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Price caps on .org could return, panel rules
ICANN could be forced to reimpose price caps on .org, .biz and .info domains, an Independent Review Process panel has ruled.
The panel handling the IRP case filed by Namecheap against ICANN in February 2020 has decided to allow the registrar to continue to pursue its claims that ICANN broke its own bylaws by removing price controls from the three gTLD contracts.
Conversely, in a win for ICANN, the panel also threw out Namecheap’s demand that the IRP scrutinize ICANN’s conduct during the attempted takeover of .org’s Public Interest Registry by Ethos Capital in 2019.
The split ruling (pdf) on ICANN’s motion to dismiss Namecheap’s case came March 10 and was revealed in documents recently published by ICANN. The case will now proceed on the pricing issue alone.
The three-person panel decided that the fact that ICANN ultimately decided to block Ethos’ acquisition of PIR meant that Namecheap lacked sufficient standing to pursue that element of its case.
Namecheap had argued that ICANN’s opaque processing of PIR’s change of control request created uncertainty that harmed its business, because ICANN may approve such a request in future.
But the panel said it would not prejudge such an eventuality, saying that if another change of control is approved by ICANN in future, Namecheap is welcome to file another IRP complaint at that time.
“Harm or injury flowing from possible future violations by the ICANN Board regarding change of control requests that are not presently pending and that may never occur does not confer standing,” the panel wrote.
On the pricing issue, the panel disagreed with ICANN’s argument that Namecheap has not yet been harmed by a lack of .org price caps because PIR has not yet raised its .org prices.
It said that increased prices in future are a “natural and expected consequence” of the lack of price controls, and that to force Namecheap to wait for such increases to occur before filing an IRP would leave it open to falling foul of the 12-month statute of limitations following ICANN decision-making baked into the IRP rules.
As such, it’s letting those claims go ahead. The panel wrote:
This matter will proceed to consideration of Namecheap’s request for a declaration that ICANN must annul the decision that removed price caps in the .org, .info and .biz registry agreements. The Panel will also consider Namecheap’s request for a declaration that ICANN must ensure that price caps from legacy gTLDs can only be removed following policy development process that takes due account of the interests of the Internet user and with the involvement of different stakeholders. The Panel will consider Namecheap’s request for a declaration that “registry fees… remain as low as feasible consistet with the maintenance of good quality service” within the context of removal of price caps (not in the context of regulating changes of control).
In other words, if Namecheap prevails, future price caps for pre-2012 gTLDs could be decided by the ICANN community, with an assumption that they should remain as low as possible.
That would be bad news for PIR, as well as .info registry Donuts and .biz registry GoDaddy.
But it’s important to note that the IRP panel has not ruled that ICANN has done anything wrong, nor that Namecheap is likely to win its case — the March 10 ruling purely assesses Namecheap’s standing to pursue the IRP.
The panel has also significantly extended the proposed timeline for the case being resolved. There now won’t be a final decision until 2022 at the earliest.
The panel last week delayed its final hearing in the case from August this year to January next year, according to a document published this week.
Other deadlines in the case have also been pushed backed weeks or months.
I keep reading claims by ICANN that an IRP panel cannot rule what ICANN should do and it can only rule on whether ICANN followed it’s own guidelines.
If that is true, it just seems waste of everyone’s time and money if ICANN can’t be forced to do anything.