On August 31st the Department of Justice (DOJ) sent a response to the August 12th letter from Senator Ted Cruz and some Congressional colleagues to the head of the Antitrust Division. In that letter Cruz et al asserted that if the pending extension of the .Com registry Agreement (RA) was granted in combination with the consummation of the IANA transition, that DOJ could be prevented from having “meaningful input into the prices that Verisign charges for registering a domain name within the .com domain for an extended period”. Based on that assertion, Cruz and his colleagues requested DOJ “to conduct a thorough competition review of the agreement before any oversight transition is undertaken and any agreement extension is approved”.

DOJ’s response makes clear that it will retain meaningful input into .Com pricing after the occurrence of either the .Com RA extension, IANA transition, or both; and that the National Telecommunications and Information Administration (NTIA), in consultation with DOJ, can extend the .Com wholesale price freeze through 2024 if it chooses to do so.

The operative part of the letter states:

As you may know, Verisign may not extend the .com Registry Agreement without obtaining NTIA’s prior written approval. Amendment 30 of the Cooperative Agreement requires such prior approval and provides the standard for NTIA’s review. In pertinent part, Amendment 30 provides: “[t]he Department [of Commerce] shall provide such written approval if it concludes that approval will serve the public interest in (a) the continued security and stability of the Internet domain name system and the operation of the .com registry ... , and (b) the provision of Registry Services ... offered at reasonable prices, terms, and conditions.” We note that the current extension proposal contemplated by ICANN and Verisign does not change the price cap contained in the 2012 .com Registry Agreement, which will remain in effect through November 30, 2018. Nor does the current extension proposal alter the price cap in Amendment 32 of the Cooperative Agreement. Moreover, if NTIA were to approve an extension of the .com Registry Agreement, it would have the right in its sole discretion to extend the term of the Cooperative Agreement with the current price cap in place until 2024 at any time prior to November 30, 2018, the date on which the Cooperative Agreement is currently scheduled to expire. If this occurs, the $7.85 fee cap would be extended another six years to 2024. (Emphasis added)

The DOJ response does not commit it and NTIA to take any particular action on .Com pricing prior to the current November 2018 termination of the Cooperative Agreement (CA), but it does make clear that NTIA has the discretionary power to extend the CA and the price freeze that it contains. NTIA could undertake such an extension if the Boards of both ICANN and Verisign approve the RA extension, as the letter makes clear that the extension requires NTIA review and approval before it can take effect. However, NTIA may well decide to leave the decision on whether to extend the CA and retain or adjust the price freeze to the next Administration, and that decision will likely be based upon a full review by the Antitrust Division.

In a related development on the antitrust front, ICANN General Counsel John Jeffrey has just sent a letter to the Wall Street Journal stating:

The Internet Corporation for Assigned Names and Numbers (ICANN) does not enjoy an “antitrust exemption.” ICANN is not, and never has been exempted from antitrust laws... ICANN has not been granted an antitrust exemption by any of its contracts with NTIA. No ruling in ICANN’s favor has ever cited an antitrust exemption as the rationale. (Emphasis added)

That belts-and-suspender concession comports with the views of most antitrust experts that ICANN’s claim to an antitrust exemption was tenuous at best even when the U.S. government exercised direct oversight of the organization, was substantially diluted when the relationship loosened under the current Affirmation of Commitments, and would conclusively disappear entirely upon consummation of the IANA transition. However, that position is at complete odds with the one that ICANN took as recently as 2012, in a lawsuit brought by YouPorn owner Manwin Licensing in regard to the then-controversial .XXX gTLD, when it asserted (and when Mr. Jeffrey was likewise General Counsel):

ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in “trade or commerce.” ...[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything, it does not participate in any market, and its Bylaws expressly forbid it from participating in any of the markets referenced in the Complaint. (Emphasis added)

That antitrust immunity was rejected a few months later by the Federal District Court hearing the litigation, when it decisively stated:

The Court finds the transactions between ICANN and ICM described in the First Amended Complaint are commercial transactions.

ICANN established the .XXX TLD. ICANN granted ICM the sole authority to operate the .XXX TLD. In return, ICM agreed to pay ICANN money.

This is “quintessential” commercial activity and it falls within the broad scope of the Sherman Act. Even aside from collecting fees from ICM under the contract, ICANN’s activities would subject it to the antitrust laws. (Emphasis added)

Given that in the intervening four years ICANN has established more than a thousand additional gTLDs for which it collected a third of a billion dollars in application fees and receives continuing fees from, and that the impending IANA transition will sever the final tangential relationship between the U.S. government and ICANN, this week’s antitrust concession may well reflect a decision by ICANN Legal that it no longer made sense to play a losing hand—especially when assertions of weakened DOJ antitrust authority threaten to delay or scuttle the transition.

So the clear weight of these important letters is that the .Com wholesale price freeze will stay in place and can be extended by NTIA through 2024, and that ICANN has abandoned any claim to antitrust immunity.