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BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES

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--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.