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COMMITTEE ON ENERGY AND COMMERCE SUBCOMMITTEE ON TELECOMMUNICATIONS
HEARING ON "IS ICANN'S NEW GENERATION OF INTERNET
DOMAIN NAME SELECTION PROCESS THWARTING COMPETITION?”
February 8, 2001
TESTIMONY
OF THE INTERNATIONAL AIR TRANSPORT
ASSOCIATION
DAVID E. SHORT DIRECTOR, LEGAL SERVICES
International Air Transport Association 33 Route de L’Aeroport CH 1215 Geneva 15 Airport Switzerland (41) 22 799 2525 (41) 22 799 2685 (Fax) Email: shortd@iata.org
SUMMARY
OF TESTIMONY
IATA is appearing before the Committee today to describe
the treatment its proposal to sponsor “.travel” as a dedicated TLD
for the travel industry – the largest segment of e-commerce – received
from ICANN. IATA is here to respectfully request the Committee,
through its oversight function, to direct the U.S. Department of Commerce
and ICANN to make decisions regarding new TLDs in a manner that is
fair, transparent and designed to maximize competition on the Internet. ICANN failed
to give adequate consideration to IATA’s “.travel” proposal, contrary
to its obligations under the Administrative Procedure Act. This failure was not only prejudicial to IATA,
but also contrary to the objective of enhancing competition on the
Internet, because a “.travel” TLD would offer competitive advantages
unmatched by any of the new TLDs selected by ICANN, which are either
too broad or too narrow in scope to offer a real competitive alternative
to “.com.” To compete effectively against a dominant market
leader like “.com,” a new TLD needs to offer something not already
available in the existing domain name space.
".travel" would do this by creating a subdivision of the Internet
that would make it more convenient for consumers and businesses to
locate and purchase travel-related goods and services on-line, with
the confidence that they are dealing with entities which have proven
themselves to be legitimate participants in the travel industry by
having satisfied objective and transparent quality standards. In its summary
dismissal of IATA’s proposal, ICANN not only ignored the attributes
of “.travel” in promoting Internet competition, but also disregarded
the fact that IATA satisfied all nine of the criteria which ICANN
said it would apply in choosing new TLDs.
Instead, weeks after the applications for TLDs were submitted,
ICANN invented a new criterion -- “representativeness” -- which it
used to justify its decision not to choose “.travel.”
Yet, in deciding that there was not a sufficient showing that
IATA was “representative” of the travel industry, ICANN conceded it
was ill-equipped to make such a decision, and ignored the overwhelming
support for “.travel” expressed in comments to ICANN from all sectors
of the global travel community, including associations representing
over one million travel industry businesses around the world. Such cavalier treatment of IATA’s proposal
failed to comply with the mandates of the U.S. Administrative Procedure
Act, which applies to the addition of new TLDs to the “authoritative
root server,” a critical asset financed and controlled by the U.S.
Government.
TESTIMONY
OF THE INTERNATIONAL AIR TRANSPORT
ASSOCIATION
GOOD MORNING CHAIRMAN
UPTON AND SUBCOMMITTEE MEMBERS: MY NAME
IS DAVID E. SHORT. I AM THE
LEGAL DIRECTOR OF THE INTERNATIONAL AIR TRANSPORT ASSOCIATION (“IATA”),
BASED IN GENEVA, SWITZERLAND. IATA
APPRECIATES THIS OPPORTUNITY TO SHARE WITH THE SUBCOMMITTEE IATA’S
EXPERIENCE AS AN APPLICANT FOR ONE OF THE NEW INTERNET TOP LEVEL DOMAINS,
OR “TLDS.” I AM HERE TODAY BECAUSE IATA IS COMMITTED TO SPONSORING “.TRAVEL”
AS A NEW TOP LEVEL DOMAIN. GIVEN
THAT THE TRAVEL INDUSTRY REPRESENTS ONE OF THE LARGEST AND MOST POPULAR
SEGMENTS OF E-COMMERCE, “.TRAVEL” CLEARLY IS AN OBVIOUS CHOICE FOR
ONE OF THE FIRST NEW TLDS TO BE ADDED TO THE
INTERNET. THE ADDITION OF “.TRAVEL” TO THE INTERNET WOULD GREATLY ENHANCE
COMPETITION IN THE DOMAIN NAME SPACE BY OFFERING SUPPLIERS AND CONSUMERS
OF TRAVEL-RELATED GOODS AND SERVICES CRITICAL ADVANTAGES THAT ARE
NOT PROVIDED BY THE “.COM” TLD. ".COM"
CURRENTLY IS THE DOMINANT TLD FOR ALL COMMERCIAL INDUSTRIES, INCLUDING
TRAVEL. UNLIKE “.TRAVEL,”
WHICH WOULD BE A RESTRICTED TLD, “.COM” IS AN UNRESTRICTED TLD. A “.TRAVEL” TLD WOULD HAVE TWO COMPETITIVE ADVANTAGES OVER THE UNRESTRICTED
TLDS. THE FIRST ADVANTAGE IS THAT, AS A RESTRICTED TLD, “.TRAVEL”
WOULD CREATE A SUBDIVISION OF THE INTERNET WHICH, BY EXCLUDING NON-TRAVEL
WEB SITES, WOULD MAKE IT MUCH MORE EFFICIENT AND EASIER FOR CONSUMERS
AND BUSINESSES TO LOCATE THE TRAVEL-RELATED ENTITY OR INFORMATION
THEY ARE SEEKING. THE SECOND ADVANTAGE IS THAT, WITH A “.TRAVEL” TLD, CONSUMERS
WILL KNOW THAT WHEN THEY ACCESS A DOMAIN NAME ENDING IN “.TRAVEL,”
THEY WILL BE IN TOUCH WITH A COMPANY THAT HAS SHOWN ITSELF TO BE A
LEGITIMATE PARTICIPANT IN THE TRAVEL INDUSTRY BY SATISFYING CERTAIN
OBJECTIVE AND TRANSPARENT QUALITY STANDARDS.
BY CONTRAST, UNRESTRICTED TLDS CAN OFFER NO SUCH INDICATION. WHATEVER THEIR RESPECTIVE MERITS, NONE OF THE SEVEN NEW TLDS
SELECTED BY ICANN PROVIDES THESE TYPES OF ADVANTAGES. THE SEVEN NEW TLDS DIVIDE INTO TWO GROUPS.
EITHER THEY ARE JUST AS GENERIC IN SCOPE AS THE “.COM” TLD,
OR THEY ARE SUBSTANTIALLY MORE LIMITED IN SCOPE THAN “.TRAVEL.”
WHAT IS MISSING IS THE CRITICAL MIDDLE AREA, EXEMPLIFIED BY
“.TRAVEL,” – WHICH ADDS VALUE BY BEING RESTRICTED TO A PARTICULAR
INDUSTRY, BUT IS NOT SO LIMITED IN SCOPE THAT IT PROVIDES EFFECTIVELY
NO COMPETITIVE CHALLENGE IN THE DOMAIN NAME SPACE. AS LONG AS ICANN EXCLUDES TLDS SUCH AS “.TRAVEL,”
THE TRUE POTENTIAL OF E-COMMERCE WILL REMAIN UNTAPPED. UNFORTUNATELY, BECAUSE OF THE ARBITRARY AND CAPRICIOUS MANNER
IN WHICH IT TREATED IATA’S PROPOSAL, ICANN PRECLUDED ITSELF FROM APPRECIATING
HOW “.TRAVEL” WOULD SIGNIFICANTLY ENHANCE COMPETITION IN THE INTERNET.
THE ADDITION OF NEW TLDS INVOLVES A CRITICAL ASSET FINANCED
AND CONTROLLED BY THE U.S. GOVERNMENT – NAMELY, THE AUTHORITATIVE,
OR “A” ROOT SERVER. CONSEQUENTLY,
THE PROCESS FOR SELECTING NEW TLDS MUST COMPLY WITH THE U.S. ADMINISTRATIVE
PROCEDURE ACT. ICANN’S TREATMENT OF IATA’S APPLICATION FELL FAR SHORT OF
THE MANDATES OF THAT LAW. AMONG
OTHER THINGS, ICANN COMPLETELY IGNORED THE FACT THAT OUR “.TRAVEL”
PROPOSAL SATISFIED EACH AND EVERY ONE OF THE NINE CRITERIA WHICH ICANN
SAID IT WOULD CONSIDER IN EVALUATING THE PROPOSALS.
INSTEAD, ICANN SUMMARILY REFUSED TO SELECT “.TRAVEL” BASED
SOLELY ON A NEW AND PREVIOUSLY UNDISCLOSED TENTH CRITERION - “REPRESENTATIVENESS”
- WHICH ICANN APPLIED TO IATA’S APPLICATION IN A DISCRIMINATORY AND
OTHERWISE UNFAIR MANNER. BEFORE GOING INTO MORE DETAILS REGARDING HOW OUR PROPOSAL
WAS TREATED, I WOULD LIKE TO TELL YOU A LITTLE MORE ABOUT IATA. IATA IS a not-for-profit
association that has played a leading role in the global travel industry
since 1919. It has 275 member
airlines (246 active and 29 associate) in 143 countries. IATA HAS OFFICES IN 75 countries AROUND THE
WORLD. Among other things, IATA has developed
standardized airline ticket formats that are recognized around the
world and make it possible to buy a ticket from a travel agency in
TOKYO, that will be recognized and accepted by a domestic airline
in South Africa, for a flight from Johannesburg to Cape Town.
Similarly, the IATA “interline” system makes it possible to
purchase a single ticket, with a single payment, covering travel on
a succession of different airlines.
IATA has been entrusted by the industry, and by governments
around the world, to design and equitably administer the coding systems
essential for the smooth and efficient functioning of the travel industry.
IATA ALSO HAS DEVELOPED standards for accreditation and endorsement
of travel agencies, AND IT HAS A LONG-STANDING RELATIONSHIP WITH TRAVEL
AGENTS AND TRAVEL ORGANIZATIONS IN AN EFFORT TO IMPROVE BOTH THE BUSINESS
PROCESSES AND THE MARKETING AND SALE OF TRANSPORTATION PRODUCTS.
In addition to its airline membership,
IATA counts among its customers approximately 90,000 IATA accredited
OR ENDORSED travel agents located in 209 countries; the operators
of other modes of transportation such as railways and ferry companies;
and numerous other suppliers of travel-related GOODS AND services
including hotels, travel insurance providers, etc. IATA IS uniquely and ideally positioned to sponsor THE “.TRAVEL” TLD because
its core activities have always included the setting of industry standards
to facilitate cooperation among suppliers OF TRAVEL RELATED SERVICES
AND GOODS, for the benefit of their customers.
IT IS ENTIRELY logical that IATA exercise its traditional leadership
role to enable the travel industry and ITS CUSTOMERS to fully exploit
the potential of the Internet. IT IS IMPORTANT TO HIGHLIGHT THAT IATA’S VISION FOR “.TRAVEL”
WAS NEVER LIMITED TO ONLY A PORTION OF THE GLOBAL TRAVEL COMMUNITY.
RATHER, BUSINESSES, OTHER ORGANIZATIONS AND INDIVIDUAL STAKEHOLDERS
FROM THE ENTIRE TRAVEL INDUSTRY,
INCLUDING THE FOLLOWING, WOULD BE ABLE TO OBTAIN DOMAIN NAME REGISTRATIONS
ENDING IN “.TRAVEL”: Scheduled Airlines Charter Airlines Airports Ferries Train Operators Bus and Coach Operators Ground Handlers Catering Companies Car Rental Companies Hotels and Resorts Bed and Breakfast Houses Camp Facility Operators Tourist Boards/Associations Tourist Facility Operators
Travel Guide Publishers Travel Agents Tour Operators Consolidators Internet Service Providers for Travel Computer
Reservation Systems/Global Distribution Systems
CRITICAL DECISIONS AFFECTING “.TRAVEL”, INCLUDING SETTING OBJECTIVE
AND TRANSPARENT STANDARDS FOR DETERMINING WHO QUAlifies TO OBTAIN A DOMAIN NAME, WOULD
BE MADE NOT BY IATA BUT, RATHER, BY THE “.TRAVEL” ADVISORY BOARD,
TO BE COMPRISED OF WORLD-WIDE REPRESENTATIVES OF THE
TRAVEL INDUSTRY. NO INDIVIDUAL
SECTORS WITHIN THE TRAVEL INDUSTRY, INCLUDING THE AIRLINES, WOULD
HAVE “VETO” RIGHTS OVER DECISIONS APPROVED BY A MAJORITY OF THIS BOARD
CONCERNING THE STANDARDS APPLICABLE FOR “.TRAVEL” DOMAIN NAMES. ".TRAVEL" ALSO WOULD ALLEVIATE THE PROBLEMS THAT ARISE FROM
THE FACT THAT MANY TRADE NAMES IN THE TRAVEL INDUSTRY HAVE COUNTERPARTS
IN NON-TRAVEL RELATED BUSINESSES.
CONSIDER THE EXAMPLE OF AN ENTITY CALLED SOUTHWEST INSURANCE
COMPANY. IN THE CURRENT SYSTEM DOMINATED BY THE “.COM”
TLD, SOUTHWEST AIRLINES WOULD HAVE NO PRIORITY OVER SOUTHWEST INSURANCE
FOR THE DOMAIN NAME “WWW.SOUTHWEST.COM.”
THIS SITUATION LIMITS THE ABILITY OF TRAVEL-RELATED BUSINESSES
TO UTILIZE THE INTERNET TO THE MAXIMUM EXTENT POSSIBLE, AND OFTEN
CAUSES CONFUSION AND FRUSTRATION AMONG CONSUMERS, WHO ARE UNABLE TO
ACCESS A PARTICULAR TRAVEL-RELATED WEB SITE SIMPLY BY TYPING IN THE
TRADE NAME PLUS “.COM.” WITH RESPECT TO TRAVEL-RELATED TRADE NAMES,
THIS PROBLEM WOULD LARGELY EVAPORATE WITH THE CREATION OF THE “.TRAVEL”
TLD. WHILE IATA BELIEVES THAT “.TRAVEL” IS AN IDEAL SELECTION
FOR THE NEW GENERATION OF COMPETITIVE TLDS, AND THAT IATA IS PERFECTLY
SUITED TO SPONSOR THIS TLD, WE ARE NOT HERE TO ASK CONGRESS TO DELIVER
THIS RESULT. BUT WE DO REQUEST
THAT THE COMMITTEE EXERCISE ITS OVERSIGHT AUTHORITY TO ENSURE THAT
THE U.S DEPARTMENT OF COMMERCE FULFILLS ITS OBLIGATIONS WITH RESPECT
TO THE SELECTION OF NEW TOP LEVEL DOMAIN NAMES.
UNFORTUNATELY, SO FAR COMMERCE HAS GIVEN NO ASSURANCE THAT
IT INTENDS TO FULFILL THESE OBLIGATIONS.
IT HAS TAKEN NO MEASURES TO CORRECT THE FUNDAMENTAL SHORTCOMINGS
OF THE TLD SELECTION PROCESS ADMINISTERED LAST FALL BY ICANN. THE COMMERCE DEPARTMENT IS INESCAPABLY TIED TO THE TLD SELECTION
PROCESS, A PROCESS WHICH BOILS DOWN TO THE ISSUE OF WHICH TLDS THE
COMMERCE DEPARTMENT WILL APPROVE TO BE ADDED TO THE AUTHORITATIVE
“A” ROOT SERVER. THE “A” ROOT
SERVER IS A CRITICAL ASSET FINANCED BY THE U.S. GOVERNMENT AND CONTROLLED
BY THE COMMERCE DEPARTMENT. AS
A PRACTICAL MATTER, A TLD MUST BE ADDED TO THE “A” ROOT SERVER IN
ORDER TO BE ACCESSIBLE BY THE VAST MAJORITY OF INTERNET USERS. BOTH
ICANN AND THE U.S. GENERAL ACCOUNTING OFFICE RECENTLY HAVE CONFIRMED
THAT IT IS COMMERCE, NOT ICANN, WHICH ULTIMATELY DECIDES WHICH TLDS
WILL BE ADDED TO THE ROOT SERVER. BECAUSE OF THE UNDENIABLE U.S. GOVERNMENT INTEREST IN AND
CONTROL OVER THE ROOT SERVER, THE SELECTION OF NEW TLDS TO ADD TO
THE ROOT MUST COMPLY WITH THE MANDATES OF THE ADMINISTRATIVE PROCEDURE
ACT. HOWEVER, NEITHER ICANN NOR COMMERCE HAS RECOGNIZED
THAT THE APA APPLIES, MUCH LESS TAKEN ANY ACTION TO REDRESS THE VIOLATIONS
OF U.S. ADMINISTRATIVE LAW WHICH PLAGUED THE ICANN TLD SELECTION PROCESS
LAST FALL. IATA’S PROPOSAL FOR “.TRAVEL” WAS
WIDELY EMBRACED BY THE TRAVEL INDUSTRY, WITH MORE THAN 75 ENTITIES
SUBMITTING COMMENTS TO Icann IN SUPPORT OF THE NEW TLD.
supporters included the AMERICAN SOCIETY OF TRAVEL AGENTS (“asta”)
-- the world’s largest association of travel professionals representing
over 26,000 travel agent members (primarily in the United States);
THE Universal Federation of Travel Agents’ Associations (“UFTAA”)
-- the largest federation of travel agent associations worldwide,
representing over 48,000 travel agent members in 97 countries; INDIVIDUAL
travel agents AND OTHER travel agent associations; airlines, airline
associations, airline equipment manufacturers, airports and airport
authorities; e-commerce firms, hotels, railways (including Amtrak
and others), travel and tourism organizations, and individuals. iN ALL, OVER ONE MILLION TRAVEL INDUSTRY BUSINESSES
AROUND THE WORLD, EITHER DIRECTLY OR THROUGH THEIR RECOGNIZED ASSOCIATIONS,
WENT ON THE RECORD WITH icann IN SUPPORT OF IATA’S “.TRAVEL” PROPOSAL. THE BROADER BUSINESS COMMUNITY ALSO
GAVE ITS SUPPORT TO “.TRAVEL.” IN
COMMENTS TO ICANN, CITIBANK TOUTED IATA’S EXPERIENCE AND REPUTATION,
AND CHARACTERIZED IATA’s application AS PERHAPS “the single best example
of how the Internet community can benefit from independent management
of a top level domain.” in addition, iata’s proposal received a nearly
perfect score of 26 out of 27 possible points, which tied it for first
place, in a study of the tld applications by the Berkman Center for
Internet & Society at Harvard Law School.
that study also recommended that “.travel” be one of six new
tlds selected by icann. VIRTUALLY THE ONLY OPPOSITION TO THE
“.TRAVEL” TLD CAME FROM A SMALL NUMBER OF TRAVEL AGENTS WHO HAVE AN
AGENDA OF OPPOSING VIRTUALLY EVERYTHING THE AIRLINE INDUSTRY ENDORSES
– NOT BECAUSE IT IS A BAD IDEA, BUT JUST because IT IS SOMETHING ENDORSED
BY THE AIRLINES. UNFORTUNATELY, THE SIGNIFICANT EFFORT
AND EXPENSE THAT IATA DEDICATED TO ITS APPLICATION DID NOT RECEIVE
TREATMENT BY ICANN MEETING EVEN THE MOST BASIC STANDARDS OF EQUITY.
AT A MINIMUM, IATA WAS ENTITLED TO FAIR AND COMPREHENSIVE CONSIDERATION
OF ITS PROPOSAL. IT RECEIVED
NEITHER. the aDMINISTRATIVE PROCEDURE ACT PROHIBITS
DECISIONS WHICH ARE ARBITRARY AND CAPRICIOUS. THIS REQUIRES (1) THAT DECISIONS BE BASED ON
A CONSIDERATION OF ALL THE RELEVANT FACTORS, (2) THAT PARTIES ARE
NOT DISCRIMINATED AGAINST, AND (3) THAT DECISIONS ARE NOT BASED ON
EX PARTE INFLUENCES. IN ADDITION,
APA-LIKE REQUIREMENTS ARE FOUND IN ICANN’S By-Laws, which require
ICANN to act consistently, fairly and in a transparent manner; and
the “Memorandum of Understanding” between ICANN and the COMMERCE DEPARTMENT,
which requires ICANN to act in a manner that is reasonable, justifiable
and not arbitrary. ICANN’S TREATMENT OF IATA’S “.TRAVEL”
PROPOSAL FAILED TO CONSIDER ALL OF THE RELEVANT FACTORS IN THAT ICANN
GAVE NO CREDIT FOR THE FACT IATA’S PROPOSAL MET EACH AND EVERY ONE
OF THE NINE EVALUATION CRITERIA THAT ICANN HAD STATED IT WOULD APPLY
IN JUDGING TOP LEVEL DOMAIN APPLICATIONS.
INSTEAD, WEEKS AFTER THE APPLICATIONS HAD BEEN SUBMITTED, ICANN
DECIDED TO INVENT A TENTH AND PREVIOUSLY UNDISCLOSED CRITERION CALLED
“REPRESENTATIVENESS.” ICANN CURSORILY APPLIED THIS NEW REQUIREMENT
TO IATA’S PROPOSAL AND, WITHOUT ANY REAL
CONSIDERATION OF THE ISSUE, DECIDED THAT IT COULD NOT FIND
THAT IATA WAS SUFFICIENTLY “REPRESENTATIVE” OF THE TRAVEL INDUSTRY
TO SPONSOR “.TRAVEL”. IN MAKING THIS DECISION, ICANN
MADE NO EFFORT TO PLACE INTO PROPER CONTEXT THE relatively de minimis
opposition TO “.TRAVEL.” ICANN
NEVER weighed THE NEGATIVE COMMENTS AGAINST THE overwhelming support
for IATA’S PROPOSAL. ICANN
ALSO DID NOT CONSIDER THE FACT THAT rivalries AMONG DIFFERENT TRAVEL
AGENT ASSOCIATIONS MEANT THAT SOME AGENTS WERE LIKELY TO MAKE NEGATIVE
STATEMENTS REGARDING iATA’S PROPOSAL SOLELY BECAUSE THE MAJOR TRAVEL
AGENT ASSOCIATIONS WERE IN FAVOR OF THE NEW TLD.
ICANN ALSO APPEARS TO HAVE BEEN INFLUENCED BY EX PARTE COMMUNICATIONS
TO WHICH IATA WAS NOT GIVEN AN OPPORTUNITY TO RESPOND. in addition, BECAUSE “representativeness”
was not one of the nine announced evaluation criteria, IATA had no
prior warning that it need even address this factor in its application.
IATA was denied adequate notice that if opposition materialized
this would be assumed to constitute conclusive proof of a lack of
“representativeness,” regardless of whether there was any merit to
the allegations made in such opposition, and regardless of the presence
of THE counter-balancing and overwhelming support for the application
from throughout the global travel industry.
in addition, iata’S TREATMENT WAS DISCRIMINATORY BECAUSE MOST
OF THE OTHER 43 TLD APPLICANTS, INCLUDING ALL SEVEN OF THE PROPOSALS
SELECTED BY ICANN, WERE NOT even SUBJECTED TO THIS “REPRESENTATIVeNESS”
CRITERION. IN concluding THAT IATA WAS not SUFFICIENTLY
REPRESENTATIVE OF THE TRAVEL INDUSTRY, ICANN, BY ITS OWN ADMISSION,
ACTED TOO HASTILY TO BE ABLE TO MAKE A REASONED AND RATIONAL DECISION.
THE ICANN STAFF
CONCEDED THAT IT “CLEARLY STRUGGLED” WITH “HOW TO EVALUATE” “.TRAVEL”,
IT LACKED “THE TOOLS TO FIGURE OUT” HOW MUCH OPPOSITION THERE WAS
TO “.TRAVEL”, AND WAS UNABLE TO “GIVE [THE ICANN] BOARD MUCH INFORMATION
ABOUT [THE] REPRESENTATIVENESS” OF “.TRAVEL”.
IN ADDITION, ONE ICANN BOARD MEMBER ACKNOWLEDGED IN THE DELIBERATIONS
THAT ICANN MIGHT HAVE REACHED A DIFFERENT CONCLUSION HAD IT BOTHERED
TO INVESTIGATE THE MATTER FURTHER.
NEVERTHELESS, ICANN PASSED OVER THE “.TRAVEL” APPLICATION ESSENTIALLY
SOLELY ON THE BASIS OF THE CONCLUSION THAT IATA WAS NOT SUFFICIENTLY
“REPRESENTATIVE.” icann was clearly OVERWHELMED BY THE
NUMBER OF APPLICATIONS IT RECEIVED FOR TOP LEVEL DOMAINS. BUT THIS IS NOT A LEGITIMATE EXCUSE FOR TREATING
IATA’S PROPOSAL IN SUCH A CAPRICIOUS MANNER. GIVEN THAT THE INTERNET COMMUNITY HAD ALREADY WAITED TEN YEARS SINCE
THE LAST GENERIC TOP LEVEL DOMAINS WERE ADDED, THE INTERNET COULD
HAVE WAITED A FEW ADDITIONAL WEEKS IF THIS WAS WHAT WAS REQUIRED IN
ORDER FOR ICANN TO CONDUCT A COMPREHENSIVE ANALYSIS AND REACH A THOROUGH,
WELL-INFORMED AND PRINCIPLED DECISION REGARDING THE IATA PROPOSAL
AS WELL AS THE OTHER APPLICATIONS, CONSISTENT WITH ITS OBLIGATIONS
UNDER THE ADMINISTRATIVE PROCEDURE ACT.
INSTEAD, ICANN RUSHED TO JUDGMENT, PLACING ITS PRE-oRDAINED
SCHEDULE FOR ISSUING ITS DECISION ABOVE ITS OVERRIDING NEED TO MAKE
DECISIONS WHICH WERE WELL-CONSIDERED, CORRECT AND IN COMPLIANCE WITH
THE APA. THIS IMPROVIDENT HASTINESS IS EXEMPLIFIED
BY THE FACT THAT ICANN REFUSED TO ALLOW APPLICANTS MORE THAN THREE
MINUTES TO MAKE ORAL PRESENTATIONS IN SUPPORT OF THEIR PROPOSALS,
AND CRAMMED EVERY ONE OF THESE THREE-MINUTE SESSIONS INTO A SINGLE
AFTERNOON MEETING OF THE ICANN BOARD.
At a minimum, ICANN NEEDED TO HAVE PROVIDED THE APPLICANTS
WITH SUFFICIENT TIME TO ALLOW THE PROPOSERS TO RECEIVE AND RESPOND
TO ICANN’S CONCERNS IN A MEANINGFUL FASHION. IATA IS DEEPLY
CONCERNED ABOUT THE ABSENCE OF FAIRNESS AND DUE PROCESS IN THE SELECTION
OF NEW TLDS. EITHER COMMERCE
itself should undertake to evaluate the TLD applications in a way
that complies with the ADMINISTRATIVE PROCEDURE ACT, or Commerce should
direct ICANN to do so. IF COMMERCE ACCEPTS ICANN’S DECISIONS WITHOUT
SCRUTINY, THEN ICANN IS ACTING LIKE A FEDERAL AGENCY AND MUST COMPLY
WITH THE APA. IF ICANN DOES
NOT COMPLY, THEN COMMERCE HAS UNLAWFULLY DELEGATED TO ICANN full,
UNCHECKED control to make critical policy decisions relating to THE
DEVELOPMENT OF THE DOMAIN NAME SPACE ON THE INTERNET. TO DATE, NEITHER ICANN NOR COMMERCE
HAS PROVIDED ANY INDICATION OF A WILLINGNESS TO CORRECT THESE FUNDAMENTAL
SHORTCOMINGS IN THE TLD SELECTION PROCESS.
ON DECEMBER 15, 2000, IATA SENT A LETTER TO ICANN REQUESTING
THAT IT RECONSIDER ITS DECISION REGARDING “.TRAVEL”.
TO OUR KNOWLEDGE, icann has TAKEN NO STEPS TOWARDS ACTING ON
THIS request. ON DECEMBER
26, 2000, IATA SENT LETTER TO COMMERCE REQUESTING THAT IT TAKE THE
NECESSARY MEASURES TO ENSURE THAT THE APA IS COMPLIED WITH IN THE
ADDITION OF THE NEW TLDS. COMMERCE HAS NOT RESPONDED TO THIS LETTER. ICANN’S
FAILURE TO CONSIDER OUR PROPOSAL IN A FAIR MANNER AFFECTS MORE THAN
JUST OUR ORGANIZATION. ICANN’S
CONDUCT TOWARDS “.TRAVEL” AND OTHER APPLICANTS CAN ONLY SERVE TO STYMIE
THE GROWTH OF COMPETITION IN THE INTERNET.
THE COMMERCIAL SIDE OF THE INTERNET IS STILL EXTREMELY DEPENDENT
ON THE GENERIC “.COM” TOP LEVEL DOMAIN.
TO INCREASE COMPETITION IN A SIGNIFICANT WAY, CONSUMERS AND
BUSINESSES MUST BE PROVIDED A COMPELLING REASON TO MOVE AWAY FROM
THIS BEHEMOTH. ICANN’S CURRENT APPROACH PROVIDES NO SUCH REASON. FOUR OF
THE SEVEN NEW TOP LEVEL DOMAINS SELECTED BY ICANN LAST NOVEMBER –
“.MUSEUM,” “.COOP,” “.AERO” AND “.PRO” -- ARE LIMITED TLDS THAT SERVE
SMALL GROUPS. THEY MAY BE USEFUL TO THE INSULAR FIELDS THEY
ARE INTENDED TO SERVE, BUT ARE MUCH TOO RESTRICTIVE IN SCOPE TO OFFER
ANY REAL ALTERNATIVE TO “.COM” FOR THE VAST MAJORITY OF BUSINESSES
SEEKING DOMAIN NAMES. THE
SAME IS TRUE FOR “.NAME.” WHILE
THIS TLD HAS A BROAD SCOPE IN THAT ALL INDIVIDUALS MAY QUALIFY TO
REGISTER A DOMAIN NAME IN THE TLD, SUCH DOMAIN NAMES ARE PERSONAL
IN NATURE, AND THIS TLD IS NOT INTENDED AS A COMPETITIVE ALTERNATIVE
FOR BUSINESSES TO “.COM” THE OTHER TWO AWARDEES OF TLDS -- “.INFO” AND “.BIZ” -- ALSO
DO NOT PROVIDE MUCH OF A COMPETITIVE CHOICE VIS-À-VIS “.COM” THE TLD “.INFO” SEEKS TO BE AS WIDELY AVAILABLE
AS “.COM” AND THE TLD “.BIZ” CONNOTES BUSINESS. BUT IT IS DIFFICULT TO SEE HOW EITHER OFFERS
MUCH MORE THAN A DUPLICATION OF THE EXISTING DOMAIN NAME SPACE. THERE IS LITTLE VALUE-ADDED BY THESE TLDS RELATIVE
TO “.COM,” AND THIS NATURALLY LIMITS THEIR COMPETITIVENESS TO “.COM.”
THE GAPING HOLE IN ICANN’S SELECTIONS IS THE LACK OF ANY
VALUE-ADDED TOP LEVEL DOMAINS THAT TARGET LARGE SECTIONS OF THE “.COM”
CONSTITUENCY. THE NEW TLDS
ARE EITHER TOO BROAD OR TOO NARROW IN SCOPE.
TO HAVE REAL COMPETITION YOU MUST HAVE EFFECTIVE COMPETITION,
WHICH MEANS ALTERNATIVES THAT ADD VALUE TO THE CURRENTLY AVAILABLE
CHOICES. ".TRAVEL" IS A PRIME EXAMPLE OF A TLD THAT WOULD ADD SUCH VALUE.
A “.TRAVEL” TLD WOULD PROVIDE BUSINESSES AND CONSUMERS THEIR
OWN SPECIALIZED SUBDIVISION OF THE INTERNET, BUT IT WOULD NOT BE RESTRICTED
TO A RELATIVELY TINY SECTION OF E-COMMERCE, SUCH AS MUSEUMS OR COOPERATIVES.
RATHER, IT WOULD ENCOMPASS THE ENTIRE TRAVEL INDUSTRY, WHICH
REPRESENTS THE LARGEST SEGMENT OF E-COMMERCE TODAY, AND THAT WOULD
ONLY GROW LARGER WITH ITS OWN, DEDICATED INTERNET SUBDIVISION.
HOWEVER, AS LONG AS ICANN IS ONLY WILLING TO ADD GENERIC
WOULD-BE CLONES OF “.COM” AND LIMITED TLDS DESIGNED TO SERVE MINISCULE
SECTORS OF E-COMMERCE, AN INCREDIBLY IMPORTANT COMPETITIVE OPPORTUNITY
IN THE INTERNET DOMAIN NAME SPACE WILL CONTINUE TO BE LOST. IATA THANKS THE MEMBERS OF THIS SUBCOMMITTEE
FOR PROVIDING IT WITH THIS OPPORTUNITY TO SHARE ITS PERSPECTIVE, AND
HOPES THAT THE SUBCOMMITTEE WILL ENCOURAGE THE DEPARTMENT OF COMMERCE
AND ICANN TO MAKE DECISIONS REGARDING NEW TOP LEVEL DOMAIN NAMES IN
A MANNER THAT IS FAIR, TRANSPARENT AND DESIGNED TO MAXIMIZE competition
on the internet. |