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Is ICANN's New Generation of Internet

Domain Name Selection Process Thwarting Competition?



My name is Leah Gallegos, President of AtlanticRoot Network, Inc. (ARNI) The BIZ TLD Registry is an entity of AtlanticRoot Network, Inc. I am the manager of the dot BIZ TLD. This Top Level Domain resolves in several of the "inclusive name space" roots, which many people refer to as alternative or alternate roots.



As a citizen of this country, I am fortunate to be able to defend my right to have a small business and to not have my product taken from me arbitrarily by a covetous entity under agreement with the government. I thank this committee for providing the avenue to present our reasons for believing that ICANN's process for selecting new TLDs to enter into the USG root is detrimental to our survival and to the continued survival of all the TLDs outside the auspices of ICANN.



ICANN has selected seven TLD strings to enter into the USG root that is controlled by the Department of Commerce. The process used for this selection was ill advised, badly handled and ignored the very premise for which ICANN was established - to preserve the stability of the Internet and do no harm to existing entities.



The title of this hearing indicates your desire to ensure fair competition. My question is how can this be accomplished with ICANN's usurping of dot BIZ from ARNI, thus stealing its product? Under ICANN's policy, a competitor can pay a $50,000 fee to have ICANN usurp our business, or any other, at their whim.



As I said earlier, ARNI is a small company. Our entire business at this time is based upon domain name registrations. With the announcement by ICANN that dot BIZ was to be handed over to JVTeam, e-mail began pouring in asking if we were going to be closed by ICANN or if ICANN was going to take our TLD. Others asked if there were going to be duplicates of each name and who would be the legitimate registrants. Even more asked if their names would even resolve if ICANN "took" the TLD. The public has indicated that they are afraid now to register names with us and we are losing business merely on the mistaken assumption that ICANN has the right to take it from us.



Why didn't we opt for the $50,000 application to be included in the ICANN process?



We have been asked that question many times. There are several reasons.



1. For a small company, $50,000 is a high price to pay for consideration as a non-refundable fee.

2. There was little, if any, chance that we would be selected. The application questions were stated in such a way that it was clear we would have to adopt a sunrise provision and the UDRP. Those who did not, were not in the running and we knew that.



3. $50,000 could be much better spent on development and infrastructure as opposed to a lottery - worse than a lottery. There was bias with this one.



4. It is obvious that the large dollar monopolies were favored. In fact, they are the ones who were selected. CORE, NEUSTAR, MELBOURNE IT... We did not have a chance.



5. It was well known that the board considers our registrants to be illegitimate and registrations to be pre-registrations even though they are live registrations, many with published commercial websites. The comments made by Esther Dyson and others at past meetings and interviews made that very clear. At the MDR meetings, our interpretations were emphatically crystalized by Mr. Kraaijanbrink and Mr. Fitzimmons, especially, and by other members in general.



6. We feel that ICANN should honor the IANA commitment to include these TLDs in the USG root as was promised. There was no need to go through this process to prove what has already been proven, that the registries are open to the public, they work and the roots which do recognize them have also proven themselves for over five years.



As it turned out, several board members recused themselves, leaving less than the required number to successfully vote on this issue. They voted anyway. It is also interesting to note that the board members (except one) waited for this recusal until after the deliberations had been made regarding qualifications, business models, etc. They had definite conflicts of interest, yet they stayed in a position to render opinions on which applicants would "make the cut." The bias was so thick, even with the remaining board members, that it was easily visible.



Just as visible was the obvious lack of understanding of the basis for adding new TLDs and the content of the applications themselves. Choices were made with flawed and foolish reasoning.



And lastly, the new at-large directors had no input in the selection of these TLDs. This is important since those directors are inclined to be more objective and are more concerned with domain name holders and small businesses.



It is crucial to understand, at this point, just what the status of ICANN is versus the rest of the Internet with regard to TLDs. ICANN manages three TLDs at present - dot com, dot net and dot org. They are under an agreement with the government to make recommendations to the root manager, the Department of Commerce, regarding the entrance of new TLDs to the root.



By comparison, ARNI is the manager of some TLDs which are homed in an inclusive name space (or alternative) root managed by another entity. The inclusive name space roots were developed with authority from IANA. If ARNI wishes to enter more TLDs into that root, then it must petition that root manager, etc. If there are no conflicts (pre-exiting TLDs) and technical standards have been met, the root manager will then most likely enter the requested new ones. Both the root manager(s) and the TLD operators cooperate in determining the existence of any conflicting TLD strings. If the requested TLD string is found to exist in another root, then the prospective TLD manager could negotiate with the existing one or withdraw the request. Often, the root manager(s) will assist in facilitating potential negotiations. There is no charge to the potential TLD operator to make this determination. With the WHEREIS TLD Finder tool, it is not difficult to ascertain whether there are conflicts with a new TLD request. This tool can be found at http://www.pccf.net/cgi-bin/root-servers/whereis-tld. Requests for the entry of new TLDs are accepted on a first come, first served basis.



In addition to the TLDs which ICANN manages, there are in excess of 240 ccTLDs which are included in the root, but managed by other entities and under different policies. In other roots, there are TLDs included which are not homed in those roots, but included in order to allow users to see all known non-colliding TLDs. Therefore, ICANN could, and should, do the same thing and include all existing non-colliding TLDs for the benefit of users world wide and still add new ones under their own overall management. Technically, it is a simple task that has been proven with the addition of the ccTLDs. There is absolutely no need to duplicate what is already in place.



The dot BIZ TLD was created in 1995 and resolved in the eDNS and later in ORSC the (Open Root Server Confederation). We are recognized in all the major roots, except, of course, the USG root. We were delegated management of dot BIZ in 2000 and re-opened for registration in the spring. We had an automated registration system in beta at that time, but were able to provide registrations manually until the launch of the automated web-based system. That system was publicly launched in October. The re-delegation was made and the registry was open well prior to any announcement of applications for the characater string (BIZ) with ICANN. Again, dot BIZ has been in existence at least as long as dot WEB.



The moment the applications to ICANN were lodged, we e-mailed every applicant for our string and notified them, using the contact listed on the ICANN webiste, that .BIZ already existed and asked why they would choose an existing TLD. We also posted numerous comments on the ICANN board, since they would accept no communication in another form regarding TLDs. We also posted to many public mail lists questioning why ICANN would consider duplicating existing TLDs, especially dot BIZ. We received no responses from anyone. We were ignored by all recipients.



ARNI was doing just fine with dot BIZ registrations prior to the selection process for new TLDs by ICANN. There were no conflicts. We are now faced with a substantial loss due to ICANN's refusal to recognize that we exist. It is baffling because they obviously recognize that IOD's dot WEB exists and decided not to award that string to Afilias as a result. Current Chairman Vint Cerf stated his discomfort and reaffirmed later saying, "I continue to harbor some concern and discomfort with assigning dot web to Afilias, notwithstanding the market analysis that they did, which I internally understand and appreciate. I would be personally a lot more comfortable if we were to select a different string for them and to reserve dot web." (See Appendix A, 2:17). Without his intervention, the board would have handed dot WEB over to IOD's competitor, Afilias, another 900 pound gorilla, and IOD would be making the same arguments I am making today. The board did "the right" thing with dot WEB, but has ignored dot BIZ.



The video clip maintained at the Berkman Center (http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-111600&start=6-16-00) clearly illustrates the reluctance of Vint Cerf to award the TLD to any entity other than its current operator. It also illustrates the unreasonable attitude typical of most of the board to deliberately ignore any entity that is not within the ICANN framework. The video would be entertaining if it were not so important an issue at stake. In that sense, it is rather sad, and very frustrating to hear the ping pong ball going back and forth with people's futures at stake.

Why, then, has ICANN decided that it would not usurp IOD's dot WEB, but would do so with our dot BIZ?



Mr. Kraaijanbrink's outburst (Exhibit A 3:3): "Well, I would not. I believe that we have discussed them considerably. The Afilias on .web. And, from their proposal, and from the discussions, I believe that we should award dot web KNOWNING that IOD has been in operation as an alternative root with dot web for some time. But I am reminded, and I fully support what Frank Fitzsimmons said a few minutes ago that taking account of alternatives should open an unwanted root to pre-registration of domain names and domains. So I am fully aware of what I am doing in voting in support for Afilias dot web."



Note that this board member refuses to recognize not only the legitimacy of IOD's TLD registry, but even considers their registrants to be illegitimate, calling them pre-registrations. There are no pre-registrations in any of our TLDs or in IOD's dot WEB. They are live and resolve. It is this very attitude that has prevailed throughout ICANN's deliberations and decisions regarding the selection and adoption of new TLDs. It is also due to this posture that ICANN will irreparably harm our business and that of any other TLD operator whose product it chooses to usurp.



At these meetings in Marina del Ray, while attending via webcast, I posted questions to the ICANN Board of Directors, raising the issue of duplication and was ignored, even though one of the questions was read aloud to them. At the board meeting, the issue was never addressed at all. I did receive an acknowledgment from Board member, Vint Cerf, saying he would pass the message along. Others had been faxing him regarding this issue steadily during those meetings. If they did not "know" that dot BIZ existed, even after the postings and email, something is wrong. They are supposed to "coordionnate technical parameters" and they haven't even found the technical parameters yet.



It is important to note that while ICANN insists that it has its name space and we all have ours, that there is truly only ONE name space and that we all must work within it. If ICANN is successful in duplicating a TLD string in its root, there will be duplicate domain names - many thousands of them. No one will know which they will see when keying an address into a browser because more and more ISPs are choosing to point to inclusive name space roots. Hundreds of thousands of users will be effected. One TLD operator has indicated an increase of 30% per month in the use of one of his servers, which happens to be one of the ORSC root servers.



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As an analogy, consider what would happen if AT&T summarily took New York's 212 number space away from Verizon. That would be considered an anti-competitive move, putting Verizon out of business. Certainly no one would consider suggesting that AT&T and Verizon issue mirror 212 phone numbers to different customers. The phone system wouldn't work!



It would be just as foolish to suggest that ICANN and AtlanticRoot issue mirror dot BIZ names to different customers.

How can this not harm us? Our TLD has been in existence for over 5 years. Our registrants have e-commerce businesses operating using dot BIZ domains. We have approximately 3,000 registrants and growing daily. Those businesses will be destroyed because of the fracture ICANN will cause with this duplication. In addition, if ICANN is allowed to do this now, what will happen to all the other TLDs when ICANN decides to add more in the future? We will then be talking about hundreds of thousands of domain name holders and thousands of businesses and organizations being disenfranchized - ruined.



Why do the inclusive name space roots not duplicate dot com, net or org? They could. They do not for a couple of reasons. One is that it is understood that duplication in the name space is not in the best interests of the Internet or its users. As a matter of fact doing so is detrimental. It is a cooperative effort to keep the name space uniform and consistent. The second is that they all recognize the prior existence of the USG and ccTLDs and include them in their roots. So why is ICANN doing the opposite?



If there were over one hundred TLDs available to the public and included in the USG root, we would see not only a competitive free market, but the disappearance of many of the disputes and speculation present today. The so-called scarcity of domain names has been created by the delay in entering more TLDs into the USG root. The simplest solution is to recognize the existing TLDs before entering new ones. There is no reason why there cannot be new TLDs added to the root, but there is ample reason not to duplicate existing ones. It is not a function of the government to deliberately destroy existing businesses, nor is it a function of ICANN to facilitate that destruction. It is also not a function of ICANN to determine what business models should be allowed to exist or to compete, any more than any other root dictates policies of TLD managers. The market will decide which will succeed and which will fail.



The MOU between ICANN and the government clearly states in its prohibitions, Section V:D:2. "Neither Party, either in the DNS Project or in any act related to the DNS Project, shall act unjustifiably or arbitrarily to injure particular persons or entities or particular categories of persons or entities."



ICANN has acted both arbitrarily and unjustifiably in deliberately ignoring our existence as a viable registry offering legitimate, resolving domain names to the public.



Whether ICANN/DoC chooses to include the pre-existing TLDs in the USG root or not is one thing. Whether they choose to ignore their existence and threaten them with destruction via abuse of power is another.



By moving ahead with their process they have created dissension, confusion and harm to our business and our registrants. They are eliminating true competition by assuming authority over the world's name space rather than remaining focused on their own narrow responsibility. They have shown no respect for our existence or that of all the other TLD operators who have the right to operate their businesses or organizations and they threaten, by their actions today, to crush them as they appear to intend to crush us. We must also consider the effect this situation is having on countries around the world. More and more of them are considering alternatives to the USG root and some have already moved to create them or use the existing roots; all because ICANN will not recognize the fact that they manage just one set of TLDs in one root.



Because ICANN currently enjoys the largest market share in terms of those "pointing" to the USG root, it has a commensurate responsibility to ensure fairness in a free market. It was the government that determined the Internet should be privatized, yet it has allowed ICANN to assume a governmental attitude toward the Internet. It was formed at the order of the government, and remains under the oversight of the government, yet it competes against small business in what should be a free market with the power to usurp the businesses it is competing against, without due process or compensation. It has invited applicants to do so.



With regard to their so-called "new" TLDs, ICANN threatens not only small businesses, but, as a result of their arrogant, ill conceived actions, actually threatens the world's economy and the stability of the Internet - in direct conflict with the agreement they signed with the United States government.



We feel that ICANN, under the oversight of DoC, has acted completely irresponsibly and probably illegally. DoC will do the same and has stated it will most likely rubber stamp any decisions made by ICANN. We feel they have breached their agreement by harming our business and will potentially do so with any other duplications placed in the USG root. In addition, we believe that DoC will, and ICANN has, abused their power and that this issue falls under the Administrative Procedures Act (APA). We have filed a Petition for a Rulemaking with the NTIA, which is attached as Exhibit B.



It is our hope that this committee will intervene to ensure that there is fair play and consideration for existing businesses; that the entry of duplicate TLDs in the USG root will not be permitted and that the promises made by IANA will be kept.



Sincerely,


Leah Gallegos

President, AtlanticRoot Network, Inc.



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