[Urgent] [Public Comment] Proposed Renewal of .org Registry Agreement

[Kathy Kleiman]

Hi Milton, Amr and All,

Unfortunately, I read the contract differently and fear that the current 
10 million .ORG registrants face a difficult (and expensive) future. To 
Milton's excellent question, /What, exactly, are those “protections for 
existing registrants”?/, the answer is /"not much."/ Here's the pricing 
provisions of the .ORG proposed agreement (and I’ve been checking with 
domain name attorneys all afternoon):

2.10(a) Registries provide registrars with a 30 day notice of price 
increases (registrations).

2.10(b) “With respect to renewal of domain name registrants” Registry 
will provide registrars with “advance written notice of any price 
increase, and “Registry Operator shall offer registrars the option to 
obtain domain name registration renewals at the current price (i.e., the 
price in place prior to any noticed increase) for periods of one (1) to 
ten (10) years at the discretion of the registrar, but no greater than 
ten (10) years.”

*/But the option to allow renewal for 1 to 10 years is at the option of 
the registrar. There’s nothing that requires the registrar to notify 
registrants that the price of their .ORG domain names will be going 
(possibly dramatically) and that the time to renew is now. This is 
something that is being written about a lot, but I don’t see it in the 
contract. (Some registrars may let their registrants know early; others 
may not.) There is absolutely no requirement of notice to the registrant 
of a price increase for renewals – for .ORG (or any other registry which 
has signed this agreement). /**//**//*

2.10(c) “In addition, Registry Operator must have uniform pricing for 
renewals of domain name registrations (“Renewal Pricing”). For the 
purposes of determining Renewal Pricing, the price for each domain 
registration renewal must be identical to the price of all other domain 
name registration renewals at the time of such renewal” with some vague 
additional language about not wanting to allow abusive and 
discriminatory renewal pricing.

*/Thus, PIR’s job is to charge all registrars the same price for new 
registrations and renewals – whatever that price is and however much PIR 
wants to charge. This is no guidance about abusive and discriminatory 
renewal pricing, no definitions and no clear limitations. /*

Overall, I think Akriti Bopanna’s comment for The Centre for Internet 
and Society, India, today is right on point:

*“Removal of Price Caps*

“ICANN’s decision to remove price caps in the .org agreement will only 
intensify the unfettered power given to Registries with the presumption 
of renewal. The

organization has long heard accusations of engaging in closed door 
decision making

and with such a move that pushes for the rights of registries over 
registrars, such

concerns are only growing. As it is, .org can raise its prices by 10% 
every year which is

unduly generous in itself.5 Giving PIR a limitless ability to increase 
prices would be

doing grave injustice to domain owners who have bought such domains 
under the

assumption of price caps. This is in contrast to the new gTLDS where 
there is more of

a burden on such owners to keep up with the actions of private owners. 
Legacy

gTLDS, unlike the new ones, were not created and sold to private 
entities but handed

over to entities like PIR to maintain them in public interest.

“Being one of the first TLD’s to be introduced, a multitude of 
significant websites and

therein, initiatives, have their home on the .org domain. As pointed out 
in the

community discussions several times, these domains are used by NGO’s, 
nonprofit

trade associations, individual member associations as well as tax-exempt 
charities.6

ICANN’s justification for proposing these steps is to align legacy gTLD 
agreements with those of the other newer gTLDS but as argued by the 
Internet Commerce

Association;

“They have completely different characteristics, history, and ownership

structure. It is not acceptable for ICANN to ignore these differences and to

propose that they be treated the same.7

“Given the longevity of these domains on .org, they have put in 
substantial investment

in maintaining their online presence and cultivating their identity and 
brand. They

are entitled to protection from arbitrary pricing and having the same 
financial rules

as when they originally bought their domains. If such caps are removed 
then many of

these domain owners can find it too expensive to maintain their sites, 
especially with

no guarantee of future price stability as well. A look at the mailing 
lists is enough to

see how small organizations are actively pleading with ICANN to not go 
ahead with

this because it will increase their operational costs.8

“None of this is to say that PIR would, in fact, go ahead and increase 
the prices

exorbitantly or at all, however leaving that option to them does not 
bode well for any

party save them. Further, no clear reasoning has been provided for such 
a step like

the need for any additional funds to maintain the domain and in absence 
of any

exceptionally necessary situation, the price cap should continue to 
exist. Given that

PIR is a not-for-profit organization, the rationale to remove caps seems 
even less

unclear than it would be, for say, Verisign. Allowing the removals could 
very well be

opening Pandora’s box with other Registries then demanding removals too. 
Registries

own all the extensions to their domain and lack of a price ceiling only 
enriches the

revenue of, ultimately, the one owner leading to a bigger monopolistic 
situation than

already is currently prevalent.

Needless to say, I support NCSG’s comment too!

Best, Kathy

----------------------------

Proposed 2019 .ORG Registry Agreement

2.10 Pricing for Registry Services.

(a) With respect to initial domain name registrations, Registry Operator

shall provide each ICANN accredited registrar that has executed the 
Registry-Registrar

Agreement for the TLD advance written notice of any price increase 
(including as a result

of the elimination of any refunds, rebates, discounts, product tying or 
other programs

which had the effect of reducing the price charged to registrars, unless 
such refunds,

rebates, discounts, product tying or other programs are of a limited 
duration that is clearly

and conspicuously disclosed to the registrar when offered) of no less 
than thirty (30)

calendar days. Registry Operator shall offer registrars the option to 
obtain initial domain

name registrations for periods of one (1) to ten (10) years at the 
discretion of the registrar,

but no greater than ten (10) years.

(b) With respect to renewal of domain name registrations, Registry

Operator shall provide each ICANN accredited registrar that has executed 
the Registry-

Registrar Agreement for the TLD advance written notice of any price 
increase (including as

a result of the elimination of any refunds, rebates, discounts, product 
tying, Qualified

Marketing Programs or other programs which had the effect of reducing 
the price charged

to registrars) of no less than one hundred eighty (180) calendar days. 
Notwithstanding the

foregoing sentence, with respect to renewal of domain name 
registrations: (i) Registry

Operator need only provide thirty (30) calendar days notice of any price 
increase if the

resulting price is less than or equal to (A) for the period beginning on 
the Effective Date

and ending twelve (12) months following the Effective Date, the initial 
price charged for

registrations in the TLD, or (B) for subsequent periods, a price for 
which Registry Operator

provided a notice pursuant to the first sentence of this Section 2.10(b) 
within the twelve

(12) month period preceding the effective date of the proposed price 
increase; and (ii)

Registry Operator need not provide notice of any price increase for the 
imposition of the

Variable Registry-Level Fee set forth in Section 6.3. Registry Operator 
shall offer registrars

the option to obtain domain name registration renewals at the current 
price (i.e., the price in place prior to any noticed increase) for 
periods of one (1) to ten (10) years at the discretion of the registrar, 
but no greater than ten (10) years.

(c) In addition, Registry Operator must have uniform pricing for renewals

of domain name registrations (“Renewal Pricing”). For the purposes of 
determining

Renewal Pricing, the price for each domain registration renewal must be 
identical to the

price of all other domain name registration renewals in place at the 
time of such renewal,

and such price must take into account universal application of any 
refunds, rebates,

discounts, product tying or other programs in place at the time of 
renewal. The foregoing

requirements of this Section 2.10(c) shall not apply for (i) purposes of 
determining

Renewal Pricing if the registrar has provided Registry Operator with 
documentation that

demonstrates that the applicable registrant expressly agreed in its 
registration agreement

with registrar to higher Renewal Pricing at the time of the initial 
registration of the domain

name following clear and conspicuous disclosure of such Renewal Pricing 
to such

registrant, and (ii) discounted Renewal Pricing pursuant to a Qualified 
Marketing Program

(as defined below). The parties acknowledge that the purpose of this 
Section 2.10(c) is to

prohibit abusive and/or discriminatory Renewal Pricing practices imposed 
by Registry

Operator without the written consent of the applicable registrant at the 
time of the initial

registration of the domain and this Section 2.10(c) will be interpreted 
broadly to prohibit

such practices. For purposes of this Section 2.10(c), a “Qualified 
Marketing Program” is a

marketing program pursuant to which Registry Operator offers discounted 
Renewal

Pricing, provided that each of the following criteria is satisfied: (i) 
the program and related

discounts are offered for a period of time not to exceed one hundred 
eighty (180) calendar

days (with consecutive substantially similar programs aggregated for 
purposes of

determining the number of calendar days of the program), (ii) all ICANN 
accredited

registrars are provided the same opportunity to qualify for such 
discounted Renewal

Pricing; and (iii) the intent or effect of the program is not to exclude 
any particular

class(es) of registrations (e.g., registrations held by large 
corporations) or increase the

renewal price of any particular class(es) of registrations. Nothing in 
this Section 2.10(c)

shall limit Registry Operator’s obligations pursuant to Section 2.10(b).

(d) Registry Operator shall provide public query-based DNS lookup

service for the TLD (that is, operate the Registry TLD zone servers) at 
its sole expense.

-------------

Here’s PIR’s current pricing language, from its 2013 agreement:

Section 7.3. Pricing for Domain Name Registrations and Registry Services.

7.3(a) Pricing. From the Effective Date through 31 December 2013, the 
price to ICANN-accredited registrars for new and renewal domain name 
registrations and for transferring a domain name registration from one 
ICANN-accredited registrar to another, shall not exceed a total fee of 
US$8.25 (the "Maximum Service Fee"). Commencing on 1 January 2014, the 
Maximum Service Fee charged during a calendar year for each annual 
increment of a new and renewal domain name registration and for 
transferring a domain name registration from one ICANN-accredited 
registrar to another, may not exceed the Maximum Service Fee during the 
preceding calendar year multiplied by 1.10. The same Service Fee shall 
be charged to all ICANN-accredited registrars for new and renewal domain 
name registrations. Volume discounts and marketing support and incentive 
programs may be made if the same opportunities to qualify for those 
discounts and marketing support and incentive programs is available to 
all ICANN-accredited registrars.

  7.3(b) Adjustments to Pricing for Domain Name Registrations. Registry 
Operator shall provide no less than six months prior notice in advance 
of any price increase for domain name registrations and shall continue 
to offer domain name registrations for periods of up to ten 
years.Registry Operator is not required to give notice of the imposition 
of the Variable Registry-Level Fee set forth in Section 7.2(c).

----------------------------

> Hi Milton,
>
> If my understanding of Section 2.10 of the Registry Agreement is 
> correct, registrars can continue to renew existing registrations 
> without an increase in price following an increase in pricing of new 
> registrations by the Registry Operator (RO) for a period of up to 10 
> years. Additionally, ROs are required to have uniform pricing for 
> registration renewals. This would mean that all renewal prices would 
> remain unchanged, unless they all change across all registrars 
> simultaneously.
>
> The protections for existing registrants referred to are detailed in 
> 2.10c of the Registry Agreement. The protection is basically that 
> registrants have to agree to renewal prices higher than that of the 
> original registration at the time of the initial registration. It 
> can’t be forced upon them at a later date. This is meant as a 
> provision to /“prohibit abusive and/or discriminatory Renewal Pricing 
> practices imposed by Registry Operator without the written consent of 
> the applicable registrant at the time of the initial registration of 
> the domain“/.
>
> Thanks.
>
> Amr
>
>> On Apr 25, 2019, at 9:30 PM, Mueller, Milton L <milton at GATECH.EDU 
>> <mailto:milton at GATECH.EDU>> wrote:
>>
>> I agree with the letter’s discussion of URS and other RPMs. I agree 
>> with Amr that we may need to moderate the language about “unilateral 
>> ICANN action” however because PIR may indeed have gone along with this.
>> On the issue of price caps, I think we need some factual 
>> clarification. If Amr is right and the potential price increases only 
>> apply to new registrants, then there is much less of an issue. The 
>> proposed renewal says “Protections for existing registrants will 
>> remain in place, in line with the base registry agreement.“
>> What, exactly, are those “protections for existing registrants”?
>> MM
>> *From:*NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU 
>> <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>>*On Behalf Of*Amr Elsadr
>> *Sent:*Thursday, April 25, 2019 10:33 AM
>> *To:*NCSG-DISCUSS at LISTSERV.SYR.EDU <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
>> *Subject:*Re: [Urgent] [Public Comment] Proposed Renewal of .org 
>> Registry Agreement
>> Hi,
>> Thanks for sharing this, Rafik. Speaking for myself, I very much 
>> agree with the comment on adding the new gTLD Rights Protection 
>> Mechanisms (RPMs) to the PIR contract for .org at this time. As the 
>> draft comment rightly points out, these RPMs will not actually be 
>> Consensus Policies until after the ICANN Board adopts the 
>> recommendations of the Review of all RPMs in all gTLDs PDP Working 
>> Group, and should not apply to any of the legacy gTLDs, including 
>> .org. However to characterize the decision to do so as a unilateral 
>> ICANN decision is something I’m not sure of. I presume that PIR 
>> negotiated this with ICANN before the public comment period began? I 
>> might be wrong, as I’m making an assumption here.
>> To be clear, the RPMs that would be applicable here (if I’m not 
>> mistaken) are the Uniform Rapid Suspension (URS) and the Trademark 
>> Claims RPM (part of the Trademark Clearing House), but not the 
>> Sunrise Registrations RPM, obviously, since .org has been around for 
>> a while.
>> Substantively, I don’t believe the URS will be much of an issue, 
>> since it is largely deemed to be an unappealing mechanism for use by 
>> Trademark holders, as the stats and anecdotal evidence that has been 
>> shared to date indicate. The impact of Trademark Claims, on the other 
>> hand, might be very different, and prior to it being reviewed by the 
>> RPMs PDP, and adopted as an ICANN policy, I don’t believe adding it 
>> to the .org contract in a renewal is a good move.
>> On the second issue, where the draft comment disagrees with removing 
>> price caps for .org registrations, I’m pretty sure I don’t agree with 
>> the rationale or conclusion. I don’t believe PIR’s status as a 
>> non-profit entity justifies this. IMO, it imposes unreasonable 
>> obligations on PIR that other Registry Operators are not subject to, 
>> so effectively penalizing PIR for its status, and its continued 
>> mission to/“support many excellent causes”/, as pointed out in the draft.
>> Furthermore, there is little to no evidence that I can see (at least 
>> in the draft) that registrants of .org domain names will be 
>> negatively impacted by removal of the price cap. My understanding is 
>> that this will mainly impact new registrations, not existing ones, 
>> but this isn’t addressed at all.
>> To me, PIR needs to set its own price taking in to consideration 
>> their own consumer base. If they make bad decisions that drive their 
>> customers away, I don’t believe this will negatively impact 
>> registrants as much as it would PIR itself, especially considering 
>> that there are over a thousand gTLDs for registrants to migrate to, 
>> should they choose to do so.
>> Thanks.
>> Amr
>>
>>
>>     On Apr 25, 2019, at 3:59 PM, Rafik Dammak <rafik.dammak at GMAIL.COM
>>     <mailto:rafik.dammak at GMAIL.COM>> wrote:
>>     Hi all,
>>     We have a suggested draft comment ( attached) on proposed renewal
>>     of .org agreement
>>     https://www.icann.org/public-comments/org-renewal-2019-03-18-en.
>>     The deadline for submission is the 29th April and for NCSG PC to
>>     review and endorse. Please share your comments abd input.
>>     Best Regards,
>>     Rafik
>>     <Org Letter Rev.docx>
>>
>
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