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<TITLE>RE: [registrars] Revised Registry Approval Process</TITLE>
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<DIV id=idOWAReplyText31569 dir=ltr>
<DIV dir=ltr><FONT face=Arial color=#000000 size=2>Hi Bruce,</FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>I am not qualified to comment on most of
your points. There is one, however, to which I might add a bit of light. That is
the concept of going to external legal counsel for competition advice. Certainly
the advice of counsel on the various national and EU competition laws should be
sought. However, I do not think that will suffice in and of itself.
</FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>In my 17 years as a lawyer, more than half
of it was as a competition lawyer. I chaired two of the committees of the
American Bar Association Antitrust Section during that time (the FTC committee
and the Private Litigation Committee) as well as serving on the U.S. delegation
that worked with the then ECC on the 1986 revisions to the Treaty of Rome, the
fundamental European Community competition law. So I actually know a bit about
the subject. </FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>With that background my comment is that I
would think our community and ICANN itself poorly served if all that it relied
on was outside counsel. This is <U>not</U> a negative comment in any way on Joe
Simms, ICANN's outside counsel who happens to be a former Assistant Attorney
General for Antitrust and highly qualified. I have known Joe for almost 20 years
and think the world of him and his abilities. Rather it is a comment on how
legal advice comes about. Any lawyer will tell you that the advice is only as
good as the facts laid out for him or her by the client. Lawyer's do not try to
hypothesize the direction that competition might take. </FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>I promise you that no lawyer would have
ever envisioned some of the twists and turns we have seen secondary market
competition take over the last two years. Indeed, many of us in the registrar
community, including me, were not prescient enough to see them coming. However,
the registrar community as a whole is clearly the group best suited to discuss,
forecast and prognosticate on future competitive environments. Without that, the
advice of any lawyer will have very limited utility. </FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>That is a long way of saying that I think
both of you and Tim are right. We need registrar involvement to lay out
alternative fact settings, alternative pathways of competition. We need legal
counsel to advise ICANN of the impact of the various national and EU laws in
this setting and how the ICANN staff should relate to the national enforcement
agencies. I submit that we would be ill served by omitting either the registrar
community or the lawyer's from this process. Best to all,
Champ</FONT></DIV></DIV>
<DIV dir=ltr><BR>
<HR tabIndex=-1>
<FONT face=Tahoma size=2><B>From:</B> owner-registrars@gnso.icann.org on behalf
of Bruce Tonkin<BR><B>Sent:</B> Mon 5/30/2005 5:51 AM<BR><B>To:</B> Tim
Ruiz<BR><B>Cc:</B> registrars@dnso.org<BR><B>Subject:</B> RE: [registrars]
Revised Registry Approval Process<BR></FONT><BR></DIV>
<DIV>
<P><FONT size=2><BR>Hello Tim,<BR><BR>><BR>> The term "ICANN" is used
throughout the process description.<BR>> What does that mean? If it means the
ICANN Staff, then that<BR>> should be made clear at the outset of the
document.<BR><BR>In the recommendations, ICANN refers to the legal entity that
is the<BR>contractual party in the agreement with registries.<BR><BR>ICANN the
legal entity employs staff that would be responsible for<BR>managing the
process.<BR><BR>If an ICANN supporting organisation or advisory committee is
involved -<BR>it will be explicitly mentioned.<BR><BR>><BR>> Step 4
reads:<BR>> "ICANN may seek expert advice during the preliminary<BR>>
determination period (from entities or persons subject to<BR>>
confidentiality agreements) on the competition, Security or<BR>> Stability
implications of the registry service in order to<BR>> make its "preliminary
determination." To the extent ICANN<BR>> determines to disclose confidential
information to any such<BR>> experts, it will provide notice to Registry
Operator (or sponsoring<BR>> organisation) of the identity of the expert(s)
and the<BR>> information it intends to convey."<BR><BR>The experience of the
ICANN staff to date, has been that most requests<BR>are quite trivial in nature
- e.g change of address etc. So "must" get<BR>external advice may
raise costs unnecessarily.<BR><BR>The intent is that where there is a matter
that may impact registrars,<BR>or Internet end users, that some external advice
should be sought.<BR><BR>With respect to advice on Security or stability - I
expect such advice<BR>to come form members of the Standing Panel.<BR><BR>With
respect to advice on competition - I expect this to come from<BR>external legal
counsel.<BR><BR>I will get "expert advice" specified in more detail in the
final<BR>version.<BR><BR>><BR>> This section should read that "ICANN must
seek expert<BR>> advice." Or at the very least, that "ICANN should seek
expert<BR>> advice." And Expert Advice should then be
defined.<BR>><BR>> I see this as the most critical part of the process. If
a<BR>> misjudgment is made at this step the rest of the process is<BR>>
moot and the ICANN Staff finds itself embroiled in another<BR>> mess. This
step should not be fast-tracked. Given past<BR>> events, I can't imagine why
the Staff, the Board, or anyone<BR>> would want this step to work any other
way.<BR>><BR>> Regarding the Registrars' Constituency statement, that
was<BR>> never voted on by the members, correct?<BR><BR>Yes. It has
always been in draft form.<BR><BR>The registrars constituency has a poor record
on formally voting on<BR>policy statements.<BR><BR>Most votes have been related
to electing
officials.<BR><BR>Regards,<BR>Bruce<BR><BR></FONT></P></DIV>
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