Verisign: would-be .com contract killers are “wrong”

Verisign has responded to the campaign to have the US government cancel its contract to run .com and open the agreement to competitive bidding, saying it is “wrong” and “based on a fundamental misunderstanding” of the deal.

The American Economic Liberties Project, the Demand Progress Education Fund, and the Revolving Door Project put their names to letters last week calling the .com deal between ICANN and Verisign a “de facto cartel” that competition authorities should dismantle.

But, as others have also pointed out, Verisign says that removing the US government from the trilateral agreement would not have the effect the letter-writers believe it would.

In a regulatory filing, Verisign said:

The campaign, and the letters, assert that the 32-year-old Cooperative Agreement between the Department of Commerce (Department) and Verisign involving the .com top-level domain registry can be terminated by the Department on August 2, 2024, and, if it is, the management of .com can be transferred after a competitive bidding process. This assertion is wrong: If the Department chooses to sunset the Cooperative Agreement, which Verisign does not seek, the .com registry will continue to be managed pursuant to the terms of Verisign’s and the Internet Corporation for Assigned Names and Numbers’ (ICANN) valid, enforceable Registry Agreement

In other words, if the US government butts out, all that’s left to regulate .com pricing is ICANN, and ICANN is institutional averse to regulating pricing, believing it would open it up to genuine concerns about cartel-like behavior.

The Cooperative Agreement (pdf) states:

upon expiration or termination of the Cooperative Agreement, neither party shall have any further obligation to the other and nothing shall prevent Verisign from operating the .com TLD pursuant to an agreement with ICANN or its successor

Groups make flawed case that .com is a cartel

Three pressure groups in the US have called on the government to strip Verisign of its .com contract, saying the company is operating as a “de facto cartel” with ICANN that has allowed its shareholders to milk the public for billions.

But their argument has a pretty significant hole in it, based on an apparent misunderstanding of how Verisign funds ICANN.

The American Economic Liberties Project, the Demand Progress Education Fund, and the Revolving Door Project have written to the Department of Justice and National Telecommunications and Information Administration to demand that they “cut off” Verisign.

The NTIA is the third party in the triumvirate with ICANN and Verisign that controls who gets to run the immensely powerful .com TLD. It’s the NTIA that gets to decide whether Verisign is able to raise its registry fees, how often and by how much.

The Obama administration froze the fee for its last six-year run, but the caps were lifted under Trump, giving Verisign four 7% increase options over the current six-year deal, all of which it has chosen to exercise.

The price of a .com registration or renewal has gone up from $7.85 in 2018 to $10.26 later this year. Verisign enjoys some of the highest profit margins of any public company in the US as a result, with much of its cashflow diverted into share buybacks.

This has to stop, and the .com contract should be open for bidders, the three groups said in their letters:

Ending this contract will force the initiation of a competitive open-bidding process, ultimately bringing down costs for those who must register a domain name. ICANN and VeriSign function as a de facto cartel and the NTIA should stop sanctioning the “incestuous legal triangle” that serves as a shield to deflect overdue antitrust scrutiny into their otherwise likely illegal collusive relationship.

While the letters raise many good points, they’re the same good points that have been raised every few years for the last quarter century. The US government response seems to depend entirely on whether the current occupant of the White House wears a blue tie or a red tie.

Where the argument is flawed is in the statement: “ICANN has a vested interest in VeriSign making as much money as possible, as VeriSign pays ICANN for each annual domain name registration.”

This is not quite correct, as ICANN’s current financial problems can attest.

In reality, while it is true that Verisign is by far the biggest contributor to ICANN’s budget, the dollar value is tied not to how much money Verisign makes, but to how many registrations and renewals it processes.

ICANN gets a quarter for every domain-year, basically, regardless of whether Verisign charges $7.85 or $10.26, so ICANN’s vested interest is in Verisign selling as many domain-years as possible, not its bottom line. If .com shrinks, so does ICANN’s budget.

And that’s exactly what has happened over the last couple of years. As Verisign’s prices have gone up, volume has started to go down, first in China and more recently in the US.

While I don’t believe the company has explicitly linked its volume decline to its price hikes, it’s said that a solution to the problem is new promotional activities later this year, so draw your own conclusions.

ICANN’s budget has taken a hit as a result. The Org said in April that it was looking at an $8 million shortfall and last month said it was laying off 7% of its staff to try to save $10 million.

The fact that it’s just canned 33 staff is pretty decent argument against the cartel claim, and I expect it to form part of ICANN’s response.

The three groups’ letters may be on more solid ground with its claim that ICANN has enjoyed a “$20 million cash bonus” that they describe as a share of Verisign’s “ill-gotten rent to maintain its market power.”

That’s a reference to the $5 million a year for five years additional payment that Verisign agreed to when it renegotiated its registry contract with ICANN in 2020.

Nominally to help fund ICANN’s DNS “security and stability” efforts, the optics of this side deal have always been terrible, the granularity of the accounting transparency has been criticized as lacking, and I’ve frequently referred to the payment as a “bung”.

But that payment is strictly bilateral and not part of Verisign’s deal with NTIA.

The NTIA arrangement has presumptive renewal of six-year terms, but NTIA can revoke it with 120 days notice. That means it will have to act before August 2 if it decides to terminate Verisign’s contract.

You can read the letters in full here.

US sneaks public Whois demands into pandemic relief bill

Outgoing US president Donald Trump has signed into law a coronavirus relief bill and spending package that contains a surprise instruction for the government to pursue open access to Whois records.

The Consolidated Appropriations Act of 2021 is focused on federal spending for fiscal 2021, with billions set aside for pandemic-related economic stimulus. It’s the bill you may recall Trump refused to sign for several days on the purported basis that it only provided Americans with a piddling $600 check.

An accompanying document contains encouragement for the National Telecommunications and Information Administration to “to require registrars and registries based in the United States to collect and make public accurate domain name registration information”.

It also asks the NTIA to continue to work within ICANN’s Governmental Advisory Committee to help create “a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information”.

The text can be found in a joint explanatory statement (pdf) accompanying the act. It’s not on the statute books as such, but it does tell NTIA how to spend the money it’s been allocated.

The full text relevant to the domain name industry reads:

NTIA is directed, through its position within the Governmental Advisory Committee o work with I CANN to expedite the establishment of a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information for legitimate purposes. NTIA is encouraged, as appropriate, to require registrars and registries based in the United States to collect and make public accurate domain name registration information.

As ICANN notes in its analysis, the first sentence is not telling NTIA to do anything it hasn’t been doing since the European Union’s General Data Protection Regulation came into effect two and a half years ago.

The NTIA and GAC have been involved in efforts to create a privacy workaround for rights holders and law enforcement, which in September came up with the widely panned SSAD proposals. ICANN is currently pleading with the EU for clarity on whether it would even be legal.

The second sentence is perhaps a bit more worrying, dangling as it does the possibility of American registries and registrars having to either break EU law or implement a much more complex Whois infrastructure.

But, as ICANN notes, the words “encouraged, as appropriate” are doing a lot of heavy lifting in that sentence, saying “encouragement is aspirational; it is not a mandate”.

However, ICANN appears to be treating it as a warning shot, with head of compliance Jamie Hedlund writing:

It appears to hint that if NTIA and the ICANN community can’t develop a robust access model, Congress could entertain more forceful measures that would impose requirements on U.S.-based registries and registrars to collect and publish domain name registration information.

It seems the NTIA has the wink to cause mischief, should ICANN not deliver what intellectual property lobbyists want.

Three big registries will take down opioid domains for US govt

Verisign, Public Interest Registry and Neustar (now part of GoDaddy) will suspend domain names being used to illegally sell opioids under a pilot scheme with the US government.

The Food and Drug Administration announced this week that this new “trusted notifier” program will go into effect for 120 days.

When the FDA finds a site suspected of selling opioids illegally, it will notify the registry as well as the web site’s owner and hosting provider.

The registries will then be able to decide whether to suspend the domain or not. It’s voluntary.

The National Telecommunications and Information Administration will also take part in the project.

Verisign runs .com and .net, PIR runs .org and Neustar runs .us, .co and .biz.

Opioids are legal, pharmaceutical pain-killers derived from opium. They’re ridiculously addictive and account for as many drug overdose deaths in the US as heroin, but are over-prescribed by US doctors.

It’s not the first time registries have agreed to trusted notifier programs. Some new gTLD registries have deals with the movie and music industries to suspend domains involved in copyright infringement.

The announcement comes just a few weeks after ICANN rejected a deal that would have seen PIR create a community oversight body with responsibilities to monitor domain-suspension policies in .org.

US official Heineman joins GoDaddy

Former US government official Ashley Heineman has joined the staff of GoDaddy.
Heineman was until quite recently a policy specialist at the US National Telecommunications and Information Administration and the US representative on ICANN’s Governmental Advisory Committee.
But GoDaddy confirmed to DI today that she’s now left NTIA and joined the market-leading registrar.
I don’t know what her job title is yet. One assumes it’s related to policy or legal issues.
Heineman spent 15 years at NTIA and has been the ICANN GAC rep for the US for the last few years.
She’s had a respectably hands-on role, for a GACer, including being a member of the ongoing “EPDP” cross-community working group conducting a post-GDPR review of Whois policy.
Judging by my embarrassing error at the weekend, the US is currently being represented on the GAC by the NTIA’s Vernita Harris.
I’ve also heard rumors from ICANN 66 that another former NTIA official has also recently moved into the domain name industry. I’ll blog it up just as soon as I get confirmation.

Verisign likely to get its billion-dollar .com pricing windfall

Verisign and ICANN appear to be on the verge of signing a new .com registry contract that could prove extremely lucrative for the legacy gTLD company.
Speaking to analysts following the announcement of Verisign’s third-quarter results late last week, CEO Jim Bidzos said talks with ICANN, which have their first anniversary this week, are “nearly complete”.
The new contract will take on the terms of the Cooperative Agreement between Verisign and the US Department of Commerce, which was amended a year ago to scrap an Obama-era price freeze.
Under the future contract, Verisign is expected to be able to raise its .com fee from its current $7.85 by 7% in four of the six years of the deal. As I wrote at the time, this could be worth close to a billion dollars.
This, for a company that already enjoys profit margins so generous that I regularly receive phone calls from perplexed analysts asking me to help explain how they get away with it.
Bidzos said on Thursday night:

let me remind you that under the 2016 amendment to our .com registry agreement with ICANN, which extended the term of the agreement, we and ICANN also agree to negotiate in good faith to do two things; first, we agree to reflect changes to the Cooperative Agreement in the com agreement, including pricing terms. Second, we agree to amend the com agreement to include terms to preserve and enhance the security and stability of the com registry or the internet.
We believe these discussions with ICANN are nearly complete. While it will be inappropriate at this time to provide more details, I can say that we were satisfied with the results so far. As noted, this is an ICANN process and we expect that before long ICANN will be publishing for public comment the documents we have been discussing.

The Cooperative Agreement also allows Verisign to launch a registrar business, just as long as that registrar does not sell .com domains.
Potentially, Verisign could get the right to launch a customer-facing registrar focused on selling .net, .org and newer gTLDs and ccTLDs.
Given we already pretty much know what the new pricing regime is going to be, the big mystery right now is why it’s taken ICANN and Verisign so long to renegotiate the contract.
One analyst asked Bidzos on Thursday whether ICANN has talked its way into getting a bigger slice of the registry fee, currently set at $0.25 per annual domain transaction.
That’s in-line with what almost all the other gTLD registries pay, and I can’t see ICANN demanding more without attracting a tonne of criticism. Verisign is already by some margin its biggest funding source.
Could ICANN have demanded that Verisign adopt the Uniform Rapid Suspension anti-cybersquatting policy, which would be guaranteed to enrage domain investors?
Whatever else is to be added to the contract, it appears to be related to that amorphous term “security and stability”, which could mean basically anything.
When ICANN and Verisign agreed to talk about new terms “to preserve and enhance the security and stability of the Internet or the TLD”, what on Earth where they talking about?
It looks like we won’t have to wait too much longer to find out.

Neustar to keep .us for another decade

Neustar has secured a renewal of its contract to run the United States’ ccTLD until up to 2029.
The company and the National Telecommunications and Information Administration announced the new contract last week.
The initial term of the deal runs until August 2021, but there are four two-year renewal options after that.
Neustar has been running .us since 2001. It doesn’t pay NTIA for the privilege, nor does the NTIA pay Neustar.
There are currently around two million registered .us domain names. The TLD appears to be still growing, but not especially fast.

The DNS’s former overseer now has its own domain name

The National Telecommunications and Information Administration, which for many years was the instrument of the US government’s oversight of the DNS root zone, has got its first proper domain name.
It’s been operating at ntia.doc.gov forever, but today announced that it’s upgrading to the second-level ntia.gov.
The agency said the switch “will make NTIA’s site consistent with most other Department of Commerce websites”.
Staff there will also get new ntia.gov email addresses, starting from today. Their old addresses will continue to forward.
NTIA was part of the DNS root management triumvirate, along with ICANN/IANA and Verisign, until the IANA transition in 2016.
The agency still has a contractual relationship with Verisign concerning the operation of .com.

ICANN urged to reject .com price increases

The Internet Commerce Association has asked ICANN to refuse to allow Verisign to raise its wholesale prices for .com domain names.
The domainer trade group wrote to ICANN last week to point out that just because the Trump administration has dropped the US government objection to controlled price increases, that doesn’t necessarily mean ICANN has to agree.
Verisign’s deal with the National Telecommunications and Information Administration “does not of course, compel ICANN to agree to any such increases. Any such decision regarding .com pricing
remains with ICANN” ICA general counsel Zak Muscovitch wrote.
The deal allows Verisign to increase the price of .com registrations, renewals and transfers by 7% per year in four of the next six years, leading to a compound 30% increase by the time it concludes.
The arguments put forth Muscovitch’s letter are pretty much the same as the arguments ICA made when it was lobbying NTIA to maintain the price freeze.
Namely: Verisign already makes a tonne of money from .com, it has a captive audience, it cannot claim credit for .com’s success, and .com is not constrained by competition.
“As NTIA makes clear, it is up to Verisign to request a fee increase and ICANN that may agree or disagree. ICANN should not agree. Indeed, it would be a dereliction of ICANN’s responsibilities to the ICANN community if Verisign were permitted to raise its fees when it is already very well paid for the services which it provides,” Muscovitch’s letter (pdf) concludes.
For many years ICANN has been reluctant to get involved in price regulation. It remains to be seen whether it will make an exception for .com.

Will ICANN take a bigger slice of the .com pie, or will .domainers get URS?

Will ICANN try to get its paws on some of Verisign’s .com windfall? Or might domainers get a second slap in the face by seeing URS imposed in .com?
With Verisign set to receive hundreds of millions of extra dollars due to the imminent lifting of .com price caps, it’s been suggested that ICANN may also financially benefit from the arrangement.
In a couple of blog posts Friday, filthy domain scalper Andrew Allemann said that ICANN will likely demand higher fees from Verisign in the new .com registry agreement.
Will it though? I guess it’s not impossible, but I wouldn’t say it’s a certainty by any means.
Verisign currently pays ICANN $0.25 per transaction, the same as almost all other gTLDs. Technically, there’s no reason this could not be renegotiated.
Putting aside some of the legacy gTLD contracts, I can only think of two significant cases of ICANN imposing higher fees on a registry.
The first was .xxx, which was signed in 2011. That called for ICM Registry, now part of MMX, to pay $2 per transaction, eight times the norm.
The rationale for this was that ICANN thought (or at least said it thought) that .xxx was going to be a legal and compliance minefield. It said it envisaged higher costs for overseeing the then-controversial TLD.
There was a school of thought that ICANN was just interested in opportunistically boosting its own coffers, given that ICM was due to charge over $60 per domain per year — at the time a ludicrously high amount.
But risk largely failed to materialize, and the two parties last year renegotiated the fees down to $0.25.
The second instance was .sucks, another controversial TLD. In that case, ICANN charged registry Vox Populi a $100,000 upfront fee and per-transaction fees of $1 per domain for the first 900,000 transactions, four times more than the norm.
While some saw this as a repeat of the .xxx legal arse-covering tactic, ICANN said it was actually in place to recoup a bunch of money that Vox Pop owner Momentous still owed when it let a bunch of its drop-catch registrars go out of business a couple years earlier.
While the .sucks example clearly doesn’t apply to Verisign, one could make the case that the .xxx example might.
It’s possible, I guess, that ICANN could make the case that Verisign’s newly regained ability to raise prices opens it up to litigation risk — something I reckon is certainly true — and that it needs to increase its fees to cover that risk.
It might be tempting. ICANN has a bit of a budget crunch at the moment, and a bottomless cash pit like Verisign would be an easy source of funds. A transaction fee increase of four cents would have been enough to cover the $5 million budget shortfall it had to deal with earlier this year.
On the other hand, it could be argued that ICANN demanding more money from Verisign would unlevel the playing field, inviting endless litigation from Verisign itself.
ICANN’s track record with legacy gTLDs has been to reduce, rather than increase, their transaction fees.
Pre-2012 gTLDs such as .mobi, .jobs, .cat and .travel have all seen their fees reduced to the $0.25 baseline in recent years, sometimes from as high as $2.
In each of these cases, the registries concerned had to adopt many provisions of the standard 2012 new gTLD registry agreement including, controversially, the Uniform Rapid Suspension service.
Domainers hate the URS, which gives trademark owners greater powers to take away their domains, and the Internet Commerce Association (under the previous stewardship of general counsel Phil Corwin, since hired by Verisign) unsuccessfully fought against URS being added to .mobi et al over the last several years, on the basis that eventually it could worm its way into .com.
I’m not suggesting for a moment that ICANN might reduce Verisign’s fees, but what if URS is the price the registry has to pay for its massive .com windfall?
It’s not as if Verisign has any love for domainers, despite the substantial contribution they make to its top line.
Since the NTIA deal was announced, it’s already calling them “scalpers” and driving them crazy.
ICA lost the .com price freeze fight last week, could it also be about to lose the URS fight?