Comments to ICANN Proposed Amendments to Base New gTLD RA

After ICANN colluded in secret for 18 months with new gTLD registry operators, ICANN published for public comment Proposed Amendments to Base New gTLD Registry Agreement. Among other things, ICANN's Global Domains Division (GDD), headed by former ICANN CEO Fadi Chehade's crony Akram Atallah, proposed eliminating price increase transparency for new gTLD domain names, and allowing ICANN to grant discretionary fee waivers to new gTLD registry operators. Comments closed 20 Jul 2016 23:59 UTC. A total of 23 comments were filed, of which the first five below were particularly relevant for domain name registrants:

1. Opposed to changes in contracts that reduce transparency of pricing, and that provide fee waivers to registries George Kirikos
2. Re: Opposed to changes in contracts that reduce transparency of pricing, and that provide fee waivers to registries George Kirikos
3. Business Constituency (BC) comment on Proposed New gTLD Registry Agreement Steve DelBianco
4. Ratification Pending: ALAC Statement on the Proposed Amendments to Base New gTLD Registry Agreement ICANN At-Large Staff
5. Comments from John Poole, Editor of DomainMondo.com, and domain name registrant 
6. Proposal submitted by PointQuebec Normand Fortier
7. Italian Comments Rita Forsi
8. Support to comments ON THE PROPOSED AMENDMENT TO THE BASE NEW GTLD REGISTRY AGREEMENT Josu Waliño
9. JPRS Comments - Proposed Amendments to Base New gTLD RA ENDO Atsushi
10. European NGO Alliance for Child Safety Online (eNACSO)_Comments_BaseRA Frinchi, Flaminia
11. Comment on Proposed New gTLD RA Amendment Ried, Bill
12. Comments from CORE Association CORE Association
13. Registries Stakeholder Group (RySG) comments on Proposed Amendments to Base New gTLD Registry Agreement Stephane Van Gelder
14. Comments of India [GAC] Karine Perset
15. Google Registry Comments - New gTLD RA Amendments Stephanie Duchesneau
16. Proposed Amendments to Base New gTLD Registry Agreement Susan Payne
17. BRG Comments - Proposed Amendments to Base New gTLD Registry Agreement 
18. Comments on the proposed changes stated in section 1.7 of Spec 6 in the RA Bonnie Chun
19. Comment from the Security and Stability Advisory Committee Julie Hedlund
20. Comments Martin Joyal
21. Comments Regarding Section 6.7 of the Proposed Registry Agreement Michael D. Palage
22. Change to Registry Agreement Desiree
23. IPC Comments on Proposed Amendments to the Base New gTLD Registry Agreement 

The full comment filed by the Editor of Domain Mondo is also available here (pdf), an excerpt:

"... September 30, 2016, is fast approaching, and ICANN management and staff, particularly at the “Global Domains Division” (GDD) seem ill-prepared--still engaging in unprofessional, incompetent, inept or opaque practices, as noted above and below, with hostility to the interests of the vast majority of domain name registrants worldwide .... Any waiver of registry operator fees in the arbitrary and sole discretion of ICANN management and staff is an open invitation to graft, corruption, and kick-back schemes reminiscent of the FIFA scandals. ICANN lacks a comprehensive and effective conflicts of interest and code of conduct applicable to every ICANN employee, and ICANN may have already engaged in questionable, if not illegal, behavior. See, e.g., How ICANN and ICANN CEO Fadi Chehadé Evade Accountability ... Most new gTLDs are failing and this has already been acknowledged by many in the new gTLDs industry ... If a registry operator cannot afford the modest fees charged by ICANN, they should go out of business. If anything, ICANN should first eliminate (or reduce), all of the registrant domain name registration and renewal fees, before it even begins to think about “waiving” registry operator fees. There are plenty of fools in the world with $185,000 to throw away, ICANN’s new gTLDs program is living proof of that. Next time they may learn to conduct a little “due diligence” before “drinking the kool-aid.” ... ICANN has been weakened, and perhaps corrupted, by creating a separate Global Domains Division (GDD) during the tenure of former ICANN President & CEO Fadi Chehade. While it allowed Chehade, who admittedly didn’t understand the domain name industry, to appoint his crony, Akram Atallah, to the second-highest paid position at ICANN, thereby allowing Chehade to travel and dabble in geo-politics with the Brazilians and Chinese (and others), and also allowed him plenty of time to hang out and party in Davos, Switzerland, at meetings of the World Economic Forum (on ICANN’s dime), the global internet community has not been well-served by the GDD:

• GDD’s “Contract Compliance,” staffed with Chehade’s cronies, has been called an “unmitigated disaster;” 
• The GDD’s crowning achievement to date has been the “dot SUCKS” fiasco; 
• Indicative of the ICANN community’s lack of trust and confidence in the GDD is the fact that the only major change to ICANN structure, in the IANA transition plan, is separating the IANA Department from the GDD, into a new separate corporation. 

"Hopefully the ICANN Board and new ICANN President & CEO, in the near future, will reorganize ICANN’s corporate and operational structure, and staffing, abolish the GDD completely (a GDD President is one too many “Presidents” for ICANN), and move “Contract Compliance” into a separate division or department that includes consumer trust and protection, as well as domain name registrants’ remedies and advocacy, reporting directly to the ICANN President & CEO, and the ICANN Board."

Next Steps: According to ICANN, "Following the conclusion of the public comment period, ICANN and the Working Group will consider the public comments, and submit the proposed final version of the amendments for Registry Operator approval (according to the process defined in Section 7.6) and approval by the ICANN Board of Directors. If these approvals are obtained, the amendment will become effective upon 60 days notice from ICANN to the Registry Operators."

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DISCLAIMER

Caveat ICANN: FIFA Bans Blatter and Platini For Conflict of Interest (video)

FIFA Bans Blatter and Platini From World Soccer -  FIFA President Sepp Blatter and the head of European soccer, Michel Platini, have been banned from world soccer for eight years by a FIFA ethics committee for "Conflict of Interest."  Published on Dec 21, 2015 by WSJ.com.

What would happen at ICANN in a similar situation? The evidence indicates conflicts of interest, or inappropriate conduct with parties having vested interests ("stakeholders"), by ICANN Officers (and staff) are tolerated, ignored, or even encouraged and rewarded! Who's legally responsible? Ultimately the ICANN Board of Directors under California law. Has the ICANN Board of Directors been held accountable for its failure to have in place or enforce an effective Code of Conduct for all ICANN officers and staff? Of course not! That's the reality of ICANN accountability, now, and probably in the future, despite all the talk of "enhancing ICANN accountability"--see, e.g., on Domain Mondo: this, this, this, this, this, this, this and this.

Will ICANN Ever Adopt & Enforce a Code of Conduct for @ICANN Officers and Staff? https://t.co/bCCXwPqYrc #Conflicts #Corrupt #ICANN

— Domain Mondo (@DomainMondo) December 21, 2015

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DISCLAIMER

ICANN, Public Interest, New gTLDs Registry Operator Code of Conduct

ICANN essentially "caved" to new gTLDs lobbyists (a/k/a "ICANN stakeholders") and failed to protect the public interest, including, but not limited to, domain name registrants, in its "New gTLD Registry Operator Code of Conduct" which is found in "Specification 9" of the Base Registry Agreement (Specification 9 is at pages 80-81)--relevant  portions below:

SPECIFICATION 9
REGISTRY OPERATOR CODE OF CONDUCT

1. In connection with the operation of the registry for the TLD, Registry Operator will not, and will not allow any parent, subsidiary, Affiliate, subcontractor or other related entity, to the extent such party is engaged in the provision of Registry Services with respect to the TLD (each, a “Registry Related Party”), to: 

a. directly or indirectly show any preference or provide any special consideration to any registrar with respect to operational access to registry systems and related registry services, unless comparable opportunities to qualify for such preferences or considerations are made available to all registrars on substantially similar terms and subject to substantially similar conditions;

b. register domain names in its own right, except for names registered through an ICANN accredited registrar; provided, however, that Registry Operator may (a) reserve names from registration pursuant to Section 2.6 of the Agreement and (b) may withhold from registration or allocate to Registry Operator up to one hundred (100) names pursuant to Section 3.2 of Specification 5;

c. register names in the TLD or sub-domains of the TLD based upon proprietary access to information about searches or resolution requests by consumers for domain names not yet registered (commonly known as, “front-running”); or

d. allow any Affiliated registrar to disclose Personal Data about registrants to Registry Operator or any Registry Related Party, except as reasonably necessary for the management and operations of the TLD, unless all unrelated third parties (including other registry operators) are given equivalent access to such user data on substantially similar terms and subject to substantially similar conditions.

2. If Registry Operator or a Registry Related Party also operates as a provider of registrar or registrar-reseller services, Registry Operator will, or will cause such Registry Related Party to, ensure that such services are offered through a legal entity separate from Registry Operator, and maintain separate books of accounts with respect to its registrar or registrar-reseller operations. 
(source: http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-09jan14-en.pdf: paragraphs 3-6, pp.80-81, contain nothing else of substance to registrants)

And what is the purported purpose of ICANN's Registry Operator Code of Conduct?

Code of Conduct FAQ [PDF, 456 KB]:
A3: The purpose of the Registry Operator Code of Conduct is to protect a TLD’s registrants.

A15: If a Registry Operator receives an exemption to the Code of Conduct, it is not contractually obligated to comply with the covenants in Sections 1, 2, and 3 of Specification 9 of the Registry Agreement. 

This must be some kind of "joke" if ICANN thinks new gTLD domain name registrants are "protected" by this "Code of Conduct"--no wonder ICANN's Global Domains Division, its President Akram Atallah, its General Counsel John Jeffrey, and its Contract Compliance Officer Allen Grogan, were all stumped and befuddled when confronted with claims of the IPC and ICANN's Business Constituency about abusive practices by an ICANN new gTLD Registry operator-- or what Akram Atallah refers to as an "ICANN customer." ICANN wrote to the FTC (US) and OCA (Canada) asking for help because ICANN forgot to put any teeth into its Code of Conduct! To date nothing has been done--so much for registrant protection!

The ICANN Global Domains Division must be the most inept, incompetent and/or dysfunctional part of ICANN. Akram Atallah is a crony of outgoing ICANN CEO Fadi Chehade and had no experience in the domain name industry before he was appointed ICANN's "President" (yes, ICANN decided to have 2 Presidents!) coincident with the creation of the "Global Domains Division" by empire builder Fadi Chehade--i.e., Akram got Fadi hired as ICANN CEO and President, and in turn, Fadi appointed his lifelong friend and crony Akram to the newly created "President" Global Domains Division which pays a total comp package (including benefits) approaching one million dollars (USD) per year.

The rampant conflicts of interest at play in the new gTLDs program within ICANN are well known, all of which are symptomatic of ICANN's problematic organizational culture. Fixing "organizational culture" is really hard, and impossible when the two top officers are part of the problem. As Peter Thiel once said, "You'd have to fire everybody and start over."

For Domain Name Registrants, ICANN is useless--better to just file a complaint directly with the Federal Trade Comission (FTC).

See also on Domain Mondo: ICANN, Domain Registry Operators, Monopoly, Antitrust, FTC Statement

ref: https://www.icann.org/news/blog/new-gtld-registry-operator-code-of-conduct


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