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P.O. Box 9305
Virginia Beach, VA 23450
757-631-9838
Admin@biztld.net

Title of Hearing:

Is ICANN's New Generation of Internet Domain Name Selection Process Thwarting Competition?

Prepared Statement of Leah Gallegos
President of AtlanticRoot Network, Inc.
P.O. Box 9305
Virginia, Beach, VA 23450

Summary of Testimony

The public has demanded, and the government has recognized, the need for more Top Level Domains (TLDs) to be entered into the USG root that is controlled by the Department of Commerce (DoC). ICANN has been tasked with determining which TLDs should be chosen. Unfortunately, their process for making the determination has been discriminatory and damaging to our small business that is dependent upon domain name registrations in our TLD. ICANN's apparent choice is to refuse acknowledgment of our legitimate business and usurp our product, the dot BIZ TLD, thus duplicating it and creating chaos. ICANN refuses to acknowledge any entity outside its own framework, creating a platform from which to rule the Internet and crush a free market industry in its infancy. If ICANN succeeds now, it portends the destruction of more such businesses in the future.

Main Points of Testimony

1. ICANN fails to acknowledge legitimate businesses of TLDs and root systems existing outside its framework.

a. They claim separate name space when DNS is ONE name space, and use it as an excuse to usurp our product.

2. ICANN has chosen to usurp our product and award it to a competitor.

3. ICANN ignored dot BIZ while recognizing the pre-existence of dot WEB.

4. ICANN's application process discriminates against small business and non-profits.

5. ICANN's duplication of pre-existing TLDs now will open the door to do even more harm to business.

6. ICANN has violated its agreement with the government that mandates they will not do harm to existing entities.

Testimony

My name is Leah Gallegos, President of AtlanticRoot Network, Inc. (ARNI) The BIZ TLD Registry is an entity of AtlanticRoot Network, Inc. I am the manager of the dot BIZ TLD. This Top Level Domain resolves in several of the "inclusive name space" roots, which many people refer to as alternative or alternate roots. The inclusive name space roots are root server systems that operate in the same manner, but independently of the DoC root system (the "USG" root hereinafter). They each have a master root server and a group of slave servers which obtain Information from their master. Each root also includes all the TLDs found in the USG root for the benefit of users and also additional TLDs. Users have the choice of "pointing" their computers to any of the roots, and Internet Service Providers (ISPs) have the same choice. There has been dramatic growth in the number of ISPs and users pointing to the inclusive name space roots in order to see the rest of the Internet. (See Exhibit C, Page 8 of this document)

As a citizen of this country, I am fortunate to be able to defend my right to have a small business and to not have my product taken from me arbitrarily by a covetous entity under agreement with the government. I thank this committee for providing a forum to present our reasons for believing that ICANN's process for selecting new TLDs to enter into the USG root is detrimental to our survival and to the continued survival of all the TLDs outside the auspices of ICANN.

ICANN has selected seven TLD strings to enter into the USG root that is controlled by the Department of Commerce. The process used for this selection was ill advised, badly handled and ignored the very premise for which ICANN was established - to preserve the stability of the Internet and do no harm to existing entities.

The title of this hearing indicates your desire to ensure fair competition. My question is how can this be accomplished with ICANN's usurping of dot BIZ from ARNI, thus stealing its product? Under ICANN's policy, a competitor can pay a $50,000 fee to have ICANN usurp our business, or any other, at their whim.

As I said earlier, ARNI is a small company. Our entire business at this time is based upon domain name registrations. With the announcement by ICANN that dot BIZ was to be handed over to JVTeam, e-mail began pouring in asking if we were going to be closed by ICANN or if ICANN was going to take our TLD. Others asked if there were going to be duplicates of each name and who would be the legitimate registrants. Even more asked if their names would even resolve if ICANN "took" the TLD. The public has indicated that they are afraid now to register names with us and we are losing business merely on the mistaken assumption that ICANN has the right to take it from us.

Why didn't we opt for the $50,000 application to be included in the ICANN process?

We have been asked that question many times. There are several reasons.

1. For a small company, $50,000 is a high price to pay for consideration as a non-refundable fee. $50,000 could be much better spent on development and infrastructure as opposed to a lottery. - worse than a lottery. There was bias with this one. It is obvious that the large dollar monopolies were favored. In fact, they are the ones who were selected. CORE, NEUSTAR, MELBOURNE IT, AFILIAS... We would not have had a chance.

As it turned out, several board members recused themselves, leaving less than the required number to legitimately vote on this issue. The remaining members voted anyway.

It is also interesting to note that the board members (except one) waited for this recusal until after the deliberations had been made regarding qualifications, business models, etc. They had definite conflicts of interest, yet they stayed in a position to render opinions on which applicants would "make the cut."

2. Why should we have to apply to keep a business that is already ours? It was well known that the board considers our registrants to be illegitimate and registrations to be pre-registrations even though they are live registrations, many with published commercial websites. The comments made by Esther Dyson and others at past meetings and interviews made that very clear. At the Yokohama and MDR meetings, our projections were proven correct and emphasized by Mr. Kraaijanbrink and Mr. Fitzsimmons, especially, and by other members in general (see quotes from MDR transcript later in this document)

An independent, legitimate, and existing registry such as ARNI's and others saw no reason to apply to ICANN for "permission" to participate in the process of a coordinating body that does not have the authority to determine the legitimacy of a registry by virtue of acknowledging it. We (ARNI) already existed as a legitimate commercial registry under our own legitimate terms and conditions and were supported by a commercial root system that supported our TLDs globally, making these TLDs universally available to anyone on the Internet. We are a private, commercial entity and are only asking that we be respected as such. We are provided resolution by a commercial network offering root-level services to the global community universally. ICANN hasn't the right to either award permission to, or deny the right of one of the owners of the Internet to engage in its commercial operations - operations that predate the existence of ICANN by more than a decade.

3. There was no need to go through the ICANN process to prove what has already been proven, that the registries are open to the public, they work, and the roots that do recognize them have also proven themselves for well over five years.

4. Just as visible was the obvious lack of understanding of the basis for adding new TLDs and the content of the applications themselves. ICANN continues to claim that they have the consensus of the Internet community. If that community consists mainly of the special interests - mega corporations and monopolies in the domain name business, and excludes the users, then they are correct. If that community is supposed to include ALL the stakeholders, then they do not have consensus.

And lastly, the new at-large directors had no input in the selection of these TLDs. This is important since those directors are inclined to be more objective and are more concerned with domain name holders and small businesses. If they were included, we might have seen something closer to consensus.

By comparison, ARNI is the manager of some TLDs (including dot BIZ) that are homed in an inclusive name space (or alternative) root managed by another entity. The inclusive name space roots were first facilitated by IANA. If ARNI wishes to enter more TLDs into that root, then it must petition that root manager. If there are no conflicts (pre-existing TLDs) and technical standards have been met, the root manager will then most likely enter the requested new ones. Both the root manager(s) and the TLD operators cooperate in determining the existence of any conflicting TLD strings. If the requested TLD string is found to exist in another root, then the prospective TLD manager could negotiate with the existing one or withdraw the request. Often, the root manager(s) will assist in facilitating potential negotiations. There is no charge to the potential TLD operator to make this determination. With the WHEREIS TLD Finder tool, it is not difficult to ascertain whether there are conflicts with a new TLD request. This tool can be found at http://www.pccf.net/cgi-bin/root-servers/whereis-tld. Requests for the entry of new TLDs are accepted on a first come, first served basis.

In addition to the DoC TLDs that ICANN monitors, there are in excess of 240 ccTLDs that are included in the root, but managed by other entities and under different policies.

In other roots, there are TLDs included which are not homed in those roots, but included in order to allow users to see all known, non-colliding TLDs. Therefore, ICANN could, and should, do the same thing and include all existing non-colliding TLDs for the benefit of users world wide and still add new ones under their own overall management. Technically, it is a simple task that has been proven with the addition of the ccTLDs. There is absolutely no need to duplicate what is already in place.

The dot BIZ TLD was created in 1995 and resolved in the eDNS and later in ORSC the (Open Root Server Confederation) and PacificRoot. We are recognized in all the major roots, except, of course, the USG root. We were delegated the management of dot BIZ in 2000 and re-opened for public registration in the spring. We had an automated registration system in beta at that time, but were able to provide registrations manually until the launch of the automated web-based system. That system was publicly launched in October. Registrations increased from a few hundred to over 3,000. Total registrations in the TLDs serviced by the registration system have topped 10,500 since that launch. The re-delegation was made and the registry was open well prior to any announcement of applications for the character string (BIZ) with ICANN. Again, dot BIZ has been in existence at least as long as dot WEB.

The moment the applications to ICANN were lodged, we e-mailed every applicant for our string and notified them, using the contact listed on the ICANN website, that dot BIZ already existed and asked why they would choose an existing TLD. We also posted numerous comments on the ICANN board, since they would accept no communication in another form regarding TLDs. We also posted to many public mail lists questioning why ICANN would consider duplicating existing TLDs, especially dot BIZ. We received no responses from anyone. We were ignored by all recipients.

ARNI was doing just fine with dot BIZ registrations prior to the selection process for new TLDs by ICANN. There were no conflicts. We are now faced with a substantial loss due to ICANN's refusal to recognize that we exist. It is baffling because they obviously recognize that IOD's dot WEB exists and decided not to award that string to Afilias as a result. Current Chairman Vint Cerf stated his discomfort and reaffirmed later saying, "I continue to harbor some concern and discomfort with assigning dot web to Afilias, notwithstanding the market analysis that they did, which I internally understand and appreciate. I would be personally a lot more comfortable if we were to select a different string for them and to reserve dot web." (See Appendix A, 2:17). Without his intervention, the board would have handed dot WEB over to IOD's competitor, Afilias, another 900-pound gorilla, and IOD would be making the same arguments I am making today. The board did "the right" thing with dot WEB, but has ignored dot BIZ.

The video clip maintained at the Berkman Center (http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-111600&start=6-16-00) clearly illustrates the reluctance of Vint Cerf to award the TLD to any entity other than its current operator. It also illustrates the unreasonable attitude typical of most of the board to deliberately ignore any entity that is not within the ICANN framework. The video would be entertaining if it were not so important an issue at stake. In that sense, it is rather sad, and very frustrating to hear the ping-pong ball going back and forth with people's futures at stake.

Why, then, has ICANN decided that it would not usurp IOD's dot WEB, but would do so with our dot BIZ?

Mr. Kraaijanbrink's outburst (Exhibit A 3:3): "Well, I would not. I believe that we have discussed them considerably. The Afilias on .web. And, from their proposal, and from the discussions, I believe that we should award dot web KNOWING that IOD has been in operation as an alternative root with dot web for some time. But I am reminded, and I fully support what Frank Fitzsimmons said a few minutes ago that taking account of alternatives should open an unwanted root to pre-registration of domain names and domains. So I am fully aware of what I am doing in voting in support for Afilias dot web."

At these meetings in Marina del Ray, while attending via webcast, I posted questions to the ICANN Board of Directors, raising the issue of duplication and was ignored, even though one of the questions was read aloud to them. At the board meeting, the issue was never addressed at all. I did receive an acknowledgment from Board member, Vint Cerf, saying he would pass the message along. Others had been faxing him regarding this issue steadily during those meetings. If they did not "know" that dot BIZ existed, even after the postings and email, something is wrong. They are supposed to "coordinate technical parameters" and they haven't even found the technical parameters yet.

It is important to note that while ICANN insists that it has its name space and we all have ours, that there is truly only ONE name space and that we all must work within it. If ICANN is successful in duplicating a TLD string in its root, there will be duplicate domain names - many thousands of them. No one will know which they will see when keying an address into a browser because more and more ISPs are choosing to point to inclusive name space roots. Hundreds of thousands of users will be affected. One TLD operator has indicated an increase of 30% per month in the use of one of his servers, which happens to be one of the ORSC root servers.

Exhibit C, AtlanticRoot Network, Inc.

The DoC root is just one root system. Others are in service and have been for many years. Any user, including ISPs can, and do, point to whichever root they desire. All roots include the TLDs found in the DoC root plus additional non-colliding TLDs.

If DoC enters a duplicate dot BIZ into their root, users will not know which version they will see, since ISPs may be pointing to any of them. Only the DoC root will be different. Users are confused, businesses harmed.

With a distributed system of several roots, there is no single point of failure. An entire system could be destroyed and the Internet would still be live.

ICANN's refusal to honor our presence in a free market is costing us business and depriving users of their choice of vendors in addition to causing mass confusion.

As an analogy, consider what would happen if AT&T summarily took New York's 212 number space away from Verizon. That would be considered an anti-competitive move, putting Verizon out of business. Certainly no one would consider suggesting that AT&T and Verizon issue mirror 212 phone numbers to different customers. The phone system wouldn't work!

It would be just as foolish to suggest that ICANN and AtlanticRoot issue mirror dot BIZ names to different customers.

How can this not harm us? Our TLD has been in existence for over 5 years. Our registrants have e-commerce businesses operating using dot BIZ domains. We have over 3,000 registrants and growing daily, albeit at a much slower pace due to the confusion generated by ICANN. Those businesses will be destroyed because of the fracture ICANN will cause with this duplication. In addition, if ICANN is allowed to do this now, what will happen to all the other TLDs when ICANN decides to add more in the future? We will then be talking about hundreds of thousands of domain name holders and thousands of businesses and organizations being disenfranchised - ruined.

Why do the inclusive name space roots not duplicate dot com, net or org? They could. They do not for a couple of reasons. One is that it is understood that duplication in the name space is not in the best interests of the Internet or its users. As a matter of fact doing so is detrimental. It is a cooperative effort to keep the name space uniform and consistent. The second is that they all recognize the prior existence of the USG and ccTLDs and include them in their roots. So why is ICANN doing the opposite?

If there were over one hundred TLDs available to the public and included in the USG root, we would see not only a competitive free market, but the disappearance of many of the disputes and speculation present today. The so-called scarcity of domain names has been created by the delay in entering more TLDs into the USG root. The simplest solution is to recognize the existing TLDs before entering new ones. There is no reason why there cannot be new TLDs added to the roots, but there is ample reason not to duplicate existing ones. It is not a function of the government to deliberately destroy existing businesses, nor is it a function of ICANN to facilitate that destruction. It is also not a function of ICANN to determine what business models should be allowed to exist or to compete, any more than any other root dictates policies of TLD managers, or indeed, other roots. The market will decide which will succeed and which will fail.

The Internet is almost entirely a private commercial operation, owned by private companies such as The PacificRoot, SPRINT, Verizon, WorldCom, Qwest, Verio, etc... traffic is permitted to traverse from one network to the next by contractual agreements, and traffic is prevented from passing through our networks if those entities don't like it - for a myriad of reasons. The Internet is not publicly owned or controlled. What little and relatively insignificant portions (percentage wise) of the Internet are government controlled are primarily are as dedicated to public services such as libraries, public schools, or archives, and of course MILnet functions that are really better defined as Intranets with gateways to the Internet. There are other government owned sections too, but almost without exception, those government controlled sections are using privately owned infrastructure belonging to private sector entities like The PacificRoot, Verizon, UUnet, etc..., and almost without exception, these government controlled portions must pay for, and have permission (implied, explicit, or otherwise) to pass over the copper, and fiber, and routers and other parts of the Internet owned by us - the private sector.

The MOU between ICANN and the government clearly states in its prohibitions, Section V:D:2. "Neither Party, either in the DNS Project or in any act related to the DNS Project, shall act unjustifiably or arbitrarily to injure particular persons or entities or particular categories of persons or entities."

ICANN has acted both arbitrarily and unjustifiably in deliberately ignoring our existence as a viable registry offering legitimate, resolving domain names to the public.

Whether ICANN/DoC chooses to include the pre-existing TLDs in the USG root or not is one thing. Whether they choose to ignore their existence and threaten them with destruction via abuse of power is another.

By moving ahead with their process they have created dissension, confusion and harm to our business and our registrants. They are eliminating true competition by assuming authority over the world's name space rather than remaining focused on their own narrow responsibility. They have shown no respect for our existence or that of all the other TLD operators who have the right to operate their businesses or organizations, and they threaten, by their actions to date, to crush them as they appear to intend to crush us. We must also consider the effect this situation is having on countries around the world. More and more of them are considering alternatives to the USG root and some have already moved to create them or use the existing roots; all because ICANN will not recognize the fact that they manage just one set of TLDs in one root.

Because ICANN currently enjoys the largest market share in terms of those "pointing" to the USG root, it has a commensurate responsibility to ensure fairness in a free market. It was the government that determined the Internet should be privatized, yet it has allowed ICANN to assume a governmental attitude toward the Internet. It was formed at the order of the government, and remains under the oversight of the government, yet it competes against small business in what should be a free market, with the power to usurp the businesses it is competing against, without due process or compensation. It has invited applicants to do so.

With regard to their so-called "new" TLDs, ICANN threatens not only small businesses, but, as a result of their arrogant, ill conceived actions, actually threatens the world's economy and the stability of the Internet - in direct conflict with the agreement they signed with the United States government.

We feel that ICANN, under the oversight of DoC, has acted completely irresponsibly. DoC will do the same and has stated it will most likely rubber stamp any decisions made by ICANN. We feel they have breached their agreement by harming our business and will potentially do so with any other duplications placed in the USG root. In addition, we believe that DoC will, and ICANN has, abused their power and that this issue falls under the Administrative Procedures Act (APA). We have filed a Petition for a Rulemaking with the NTIA, which is attached as Exhibit B.

It is our hope that this committee will intervene to ensure that there is fair play and consideration for existing businesses; that the entry of duplicate TLDs in the USG root will not be permitted and that the promises made by IANA will be kept.

Sincerely,

Leah Gallegos
President, AtlanticRoot Network, Inc.

Attachments