After a daylong air journey from Washington to Singapore we spent the weekend ensconced in the Raffles Convention Center observing the workings of ICANN’s Generic Names Supporting Organization (GNSO) policymaking body and trading news and rumors in the air conditioned hallways that provide shelter from the sweltering heat outside.
Upon arrival we learned of two new communications that will likely have some considerable influence on the end game for new gTLD policy:
• A June 16th cover letter from Larry Strickling of the Department of Commerce (http://www.icann.org/en/correspondence/strickling-to-dengate-thrush-16jun11-en.pdf) conveying a June 14th opinion from the Department of Justice’s Antitrust Division taking considerable issue with ICANN’s view that existing gTLD registries should be permitted to affiliate with registrars. The most pertinent portion of the letter for domain investors states –
First, ICANN should retain cross ownership restrictions for existing gTLDs that are subject to price caps, unless ICANN determines that the price caps no longer constrain the exercise of market power. Based on past analysis by the Antitrust Division as well as independent reports commissioned by ICANN, we would expect that removing cross-ownership restrictions would lead to substantial price increases for .com, .net and .org, and would likely lead to price increases for .info and .biz.
The letter also strongly questions ICANN’s belief that contractual restrictions can effectively prevent competitive harm and advises that ICANN should give more attention to competition issues before allowing new gTLDs to vertically integrate with registrars.
ICA recently took strong exception to suggestions that incumbent gTLDs that choose to affiliate with registrars should be required to adopt the entire new gTLD contract as it contains no price increase limitations. We welcome this DOJ initiative for raising additional concerns about potential anticompetitive conduct directed at current registrants at .com, .net, and the other incumbent gTLDs.
• A letter from the Governmental Advisory Committee (GAC) to Board Chairman Thrush (http://gnso.icann.org/mailing-lists/archives/council/pdfUuclFd99Tc.pdf) laying down some final markers for the new gTLD Applicant Guidebook. ICA is pleased to note that the letter makes no mention of additional changes to the Uniform Rapid Suspension rights protection remedy, as the remaining suggestions on the GAC’s wish list would have eliminated any meaningful differences between URS and the UDRP and subjected registrants to potential loss of a domain’s use through a $300 procedure with inadequate due process protections.
During GNSO deliberations on Saturday, many members took strong exception to an ICANN staff recommendation that no Policy Development Process (PDP) be initiated on Uniform Dispute Resolution Policy (UDRP) reform, with a strong consensus opinion being voiced that ICANN should never be afraid to undertake an objective review of a key policy area — especially one that has been in use without significant change for a dozen years. ICA plans to speak out on this issue later in the week at a session devoted to reviewing the recently issued staff report on UDRP reform. It appears likely that it might be wise to sidestep opening the actual standard for what a complainant must demonstrate to prevail in a UDRP, as intellectual property interests have already indicated they would launch a major campaign to change the requirement to demonstrate “bad faith registration and use”, seeking to replace the “and” with “or”. However, the major concerns of ICA members are about a lack of consistency and predictability in UDRP decisions – and the need to assure that the UDRP remains reliably UNIFORM in a new domain name system (DNS) world of perhaps several hundred new gTLDs as well as many more ICANN-accredited UDRP providers beyond WIPO and NAF, who now render the vast majority of decisions.
ICA Counsel Philip Corwin will be helping develop the Business Constituency’s (BC) draft position on UDRP reform. The BC had previously advised ICANN that it opposed the accreditation of any new UDRP providers until ICANN developed a standard agreement to be entered into by all UDRP providers, and such an agreement would seem to be an excellent framework for addressing procedural and administrative issues that are the key to assuring uniformity.
In the course of a three-hour presentation on new gTLDs to the GNSO on Sunday morning, ICANN senior staff member Kurt Pritz noted that the STI-RT had recommended that ICANN develop a standard contract for URS providers, but it is not clear whether or when that project will be underway. ICA believes that such a standard contract is a critical need, and we hope it is being developed and look forward to reviewing it if it becomes available — as it may well provide a good starting point for a standard UDRP provider agreement that can help assure reasonable uniformity as the UDRP moves forward into its second decade and is applied to a rapidly expanding gTLD universe.