The ICANN Commercial And Business User Constituency Mr John

the icann commercial and business user constituency mr. john kneuer, acting assistant secretary of commerce for communications and inf

The ICANN Commercial and Business User Constituency

Mr. John Kneuer, Acting Assistant Secretary of Commerce for
Communications and Information
U.S. Department of Commerce
14th and Pennsylvania, NW
Washington, DC
USA
March 17, 2006
Dear Mr. Kneuer,
The ICANN Commercial and Business User Constituency (BC) writes to you
to express our concern about the recently signed agreement between
VeriSign and the Internet Corporation for Assigned Names and Numbers
(ICANN), which extends VeriSign’s contract as the operator of the .com
top level domain registry. We understand that the U.S Department of
Commerce (U.S.DoC) now has the agreement before it for acceptance. We
urge the U.S. Department of Commerce not to accept this agreement, but
to return it to the Board of ICANN, requiring them to take into
account the pending policy advice of the ICANN Generic Names
Supporting Organization’s Council (GNSO), as well other appeal
processes which are now in progress.
The BC includes in its membership corporations and small businesses
from across the globe, of which a substantial number are U.S.
corporations and industry associations. (see www.bizconst.org ) The BC
includes members who helped to launch ICANN and who worked closely
with the U.S. Department of Commerce through that process. Our members
are staunch supporters of competition; many of our members are the
architects and service providers of the very networks that underpin
the Internet’s operation and e-commerce functions.
It is our view that the ICANN Board has ignored the formal input of
the community that it is required under its bylaws to seek. This
places ICANN in a challenging position within both the broader
Internet community, and with intergovernmental entities and other
governments. We therefore see considerable risk to ICANN from the
impact of this decision. Our concerns are twofold: the substance of
the proposed agreement; and the process followed by the ICANN Board in
reaching its decision.
Substantive concerns
The BC has advised the Board in a timely manner of its concerns
regarding the adverse impact of the proposed agreement on competition,
including:
1.
1) a presumptive right for the renewal of the contract;
2.
2) an unfair exclusion from ICANN consensus policy for new
registry services for a period of two years;
3.
3) a new ability for the Registry to leverage its upstream natural
monopoly status downstream into areas previously subject to open
competition such as traffic data.
Inherent in the BC concerns is the issue of the dominance of the
incumbent in the generic TLD space, and the lack of competitive
safeguards. ICANN has made minimal progress in introducing competition
at the gTLD registry level. Today, there are four providers of
registry services in the generic names space, but with over 85% of
names under the management of a single provider, VeriSign. The BC does
not understand why such dominance is being reinforced in the proposed
agreement, instead of being recognised, and so managed by enhancing
competition through the continuance of a competitive bid on a
recurring basis.
The lessons learned from the .net re-award are that a competitive
tender provides a strong motivation for an incumbent to put forward
both improvements in services and lowered prices. Yet, this present
agreement seems to reflect none of the pro-competitive lessons from
that recent process.
The BC accepts that ICANN is not itself a competition authority,
however, within its mission and core values, ICANN has clear
obligations to foster competition.
Process concerns
*
Community wide input from commercial and non-commercial users,
from IP interests, from Internet service providers, from domain
Registrars, and from at large users, informed the ICANN Board of
substantive concerns. ICANN was structured to listen and react to
a consensus bottom-up approach; yet this Board decision is
top-down and ignored the bottom up input from the broad community.
*
ICANN’s own generic names policy body, the GNSO Council, has work
in progress to address the broader policy issues that arise from
the competitive issues inherent in the proposed agreement; yet the
Board decision has not waited for this work to be complete.
Further reasons
There are further reasons for the U. S. Department of Commerce not to
approve this agreement:
*
There is a pending reconsideration, within the formal ICANN
processes available to parties who believe they are harmed or that
a Board decision was made without due consideration of all facts.
*
There is at least one pending lawsuit.
*
There are proceedings at the U.S. Department of Justice and with
the European Competition Authorities, based on complaints by
affected parties.
*
There is international sensitivity in the post WSIS environment,
and the keen interest of some governments to establish increased
intergovernmental oversight of ICANN.
To refocus ICANN to its mission, and to ensure the continued support
of the Internet community, the U.S. Department of Commerce should
advise ICANN that policy decisions must continue to be governed by
consensus policy. Thus, the U.S. Department of Commerce should return
this agreement to the ICANN Board and ask that Board to await the
consensus policy recommendations of its own internal body, the GNSO.
These policy decisions will be forthcoming well within the timing of
the original lapse of the 2001 .com agreement.
Sincerely
The elected officers, on behalf of the Commercial and Business Users
Constituency:
Marilyn Cade
Grant Forsyth
Philip Sheppard
cc: Vint Cerf, Chair, and members of the ICANN Board
Paul Twomey, CEO and President, ICANN
ICANN GNSO Council