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

[Nadira Alaraj]

+1 Kathy
Thank you very much.


On Sat, Apr 27, 2019, 20:39 Kathy Kleiman <kathy at dnrc.tech> wrote:

> Hi Nadira, Tx you for your comment.  The drafter appears to have the same
> thoughts in writing the comment.  He expresses a concern for the 10 million
> incumbent .ORG registrants, all of whom registered their domain names with
> the expectation of price caps and limited price increases - and many of
> whom have been in their domain name space for years if not decades, with
> well-known websites, email address and listservs making switching costs
> very, very high.
>
> Here's what the comment proposes on this issue:
>
> "On the other hand, as the home for schools, community organizations,
> open-source projects, and other non-profit entities, this registry should
> not necessarily operate under the same commercial realities that guide
> other domains. Fees should remain affordable, with domains which are priced
> within reach of everyone. Consequently, rather than removing the price cap
> provisions entirely, we suggest that they should be raised by a reasonable
> level, or at the very least, that this aspect of the contract should be
> subject to review at the midpoint of the contract, to assess its impact on
> the ability of potential registrants, particularly non-profits or
> charities, to register and renew domains at a reasonable cost."
>
> Recommendations:
>
> 2.      Rather than removing price caps from the agreement entirely, these
> should be retained but raised by an appropriate amount. In the alternative,
> this aspect of the contract should be subject to a review midway through
> the contract, based on the impact of the price changes on non-profit
> registrants.
>
> I think this address your middle ground of not typing PIR to its current
> 2013 prices, but not allowing unrestricted increases.
>
> Best, Kathy
>
>
> On 4/27/2019 9:34 AM, Nadira Alaraj wrote:
>
> 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>
>> <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
>>>
>>> --
> Kathy Kleiman
> Visiting Scholar, Center for Information Technology, Princeton University
> President (on leave), Domain Name Rights Coalition
>
>
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