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

Tue Apr 30 05:30:34 EEST 2019

Hi Kathy,

Apologies for not responding sooner (and also for a long read, if you care to go through it all), and I know the NCSG has already submitted a comment asking for the price caps to remain in place, so I’m only really sending this reply to respond to your assertion below, and for the discussion to continue should anybody care to look in to this any further. I don’t believe you’ve proven or disproven anything with your subsequent email. If you want to go with what the contract says, you have to go with what ALL of it says.

Here’s what you said:

> On Apr 27, 2019, at 1:19 AM, Kathy Kleiman <kathy at DNRC.TECH> wrote:

[SNIP]

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

Right, and as you’ve pointed out, this concerns new registrations, not renewals, so has no effect on CS/NFP organizations looking to renew domain names registered under .org

> 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).

Here, we move on to the issue of renewals, and you don’t see the bit on the notification to registrants here, because it isn’t here. It’s further down in 2.10(c). However, my reading of 2.10 leads me to believe that 2.10(b) and (c) need to be analyzed together, or in other words…, how they might complement each other.

Then you go on to say this:

> 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.

Important to note again that we’re still discussing renewals here. A combination of 2.10(b) and 2.10(c) to me reads that all that is required is for one registrar to choose to renew at the same price for a period of up to 10 years, and the Registry Operator will be required to fix its renewal rates at that same price across the board with all registrars. Noting that there are comments out there by registrars opposing the price cap removal, I’m guessing that at least one of them will take advantage of this clause in the contract, should PIR’s contract be amended.

More importantly, I’m not sure why you selectively left out the parts of 2.10(c). You say the language is vague, but I don’t find it to be as vague as you do, provided that I have not misunderstood it, of course. Section 2.10(c) says (apologies for the lengthy bit of text below, but I’ve bolded the parts I want to emphasize):

“ 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).”

So basically, the Registry Operator must have uniform pricing for renewals, taking in to account any registrar’s ability to lock those renewal prices up for a period of up to 10 years. An exception would be if “the applicable registrant expressly agreed in its registration agreement with the 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”. Seeing that no registrants have agreed to clear and conspicuous disclosures of renewal pricing, since there haven’t been any in the past, why do you find this to be vague?

Thanks.

Amr

> On Apr 30, 2019, at 4:53 AM, Kathy Kleiman <kathy at DNRC.TECH> wrote:
>
> Milton, I showed in a substantial, subsequent email how those comments don't actually track the language of 2.10, the pricing provisions of the new Registry agreement.  I included each subsection, a summary, and then the full contractual language. Ultimately, we have to go with what the contract says...
>
> Please see my follow-up email. There is absolutely no provision for notification of registrants, unfortunately...
>
> Best, Kathy
>
> On 4/29/2019 10:48 PM, Mueller, Milton L wrote:
>
>> In answer to Ayden and Michael I am resending to the list comments Amr made a few days ago. They show how the new Registry Agreement still limits price increases effectively. I guess folks who are panicking about uncontrolled price increases didn’t read the actual registry agreement.
>>
>> So no, Ayden I am not impressed with the comments of the existing .org registrants because it seems like they are not well-informed - all they hear is the phrase “no more price caps”. Seems like the price increases only affect new registrants.
>>
>> But why let facts get in the way of your fun, eh?
>>
>> Milton L Mueller
>> Professor, School of Public Policy
>> Georgia Institute of Technology
>>
>> Begin forwarded message:
>>
>>> From: Amr Elsadr <aelsadr at icannpolicy.ninja>
>>> Date: April 25, 2019 at 16:33:35 EDT
>>> To: milton at GATECH.EDU
>>> Cc: NCSG-DISCUSS at LISTSERV.SYR.EDU
>>> Subject: Re: [Urgent] [Public Comment] Proposed Renewal of .org Registry Agreement
>>> Reply-To: Amr Elsadr <aelsadr at icannpolicy.ninja>
>>
>>> 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
>>>>
>>>>> On Apr 25, 2019, at 3:59 PM, Rafik Dammak <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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