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
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
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
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
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
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
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
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
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
[GRAPHIC - WAGON WHEELS]
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
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
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
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.
President, AtlanticRoot Network, Inc.