[CPWG] Communication to ICANN GC

Thu Aug 24 19:16:40 UTC 2023

Hello Steinar,

So we are in agreement that protecting registrants should be a focal point of our work, although I respectfully disagree with many of your other points which I will attempt to address below.  However, at the end of the day, it is not your opinion or my opinion that matters, but the legal opinion of ICANN's general counsel that matters.

As I mentioned in my original email I have been actively involved with a number of trade associations and standards bodies where anti-trust recitals are read at the beginning of each call, much like the ICANN standards of behavior. Even as an observer on Tuesday's call, I felt uncomfortable with the discussion of pricing by Registrars and Registries. Consistent with my professional experience and the best practices of other organizations that I participate in, I directed my concerns to the appropriate party.  The easiest path for me would be to say nothing and allow friends and colleagues to potentially dig themselves into a deeper hole. The more evil path would have been for me to report these exchanges to relevant competition authorities. I chose what I thought was the best path for ICANN and the preservation of the multi-stakeholder model, and did so after initially raising this concern on the CPWG call.

Yes, I am keenly aware of the current policy and its origins, as well as the genesis of the original transfer policy. As the original chair of the Registrar Consistency, I helped convene a meeting in Reston back in 2000 where the FBI attended and gave us a briefing on domain name thefts that were taking place through loopholes in the newly introduced competitive registrar marketplace.

The $50,000 fee set forth in the current ICANN policy document, was conceived during a time when ICANN regularly included pricing in their Registry Agreement.  However, as the ICANN community is aware, ICANN has made a conscious decision to remove pricing from the baseline registry agreement.  The only exception to this rule I believe is the .COM Registry Agreement, and that is because Verisign's .COM TLD is special. As the United States Department of Justice, Anti-Trust Division stated in 2008 "the creation of additional gTLDs is unlikely to constrain the exercise of market power by existing TLDs, especially the .com registry operated by Verisign." See https://www.icann.org/en/system/files/files/baker-to-dengate-thrush-18dec08-en.pdf

The point I am trying to make is that just because pricing was previously included in an ICANN policy does not make it okay for competitors (some of which are vertically integrated) to discuss setting Registry pricing (floors and ceilings).   Even more problematic was at the end of the call when I recall there being a reference to the potential applicability of this work in connection with BTAPPA transfers.

I believe it would be constructive to expand on BTAPPA transfers because I believe they provide a roadmap for how the WG should proceed to minimize legal risk. Interesting trivia fact for you and the rest of the CPWG mailing list. As an external consultant to CSC, I worked with Jeff Neuman to implement this first approved RSEP, see https://www.icann.org/en/system/files/files/neulevel-request-25sep06-en.pdf

What is very interesting is that if you go back and read this RSEP, NeuLevel specifically called out in the RSEP the fees it would charge Registrars, e.g. floor of a $1,000 and a maximum of $0.20 per domain name.  However, in reviewing several recent BTAPPA RSEPS, I could find no specific reference to fees. I do not think this is a coincidence but rather by design.

So my personal advice to you and Lutz which I will share with the entire CPWG next week is as follows.

Consistent with current ICANN best practices, the transfer policy should be updated to remove any reference to Registry pricing. This would align with current BTAPPA transfers where Registries are able to set their price accordingly.  In the interest of openness, transparency, and predictability ICANN should require Registries to post these fees. If a Registrar believes that a Registry Operator is abusing its exclusive control over that TLD, it is free to reference that concern to an appropriate competition authority. Perhaps they might even want to copy ICANN's own economist, Roberto Gustavo Peña.

In closing, it is because of these types of market dynamics that I continue to advocate for a comprehensive domain name economic marketplace analysis and why the exemption of Verisign in connection with .COM and .NET from this standard Registry Operator provision is so problematic.

Best regards,

Michael

From: Steinar Grøtterød <steinar at recito.no>
Sent: Thursday, August 24, 2023 11:26 AM
To: mike palage.com <mike at palage.com>; CPWG <cpwg at icann.org>
Subject: Re: [CPWG] Communication to ICANN GC

Dear Michael,

After listened to the recordings from the GNSO-TPR and the CPWG calls, I (still) have some problem understanding the ICANN Approved transfers and the Anti Trust questions you rise.

The present policy has a fixed fee (USD 50,000) for transfers of >50,000 domain name per TLD. The WG has in several meeting discussed removing this fee in the revisited policy. It is worth noticing that the present policy was defined before the opening of the new gTLDs.

My understanding is that there is some consensus that if there should be a fee, the fee should be set by the registry operator.

ICANN Approved transfers has two main categories:

  *   Voluntary agreed transfers that falls under the definition of ICANN approved transfers.
  *   Involuntary transfers that falls under the definition of ICANN approved transfers.

A typical scenario for a voluntary agreed transfers is when a registrar (A) has acquired another registrar (B) and thereby want to transfer the domain names to the accreditation(s) of registrar A. Registrar A will do the calculation whether an ICANN bulk transfer will be beneficial based on the volume (and policy) and the fees set by the gTLDs. The alternative is to transfer the domain names in a regular inter-registrar transfer process (get auth codes, initiate the transers etc).

A typical involuntary transfers is when a registrar has lost their accreditation (RAA) or the Registry Registrar Agreement(s) is terminated. In these scenarios, the domain names will be without a sponsorship, hence "someone" has to take the work to sponsor the namespace in question. Further, in these involuntary scenarios there often will be lack of support from the "losing" registrar.

The discussions connected to involuntary transfers have touched "who should pay" the Registry operator(s) (ICANN or the selected registrar that takes the responsibility to get the domain name sponsored) and what should it cost (a fixed fee - set by the Registry Operator(s), or "cost recovery").

I have problems seeing the above as relevant in an Anti Trust discussion connected to ICANN Approved transfers.

For the domain name holders, it is important that their domain names get a sponsorship.

Regards,
Steinar Grøtterød

From: CPWG <cpwg-bounces at icann.org<mailto:cpwg-bounces at icann.org>> on behalf of mike palage.com via CPWG <cpwg at icann.org<mailto:cpwg at icann.org>>
Date: Thursday, 24 August 2023 at 13:57
To: cpwg at icann.org<mailto:cpwg at icann.org> <cpwg at icann.org<mailto:cpwg at icann.org>>
Subject: [CPWG] Communication to ICANN GC
Hello All,

In connection with a discussion that took place on yesterday's CPWG call, I decided to send the following communication to ICANN's General Counsel in an individual capacity.

Best regards,

Michael

From: Michael Palage
Sent: Wednesday, August 23, 2023 4:13 PM
To: John Jeffrey
Subject: Anti-Trust/Competition Concern wrt Transfer Policy Review PDP WG (22-Aug-2023 Call)

Hello John,

I would like to bring to your attention some concerns about the substance of yesterday's Transfer Policy Review PDP WG. Although I raised this concern during today's At-Large Consolidated Policy Working Group (CPWG), this comment is being submitted in an individual capacity.

During yesterday's call registrars and registries were engaged in discussions regarding registry pricing (both floors and ceilings) in connection with ICANN Approved Transfers. A copy of the recording is available here - https://community.icann.org/display/TPRPDP/2023-08-22+Transfer+Policy+Review+PDP+WG+Call

Based on the portions of the call that I listened to live, I think ICANN staff did an appropriate job walking a very fine line when they referenced fees, including I recall a suggestion to remove the fee reference from the existing policy. However, I believe there were multiple references to fee minimums and caps imposed by Registries that were concerning, especially when enforced via an ICANN policy document.

Recently, I have been active in other standards bodies and trade associations. I have noticed a growing best practice of these organizations to include a standard reference to the organization's anti-trust policy at the beginning of most calls/events. Therefore, I would like to propose the following action items:

  *   I do not believe that ICANN has a public Anti-Trust/Competition policy. My apologies if I have somehow missed this. If one does exist I would greatly appreciate a pointer to this document. If one does not exist, then ICANN should strongly consider developing a public Anti-Trust / Competition policy.
  *   I believe the standard ICANN preamble text that is read before each session/call (e.g. "Those who take part in the ICANN multistakeholder process are to comply with the expected standards of behavior" be amended to include a specific reference to the Anti-Trust / Competition policy when one is adopted.
  *   It would seem advisable for someone from ICANN legal to monitor these calls when the agenda specifically envisions a discussion of fees as it did today.

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Best regards,

Michael

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