April 9, 2003
Mr. Paul Twomey
President and CEO
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292
Re: Wait List Service ("WLS") Proposal Reconsideration and Review Requests
Dear Mr. Twomey:
This office represents Dotster, Inc. ("Dotster"), a domain
name registrar that has a contractual relationship with ICANN. Approximately
seven months ago, Dotster filed two
documents with ICANN relating to VeriSign's proposed Wait List Service ("WLS"), which was acted on by ICANN's board of directors in Resolution 02.100, approved August 23, 2002. Those documents included a reconsideration request pursuant to ICANN's Reconsideration Policy and a formal request for review under ICANN's Independent Review Policy. To date, ICANN has not taken action on either request. This inaction creates serious concern for Dotster, as it seems to indicate yet another failure by ICANN to abide by its own rules and guidelines and represents a continuing breach of ICANN's contractual obligations.
On September 9, 2002, Dotster filed a request for review under ICANN's Independent Review Policy, as ICANN violated Section 4 of the Registrar Accreditation Agreement ("Accreditation Agreement"). A copy of this request is enclosed for your reference. Section 4.2.4 provides that ICANN should establish principles for allocation of Registered Names pursuant to a Consensus Policy. ICANN violated Section 4 of the Accreditation Agreement when it adopted the WLS proposal as a Board action instead of following the procedures required in Section 4.3.1 of the Accreditation Agreement for a Consensus Policy. To date, there has been no response to Dotster's request for a review pursuant to the Independent Review Policy.
On September 12, 2002, Dotster filed a Reconsideration Request with ICANN. This filing was made well within the 30-day deadline for filing a Reconsideration Request. A copy of Dotster's Reconsideration Request is enclosed for your reference. ICANN' s Reconsideration Policy states that "[t]he Reconsideration Committee attempts to submit its recommendations regarding the reconsideration to the ICANN Board within 30 days of the filing." Some 210 days later, there still has been no response from ICANN's Reconsideration Committee.
Dotster's Reconsideration Request requested that the adoption of the WLS proposal by the ICANN Board be reconsidered, as the Board's decision contravened established ICANN procedures and was contrary to ICANN's obligations contained in the Registrar Accreditation Agreement. Further, a temporary stay of the WLS proposal was requested by Dotster, as implementation of the WLS proposal, even for the "trial period", would destroy the existing competition between registrars that provide services similar to VeriSign's WLS proposal. Additionally, the implementation of WLS would stifle innovation, and restrict consumer choice and competitive pricing of similar services.
VeriSign also has an unresolved request for reconsideration pending with respect to Resolution 02.100. As outlined in our letter, submitted on behalf of Dotster on October 30, 2002 (a copy is attached for your convenience), VeriSign, on October 16, 2002, submitted a letter requesting that the board of directors reconsider some elements of Resolution 02.100. This letter was submitted several weeks after the 30-day time period established for Reconsideration Requests, was not posted to the portion of the ICANN web site designated for the posting of such requests and was not circulated to other interested parties. Nevertheless the letter was immediately placed on the October 31, 2002 Board meeting agenda. ICANN's Board then redirected the VeriSign letter to the Reconsideration Committee, where it was accepted and remains pending as a request for reconsideration (also without resolution) despite having not been filed in the time or manner required for such requests. This letter continues Dotster's objection to the treatment of VeriSign's letter as a request for reconsideration and its objection to any consideration of that "request" as untimely and improperly submitted. Consideration of VeriSign's request would be a separate violation of ICANN rules and policy and of ICANN's contract with Dotster.
You may be aware that there are persistent rumors to the effect that ICANN and VeriSign continue privately to negotiate the terms on which VeriSign will be allowed to offer WLS, despite ICANN's failure to resolve the above-described requests for reconsideration and independent review. Of course, if this were the case, the reconsideration/review process would be turned into a sham because VeriSign would be allowed to resolve its problems directly with ICANN, while Dotster waited in vain for ICANN to act publicly on its requests. Therefore, Dotster requests that ICANN provide interested parties and the public with a clarification as to whether any discussions concerning WLS or Resolution 02.100 have transpired between itself, or its agents, and VeriSign, or its agents, since Dotster's requests were file in September, 2002.
In closing, Dotster hereby reiterates its requests that ICANN's board reconsider the decision enunciated in Resolution 02.100, pursuant to the Reconsideration Policy and ICANN's Bylaws. Dotster further reiterates its request that ICANN refer that decision for review by an Independent Review Panel, as provided under the Accreditation Agreement.
Please provide us with the reasons why no action has been taken on either of the preceding requests. Further, please provide a date by which we may expect any action to be taken on the review and reconsideration requests. Finally, please inform us as to the dates, list of participants and substance of any discussions held between any officer, director or employee of ICANN, or any advisor (including counsel) retained by ICANN and any officer, director or employee of or advisor (including counsel) retained by, VeriSign, Inc., since September 9, 2002, when Dotster first made formal objection to the Board's approval of Resolution 02.100.
This letter is submitted without prejudice to any of our client's rights and remedies, all of which are expressly reserved.
Very truly yours,
Preston, Gates & Ellis llp
(Signature on file)
By Kevin E. Brannon