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WLS & Recourse to the DOC

ICANN’s recently posted “Seventh Status Report” states: “ICANN’s Board of Directors voted 14-1 to take no action in response to the request, on the grounds that the decision to allow the Wait-Listing Service to be offered was not a threat to competition…”.

Several firms that currently offer competing services have signaled (pdf) that they are not in agreement with this assessment.

At issue is whether ICANN, by taking action to implement WLS, will violate its Memorandum of Understanding with the U.S. Department of Commerce that prohibits unjustifiable or arbitrary acts which serve to injure particular categories of entities.

In his Analysis of VGRS’s Request for Amendment to Registry Agreement, ICANN General Counsel Louis Touton wrote: “evaluation should be made to determine whether it is plausible that the legitimate interests of others could be harmed by the proposed amendment”.

Even to the casual reader, an evaluation of all the relevant commentary posted to ICANN discussion lists and forums on the WLS topic made it crystal clear that harm was certainly plausible, yet the Board decided to move forward anyway in spite of the potential for harm. This leads one to ask what recourse now remains for those that have been adversely affected by a poor decision on the part of the ICANN Board?

We are all aware that certain actions have been taken already—litigation (pdf) and Bills proposed in the U.S. Congress (pdf). A third option has yet to be explored…

Under the terms of Amendment Three to ICANN’s MOU: “ICANN will not enter into any material amendment of, or substitution for, said agreements (editor’s note: this is a reference to VeriSign’s Registry Agreements), nor will said agreements be assigned by ICANN, without prior approval of the DOC.”

In essence, the DOC must formally approve the proposed Wait-Listing Service, and in so doing it must arrive at the conclusion that ICANN’s actions were both justifiable and non-arbitrary. This still-outstanding factor therefore affords the community an opportunity to put forward their case in the Court of First Resort (the chambers of the Department of Commerce). While ICANN might not yet have an Independent Review Panel, there yet remains a chance to overturn one of ICANN’s worst decisions.

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