U.S. DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
Washington, DC 20230

	In the Matter of			       )
	Improvement of Technical Management   ) Docket No.980212036-8036-01
    	of Internet Names and Addresses               )
                                                

I. Introduction

The Policy Oversight Committee ("POC") respectfully submits comments in this proceeding, referred to as the "Green Paper".

The Policy Oversight Committee ("POC") was created under the aegis of the Generic Top Level Domain Memorandum of Understanding ("gTLD-MoU") signed in Geneva, Switzerland on May 1, 1997 by the by the Internet Assigned Numbers Authority ("IANA"), the Internet Society ("ISOC"), and approximately 80 other signatory organizations. As of March 15, 1998, this has increased to over 200 signatory organizations. The signatory organizations are known as the Policy Advisory Body ("PAB") which is charged by the gTLD-MoU to give advice on policy matters to the POC, operating in a "rough consensus" mode, in keeping with the traditions of the Internet.

POC is the successor to the International Ad Hoc Committee ("IAHC") which was formed in September, 1996 at the initiative of ISOC and at the request of IANA. IAHC issued a Final Report on February 4, 1997, which led to the creation and signing of the gTLD-MoU.

The charter of IAHC specified that it would "operate in the style of an Internet standards ‘design team’, formulating criteria and procedures but seeking review, modification and consensus from the rest of the Internet community" and stated further that "Internet standards are developed according to the principal of ‘rough consensus’ which means a strongly dominant sense of preference within the community that is seeking to achieve forward progress, in spite of differing opinions."

Between September, 1996, and May 1, 1997, IAHC operated open mailing lists, solicited and received hundreds of formal contributions, and participated in a number of existing mailing lists, thereby receiving thousands of comments from interested parties which were reviewed and considered in the preparation of the gTLD-MoU. Members of the POC have provided continuing participation in those public mailing lists.

The gTLD-MoU proposes the creation, initially, of seven new top level domains and provides for an unlimited number of new registrars, all of which will share responsibility for registering domain names in all generic top level domains. The process of submission of applications to become registrars began on July 16, 1997. 88 applications were accepted and the registrars signed a Memorandum of Understanding (the "CORE-MoU") on xxxxx, 1997, forming a Council of Registrars ("CORE") which is incorporated as a not-for-profit association under the laws of Switzerland.

Recently, the POC has instituted a proceeding to expand its membership so as to reflect more fully the range of interests of the stakeholders in the Internet.

POC has repeatedly and publicly announced its willingness and availability to negotiate transitional arrangements with existing organizations, including NSI, with a view towards a stable and secure operation of the Internet under private auspices.

Further information on the work of IAHC and POC, as well as the full text of the documents referred to above are available at the gTLD-MoU website <http://www.gtld-mou.org>.

II. The Role of the POC

Although neither POC nor CORE are mentioned in the Green Paper, many of the fundamental principles under which POC and CORE operate have been adopted by the United States government ("USG") in the Green Paper. A summary statement of the gTLD-MoU principles is set forth below:

To the extent that the Green Paper has adopted these principles, the POC endorses the position of USG, and urges that they be put into effect promptly. In particular, the announced intention of USG to withdraw from involvement in the domain name system is fully supported by POC.

These comments are submitted with a focus on certain specific areas of disagreement between the positions of POC and USG. The comments are not a comprehensive analysis of all the provisions of the Green Paper. POC adopts and endorses the position of PAB as set forth in its more extensive comments in this proceeding.

III. Comments on Selected Issues

There are a number of areas in which POC has a fundamental disagreement with the position of USG as expressed in the Green Paper. These are:

A. The question of the legal authority of USG to issue rules governing

administration of the Internet.

There are statutory references to a number of sections of the U.S. Code under the heading "Supplementary Information" in the Green Paper. These references purportedly set forth the statutory authority of the Commerce Department and NTIA to issue a proposed rule and request public comment. There can be little argument that the Commerce Department and NTIA have general authority to set government policy regarding domestic and foreign commerce in general and telecommunications in particular. Certainly a request for public comment is an appropriate part of carrying out this responsibility.

However, none of the statutes cited even remotely authorize regulation of a global system such as the Internet. It is puzzling that the authors of the Green Paper have apparently given no thought to the question of a purported regulation of "registries" and "registrars", most of which will be in countries other than the United States. In any even, none of the statutes authorize the kind of proposed rules set forth in Appendix I of this proceeding. Interestingly, no attempt has been made to place the rules in the context of 47 CFR. An obvious question is where they might fit in the regulatory scheme of 47 CFR.

There is a serious risk that any rules issued as a result of the Green Paper would be immediately attacked in U.S. courts and overturned. An even worse prospect is that the rules would be attacked in a proceeding that could potentially last for years, leaving important questions of the administration of the Internet in a legal limbo that would be chaotic

There is widespread admiration and gratitude for USG funding of significant portions of the fundamental research that led to the creation of the Internet. However, anyone familiar with the history of the Internet is aware that there were significant contributions by persons and institutions outside the United States. The statement in the Green Paper that "Today’s Internet is an outgrowth of U.S. government investments ..." is a half-truth at best, but, more importantly, could be seen as a deliberate slight to the many non-U.S. contributors to the development of the Internet.

C. The failure to deal with the importance of preserving the independent character of IANA.

IANA has its own plan for reorganization that takes into account the international responsibilities and character of a governing body for the Internet. The Green Paper states: "Moreover, the corporation would be headquartered in the U.S. and incorporated under U.S. law. Accordingly, the corporation would be subject to antitrust scrutiny if dominated by economically interested entities, or if its standards are established by a few leading competitors." It is not necessary to demand that IANA be incorporated in any particular country or subject to the antitrust laws of a particular country. The Internet has now survived for over 25 years without governmental control, and there is no reason to assert that kind of control now, even for the express purpose of giving up control.

D. The suggestion that new registries compete on a "market-oriented" basis.

The concept of the registry as a service to the Internet, operated for the benefit of the public, is an important provision in the principles of the gTLD-MoU. Many other parties commenting in this proceeding have explicitly spelled out the disastrous consequences of allowing registries to operate on a for-profit and "market-oriented" basis. There is a clear mandate that any new registry or registries operate on a cost recovery basis and not-for-profit, with appropriate safeguards to control their operation. IANA should have authority to exercise this control, directly or indirectly, as IANA may determine.

E. The suggestion that any new registries be limited to operation of one new gTLD.

It is an arbitrary and unwarranted conclusion that each new registry be limited to the operation of one new gTLD. This may be a corollary of the concept that registries operate as profit making enterprises, but if that concept is erroneous, as we believe, the futher concept of limiting the operation of new registries is correspondingly erroneous. There is no governing principle, whether economic, political or technical, that dictates the number of registries or the number of gTLDs to be operated by a given registry. It may be possible that multiple registries offer certain advantages based on factors of encouraging diversity in technical features. It may be possible that some registries should be limited to the operation of a single gTLD because of specialized access rules for that gTLD. (An example would be the creation of a gTLD ".post" which would be used only by governmental postal authorities.) However, it may also be possible that economies of scale will dictate the consolidation of registry functions into a very small number of separate entities.

F. The failure to deal realistically with a selection process for "the first five entities" proposed by the Green Paper to establish domain name registries.

This proposal in the Green Paper is incomprehensible.

The Green Paper proposes that IANA establish "equitable, objective criteria and processes for selecting among a large number of inviduals and entities that want to provide registry services" and then goes on to propose a transitional process in which the "first five entities" meeting the requirements would be selected. However, the "technical, managerial and site requirements described in Appendix 1" of the Green Paper could easily be met by hundreds of applicants within a period of thirty to sixty days following the opening of the process, especially if there is the possibility of economic advantage by being one of the first selected under the scheme proposed by the Green Paper. Is it not readily apparent that the first five might all be outside the United States and not subject to the jurisdiction asserted by USG in the Green Paper? A lottery to select the "first five" would appear to be the worst possible way to select registries.

G. The "Minimum Dispute Resolution and Other Procedures Related to Trademarks" will not meet the needs of trademark and brand name owners.

There is already a chaotic situation of conflicting national laws in the trademark field. The situation is exacerbated by the dispute policy of NSI (which has enriched lawyers and embroiled NSI in over thirty lawsuits without providing any visible benefit to owners of trademarks), and, on top of all this, the looming possibility of widespread commercial registrations in two-letter national domains with no dispute policy at all. What the Internet does not need is more yet more dispute policies that may, or may not, meet "minimum requirements," ensuring that the conflicting policies will become more so.. Such a scheme seems calculated to keep more trademark lawyers busier at the expense of their clients.

H. The proposal for NSI to keep registry responsibilities for the three most-used gTLDs does not comport with the goal of increased competition in the domain name system.

This is another incomprehensible aspect of the Green Paper. If the Green Paper’s goal were to continue NSI’s economic domination of the DNS, the proposal to continue NSI’s control of registry responsibilities for the three well established generic TLDs certainly comports with such a goal. However, the objectivity of the Green Paper would be put in question if such were the case. In any event, the Green Paper has failed to provide any basis for its proposal that there be five new registries, each operating one gTLD database, while NSI retains control of .com, .net and .org. This gives the appearance of an attempt to insure that NSI will enjoy the economic benefits of its existing monopoly for the foreseeable future. The vague requirements of a negotiated separation of NSI’s registry and registrar functions does not offer reassurance that NSI will be competing with the new registries and registrars on a level playing field.

IV. Conclusion

POC urges the USG to terminate this proceeding and allow IANA to continue its process of reforming the structure of the DNS under the general principles outlined in Section II of these comments. The Cooperative Agreement with NSI should be allowed to terminate on March 31, 1998 in accordance with its terms, and USG should exercise its rights under Section 10 (e) of the Cooperative Agreement so as to provide to the public the benefits (paid for by public funds) of "a copy and documentation of any and all software and data generated ... in such form and sufficient detail as to permit replication of the work by a reasonably knowledgeable party or organization."