Message from Louis Touton to Kevin Brannon
23 June 2003
Kevin E. Brannon
Preston, Gates & Ellis LLP
Subject: VeriSign Wait-Listing Service
Dear Mr. Brannon:
This message follows up on my messages to you of 6 and 20 May and 3 June 2003 concerning your inquiries, on behalf of your client Dotster, Inc., about the VeriSign Wait-Listing Service.
With my 20 May 2003 message, I forwarded to you the Reconsideration Committee's recommendation on Dotster's Request for Reconsideration RC 02-5. This recommendation was adopted by the ICANN Board on 2 June 2003, as I advised you in my message of 3 June 2003.
The resolution of Dotster's reconsideration request completes one of the two items you inquired about in your 9 April 2003 letter to Paul Twomey.
The other matter you inquired about in your 9 April 2003 letter was a request, originally conveyed in your 9 September 2002 letter to Stuart Lynn, that ICANN establish an independent review panel to consider whether the Board's action on the VeriSign Wait-Listing Service proposal was supported by a consensus as required for "Consensus Policies" as defined under subsection 4.3.1 of Dotster's Registrar Accreditation Agreement with ICANN. This request, however, was based on a faulty premise: that the Board's action in connection with the VeriSign Wait-Listing Service proposal was taken under the provisions of subsection 4.3.1, or for that matter any other provision, of the Registrar Accreditation Agreement.
As noted in Reconsideration Committee recommendation RC 02-5, the Board's action was not taken pursuant to subsection 4.3.1. This point is not in dispute: both your 9 September 2002 letter and recommendation RC 02-5 are in full agreement on this. In fact, the Board's action on VeriSign's Wait-Listing Service proposal was not taken pursuant to any provision of Dotster's Registrar Accreditation Agreement, and does not create any obligation of Dotster under the Registrar Accreditation Agreement.
Instead, what the Board has done concerning the VeriSign Wait-Listing Service proposal is to authorize negotiation with VeriSign of revisions to its .com and .net registry agreements with ICANN. Under these revisions, restrictions in ICANN's registry agreements with VeriSign would be relaxed to permit it to offer all registrars the option (which no registrar is obliged to exercise) of placing subscriptions on behalf of registants to a Wait-Listing Service for the .com and .net top-level domains. Dotster's Registrar Accreditation Agreement with ICANN does not give Dotster the right to block consensual revisions to ICANN's agreements with other companies, particularly when Dotster's apparent motive is to stymie another company from providing a service that Dotster believes will be viewed by consumers as a more convenient and effective alternative to Dotster's own service.
In view of the lack of any dispute as to whether the requirements of subsection 4.3.1 were met (they were not), there is no requirement or authorization under subsection 4.3.2 of the Registrar Accreditation Agreement for an independent review proceeding to review whether the requirements of subsection 4.3.1 have been met. In conclusion, it appears that there is no controversy at all regarding whether the ICANN Board action complied with subsection 4.3.1.
In the event that you or your client has a different view, ICANN would be interested in hearing that view.
cc: Clint Page
Paul Twomey, President and CEO, ICANN
Phil Sbarbaro, Esq.