Message from Registrars to Paul Twomey
VIA E-MAIL AND FACSIMILE
Mr. Paul Twomey
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601
Re: Wait List Service
Dear Mr. Twomey:
The undersigned write to express their views concerning the pending launch of the Wait List Service ("WLS") and the proposed WLS Condition (c) to the .com and .net registry agreement between ICANN and VeriSign Global Registry Services (VeriSign). We note with interest the United States District Court, Central District of California Order of November 10, 2003 denying Plaintiff's motion for preliminary injunction that sought to enjoin ICANN from "any steps to facilitate or encourage implementation of WLS by VeriSign." Given this development, we submit that WLS should be launched and that Condition (c) can be satisfied in a reasonable and even handed manner.
On June 2, 2003, the ICANN Board authorized the President and General Counsel to conduct negotiations on behalf of ICANN toward appropriate revisions to the .com and .net registry agreements to provide for the offering of WLS on the condition that there be "appropriate limitations" on a registrar's ability to obtain a WLS subscription on any domain name that it is concurrently sponsoring in the registry. Several registrars opposing WLS recommended that this caveat be interpreted to allow for a "blackout period" during which a registrar could not sell WLS subscriptions on domain names it sponsors.
We contend that no blackout period is warranted for WLS for the following reasons:
- A blackout period would be confusing for consumers and therefore would undermine the benefits of WLS;
- A blackout period would require registrars to send inconsistent messages to consumers - first, promoting WLS, then not being able to fulfill requests, followed by open enrollment once again;
- It would undermine one of the key registry stability-related reasons behind WLS in that it would cause the registry to experience mini-land rushes on a daily basis as domain names are released from the blackout period;
- A blackout period may not provide a wholly adequate safeguard in that the resulting system could nevertheless be gamed by registrars offering certain WLS-related business models; and
- The Registrar Accreditation Agreement (RAA) contains a provision that squarely prevents the perceived potential harm, namely, a representation by a registrar that it could enhance a potential WLS subscriber's chance of gaining a registration by virtue of its ability to uniquely manipulate its access to the registry in question.
The relevant RAA provision states as follows:
"3.7.3 Registrar shall not represent to any actual or potential Registered Name Holder that Registrar enjoys access to a registry for which Registrar is Accredited that is superior to that of any other registrar Accredited for that registry."
As such, section 3.7.3 of the RAA provides an appropriate and measured prohibition against undesired registrar marketing of WLS service. Therefore, we urge ICANN to consider the foregoing as providing the "appropriate limitation" contemplated by the ICANN Board.
For these reasons, we strongly recommend that ICANN remove the blackout period from its requirements surrounding WLS. Should ICANN decide, nevertheless, that some version of a blackout period is necessary to satisfy Condition (c), we submit that the blackout period proposed by ICANN in its September 4, 2003 letter to Chuck Gomes of VeriSign is more even-handed and competitively neutral than the original proposal. In its letter, ICANN proposed:
A blackout period during which no registrar will be allowed to place a WLS subscription on a domain name for a period commencing 10 days prior to the scheduled expiration date for such domain name, and continuing for the duration of the auto-renew grace period lasting up to 45 days following the scheduled expiration date.
A blackout period that applies to all registrars is even-handed in that it does not unduly restrict the registrar-of-record's ability to sell WLS in a competitive fashion and eliminates the possibility of consumer confusion in a market where WLS would be available at any point in time through some registrars but not others. We would recommend as short a duration as possible, but certainly no longer than that proposed in ICANN's September 4, 2003 letter. Some parties have proposed a blackout period of such a lengthy duration that the blackout period, if imposed, would have the effect of diluting, if not eliminating, the value of the service itself. Some have also lobbied for a blackout period that would, if implemented, unduly favor an "auction" model approach to wait list service. These proposals have been put forward by certain registrars seeking to create a favorable market for their specific business model.
ICANN should not engage in an exercise of "picking and choosing" winners and losers in the WLS context. Rather it is appropriate for ICANN to maintain a studied competitively neutral approach. The blackout period proposed in ICANN's September 4, 2003 letter satisfies that critical criteria.
For the above stated reasons, we respectfully submit that implementation of a blackout period for WLS is unnecessary since an adequate and enforceable safeguard exists in the RAA. Should you have any questions, do not hesitate to contact us directly.
Cc: John Jeffrey