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

[Winthrop Yu]

Thanks, Richard and Caleb.

This --

> 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.

This kind of lack of consultation (in organizations that purportedly support the 
Multistakeholder model), opacity / lack of transparency is a major flaw in / 
critique of MS governance models.

WYn

On 26 Jan 2023 1:05 AM, Caleb Olumuyiwa Ogundele via Chapter-delegates wrote:
> Hi Richard,
>
> Namecheap also put out a statement on this.  It will be nice to take a look at 
> both views.
>
> *NameCheap's Statement 
> <https://www.namecheap.com/blog/namecheap-vs-icann-removal-of-price-caps-for-org-and-info-found-improper/>*
> https://www.namecheap.com/blog/namecheap-vs-icann-removal-of-price-caps-for-org-and-info-found-improper/
>
>
> I also gathered that the ICANN board of directors at the weekend voted 
> <https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-21-01-2023-en#section2.b> to 
> ask its Board Accountability Mechanisms Committee (BAMC) to “review, consider, 
> and evaluate” the IRP decision and recommend the next steps.
>
> https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-21-01-2023-en#section2.b
>
> We are following the output of the BAMC keenly.
>
> *Caleb Ogundele
> ISOC, Nigeria Chapter
> *muyiwacaleb at gmail.com
>
>
> On Wed, Jan 25, 2023 at 10:51 AM Richard Hill via Chapter-delegates 
> <chapter-delegates at elists.isoc.org> wrote:
>
>     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-declaration-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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>
>
> -- 
> *Caleb Ogundele*
> Mobile: +1-204-558-6904
> Email: muyiwacaleb at gmail.com
>
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