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

[Kathy Kleiman]

Tx you, Akriti, and tx for writing such a great comment!

On 4/26/2019 11:56 PM, Akriti wrote:
> Thanks for the reference, Kathy! I hope as many community members as 
> possible can voice their concerns and help avert the problematic 
> consequences of the proposal.
> ------------------------------------------------------------------------
> *From:* NCSG-Discuss <ncsg-discuss at listserv.syr.edu> on behalf of 
> Kathy Kleiman <kathy at dnrc.tech>
> *Sent:* Saturday, April 27, 2019 04:50
> *To:* ncsg-discuss at listserv.syr.edu
> *Subject:* Re: [Urgent] [Public Comment] Proposed Renewal of .org 
> Registry Agreement
> 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>
>
>
-- 
Kathy Kleiman
Visiting Scholar, Center for Information Technology, Princeton University
President (on leave), Domain Name Rights Coalition



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