[Chapter-delegates] IRP decision on ICANN's lifing of price cap on .org

[Richard Hill]

An ICANN Independent Review Panel (IRP) has found that "ICANN's action with
respect to the Price Cap Decision [removing price caps for ".org" and
".info"] was inconsistent with Sections 1.2(a), 1.2(b), 2.1, 3.1, 3.4, 3.5,
and 3.6(a) of the Bylaws and Article III of the Articles of Incorporation."
(Paragraph 505 of the decision)

 

The decision is at:

 

 
https://www.icann.org/en/system/files/files/irp-namecheap-icann-final-declar
ation-redacted-23dec22-en.pdf 

 

Paragraphs 372 and above, regarding lack of transparency, may be of
particular interest to those who participated in discussions regarding
ISOC's proposal to sell ".org".

 

And also the following recommendations:

 

"494. With regard to the 2019 Registry Agreements for .ORG and .INFO, the
fundamental issue is that ICANN does not appear to have given sufficient
consideration to the strong public opposition to removal of price controls,
especially as to .ORG. While ICANN may have discussed and considered this
issue internally, ICANN's public explanation of its decision did not
specifically explain why it concluded that price caps were no longer needed,
or take into account any market power that .ORG may have in its particular
niche of the domain market. 

 

495. ICANN's lack of a detailed public explanation was exacerbated by its
assertion of the attorney-client privilege as to almost all of its internal
documents. The result is that there is virtually no documentary record of
ICANN's internal deliberations or why ICANN decided that price controls were
no longer needed. As discussed above, the Panel has decided not to address
the precise extent of any obligation to maintain a non-privileged record,
but has serious concerns on this subject.

.

500. Third, as discussed above, the Panel finds that the evidence that price
controls should be retained is much stronger for .ORG than for .INFO, given
that .ORG is an original gTLD with a much larger number of DUMs, and serves
a special market focused on not-for-profit organizations. Thus, while the
ICANN Board should consider what remedial measures to take as to both .ORG
and .INFO, the measures for .ORG may be stronger and more extensive than for
.INFO.

.

502. Fifth, if the Board concludes that some form of price controls for .ORG
and/or .INFO are in the global public interest, the Panel recommends that
ICANN seek to amend the 2019 Registry Agreements to include appropriate
price controls. The registry operator of .ORG has publicly represented that
it will not raise prices unreasonably, so it presumably would be willing to
agree to some form of price controls. The registry operator for .INFO may
also be willing to agree to price controls, given that prices do not appear
to have increased by more than what would have been allowed under the prior
price control provisions."

 

The full case file is at:

 

https://www.icann.org/resources/pages/irp-namecheap-v-icann-2020-03-03-en 

 

Best,

Richard

 

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