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(By E-mail) [26 July 2001] Louis Touton, Secretary Dear Louis: Warm regards, Rita A. Rodin The Global Name Registry ("GNR") submits the following document in response to the objection posted by Amadeu Abril i Abril on July 19, 2001 regarding the proposed operation of an SLD Email Forwarding Service (the "Service"). Summary of Response The essence of Mr. Abril's objection is that by allowing GNR to offer the Service, ICANN bestows on GNR an unnecessary monopoly. GNR submits that: (a) in order for the Service to be offered - which, as Mr. Abril acknowledges, is integral to the introduction of a personal domain name space -- a single entity must control all second level domains, (b) while GNR will be this single entity, the limitations imposed by ICANN on GNR prevent it from abusing this position, which is the critical inquiry in any "unlawful monopoly" analysis, and (c) given the foregoing, the resolution of this issue should not be to preclude GNR from offering this Service at this time, but rather to permit its introduction by GNR in the responsible manner specified in the ICANN-GNR agreements. GNR expands on these points below, and respectfully requests that the Board approve the contract as posted and instruct the ICANN President to execute the draft as soon as possible. Second Level Delegation to a Single Entity is Necessary Under the current DNS, second level domains are held by individual registrants. Thus, using Mr.Abril's example, if Andy Mueller were the first person to register Mueller.com, Milton Mueller would be precluded from using Mueller.com. A fundamental principle of the .name TLD is to create a personal name space that will expand the use and utility of the DNS. One way that GNR seeks to achieve this objective is to allow multiple users to obtain domain names and email address incorporating the same last name. In order to effect this sharing of last names, all names on the second level must be delegated to a single entity. Without delegation, in the event that Andy Mueller obtained andy.mueller.name, Milton Mueller would not thereafter be able to obtain either milton.mueller.name or milton@mueller.name. GNR notes that second level delegation will merely facilitate the sharing of second level names by multiple users. It will not, as Mr. Abril alleges, require that all users of that last name engage the services of the same email service providers or ISP's. GNR Cannot Abuse its Exclusive Position With Respect to the Service In cases where an entity holds an exclusive position in the marketplace, the risk posed it that it will abuse the power that comes with that position. However, GNR's proposed contract with ICANN contains numerous restrictions and regulations on GNR's operation of the Service. GNR is willing to accept these terms in acknowledgement of the fact that it is being selected to operate an important public resource, and notwithstanding the obvious limitations that such restrictions impose on its business. Mr. Abril indicates that there will be no recourse against GNR as the monopolist operating the Service. GNR respectfully but strongly disagrees. The proposed GNR agreement contains numerous means by which ICANN can oversee GNR's offering and operation of all its registry services, including the Service. For example, the Service may only be offered via registrars and in accordance with a strict code of conduct. The price that GNR may charge for the Service is established in the contract in Appendix G and may only be increased according to a formula proposed by ICANN. The provision of the Service is subject to service level agreements and stringent reporting requirements. Data in connection with the Service must be escrowed on a weekly basis, to protect against the loss of such data due to a registry failure. Additionally, GNR will not receive nor is it claiming any rights in the reserved second level names other than to use them in connection with the operation of .name during the term of its agreement with ICANN. Thus, upon termination of GNR's right to operate the TLD, GNR must transfer the reserved domain names to the successor registry operator. Finally, in the event that GNR's operation of the Service violates the registry agreement, ICANN may terminate GNR's contract on fifteen (15) days written notice. If this violation involved either (a) GNR's failure to adhere to its code of conduct, or (b) the operation of the Service by GNR in a discriminatory way, GNR may be subject to sanctions of up to 100,000 USD for each violation found, in addition to termination of its contract. GNR Should be Permitted to Offer the Service At This Time Mr. Abril recommends that the ICANN Board prevent GNR from offering the Service until such time as an alternative to reservation of the second level names by a single entity is developed. While GNR supports the development of technical means to avoid delegation of the second level names to a single entity, the reality is that such an alternative does not currently exist, and is not likely to exist for some time given the architecture of the DNS. As Mr. Abril concedes, permitting
users to obtain an email address that corresponds to their personal
names is an integral part of developing a personal name space. Thus,
the development and adoption of .name could seriously be impacted if
ICANN precludes inclusion of the Service as part of the introduction
of the TLD. Accordingly, GNR respectfully submits that the ICANN Board's solution to this problem should not be to prevent the introduction of the Service. Rather, the Board should permit GNR to operate the Service in the regulated and responsible way that is contemplated under its proposed contract with ICANN.
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