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ICANN Documentary Information Disclosure Policy Request

Listed below is correspondence that I have submitted to ICANN's general counsel in connection with the organization's stated documentary information disclosure policy.

John Jeffrey
ICANN's General Counsel and Secretary
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601

Re: Request under ICANN Documentary Information Disclosure Policy

Dear John,

In your capacity as general counsel I submit the following request for documents in accordance with ICANN's Document Information Disclosure Policy available online at http://www.icann.org/en/transparency/didp-en.htm.

Document Request #1 (ICANN's Funnel Request Process for Referral to Appropriate Governmental Competition Authority)

I am currently a participant in ICANN's Vertical Integration Working Group, and have recently co-authored a joint proposal which incorporates an element from ICANN's existing registry agreements as well as an element from the document recently prepared by the economic experts retained by ICANN on the Vertical Integrated issue. I am specifically referring to that aspect of the funnel request which states in relevant part that:

"In the event ICANN reasonably determines during the 15 calendar day 'preliminary determination' period that the Registry Service might raise significant competition issues, ICANN shall refer the issue to the appropriate governmental competition authority or authorities with jurisdiction over the matter"

To date ICANN has incorporated this funnel request concept into every ICANN sponsored gTLD registry agreement covering over 110 million second level domain name under management. I therefore respectfully request in accordance with ICANN Documentary Information Disclosure Policy that ICANN publish on the Registry Services Evaluation Process web page (http://www.icann.org/en/registries/rsep/) the criteria ICANN staff has employed over the last four years in analyzing the 35 plus funnel requests that have been processed.

Additionally, I would like ICANN to address or provide any documentation in how they go about determining the "appropriate governmental competition authority" when a gTLD Registry Operator is incorporated in one country but uses a network of 900 ICANN accredited registrars around the world that may provide domain name registration services in each country in the world?

If ICANN does not have a documented process and instead has relied upon one-off factual determinations by ICANN staff, can ICANN answer the question of whether they intend to provide a documented process before an unlimited number of gTLD are added to the root?

If ICANN does intend on providing clear documentation on how funnel requests are processed, specifically in connection with the internal processes by which matters are referred to the "appropriate governmental competition authority", can ICANN commit to consulting with all impacted parties, including but not limited to existing registry operators/sponsors, the GNSO and the GAC?

Document Request #2 (ICANN's New gTLD Project Plan)

During the public forum at ICANN's annual meeting in Seoul, there were numerous calls from ICANN stakeholders for ICANN to adopt a Project Management Plan in connection with the new gTLD process (http://sel.icann.org/meetings/seoul2009/transcript-public-forum-29oct09-en.txt). It appears based upon the preliminary minutes in connection with the April 2010 ICANN Board meeting, that ICANN has produced a "new Project Plan" (http://www.icann.org/en/minutes/resolutions-22apr10-en.htm). I therefore respectfully request in accordance with ICANN Documentary Information Disclosure Policy that ICANN public publish on the New gTLD Program web page (http://www.icann.org/en/topics/new-gtld-program.htm) this "new Project Plan."

I have submitted this request to obtain an answer well in advance of the Brussels' meeting and look forward to your prompt response.

Best regards,

Michael D. Palage

cc:
Rod Beckstrom, ICANN President & CEO
Peter Dengate Thrush, ICANN Chairman
Janis Karklins, Chairman of the Governmental Advisory Committee, Ambassador of Latvia to France
ICANN Correspondence (http://www.icann.org/correspondence)

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

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Comments

Mike,Has your request been denied, or is By John Berryhill  –  May 03, 2010 8:31 am PDT

Mike,

Has your request been denied, or is there some reason why you believe it appropriate to publish the request before you know the response to it?

Because I am an Open and Transparent Type? By Michael D. Palage  –  May 03, 2010 8:56 am PDT

John,

I am not aware of my request being denied. During a recent Vertical Integration call, ICANN's Deputy General Counsel gave a briefing on anti-trust issues. During this session, I specially asked for this information in connection with Request #1.

Given that the VI proposal I have co-authored and the proposal ICANN's own economic experts have written have both referenced the existing Registry Funnel requests, I thought the global ICANN community would find this information constructive.

Since this information could have a material impact on an issue in which numerous parties have a vested financial interest, I thought it best to opt for openness and transparency. If you disagree with this approach, I would welcome your insight on alternative approaches.

"Since this information could have a material By John Berryhill  –  May 03, 2010 9:24 am PDT

"Since this information could have a material impact on an issue in which numerous parties have a vested financial interest, I thought it best to opt for openness and transparency."

Good point.  I look forward to your identification of those parties, their interests, and your retainer amounts, on my desk by 8 AM tomorrow, you "open and transparent" guyman.

"I thought the global ICANN community would By John Berryhill  –  May 03, 2010 9:19 am PDT

"I thought the global ICANN community would find this information constructive"

I agree.  When you have it, publish it.

I simply query the interest of the global ICANN community in the fact of your having requested it.  Your response as to the materiality of the information requested, is beside the point.

Now, ICANN has a document disclosure policy which will no doubt apply, and which lists a number of exceptions which ICANN is perfectly able to review relative to your request.  How about allowing them to do that before assuming an answer, which is the clear subtext here.  People seeking the president's birth certificate are also fond of publishing their FOIA requests in anticipation of their denial as well, but that is a sure route to becoming "a vexatious or querulous individual" as that term is used within the meaning of the relevant policy.  (http://www.icann.org/en/transparency/didp-en.htm)

So to simplify, there may be one of three messages here:

1.  Hey, gang, here is some nifty information ICANN has disclosed which is of material interest to the global community.

2.  Hey, gang, ICANN seems to be denying requests for nifty information without a valid reason.

3.  Hey, ICANN, I'm publishing this request in the expectation it will be denied and before you've had an opportunity to respond, because I believe this sort of tactic best conveys the implied threat of accusations I'm going to make if you don't meet MY deadline for you to review the request.

Maybe it's just me, but message number three is probably the least informative to the community about ICANN's doings, while marginally informative about a particular individual.

I already described my approach.  Request the information.  If and when you feel you have been unfairly denied it, then come tell us why you believe the denial to be unfair.  Don't make me pull out the "keep your damned jack" parable again.

I guess we disagree By Michael D. Palage  –  May 03, 2010 10:15 am PDT

John,

I have followed option #1 in connection with announcing the posting of ICANN Board agenda items and other noteworthy pieces, see some of my recent Tweets.

I have also followed option #2 in connection with various articles I have written, see ICANN’s Economic Reports: Finding the Missing Pieces to the Puzzle

I opted for this approach not to play games of gotcha with ICANN staff (I have much better use of my time) but recognizing that this issue is one that involves competitors in the marketplace, anti-trust issues, and potential anti-trust litigation.

Given this ugly mix, I thought requesting this information in an open and transparent manner was optimal instead of some back door request. In fact as my proposal makes clear, this information should be available to the entire community, not just those "insiders" smart enough to ask for it.

I am sure you would agree with me John that the threat of ICANN finding itself subject to Anti-Trust litigation is a very real threat. In fact we need to look no further than the 9th Circuit decision in the CFIT litigation.

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