[CPWG] Communication to ICANN GC

Mon Aug 28 11:03:53 UTC 2023

Dear Steinar ,
I somehow agree with Mike that prices references  should be removed from
the policy since policy should be stable and not troubled by some
operationals prices and items that may depend of inflation evolvement or
any other short terms  factors , but
having a  price references is in the interest of the end user that at least
he should be informed when  the prices evolves, since the this transfer
fees will somehow impact the DNS price that ultimately will imputed to the
End user .
So what I'm suggesting is to create another document for example "Prices
References"   that will be mentioned by transfer  the policy and amended
based on price factors changes(including competitor factors mentioned by
Mike  ) independently from the policy .
Again I'm personally not with the  Proposal to open the door to the
registry to fix freely their prices and " 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"
since this will open the door to a new transfer disputes that registrars
or  registrants  can hardly gain.
I agree with @Evan Leibovitch <evan at telly.org> that ALAC should act and
defend the end users interest in this particular issue.
@Steinar Grøtterød <steinar at recito.no>  thank you again for the great jobs .

Friendly regards
Chokri

Le lun. 28 août 2023 à 07:42, Steinar Grøtterød via CPWG <cpwg at icann.org> a
écrit :

> Hi Michael,
>
>
>
> Thanks for valued information re the present ICANN fee (and your response
> to Evan in a separate thread).
>
>
>
> I will find a way to inform the GNSO-TPR WG re the proposed “statement” on
> fees (remove references to Registry pricing), but I would love some
> discussions in the CPWG call on this first, hence hope to get some time on
> the upcoming CPWG call.
>
>
>
> Regards,
>
>
>
> Steinar Grøtterød
>
>
>
> *From: *mike palage.com <mike at palage.com>
> *Date: *Thursday, 24 August 2023 at 21:16
> *To: *Steinar Grøtterød <steinar at recito.no>, CPWG <cpwg at icann.org>, John
> Jeffrey <john.jeffrey at icann.org>
> *Subject: *RE: [CPWG] Communication to ICANN GC
>
> 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> on behalf of mike palage.com via
> CPWG <cpwg at icann.org>
> *Date: *Thursday, 24 August 2023 at 13:57
> *To: *cpwg at icann.org <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.
>
>
>
>
>
>
>
> Best regards,
>
>
>
> Michael
>
>
>
>
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