eligible.

We didn't specifically discuss .brand gTLDs within the committee at the time, though some of us were aware of the possibility of brands applying for their own gTLD.   I personally never felt that recommendation 19 was particularly onerous for a brand gTLD.

Brands already use one or more registrars to register their domains in existing gTLDs and ccTLDs.   As a registrant they have a choice of registrars.    A registrar is probably unlikely to seek to become accredited for a .brand gTLD unless they felt that the brand registrant was likely to use them.   Even if a registrar did become accredited, they would still have to have an appropriate service to encourage a brand to register second level domains.   I had basically expected that normal market dynamics would apply here.   It is most likely that the existing corporate brand registrars e.g MarkMonitor, CSC, NetNames etc - would likely continue to service this market, and they would probably apply to be accredited in various brand gTLDs that matched their customer base.   I didn't see any particular need to restrict the number of registrars that a brand could use.   E.g If a brand was currently using MarkMonitor for their domain name portfolio, then NetNames could become accredited for the .brand gTLD and then offer their services to various divisions/subsidiaries etc of that brand.    More likely however - they would probably assess the market first and see if there was demand from registrants before they would apply to be accredited. 

Each registrar would have to abide by the same rules - so didn't really see any downside for .brand operators.

Regards,
Bruce Tonkin

Tony Holmes:

Dear Thomas
I believe the direct answer to your question is that Specification 13 to the
Registry Agreement can only be viewed as inconsistent with GNSO Policy
Recommendation 19. 

As far as I can recall at the time Specification 13 was drafted the intent
was to ensure that type of type gTLD was provide with specific safeguards
and that was the sole focus of the discussion. To my knowledge the issue of
being inconsistent with agreed GNSO policy was never discussed.  However
having recognised that there is an inconsistency I would suggest it should
now be down to the GNSO to determine how to address that situation and in
particular whether there is a case to allow exceptions without weakening the
safeguards provided or impacting competition in a negative manner. The need
for further policy consideration seems clear. 

It is just one of a number of initial decisions that now demand further
consideration. I view that as part of the process of continued improvement
as we are all still learning as we progress with what is a very complex
program.

I hope that helps.

Best Regards
Tony

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