Feel free to suggest modifications --MM

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Proposed NCUC statement on 
"Procedure for use by ICANN in 
considering requests for consent and related contractual amendments 
to allow changes in the architecture or operation of a gTLD registry."

NCUC observes that by initiating this procedure, ICANN is assuming that 
its contracts alone are not sufficient to provide a predictable and stable 
basis for the industry. It is assuming that it needs an ongoing form of 
regulatory oversight to supplement its contracts. ICANN should face the
fact that it is expanding further into areas of industry regulation, although 
no one wants to admit that.

In formulating its response, NCUC begins by asking: How are 
noncommercial domain name users specifically affected by this change? 
The answer, NCUC believes, is that there is no commercial/noncommercial 
angle to this issue. It is more a question of:

a) how users/consumers relate to suppliers and what kind of regulatory
procedures are needed to protect consumers given the high switching 
costs associated with changing registry suppliers after a domain name
is well-established.

b) what kind of technical regulation or specifications are needed to protect
third parties using domain names on the Internet from harmful changes
made in registry operation, while preserving as much as possible the 
freedom of suppliers to respond to the market and innovate.

NCUC notes that whether consumers or users are commercial or 
noncommercial has little bearing on these issues. 

We also note that a) and b) are distinct policy issues - a) involves 
protection of the parties buying service from a gTLD registry, who may 
have options, while b) involves protection of third party users of a domain 
name, who probably do not have any options if they want to connect to the 
party using the affected registry. We also note that a) involves economic 
forms of regulation which also involved competition policy concerns, while b) 
is more a matter of technical coordination.

NCUC strongly recommends that the PDP distinguish clearly between
a) and b) in its consideration of the new process. Is the object
of the process economic regulation or technical coordination?

The document we are asked to comment on proposes no policies,
so our comments can only suggest questions or problems for the
PDP process to consider. 

1. One question the PDP should consider is whether all issues
related to a) above should be handled by national regulatory 
authorities instead of ICANN. We support ICANN's need for 
technical coordination related to matters under b). We are less
confident of ICANN's ability and right to engage in a). We are also
not convinced of its ability to engage in competition policy-related
forms of regulation.

2. The PDP document refers to a "quick look" process followed by 
a more involved process if a change fails the "quick look." 
A question the PDP needs to face squarely is: What is a subject to
a "quick look" and what is not? What is a "new registry service"? 
How is that defined? Who will make that determination initially? 
What happens when the registry and ICANN disagree on that issue? 

3. The NCUC recognizes the danger that a registry can make 
damaging changes, such as in the Sitefinder case. We support
clear, well-defined specifications for registry operation that make
DNS a neutral platform for Internet functions. We also recognize
a threat that innovative changes, such as multilingual domain 
names, will be stifled by a central organization such as ICANN 
which may have incentives to prevent useful changes in order to 
maintain its control over the industry.

4. The PDP should consider whether there should be a distinction between 
policies applied to sponsored and unsponsored TLDs. NCUC believes 
the answer is no: if the justification for regulation is economic; i.e, 
that users are locked in to a supplier and cannot switch service providers 
without incurring damaging costs, then the same fundamental economic 
problem applies regardless of whether the registry is sponsored or not.
If the justification for the process is technical, the answer is the same:
there is no relevant technical distinction between sponsored and un-
sponsored registries.

5. The PDP should consider whether there should be a distinction 
between the treatment of dominant and non-dominant TLDs? In this
case NCUC believes there is a stronger case for a distinction. A major
dominant registry may have the power to move the entire industry and
technology, whereas smaller ones would not. However, the lock-in
problem of consumers applies regardless of whether the registry is dominant 
or not. Thus, the policy must identify carefully what problem it is trying
to solve.