Reconsideration Request 01-4 Received: 15 June 2001

June 15, 2001

By Overnight Delivery and Electronic Mail (reconsider@icann.org)

Hans Kraaijenbrink
Ken Fockler
Amadeu Abril i Abril.
Members of the Reconsideration Committee of the
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, CA 90292

Re: Request for Reconsideration and Stay of New Policy Limiting Marketing Uses of Whois Data Acquired through Bulk Access.

Dear Committee Members:

On May 17, 2001, ICANN unveiled a new Registrar Accreditation Agreement to be signed by all accredited registrars for the .biz and .info gTLDs, and which is available to electing registrars in the .com, .net, and .org gTLDs. Like the existing Registrar Accreditation Agreement for current registrars in the .com, .net, and .org gTLDs (hereinafter, the "Existing Accreditation Agreement"), this new Accreditation Agreement requires all registrars to make Whois Data available in bulk to all who request such access and pay a fee. In stark contrast to the existing Whois Data Bulk Access requirements, however, the new Accreditation Agreement requires registrars to prohibit many marketing uses of Whois data.

Verio respectfully requests that ICANN reconsider the new policy set forth in the recently posted new Registrar Accreditation Agreement limiting the marketing uses of Whois data acquired through bulk access. Verio further requests a stay of the implementation of this new policy in that it will cause irreparable harm to Verio and to the competitive environment for domain name registrations and related services.

Verio objects to these new limitations on the marketing use of Whois data acquired through bulk access for the following reasons:

• ICANN failed to follow the promised consensus-based procedures set forth in the Existing Accreditation Agreement in adopting the new policy. In the Existing Accreditation Agreement, ICANN promised it would not change any policy with respect to permissible uses of Whois data without following a process whereby its Board would first adopt the new policy. The policy would then be referred to an ICANN supporting organization for a vote. Finally, ICANN would submit a written report and supporting materials documenting the process. None of this was done here.
  
  
• ICANN failed to follow the procedures set forth in its Bylaws for adopting such a new policy. This new policy restricting competitive use of Whois data was adopted without public notice on ICANN's web site explaining what policy was being considered for adoption and why. This new policy was adopted without any opportunity for parties to comment on the adoption of the proposed policy, to see the comments of others, and to reply to those comments. This new policy was adopted without holding a public forum at which the proposed policy could be discussed. Finally, this new policy was adopted without majority Board resolution.
  
  
• ICANN should have waited for the forthcoming report of the DNSO's Whois committee before making changes to the Whois policy. Before implementing a new policy on bulk access, it would have been appropriate for ICANN to have awaited the forthcoming report of the DNSO's Whois committee. The comment period on this matter is not scheduled to close until July 31, 2001.
  
  
• The new policy is unnecessary. Although Verio agrees that the prohibition on the use of mass unsolicited email (spam) should be retained because of the threat it could pose to the operational stability of the Internet, no such concerns exist with the use of Whois data for marketing by other means. Privacy concerns also do not support the new policy, since registrars are free to adopt "opt-out" policies so that individuals that do not want to be contacted with marketing solicitations by telephone or facsimile can simply "opt-out" of bulk access, thereby ensuring that and no one (including, importantly, the registrar involved) will contact them with unwanted marketing information. Furthermore, with the introduction of the ".name" registry, individual privacy interests can be protected without placing limits on the marketing uses of bulk Whois data obtained from registries that are designed to serve commercial entities and organizations.
  
  
• The new policy is anti-competitive. The new bulk access policy reverses the carefully crafted regime providing for equal access to Whois data. It effectively provides registrars with exclusive use of registrant information for marketing purposes. With this new policy, ICANN has effectively given registrars permission to spam "their" customers with commercial solicitations, while effectively barring competitors from contacting these registrants by any effective means.
  
  
• The new policy seriously implicates the freedom to public information embodied in United States copyright laws. Although ICANN at its inception took the position that it would work to protect the availability of Whois data for all to use for nay lawful purpose, ICANN now reverses course. ICANN has in effect given intellectual property rights in information to a select group of incumbent registrars, despite ICANN's earlier written representations that no one could claim such rights in the data.
  

For the reasons outlined above, Verio respectfully requests that ICANN reconsider its new policy. Furthermore, based on the serious impact that this new policy will have on Verio's business operations, Verio respectfully requests that ICANN stay the implementation of this new policy until its full effects can be debated within the Internet community.

I. ICANN Adopted Its New Policy Limiting Uses of Bulk Access In Breach of its Promise to Adopt Any Such New Policy Only After Following Explicit Consensus-Based Procedures Carefully Designed to Include All Stakeholders in the Decision-Making Process.

On May 17, 2001, ICANN posted the new Accreditation Agreement on its website.1 ICANN made no public announcement that a change had been made. ICANN did not even include the new agreement in its "New and Noteworthy" section on its home page. Verio happened upon the new agreement, which ICANN had buried deep in its web site, only by chance.

The new agreement includes sweeping new limitations on the use of Whois data acquired through bulk access. It provides that "Registrar shall provide third-party bulk access [but that] Registrar's access agreement shall require the third party to agree not to use the data to allow, enable, or otherwise support the transmission by e-mail, telephone, or facsimile of mass, unsolicited, commercial advertising or solicitations to entities other than such third party's own existing customers." New Accreditation Agreement § 3.3.6. (emphasis added).

The Existing Accreditation Agreement provides that "Registrar's access agreement shall require the third party to agree not to use the data to allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam)." Existing Accreditation Agreement § II.F.6.c. (emphasis added). The Existing Accreditation Agreement did not prohibit marketing use of Whois data by means of the telephone or facsimile.

The Existing Accreditation Agreement further provides that a registrar's obligations under the bulk access provisions shall remain in effect until the earlier of:

(a) replacement of this policy with a different ICANN-adopted policy governing bulk access to the data subject to public access under Section II.F.1 or

(b) demonstration, to the satisfaction of the United States Department of Commerce, that no individual or entity is able to exercise market power with respect to registrations or with respect to registration data used for development of value-added products and services by third parties.

Existing Accreditation Agreement § II.F.7.

Thus, in the absence of a finding by the DoC that "no individual or entity is able to exercise market power with respect to registrations or with respect to registration data used for development of value-added products and services by third parties," ICANN was obligated to follow its consensus-based process set forth in the Existing Accreditation Agreement in order to adopt any new policy regarding use of bulk Whois data. See Existing Accreditation Agreement § I.B.

These consensus-based procedures are set forth in detail in the Existing Accreditation Agreement: ICANN's Board of Directors would first need to adopt the proposed new policy. ICANN would then need to obtain a recommendation that the policy should be adopted, by at least a two-thirds vote of the council of the ICANN Supporting Organization to which the matter is delegated. Finally, ICANN would need to submit a written report and supporting materials documenting the process. Id.

As far as Verio is aware, none of these procedures have been followed with respect to the new policy regarding use of bulk Whois data. Verio has searched ICANN's web site and found no evidence that such a process took place. Thus, in adopting the new policy restricting marketing uses of Whois data without resort to the consensus-based process, ICANN has breached the Existing Accreditation Agreement and has failed to solicit or consider the views of all Internet Stakeholders.

II. ICANN Adopted the New Policy Without any Notice and Comment Period or a Majority Vote by the Board In Violation of ICANN's Bylaws.

A. ICANN's Bylaws require notice and comment and other procedures prior to implementing a new bulk access policy.

In addition to the consensus-based procedures set forth in the Existing Accreditation Agreement, ICANN's Bylaws require a notice and comment period and a majority vote of the Board for decisions that will have such far reaching effects on third parties.2

ICANN's Bylaws provide that "with respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, the Board will:

(i) provide public notice on the Web Site explaining what policies are being considered for adoption and why;

(ii) provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments; and

(iii) hold a public forum at which the proposed policy would be discussed.

Bylaws Art. III, § 3(b). Although this new policy limiting the uses of Whois data acquired through bulk access "substantially affects" Verio's operations, it does not appear that these procedures were used when adopting the new policy.

ICANN's Bylaws further provide that "[w]ith respect to any matters that would fall within the requirements of Article III, Section 3(b), the Board may act only by a majority vote of all members of the Board." Bylaws Art. IV, § 1(a). Once again, this does not appear to have happened.

On May 7, 2001 at a special meeting of the Board, resolution number 01.62 was adopted providing that:

the President is authorized to implement the [.biz and .info registry agreements] once they are signed, including by accrediting registrars for the .biz and .info top-level domains (in that regard, registrars already accredited and in good standing for .com, .net, and .org may be accredited for .biz and/or .info without additional qualifying procedures upon entering an accreditation agreement that the President determines is consistent with the existing accreditation agreement for .com, .net and .org , conformed to variations in contractual terminology and circumstances of the new TLDs).

(emphasis added).3

This Board resolution did not contemplate or approve the adoption of a new Accreditation Agreement that makes such sweeping changes to the bulk access program. Although apparently expecting the new agreement to conform to contractual terminology and circumstances of the new TLD's, the Board explicitly stated its belief that the new Accreditation Agreement would be consistent with the Existing Accreditation Agreement. As set forth above, the new restrictions on marketing use of Whois data set forth in the new Accreditation Agreement are inconsistent with the Existing Accreditation Agreement, and thus appear to be well outside the scope of Resolution 01.62.

In that this new policy limiting the uses of Whois data acquired through bulk access "substantially affects" Verio's operations, ICANN was obligated to comply with the procedural requirements set forth in Article III, Section 3(b) and adopt it by Board resolution in accordance with Article IV, Section 1(a) of its Bylaws. ICANN apparently complied with neither provision.

B. Adoption of the new registry agreements did not change ICANN's existing policy on the use of Whois data acquired through bulk access.

Verio is aware that the United States Department of Commerce recently approved the new agreements between ICANN and VeriSign for .com, .net and .org domain name registries.4 ICANN and VeriSign subsequently signed the new agreements.5 Verio is also aware that ICANN recently adopted new TLD Unsponsored Registry Agreements for the .info and .biz registries.6

Upon review of the relevant provisions of these agreements, it appears that the provisions requiring the registry to provide free public query access to obtain Whois data were revised to include additional marketing restrictions on use of Whois data that were not present in the previous Registry Agreement between ICANN and VeriSign.7 Section II.11.C of the new .com Registry Agreement contains the following provision:

In providing query-based public access to registration data as required by this Subsection 11(A), Registry Operator shall not impose terms and conditions on use of the data provided except as permitted by policy established by ICANN. Unless and until ICANN establishes a different policy, Registry Operator shall permit use of data it provides in response to queries for any lawful purposes except to: (a) allow, enable, or otherwise support the transmission by e-mail, telephone, or facsimile of mass unsolicited, commercial advertising or solicitations to entities other than the data recipient's own existing customers.

(emphasis added). Sections 3.10.3 of the proposed Unsponsored TLD Registry Agreement and the ".net" and ".org" Registry Agreements contain almost identical language.

These new provisions, however, did not address the permissible uses of Whois data acquired through bulk access. Until May 17, 2001 when ICANN posted the new Accreditation Agreement on its web site, ICANN made no mention of adopting a new policy regarding bulk access to Whois data.

III. ICANN Should Have Awaited the Report of the Whois Committee Before Implementing A New Whois Bulk Access Policy.

The issue of public access to Whois data for marketing purposes is currently being discussed within the Whois committee of the Domain Name Supporting Organization ("DNSO"). On June 8, 2001, ICANN announced the DNSO's study of the Internet domain-name system's Whois system.

With that announcement, the DNSO invited comments by way of a survey. The stated purpose of the survey is to:

1. solicit input from as many people as possible concerning the use of Whois service, and

2. assess whether changes should be considered to the current Whois policy adopted by ICANN.

Questions 5, 16, and 17 of the survey specifically address the use of Whois data for marketing purposes.

The comment period is scheduled to close on July 31, 2001. At the very least, ICANN should have awaited the results of the DNSO Whois Committee's report before changing the policy on bulk access to Whois data.

IV. Bulk Whois Data Should Remain Available for Marketing Purposes Except Through Spam Email.

A. In light of the "opt-out" option in the bulk access program, ICANN has no reason to further limit the uses of Whois data acquired through bulk access.

Both the existing and new versions of the Accreditation Agreement allow registrars to adopt policies that permit individuals to "opt-out" of the bulk access program. The agreements provide that:

Registrar may enable [domain name holders] who are individuals to elect not to have Personal Data concerning their registrations available for bulk access for marketing purposes based on Registrar's "Opt-Out" policy, and if Registrar has such a policy, Registrar shall require the third party to abide by the terms of that Opt-Out policy; provided, however, that Registrar may not use such data subject to opt-out for marketing purposes in its own value-added product or service.

Existing Accreditation Agreement § II.F.6.f.; New Accreditation Agreement § 3.3.6.6.

Registrars have the ability to implement an "opt-out" program to protect those customers that elect not to receive marketing information from third parties. Thus, no threat exists that Verio, or other parties provided with bulk access, would contact anyone that does not wish to be contacted. There is simply no reason to further limit the permissible uses of Whois data acquired through bulk access.

Moreover, despite its well-meaning intention of protecting the privacy rights of individuals, ICANN's new policy is needlessly over-inclusive. Individual registrants are a small minority of the domain name holders in the .com, .net, and .org spaces. "It is estimated that well over 70% of domain names are registered by businesses or organizations."9 The opt-out provision sufficiently protects individual registrants without smothering competition in the marketing of value-added services to businesses.

B. With the introduction of the ".name" Registry, the need to place limits on marketing uses of Whois data to protect individual privacy interests are less compelling.

Verio understands that one of the reasons that ICANN may have adopted these new restrictions on the use of Whois dataobtained through bulk access is to protect individuals from being contacted with marketing solicitations. Verio understands this concern but feels that the ability to "opt-out" of the bulk access program effectively addresses these concerns. To the extent that ICANN feels that the "opt-out" policy does not adequately address individual privacy concerns, ICANN should limit the new restrictions to TLD's designed for use by individuals as opposed to TLD's designed for use by commercial entities and organizations.

The recently approved ".name" TLD Registry is designed specifically for use by individuals. If ICANN had limited its new policy restricting the use of Whois data acquired through bulk access to the ".name" registry, individuals who sought to avoid any commercial solicitations would have a place to register a domain name without any concern for their individual privacy. They could simply register their domain name with the ".name" registry and feel certain that they would receive no commercial solicitations. If they, however, decided to register a domain name with another registry, they could elect to "opt-out" of the bulk access program.

The other registries, like the .aero, .biz, .com, .coop, .info, .museum, .net, .org, and .pro registries, were designed for use by commercial entities and organizations or for unrestricted use. ICANN need not place additional restrictions on the use of bulk Whois data for domain names in these TLD's.

Without placing any further restrictions on the use of Whois data acquired through bulk access, ICANN already has sufficient measures in place to protect the privacy interest of individual registrants. ICANN should let the ".name" registry serve its purpose of giving individuals a place to register a domain name and have their privacy interests protected.

C. The new policy restricts marketing uses of Whois data that are wholly unrelated to the operational stability of the Internet.

The original bulk access policy prohibited use of Whois data for spam email because of the threat spam poses to the operational stability of the Internet. It was thought that spam email could cause serious system drains. No such concerns exist with the newly banned marketing uses, which have absolutely no effect on the operational stability of the Internet.

ICANN simply had no need to prohibit using Whois data acquired through bulk access to make telephone sales calls. In the United States, both federal and state laws already extensively regulate unsolicited telephone sales.10 For example, many states publish statewide "do-not-call lists" upon which individuals can ask to be listed and which companies must honor. Many states also have laws dealing with facsimile solicitations. Furthermore, industry trade groups like the Direct Marketing Association publish "do-not-call lists" that reputable companies agree to honor.

Prohibiting lawful marketing tools other than spam email is not necessary and would seriously decrease competition in the marketing of domain name renewals and value-added products and services. In the Existing Accreditation Agreement, the DoC and ICANN sought only to prohibit conduct that threatened the operational stability of the Internet and to allow all other lawful conduct. Without any showing that new considerations require prohibiting other lawful marketing tools, the original policy should be followed in the new Accreditation Agreement as well.

D. The new policy is at odds with a carefully crafted regime developed under considerable public scrutiny geared towards creation of a "level playing field."

This new policy restricting use of Whois data for marketing purposes does not apply to a registrar marketing to "its" customers. It applies only to third parties marketing to these individuals. Thus, this new policy is directly at odds with a former policy that arose out of a deliberative process, in which ICANN and the DoC recognized the dangers inherent in giving anyone a monopoly over the marketing use of Whois data.

At one point during the privatization of the domain name management system, Network Solutions attempted to impose a restrictive regime on use of Whois data similar to that which ICANN has just adopted. ICANN and the DoC, however, rejected NSI's proposal. The rejection was based on the premise that Whois data is not the property of registrars but is the property of the individual registrants and the public at large. Thus, ICANN and the DoC properly concluded that registrars should not be allowed to profit from Whois data to the exclusion of others.

For example, on July 22, 1999, Andrew J. Pincus, General Counsel of the Department of Commerce, submitted a statement for the record before the United States House of Representatives Commerce Committee's Subcommittee on Oversight and Investigations.11 Mr. Pincus stated:

NSI and the Department of Commerce also must resolve issues regarding the availability of the WHOIS database, and the .com, .net, and .org zone files. NSI took certain actions earlier this year without the consent of the Commerce Department that restricted access to this information, which had previously been widely and readily available to the Internet community. We strongly support the prohibition of uses that adversely affect the operational stability of the Internet, but we oppose other restrictions on third-party use of this information, which has been compiled by NSI in the course of its operations under the authority of the U.S. Government.

In February and March of this year, NSI implemented certain substantive changes in its provision of registration services. These actions, which have competitive implications, have not been resolved on a permanent basis.

• First, NSI denied bulk access to information in the .com, .net and .org zone files for any purpose other than caching. (NSI later agreed to permit bulk downloads for trademark searches.)
  
  
• Second, NSI blocked the date creation field in the WHOIS database and attempted to make access to all information in the WHOIS database subject to a license prohibiting any commercial use of the data.

These actions were taken without the consent of the Department of Commerce. Zone file and WHOIS data had been freely available to the Internet community for years. Numerous people have built legitimate businesses that enhance the Internet using WHOIS and zone file data, which was compiled by NSI while it operated under the authority of the United States Government, through the Cooperative Agreement, as the exclusive provider of registry and registrar services in the .com, .net and .org gTLDs. The White Paper specifically endorsed the continued availability of that data to "anyone who has access to the Internet."

(emphasis added). Mr. Pincus went on to state that "NSI agreed to provide free bulk access to zone file data until July 23, 1999, under the terms of a Department of Commerce-approved agreement that would prohibit objectionable uses such as spamming but would allow all other lawful uses." (emphasis added).

That free access to Whois data was a top policy objective cannot be disputed. In a Press Release dated August 6, 1999, the DoC announced that it had forced NSI to "remove restrictions on the use of WHOIS data for third-party development of value-added products and services pending resolution of all outstanding issues"12

On September 28, 1999, Secretary Of Commerce William M. Daley announced the DoC's approval of the agreements on domain name management, including the Accreditation Agreement that ICANN has just revised. In that statement, Secretary Daley specifically mentioned the fight to keep Whois data open to the public. Secretary Daley stated:

In order to make all of this happen, ICANN, NSI and the Department needed to reach agreement on a number of important and -- and I have to say contentious -- issues in order to create a level playing field for competition and to create bottom-up management of the domain name system. We also had to address concerns about the availability of WHOIS data. As with any negotiations, compromises had to be made. But we never compromised on the President's desire to give the public more choices and to ensure the stability of the Internet so that electronic commerce could grow and flourish.

(emphasis added). This ample record demonstrates the significant policy attention given to open use of Whois data, and the strongpolicy tilt in favor of open access and use and away from assertions of a proprietary interest in Whois data.

In view of the degree of attention focused on this issue during the original privatization process, ICANN should reconsider this newpolicy on the use of Whois data acquired through bulk access. No convincing rationale exists for upsetting the balance that was struck only a few short years ago.

E. The new policy grants registrars exclusive rights to use Whois data for commercial marketing purposes, thereby inhibiting open, robust competition.

As ICANN and the DoC understood when crafting the bulk access policy contained in the Existing Accreditation Agreement, keeping Whois data available to all on equal terms for all lawful purposes, as opposed to providing registrars sole or superior access to the data, promotes competition in the domain name renewal and value-added products and services markets.

In contrast, with the new policy, registrars are granted the exclusive right to market "their" customers with mass unsolicited commercial advertising or solicitations by e-mail, telephone, or facsimile. The net effect of providing registrars such exclusive marketing use of Whois data will be an increase in the price the consumer ultimately pays for value-added products and services and domain name renewals. By limiting access to this data, registrars will effectively prevent third parties from cost-effectively contacting consumers in the market for Internet services. The only voice offering these services to the consumers will be their own registrar, who will have less incentive to compete on price with others offering the same Internet services.

V. The New Policy Conflicts with Prior Representations of ICANN and Has Serious Implications for the Intellectual Property System.

The new bulk access policy seriously implicates the freedom to public information embodied in United States copyright laws. Early in its history, ICANN gave testimony to the United States Congress that Whois data would be available to all. Now, ICANN reverses course.

On June 22, 1999, as Chairman of the House Commerce Committee, Representative Tom Bliley wrote ICANN requesting ICANN to state whether it has "conducted, or had conducted on its behalf, a legal analysis of its authority to retain intellectual property rights over registrar data?"13

In its July 8, 1999 response to the House Commerce Committee's questions, ICANN stated:

During the process of domain-name registration, registrars collect various data typed in by registrants. This data includes the domain name itself, identifying information about the registrant, the registrant's designation of administrative, technical, zone, and billing contacts for the domain name, and technical information concerning the Internet "nameservers" that are associated with the domain name. Historically, this data has been freely available to those operating and using the Internet on a query basis through a service known as "WHOIS," to assist them in resolving problems that may arise with domain names.

Under current United States law, it is highly doubtful that collection by registrars of this factual information gives rise to any enforceable intellectual property rights. Under Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), copyright may not be claimed in factual information itself, but only in the selection, coordination, or arrangement of the information in a sufficiently original way. It therefore violates no copyright for others to use the registrar data for their own purposes according to their own selection, coordination, and arrangement. Similarly, because the registrar data has long been available to the public for the asking, both by Internet tradition and by U.S. Government requirements, it would not seem to be subject to legitimate claims of trade-secret rights.

(emphasis added).14 Thus, in response to a formal request from the House Commerce Committee, ICANN previously took the position that free access to Whois data cannot be denied under United States law.

ICANN previously represented that the factual information embodied in Whois data could not be bottled up under copyright or trade secret laws but instead would be freely used by any party for their own lawful purposes. The new policy effectively provides registrars with intellectual property rights over Whois data. Third parties are denied access to the data for most commercial marketing purposes, while registrars are allowed unfettered use of the data, including by spam email.

ICANN has reversed course without a sound basis for doing so. There were no new facts, and certainly no new legal principles, that support establishing a quasi-proprietary rights regime over Whois data. ICANN should have adhered to its earlier commitments and maintained Whois data in a competitively open environment.

VI. Verio Respectfully Requests That ICANN Reconsider its New Policy and Stay its Implementation Pending the Completion of the Necessary ICANN Procedures.

ICANN's Bylaws require that ICANN make available a mechanism for review and reconsideration of its actions. The Bylaws provide:

(a) Any person affected by an action of the Corporation may request review or reconsideration of that action by the Board. The Board shall adopt policies and procedures governing such review or reconsideration, which may include threshold standards or other requirements to protect against frivolous or non-substantive use of the reconsideration process.

Bylaws, Art. III, Sec. 4(a). Verio has been adversely affected by this action due to Verio's past use of Whois data for lawful marketing purposes and its desire to continue such use. Verio requests that ICANN review it and in the interests of fairness, recommends to ICANN's Board that it retain the old policy embodied in the Existing Accreditation Agreement.

As Verio understands ICANN's Reconsideration Policy, a request for review or reconsideration must be filed within 30 days after (a) the affected party or its affiliate receives notice of the action, or (b) ICANN posts notice of the action on its web site, whichever is sooner. In that ICANN first posted notice of its new policy restricting bulk access to Whois data on May 17, 2001, Verio has made a timely request for reconsideration.

In accordance with the Reconsideration Policy, Verio further requests a temporary stay of the implementation of this new policy limiting the use of bulk Whois data pending completion of the procedures set forth in Article III, Section 3(b) and Article IV, Section 1(a) of ICANN's Bylaws followed by the procedures set forth in Section I.B. of the Existing Accreditation Agreement.

Verio has been adversely affected by ICANN's new policy. With the understanding that bulk access would be an acceptable alternative to query-based access for obtaining Whois data for marketing purposes, Verio has expended considerable time and effort negotiating bulk access agreements with a number of accredited registrars. Verio has further paid tens of thousands of dollars to these registrars to obtain bulk Whois data. Since this new policy can be interpreted as applying to even existing signed agreements, ICANN has, without a word of warning, deprived Verio of the marketing data for which it bargained and paid.

The Reconsideration Committee indicates that it will endeavor to complete its work and submit its recommendation to the Board within 30 days of the filing of the request and that its recommendations will be made public on the ICANN web site. Verio requests that the Reconsideration Committee complete its work within that proposed time frame, so that ICANN's Board can make a decision on whether to either retain the old policy or to comply with the procedures set forth in Article III, Section 3(b) and Article IV, Section 1(a) of ICANN's Bylaws followed by the procedures set forth in Section I.B. of the Existing Accreditation Agreement in adopting a new policy.
If ICANN's internal reconsideration process has not been completed within 45 days after the filing of a request for reconsideration, Verio will proceed directly to file a request for independent review in accordance with Section 6.3.1 of ICANN's Independent Review Policy.

VII. Conclusion.

Verio respectfully requests that ICANN reconsider its new policy limiting the uses of Whois data acquired through bulk access. There is no need for this new policy, and it has serious anti-competitive effects.

Sincerely,

Michael A. Jacobs

cc: Louis Touton, Esq.

¹ A copy of the new Accreditation Agreement as posted on May 17, 2001 is available on ICANN's web site. (<http://www.icann.org/registrars/ra-agreement-17may01.htm>)

² A copy of ICANN's bylaws as amended July 16, 2000 is available on ICANN's web site. (<http://www.icann.org/general/bylaws.htm>).

³ A copy of the May 7, 2001 minutes of the Board is available on ICANN's web site. (<http://www.icann.org/minutes/prelim-report-07may01.htm>).

⁴ A copy of the May 18, 2001 press release announcing the DoC's approval is available on the DoC's web site. (<http://www2.osec.doc.gov/public.nsf/docs/icann-verisign-0518>).

⁵ A copy of this May 25, 2001 press release is available on ICANN's web site. (<http://www.icann.org/announcements/icann-pr25may01.htm>).

⁶ A copy of this May 15, 2001 press release is available on ICANN's web site. (<http://www.icann.org/announcements/icann-pr15may01.htm>)

⁷ Copies of the proposed ".com," ".net," ".org," and the Unsponsored Registry Agreements are available on ICANN's web site. (<http://www.icann.org/nsi/proposed-com-registry-agmt-01mar01.htm>; <http://www.icann.org/nsi/proposed-net-registry-agmt-01mar01.htm>; <http://www.icann.org/nsi/proposed-org-registry-agmt-01mar01.htm>; <http://www.icann.org/tlds/agreements/unsponsored/registry-agmt-11may01.htm>).

⁸ A copy of the June 8, 2001 announcement of the DNSO survey is available on ICANN's web site. (<http://www.icann.org/dnso/whois-survey-en-08jun01.htm>).

⁹ See June 8, 2001 announcement of the DNSO survey. (<http://www.icann.org/dnso/whois-survey-en-08jun01.htm>).

¹⁰ In addition to numerous state laws regulating telephonic sales, both the Telephone Consumer Protection Act, 47 U.S.C. § 227, which directed the FCC to promulgate regulations governing telephonic sales (47 C.F.R. §§ 64.1200-1201), and the Telemarketing and Consumer Fraud and Abuse Protection Act, 15 U.S.C. §§ 6101-6108, which directed the FTC to promulgate regulations governing telephonic sales (16 C.F.R. §§ 310.1-310.8) regulate telephonic sales.

¹¹ A copy of Mr. Pincus' July 22, 1999 statement is available on the DoC's web site. (<http://www.ogc.doc.gov/ogc/legreg/testimon/106f/pincus0722.htm#N_26_>)

¹² A copy of this August 6, 1999 press release is available on the DoC's web site. (<http://www.ntia.doc.gov/ntiahome/press/dns08061999.htm>).

¹³ A copy of Chairman Bliley's June 22, 1999 Letter is available on ICANN's web site. (<http://www.icann.org/correspondence/bliley-letter-22june99.htm>)

¹⁴ A copy of the ICANN's July 8, 1999 response is available on ICANN's web site. (<http://www.icann.org/correspondence/bliley-response-08july99.htm#1C>)