Cross-ownership: NTIA delivers another late hit on ICANN

June 16 – two days before the ICANN meeting begins, the day
most people going to it are getting onto airplanes for long rides to Singapore –
the Commerce Department has shot another unmanned drone at ICANN’s new TLD
process. This one takes the form of a brief, 3 page letter about the new
cross-ownership policy from the U.S. Department of Justice’s Antitrust
Division. 

On the one hand it is a good thing for expert national
antitrust authorities to weigh in on ICANN’s policy process regarding cross
ownership and vertical integration. On the other hand, the input is about 18
months late and provides yet another depressing example of how national
governments are an uncoordinated and disruptive element of the ICANN
policy process, one that waits until a policy has been laboriously made and then (perhaps based on special pleading by lobbyists?) asks for a
re-do at the 11th hour.

ICANN began its vertical integration policy development
process working group
back in February of 2010.
It was preceded by an issue report on December 2009. Governments – especially antitrust authorities – were repeatedly asked to weigh
in on the issues during the ensuing 8 months. The U.S. DoJ intervention is
especially amusing for me, because I, along with Michael Palage and Avri Doria,
spent a lot of time developing a proposal regarding vertical integration and
cross ownership
that came to almost the exact same conclusion as the Antitrust
Division’s recent intervention: “ICANN should retain its prohibition on
vertical integration on existing TLDs except in cases where ICANN, in consultation
with public and private stakeholders, determines the registry does not have, or
is unlikely to obtain, market power.”

Wouldn’t it have been nice if the US Commerce Department and
its colleagues in other agencies and other governments were competent enough, and
sufficiently committed to multi-stakeholder cooperation, to actually
participate in the policy making process as it is happening? It would have been quite influential for it to support the MMA proposal. Isn't it a bit rude to shoot off short, superficial analyses two days before a decisive meeting asking for a rethink of the policy, when the process has been going on since December 2009?

I can’t tell whether NTIA is just trying to
cover its posterior by getting this on the record, or whether this is yet another
piece of flak thrown out there to delay things again. If the latter, it's pretty cynical.

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