On July 26, 2013 ICANN shared a resource among its community on request by Afilias Limited to remove restrictions on cross-ownership domains. REMMY NWEKE in this report shades more light on the processes of achieving this request.
Prologue:
It may have become a norm for accredited registrars and
registry of the Internet Corporation for Assigned Names and Numbers (ICANN) to
make one request or the other, but what seem to be gaining more ground is
requests for removal of cross-ownership restrictions on domains.
The latest being the Afilias Limited requests for the
removal of the cross-ownership restrictions reflected on the .PRO Registry
Agreement dated 22 April 2010. Also, Afilias Limited requested the removal of
the cross-ownership restrictions reflected on the .MOBI Registry Agreement
dated 10 July 2005.
DigitalSENSE Business News recollects that on 22 April
2010, for instance, ICANN and RegistryPro Inc. entered into an unsponsored
registry agreement under which RegistryPro operates the .pro top-level domain.
The agreement entails that RegistryPro, for instance has
to deal on some list of reserved Top Level Domain (TLD) strings, while making a
monthly report among other services as may be approved, which in this case
comprises the registration of three-character numeric names; modification of
handling of names pending verification; one, two and three-character names
shall be released by the Registry Operator for registration.
The above approved services must be in tandem with the Registry
Agreement which specifies a “Process for Consideration of Proposed Registry
Services,” thus these services are specifically identified as having been
approved by ICANN prior to the effective date of the Registry Agreement.
Subject to public comment:
Recent requests by Afilias Limited, a registry operator
of the .info, .mobi and .pro top-level domain, and service provider for
registry operators of .org, .asia, .aero, and a provider of domain name
registry services, stated that its request was in line with the “Process for
Handling Requests for Removal of Cross-Ownership Restrictions on Operators of
Existing gTLDs” adopted by the Board of ICANN on 18 October 2012.
Also, DigitalSENSE Business News gathered that according
to the approved process, in order to lift cross-ownership restrictions,
existing Generic Top Level Domain (gTLD) registry operators could either
request an amendment to their existing Registry Agreement to remove the
cross-ownership restrictions or request transition to the new form of Registry
Agreement for new gTLDs. Hence, any proposed material amendments to gTLD
registry agreements would be subject to public comment prior to ICANN approval.
Our request by Afilias:
As said by Vice President and General Counsel for Afilias
Limited, Mr. M. Scott Hemphill, the request was for instance, specific on
Amendment No. 3 to the .MOBI sponsored TLD Agreement and the parties (ICANN and
Afilias) agree to the modifications to Section 7.1 of the Agreement.
For the .PRO request, Afilias, he said is asking for
deletion of Section 7.1(c), which states in part that “Restrictions on
Acquisition of Ownership or Controlling Interest in Registrar. Registry
Operator shall not acquire, directly or indirectly, control of, or a greater
than fifteen percent ownership interest in, any ICANN-accredited registrar;
provided, however that any ownership or controlling interest in any
ICANN-accredited registrar as of the date of this Agreement held by Registry
Operator or any of its affiliates shall not be in violation of this Section.”
In addition to asking for the amendment of Section 7.1(b), adding of new
Sections 7.1(c), 7.1(d) and 7(e) and in addition to adding Section 7.1(e) which
Afilias proposed to read in part: “In connection with the operation of the
registry for the TLD, Registry Operator shall comply with the Registry Code of
Conduct as set forth in Appendix 12.”
And for .MOBO, areas Afilias seeks amendment which
comprised the deletion of Section 7.1(c), amending Section 7.1(b), adding new
sections 7.1(c) and 7.1(d) as well as adding Section 7.1(e), while adding
Appendix 8 to the agreement in its entirety.
Process adopted by ICANN board:
As at October 18, 2012, the ICANN board adopted “Process
for Handling Requests for Removal of Cross-Ownership Restrictions on Operators
of Existing gTLDs” stating that in order to lift cross-ownership restrictions,
existing gTLD registry operators could either request an amendment to their
existing Registry Agreement to remove the cross-ownership restrictions or
request to transition to the new form of Registry Agreement for new gTLDs. Any
proposed material amendments to gTLD registry agreements would be subject to
public comment prior to ICANN approval.
The process as outlined by Dr. Stephen Crocker-led board
comprised that the gTLD registry operator submits a written request to ICANN to
transition to the new form of Registry Agreement or a request to amend its
current Registry Agreement and includes the proposed amendment. If the registry
operator request an amendment, it will include “Adding covenants similar to
those that appear in Sections 2.9(b) and (c) of the new gTLD agreement.
“(b) If Registry Operator (i) becomes an Affiliate or
reseller of an ICANN accredited registrar, or (ii) subcontracts the provision
of any Registry Services to an ICANN accredited registrar, registrar reseller
or any of their respective Affiliates, then, in either such case of (i) or (ii)
above, Registry Operator will give ICANN prompt notice of the contract,
transaction or other arrangement that resulted in such affiliation, reseller
relationship or subcontract, as applicable, including, if requested by ICANN,
copies of any contract relating thereto; provided, that ICANN will not disclose
such contracts to any third party other than relevant competition authorities.
ICANN reserves the right, but not the obligation, to refer any such contract,
transaction or other arrangement to relevant competition authorities in the
event that ICANN determines that such contract, transaction or other
arrangement might raise competition issues.
What affiliate means for this agreement:
(c) For the purposes of this Agreement: (i) “Affiliate”
means a person or entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the person or entity specified, and (ii) “control” (including the terms
“controlled by” and “under common control with”) means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a person or entity, whether through the ownership of securities,
as trustee or executor, by serving as an employee or a member of a board of
directors or equivalent governing body, by contract, by credit arrangement or
otherwise.”
According to the board, adding a covenant to comply with
the new Registry Operator Code of Conduct, must be seen to be in line with
Section 2.14 of the new gTLD agreement, which states that “In connection with
the operation of the registry for the TLD, Registry Operator shall comply with
the Registry Code of Conduct as set forth in the specification at [see
specification 9].”
Be wary of Registry Operator Code of Conduct:
It was also gathered by DigitalSENSE Business News that
the Registry Operator Code of Conduct would then need to be added as a new
Appendix.
Also for amending Section 7.1(b) of, for example the
biz/info/org agreements (or like terms in other agreements), have to read: (b)
Registry Operator Shall Not Act as Own Registrar. Registry Operator shall not
act as a registrar with respect to the TLD. This shall not preclude Registry
Operator form registering names with the TLD to itself through a request made
to an ICANN-accredited registrar or from becoming an Affiliate of or reseller
for an ICANN-accredited registrar.
And for deletion of Section 7.1(c) of, for example the
biz/info/org agreements (or like terms in other agreements), hence, each
request to remove cross-ownership restrictions would be subject to a
competition review, similar to that which is conducted in the preliminary
determination phase of a Registry Services Evaluation Process request.
Days of judgment:
The board noted that in the event ICANN following
consultation with its own experts, reasonably determines within 15 days that
removal of the cross-ownership restrictions might raise significant competition
issues, ICANN shall notify the registry operator that ICANN intends to refer
the request to the appropriate governmental competition authority or
authorities with jurisdiction over the matter.
Therefore, “the registry operator may at this point, at
its discretion, withdraw its amendment request. If the registry operator opts
to proceed with the request, the amendment request will remain in pending
status until such time as the competition authority or authorities have
provided a substantive response to ICANN,” part of the adopted agreement read,
adding that upon response from the competition authority or authorities, ICANN
will complete its review and consideration of the amendment request.
Further, the board stated that “If ICANN has not received
a response from the competition authority or authorities within 90 days, ICANN
in its sole discretion may, taking into account all relevant factors, either
proceed to consider the amendment request, or if reasonable under the
circumstances, defer consideration of the proposed amendment until such time as
ICANN receives a substantive response from the competition authority or
authorities.
No competition action:
As part of avoiding controversy whatsoever, ICANN noted
that “nothing in this process is intended to suggest that a competition
authority is required to take any action at any time.” Just as ICANN emphasised
that an amendment requested under this process would be posted for public
comment, as was the case of the .PRO and .MOBI by Afilias, which was posted on
July 26, 2013 and to close on August 16, 2013, whereas the reply opens on
August 17 through September 8, 2013.
Overall impression:
DigitalSENSE Business News recalls that in early 2013
Fundació puntCAT, the registry responsible for .CAT had a similar request
approved by the Board and whether .PRO and .MOBI being requested by Afilias
Limited would both scale the hurdle, only time will tell, though the overall
impression from the industry is very positive since ICANN has not rejected any
amendment requested before now.
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