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

[Nadira Alaraj]

Note: I slipped the "not" from my sentence.

*so that the new contract not be retroactive, in order to the current .ORG
registrants not be affected.

On Sat, Apr 27, 2019, 15:37 Nadira Alaraj <nadira.araj at gmail.com> wrote:

> Dear Kathy and all
> Thank you for the through investigations on this matter.
> I was wondering if there is a way, so that the new contract to be
> retroactive, in order to the current .ORG registrants be affected. By any
> increase in case the community couldn't bring the cap increase down.
>
> Another issue I didn't read in many of the comments that not all .ORG
> registrants are NGOs hence there are some registrants who might take
> advance of the current status.
>
> These are my 2 naive thoughts,
> Best wishes,
> Nadira
>
> On Sat, Apr 27, 2019, 02:21 Kathy Kleiman <kathy at dnrc.tech> wrote:
>
>> 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> 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> *On Behalf Of *Amr
>> Elsadr
>> *Sent:* Thursday, April 25, 2019 10:33 AM
>> *To:* 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</o
>>
>>
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