December 18, 2000

 

VIA HAND DELIVERY

The Honorable Gregory L. Rohde

Director

National Telecommunications and Information Administration

1401 Constitution Ave., N.W.

Room 4985

Washington, D.C.  20230

 

The Honorable Secretary Norman Y. Mineta

Office of the Secretary

U.S. Department of  Commerce

14th & Constitution Ave.

Washington D.C.  20230

 

Re:     ICANN Recommended Internet Top Level Domain Names/Petition for Hearing

 

Dear Gentlemen:

 

          On behalf of Atlantic Root Network, Inc., a private registry for the “.biz” Top Level Domain Name (“TLD”), we hereby petition the National Telecommunications and Information Agency (“NTIA”) and the Department of Commerce (“DoC”) to hold a public hearing pursuant to the Administrative Procedures Act (“APA”) (5 U.S.C.A. Sec. 551, et. seq.) prior to consideration and approval of the ICANN recommended TLDs.  The approval of the ICANN recommended “.biz” TLD would impair the rights of Atlantic Root Network, Inc., and would violate the U.S. Constitution, federal statute, and the common law.  The approval of the “.biz” TLD would also violate the Memorandum of Understanding between ICANN and the DoC.

 

Background

         

Interest of Atlantic Root Network, Inc.

 

          Atlantic Root Network, Inc. (“ARNI”) is a Georgia corporation that has been delegated maintenance and operation of the “.biz” TLD in the Open Root Server Confederation (“ORSC”), the PacificRoot, and the North American Root Server Confederation (“NARSC”) internet root server systems.  MCSNet established the “.biz” TLD in 1996, and began accepting registrations in 1996.   ARNI acquired authority to operate the “.biz” TLD in May of 2000, and has been accepting domain name registrations through PacificRoot.com pursuant to a contractual arrangement.  ARNI currently manages over 1,000 Internet domain names actively using the “.biz” TLD.  ARNI and the PacificRoot have expended considerable capital and effort in maintaining the “.biz”  TLD. 

 

          The ORSC is a public, viable “inclusive name space” root server system that operates in parallel with, and complements,  the ICANN/DoC root server system.   Established as an alternative root server system to the NSF/NSI operated system in 1995, the public can readily obtain access to ORSC (or other inclusive name space root servers such as the PacificRoot and Superroot).  This is done by merely “pointing” their computer to them, or requesting their Internet Service Provider to designate the alternative root server.  In turn, the inclusive name space root managers accommodate communication with the ICANN/DoC managed root server, including the “A” root server, by incorporating the DOC root TLDs in their root system as  “baseline” TLDs.  Specifically, to ensure universal Internet name space compatibility, the inclusive name space root server managers imprint on their system and carry all of the recognized ICANN/DoC TLDs (.com/.net/.org/.edu/.us), as well as, the country code (cc) TLDs as a complementary set.  The TLDs that are approved and then activated on their systems thus complement and augment the “baseline”  ICANN/DoC TLDs.  In this way the interests of the Internet public in choice and convenience are advanced, while governmental interests in competition and efficiency are preserved. 

 

          Obviously, the functioning of the entire Internet name space system – ICANN/DoC’s 13 root servers, and the alternative root servers – would be compromised were ICANN/DoC to commission new TLDs, which collided with existing TLDs in the greater Internet name space system.  It is just this collision, however, that is threatened by the recent announcement of  ICANN that it will recommend for approval the proposed “.biz” TLD for inclusion in the ICANN/DoC root server system.

 

ICANN TLD Proceedings   

 

          In conformance with the general mandate conveyed in the “White Paper” (63 FR 31741-01 (June 10, 1998), and in its Memorandum of Understanding with DoC, ICANN commenced a process in approximately August 2000 to solicit, evaluate, and approve new TLDs.  This process is well documented in the ICANN website (icann.org).  The Process culminated in an ICANN announcement that “on 16 November 2000, the ICANN Board selected seven new top-level domains (TLDs) for negotiation of agreements.” (See, ICANN web page, Announcements)  Furthermore, ICANN is now apparently engaging in deliberations with the chosen TLD applicants to negotiate operating agreements.  ICANN states that it anticipates that final agreements will be secured in the near future.  Thus, if these TLDs are approved by DoC and implemented, including the “.biz” TLD , the rights of ARNI in the “.biz” TLD will be immediately compromised.

 

Petition for Hearing    

 

          ARNI asserts that ICANN has no inherent authority to approve new TLDs (Indeed, even  ICANN’s authority to operate is questionable as matter of law.  See Wrong Turn in Cyberspace:  Using ICANN to Route Around the APA  and the Constitution (Duke Law Journal 50:17 (Prof. M. Froomkin, October 2000)).  The Government Accounting Office (“GAO”) has affirmed that ICANN can make no authoritative decision concerning Domain Name administration without express approval from the DoC.   In its definitive July 7, 2000 letter/report to Congress (“Department of Commerce: Relationship with the Internet Corporation for Assigned Names and Numbers”) the GAO was emphatic that final authority over the root server and its administration rests with DoC.  GAO interpreted the November 25, 1998 Memorandum of Understanding between ICANN and DoC as a  “joint project agreement” for the domain name system management, including “the policy for determining the circumstances under which new toplevel domains would be added to the system.”  Report at page 16. The GAO made it clear that the transfer of decision-making to ICANN would constitute a transfer of property, which would be unlawful under the doctrine of subdelegation.  See National Parks and Conservation Association v. Stanton, 54 F. Supp. 2d. 7, 18-19 (D.D.C. 1999).  Finally, the GAO noted that such a violation of law is not implicated in light of the language included in Amendment 11 to the Cooperative Agreement with Network Solutions, Inc.  Pursuant to Amendment 11, the GAO states, “Network Solutions, Inc. must receive written authorization from a Department official before making or rejecting any modifications, additions, or deletions to the root zone file.”  Further, citing to the November 1999 agreements among ICANN, Network Solutions, and the DoC,  the GAO found that collectively, these agreements “make clear that the Department retains final policy authorization over the “A” root server.”  Report page 30.  This includes, of course, final decision-making on the entry of new TLDs to the “A” root server.

 

          ICANN itself clearly agrees with the GAO legal analysis.  In recent litigation, Economic Solutions, Inc. v. Internet Corporation for Assigned Names and Numbers (U.S. District Court, Eastern District of Missouri (No. 4:00CV1785-DJS)) ICANN submitted the Declaration of its officer and general counsel,  Louis Touton, in opposition to the Motion for a Preliminary Injunction filed by Economic Solutions, Inc.  Mr. Touton explicitly states in this Declaration that only the DoC can make a decision regarding new TLDs, and that ICANN has no inherent power to do so.  The federal district court, in reliance on this Declaration, denied the motion holding:  “ICANN represents that it has no authority to implement TLDs, and that instead, it merely makes recommendations to the Commerce Department, which has the ultimate authority to make such a decision.” 

 

             Based on these authorities, and the elemental application of constitutional and statutory law, it is clear that the DoC will shortly be tasked with the responsibility for considering ruling on the ICANN recommended TLDs.  Based on this legal premise, ARNI hereby petitions NTIA to implement a Rulemaking pursuant to the provisions of Sections 556, 557, and 558 of the APA.  Given the abundance of case law authority, it can not be denied that the approval of TLDs constitutes either a “rule” or “license” within the meaning of the APA.  Once this is established it is mandatory under the APA for the NTIA to conduct a Rulemaking.  This in turn, requires a statement of the proposed rule, a request for public comment, and a studied consideration of these comments.  In particular, NTIA will be required to consider not only the rationale and criteria developed by ICANN, but more broadly, the competitive impact of the recommended TLDs on Internet name space, the interests of efficiency, the legal ramification of approval,  and the availability of alternate TLDs.  

 

          ARNI petitions for this Rulemaking fully convinced that when NTIA carefully evaluates all of the factors it must consider as an executive agency of the U.S. government it must reject the ICANN recommended “.biz” TLD.  In particular, ARNI believes that the “.biz” TLD violates ARNI’s constitutional safeguards, conflicts with a number of statutory requirements, undermines ARNI’s property rights, and offends the Memorandum of Understanding between ICANN and DoC.  Indeed, the essence of these safeguards is captured in the Memorandum of Understanding which states under paragraph D(2) “Prohibitions” that “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.”  The adoption of the “.biz” TLD would violate this provision with respect to ARNI and threatens the viability of inclusive name space providers.

 

Conclusion 

 

          Only the NTIA/DoC may authorize and commission new, “A” root TLDs; ICANN can not.  The new TLDs recommended by ICANN must be subject to formal Rulemaking under the Administrative Procedures Act.  Such a rulemaking will reveal the legal infirmity of the contemplated “.biz” TLD. 

                                                                                                                                                                                                      Respectfully Submitted,

 

 

 

                                                                                                                                                                                                        William H. Bode

 

cc       Senator John W. Warner

          225 Russell Senate Office Building

          Washington, D.C.  20510

 

          Senator John McCain

          Chairman, Commerce, Science and Transportation

          254 Russell Senate Office Building

          Washington, D.C.  20510

 

          Congressman W.J. Tauzin

          Chairman, Subcommittee on Trade, Telecommunication

              And Consumer Protection

          2125 Rayburn House Office Building

          Washington, D.C.  20515

         

          Congressman Tom Bliley, Jr.

          Chairman, House Commerce Committee

          2125 Rayburn House Office Building

          Washington, D.C.  20515

 

          Mr. Michael M. Roberts

          President & CEO

          Internet Corporation for Advanced Names and Numbers

         

          Mr. Louis Touton, Esq.

          Vice President and General Counsel

          Internet Corporation for Advanced Names and Numbers

 

          Mr. Michael W. Donohue

          Federal Trade Commission

          Planning & Information Division

          600 Pennsylvania Avenue, N.W.

          Room 292

          Washington, D.C.  20580

 

 

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