November 27, 2000
Mr. Vinton Cerf
Chairman of the Board
Mr. Mike Roberts
President and CEO
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292
by e-mail and certified mail
Re: Reconsideration of Abacus America, Inc.'s Application for New TLDs: .biz; .cool; .inc; .fam and .xxx
Pursuant to the Reconsideration Policy adopted by ICANN on March 4, 1999, Abacus America, Inc. would like to formally request Reconsideration of the denial of its application for one or more new TLDs for which it applied. As required by the terms of that Reconsideration Policy, Abacus submits the following information:
1. Contact Information
Ivan Vachovsky, President
Abacus America, Inc.
5266 Eastgate Mall
San Diego, California, 92121
phone: (858) 558-8522
2. Action to be Reconsidered
Denial of Abacus America, Inc. application to operate a registry for any of the new TLDs proposed by its application, .biz, .cool, .inc, .fam and .xxx.
3. Date of the Action
November 16, 2000
4. Effect of the Action
Abacus' application was denied. The decision directly affects Abacus' ability to operate new TLD Registry which it sought by its application. As described more fully below, Abacus invested close to two years of time and over one million dollars developing technology specific to the operation of a registry. The technology developed is available for review at http://rodopi.abac.net . It includes RRP server; Whois server; zone files upload module and back office software for billing, provisioning and customer care. ICANN is jeopardizing Abacus' long-term work and investment by an unjustified denial of Abacus' application for TLD Registry operations.
5. Temporary Stay
No temporary stay is requested by Abacus.
6. Specific Action Sought
Abacus America, Inc. requests that ICANN reconsider its denial of Abacus' application and grant Abacus the right to operate a registry for one or more of the new TLDs it proposed in its application.
7. Basis for Reconsideration
Abacus America, Inc. requests that ICANN reconsider its denial of Abacus' application and grant Abacus the right to operate a registry for one or more of the new TLDs it proposed in its application. Given the length of Abacus' application and the effort that went into preparing it, the following points are not an exhaustive list of the reasons that Abacus' application warrants reconsideration, but are only meant to highlight these points. Abacus would certainly welcome the opportunity to discuss each of these points further with ICANN:
7.1 Improper/Incorrect Staff Report.
Abacus strongly disagrees with the findings of the ICANN staff as set forth in the Staff Report. The Staff Report questioned Abacus' technical and marketing expertise, both of which excelled far beyond those of virtually every other applicant. Abacus is prepared to submit evidence of its actual qualifications, such as the fact that Abacus was the only applicant which had designed, tested and deployed software specifically designed to operate the registry. It includes RRP Server, Whois server, zone files upload module, back office server for provisioning, billing and customer care. The technology is demonstrated at http://rodopi.abac.net . The minor technical issues raised by the Staff Report could easily have been remedied.
With regard to marketing expertise, Abacus was the only applicant to correctly predict the demand for new TLDs. Four of the five TLDs it proposed in its application were selected in the "top ten" list by an independent poll conducted by MSNBC. Needless to say that such success does not come without detailed marketing research, which we proved we are able to do.
The Staff Report on Abacus' business plan is improper as well. Abacus has a solid business model and a long history of successful and profitable operations. Its entire focus is Internet-based, and it has been one of the longest-running registrars under the present ICANN-accredited system. Coupled with strong financial backing and a pulse for the true demand of Internet users, Abacus was not only the developer of software used by hundreds of ISPs, but perhaps the strongest candidate for the operation of a registry, having expended two years and over one million dollars in technological and software development to position itself for this very task.
7.2 Lack of Procedures for "Staff Report" Reconsideration.
Abacus could easily have demonstrated it was the best choice to operate a registry, but feels it was denied the opportunity to do so. Abacus was never afforded time to properly address the comments made by the Staff Report. ICANN pushed back the initially announced schedule, and did not change the date for the final decision. This resulted in summary proceedings which did not allow Abacus to address the Board and the Staff Report.
7.3 Lack of Procedures for Proper Board Review.
Abacus' application was never properly reviewed by the Board. Several times, Chairwoman Ester Dyson stated that the ICANN staff report was just a guideline and that all applications would be presented to the Board. This same sentiment was echoed in correspondence we had with Lisa Polanski of the ICANN staff. However, it appears that the Board followed the recommendations of the Staff Report without any independent review of its own, turning the Staff Report's recommendations into policy. Moreover, Abacus was never afforded an opportunity to address the deficiencies and errors contained within the Staff Report itself. Only a handful of applications were presented to ICANN Board of Directors at the voting procedure. A careful reading of the minutes of that proceeding shows that the name "Abacus" was never mentioned at all. How was it possible for the Directors to consider Abacus' application if Abacus was never allowed to adequately address the Directors, respond to the Staff Report, or even have its name mentioned among those applications eligible for consideration?
7.4 No "Proof of Concept"
Small companies such as Abacus (with 74 employees) should have been given the chance to operate a Registry at this crucial "proof of concept" phase of the DNS' development, providing ICANN with a chance to prove its own stated idea that smaller operators are fit for registry operations as well. There was no need to "prove" that a Registry with $72 million in cash to invest can support such operations. However, if the goal was to truly diversify the DNS, increase competition among registries and registrars and to provide opportunity to others to operate these registries, this goal was defeated by selection of only the largest and best funded of applicants. Mr. Cerf, if you really believe in your statement that the Internet should be like the "electrical plug," now is the time to award Abacus the right to operate a Registry as a part of "proof of concept" program. We will prove that smaller well-established companies with 60 to 80 employees and about $1 to $3 million to invest can successfully operate TLD registry. This will be important information and will provide a real "proof of concept". Even if we fail (which is highly unlikely) it will be valuable experience for ICANN to know what is possible and what not.
7.5 No Equal Access to Information.
ICANN received comments from several constituency groups whose positions were largely unannounced during the application process. For example, the IPC's review of each application appears to have been given great weight, but not one single mention of the IPC was made in the application instructions. If these groups were going to be allowed to comment on each application, and had already invested considerable resources in drafting white papers which would be used to judge each application, these guidelines should have been highlighted in the application process. At the same time some applicants were given insights to such information, which was obscured from others like Abacus, giving ICANN insiders an advantage over others.
7.6 ICANN is not Chartered to Set Social Policy
ICANN was never intended to be a policy making body charged with directing the future social and economic direction of the Internet. It was never intended for ICANN to judge whether ".biz" was better or more socially desirable than ".inc"; why ".museum" is better than ".art", ".aero" better than ".travel," and so on. Abacus was right on target when four out of five of the TLDs it proposed were selected among the top ten most demanded TLDs in the independent poll conducted by MSNBC. This was no accident. Abacus made its application based on its own survey of the demand of 150,000 Internet users and what names they thought were most useful. Why is the demand of actual Internet users less important than the judgments on social issues arrived at by ICANN? Ultimately, is it not ICANN's purpose to meet the needs of Internet users? ICANN should give Internet users the domains they feel are most needed, the domains proposed by Abacus.
7.7 ICANN Went Against the Principles it was Created to Stand for.
ICANN went against its own principles by approving organizations to be both registries and registrars. This affects Abacus' daily operations as an ICANN-approved Registrar. These are the same mistakes originally made with NSI, and they appear to be revisited once again. Instead of preventing this from happening, ICANN is giving NSI, register.com and other Registrars the opportunity to act as both registry and registrar, destroying the very type of competition it advocated in the application process. ICANN is not contributing to the diversity of the Internet by keeping a handful of companies like NSI, Register.com controlling the domain name registration process. ICANN selection of the new Registries contributes to the scheme "the rich get richer" and jeopardizes the ability of smaller companies to get into this business. For example, Abacus' marketing campaign with Yahoo was denied just a week ago because NSI has an exclusive deal with Yahoo for domain names. This is a monopoly in action. Hundreds of millions of Yahoo users worldwide will see no other registrar but NSI. ICANN is contributing to this monopoly by granting the same players more and more business, while banning independents like Abacus the right to operate new TLD Registry. Abacus stated clearly in its application that it will NOT act as a Registrar for the TLDs for which it will be a Registry. By granting Abacus the right to operate a Registry, ICANN will contribute to the diversification and competitiveness of the Internet.
7.8 Largest ICANN Financial Supporters Were Awarded TLDs.
Abacus pays regularly its fees to ICANN as an accredited Registrar. Abacus intends to pay regularly any ICANN fees as a Registry as well. At the same time, Abacus cannot afford to pay many thousands of dollars in additional contributions and sponsorship to ICANN. We cannot afford to send our staff to expensive overseas trips to Cairo, Santiago, Yokohama, to "rub shoulders" with ICANN executives. This does not impair our capacity to successfully operate new TLD Registry, but apparently, from the applicants that were selected, did affect our chances of being selected to operate a registry..
7.9 Independent Study from Harward Law School Selects Abacus.
When all the applications were reviewed by several prominent members of the Berkman Center at Harvard Law School, Abacus was chosen as the one applicant among the commercial general TLDs that was recommended for approval. We can only believe that upon careful reconsideration of Abacus' application, along with the opportunity to address any issues raised by the Staff Report, the constituencies and/or the ICANN Directors themselves, that ICANN would come to the same conclusion.
Abacus has been working with ICANN for over a year and very much respects the organization. Abacus' application was very much in line with the goals and policies promulgated by ICANN, and we spent considerable time and effort preparing for the application process, participating in the process, and investing in the technical capabilities needed to operate a successful registry. In the end, however, Abacus was not afforded with a sufficient opportunity to present its application. Moreover, the criteria used were other than those identified in the application guidelines.
We therefore request that ICANN review our application again and grant us the right to operate a TLD Registry for one or more of the names we are applying for: .biz .inc .cool .fam and/or .xxx.
Abacus America, Inc.
Musick, Peeler & Garrett LLP