Palage’s epic rant as he asks ICANN to cancel Verisign’s .net contract

ICANN is devolving into a trade association hiding under a thinning veneer of multistakeholderism and the domain industry is becoming a cartel.

Those are two of the conclusions reached by consultant Michael Palage, who’s been involved with ICANN since pretty much the start, in an epic Request for Reconsideration in which he asks the Org to unsign Verisign’s recently renewed .net registry contract.

ICANN’s equally intriguing response — denying, of course, Palage’s request — also raises worrying questions about how much power ICANN’s lawyers have over its board of directors.

The RfR paints a picture of a relationship where Verisign receives special privileges — such as exemptions from certain fees and obligations — in exchange for paying higher fees — contributing $55 million of ICANN’s budget — some of which is accounted for quite opaquely.

Palage claims the domain industry of being “on the precipice of becoming a cartel” due to recent consolidation, and says that is being enabled by ICANN’s failure to conduct an economic study of the market.

Verisign’s .net and .com contracts are the only registry agreements that do not oblige the registry to participate in economic studies, Palage says, reducing ICANN’s ability, per its bylaws, “to promote and sustain a competitive environment in the DNS market.”

Palage writes:

The failure of ICANN to have the contractual authority to undertake a full economic study to ensure a “competitive environment in the DNS market” undermines one of its core values. This failure is resulting in a growing consolidation within the industry which is on the precipice of becoming a cartel. ne needs to look no further than four US-based companies, Verisign, PIR, GoDaddy, and Identity Digital which currently control almost the entirety of the gTLD registry market based on domain names under management. This unchecked consolidation within the industry directly and materially impacts the ability of individual consultants to make a livelihood unless working for one of the dominant market players.

While Palage says he and other registrants are being harmed by increasing .net prices, and that an economic study would help lower them, he also asks ICANN to get Verisign to migrate to the Base Registry Agreement, which would enable Verisign to raise prices at will, without the current 10%-a-year cap.

He’s also concerned that ICANN’s volunteer community is shrinking as the domain industry becomes an increasingly dominant percentage of public meeting attendance.

Figures published by ICANN show that, at the last count, 39% of attendees were from the domain industry. ICANN stopped breaking down attendee allegiance in 2020 during the pandemic and did not resume publication of this data afterwards.

“ICANN has started down the slippery slope of becoming a trade association,” Palage writes.

While his RfR was going through the process of being considered by ICANN and its Board Accountability Mechanisms Committee, Palage separately wrote to ICANN general counsel John Jeffrey to express concerns that ICANN policy-making might be risking falling foul of antitrust law.

It seems a recent meeting of the working group discussing updates to ICANN’s Transfers Policy debated whether to cap the amount registries are allowed to charge registrars for bulk transfers. Dollar amounts were discussed.

Palage suggested ICANN might want to develop a formal antitrust policy statement that could be referred to whenever ICANN policy-makers meet, in much the same way as its Expected Standards of Behavior are deployed.

If the RfR as published by ICANN lacks some coherence, it may be because ICANN’s lawyers have redacted huge chunks of text as “privileged and confidential”. That’s something that hardly ever happens in RfRs.

It seems Palage knows some things about the .net contract and Verisign’s relationship with ICANN from his term on the ICANN board, which ran from April 2003 to April 2006, a time when Verisign and ICANN were basically at war.

Because the information Palage is privy to is still considered privileged by ICANN, it was redacted not only from the published version of the RfR but also it seems from the version supplied to the BAMC for consideration.

ICANN cited this part of its bylaws to justify the redactions:

The Board Accountability Mechanisms Committee shall act on a Reconsideration Request on the basis of the public written record, including information submitted by the Requestor, by the ICANN Staff, and by any third party.

Reading between the lines, it seems most of the redactions likely refer to the Verisign v ICANN lawsuit of 2004-2005.

Fellow greybeards will recall that Verisign sued ICANN for blocking its Site Finder service, which put a wildcard in the .com zone and essentially parked and monetized all unregistered domains while destabilizing software that relied on NXDOMAIN replies.

The October 2005 settlement (pdf) forced Verisign to acknowledge ICANN as king of the internet. In exchange, it got to keep .com forever. The deal gave Verisign financial security and ICANN legitimacy and was probably the most important of ICANN’s foundational documents before the IANA transition.

So what did the board of 2005 know that’s apparently too sensitive for the board of 2023? Dunno. I asked Palage if he’d be willing to share and he politely declined.

In any event, his RfR (pdf), which among other things asked for ICANN to reopen .net contract negotiations, was dismissed summarily (pdf) by BAMC last week on the grounds that he had not sufficiently shown how he was injured by ICANN’s actions.

Verisign: 1.7 million domain industry growth in Q2

The DNS grew by 1.7 million domains in the second quarter, according to Verisign’s latest Domain Name Industry Brief.

The quarter ended with 356.6 million domains across “all” TLDs, the company said. That’s up 1.7 million on the quarter and 4.3 million on the year.

I put “all” in quotes because it turns out Verisign hasn’t been including over a dozen TLDs in its calculations in previous reports.

Inexplicably, it hasn’t been counting 10 pre-2012 gTLDs — .aero, .asia, .cat, .coop, .gov, .museum, .pro, .tel, .travel and .xxx — for which zone files have been readily available for years. It’s also added six small ccTLDs to its calculations.

The upshot of this is that while a comparison with the Q1 DNIB would suggest growth of 2.6 million domains, it’s not, it’s just 1.7 million.

The report shows that both .com and .net shrunk in the quarter — 161.3 million versus 161.6 million and 13.1 million versus 13.2 million.

New gTLDs and ccTLDs were left to pick up the slack. Total ccTLD names was up 1.1 million to 137 million and total new gTLD domains was up 0.8 million to 28.1 million.

.web hit by second ICANN complaint

Altanovo Domains, the Afilias spin-off that is fighting Verisign for control of the .web gTLD, has filed a second Independent Review Process complaint with ICANN.

The filing could add years to Verisign’s launch runway for .web, which it won via secret proxy Nu Dot Co at auction in 2016.

ICANN has not yet published the IRP complaint — presumably it’s being redacted to remove commercially confidential information — but documentation shows Altanovo has “filed” an IRP.

Altanovo and ICANN has been in a Cooperative Engagement Process — a form of negotiation designed to avoid an IRP — since May 3, but a document published July 19 shows that the CEP is now over.

It was quite a brisk process. Other CEPs have been known to last many months.

When the CEP first emerged in May, Verisign was pretty brutal in its reaction, accusing Altanovo of “delay for delay’s sake”.

As the second-place bidder, Altanovo could stand to take control of .web if Verisign’s bid was found to be outside the rules. That was the focus of the first IRP case, which lasted almost four years.

The first IRP panel ruled that ICANN broke its bylaws by failing to consider whether Verisign secretly bidding via NDC broke the new gTLD program rules. But ICANN a couple months ago finally bit the bullet and ruled that Verisign did no wrong.

ICANN decided not to rule on whether Altanovo, then Afilias, broke the auction rules by communicating with NDC during a comms blackout period.

The specific allegations in the new IRP are not yet known. The IRP is only for complaints about ICANN’s actions or inaction breaking its own bylaws and other foundational documents.

Identity Digital is gobbling up Verisign’s back-end business

Verisign appears to be getting out of the new gTLD back-end registry services business, with Identity Digital taking over most of its dot-brand contracts.

Since 2018, over 80 gTLDs have moved from Verisign’s back-end to a competitor or have been removed from the DNS altogether. Over the same period, it hasn’t won any business from any of its rivals, according to data I’ve compiled.

Over the last few months about 30 new gTLDs have moved their technical back-end from Verisign to competitors, all but two to Identity Digital. Nominet and CIRA picked up a gTLD deal each.

Verisign tells me it’s not interested in providing new gTLD back-end services any more. A Verisign spokesperson said in an email:

In the case of the back-end services we provide to new gTLDs, we continually evaluate our business objectives and a few years ago, we decided that we would not be renewing our current new gTLD registry services customers and that we would help them transition before their contracts expired if they wished.

gTLDs moving home recently include .bosch, .crown, .chanel, .next, .nikon, .juniper and .fidelity.

Given the sheer number of gTLDs going to Identity Digital, it appears that there may be a side deal between the two registries to recommend migration to ID, but both companies declined to comment on that suggestion.

In 2012, Verisign had signed on to be the back-end for 220 new gTLDs, mostly dot-brands. Not all of those made it through the application process, but today my database has the company as RSP-of-record for fewer than 80 2012-round labels.

The company was said to be among the priciest option for dot-brands, trading on decades of .com uptime prestige, but the need for an RSP with 150 million domains under management is debatable when your gTLD is essentially just parked.

And for Verisign, the dot-brand business is not material to revenues and probably not especially profitable, at least when compared to the vast amounts of cash .com effortlessly generates.

In 2021, Verisign lost its deal to manage .tv to GoDaddy, after it declined to compete presumably due to the anticipated lower profit margins.

o.com auction likely a damp squib after Overstock rebrand

Verisign’s long-planned auction of the single-character domain o.com is looking even less likely, with its most motivated bidder completely rebranding its company.

Overstock.com, which had been lobbying for Verisign to release the domain since at least 2004, said this week it’s bought the intellectual property assets of bankrupt rival furniture retailer Bed Bath & Beyond for $21.5 million, and will rebrand accordingly.

That means it will drop Overstock.com the brand and overstock.com the domain, in favor of bedbathandbeyond.com in the US. The rebrand of its equivalent Canadian sites under .ca will come first.

The domain switch will presumably be less chaotic than the company’s attempt to rebrand as O.co in 2011, which caused huge confusion in .com-loving North America and was quickly reversed.

The change of course means that Overstock now has no motivation to bid on o.com, should Verisign ever actually get around to exercising its hard-won right to sell off the domain for charity.

All but a handful of single-character .com domains have been reserved for decades, but Verisign was given permission to sell o.com by ICANN in 2018 after years of pleading by Overstock founder Patrick Byrne.

Byrne quit Overstock not long after ICANN gave the nod due to his involvement with Russian spy-turned-politician Maria Butina and evidently took his obsession with o.com with him.

Disclosure: over a decade ago, I provided consulting services to a third party in support of the release of o.com.

ICANN actually CHANGES Verisign’s .net contract after public comments

ICANN has decided to make a change to the upcoming new version of Verisign’s .net registry agreement in response to public comments, but it’s not the change most commenters wanted.

In the near-unprecedented nod to the public comment process, the Org says it’s agreed with Verisign to change two instances of upper-case “S” in the term “Security and Stability” to lower case.

That’s it.

Some commenters had wrung their hands over the fact that the .net contract includes upper-case “Security and Stability” as defined terms, in contrast to the lower-case “security and stability” found in other gTLD contracts.

Based on a strict reading, this could in some circumstances give Verisign an excuse to avoid implementing ICANN Consensus Policies, commenters including the Business Constituency and Intellectual Property Constituency noted,

It appears that this was an oversight by ICANN and Verisign rather that some kind of nefarious plot. In its public comments analysis and summary (pdf), ICANN writes:

We acknowledge however that the capitalization of the “s” could in theory potentially lead to different interpretations of the applicability of certain future Consensus Policies under Section 3.1(b)(iv)(1) for the .NET RA.

Because in this instance it was not the intent of ICANN org nor Verisign to limit in this manner the applicability of Consensus Policy topics for which uniform or coordinated resolution is reasonably necessary to facilitate the interoperability, security and/or stability of the Internet or DNS, ICANN org and Verisign have mutually agreed to update Section 3.1(b)(iv)(1) of the .NET RA to the lower case “s.”

So there we have it: a rare instance of a public comment period accomplishing something and a confirmed victory for accountability and transparency!

Most of the comments had focused on Verisign’s ability to raise prices and a clause that some domainers thought would allow censorial government regimes to seize domains, but ICANN said that’s all fine.

Domain universe grew 1% in Q1

There was a 1% increase in domain names under management worldwide in the first quarter, compared to Q4 2022 and Q1 2022, according to Verisign’s latest Domain Name Industry Brief.

The period ended with 354 million names across all TLDs, according to the report, an increase of 3.5 million, the report says.

ccTLDs did most of the heavy lifting, up by 2.6 million names or 2% sequentially to 135.7 million at the end of the first quarter. The growth figures correct for an error in the Q4 report.

Verisign has its own .com recovering, having dipped last year, now up by 1.1 million names sequentially to 161.6 million. Sister TLD .net was flat on 13.2 million.

New gTLDs dipped by 200,000 names to 27.3 million, a 0.6% decrease quarter-over-quarter, but were up by 900,000 or 3.6% compared to a year earlier, the DNIB states.

Everyone hates Verisign’s new .net deal

The public has commented: Verisign’s .net registry contract should not be renewed in its currently proposed form.

ICANN’s public comment period for the renewal closed yesterday and attracted 57 submissions, most of which either complained about Verisign being allowed to raise its prices or expressed fears about domains being seized by governments.

The proposed contract retains the current pricing structure, in which Verisign is allowed to raise the price of a .net domain by 10% a year. They currently cost $9.92, meaning they could reach $17.57 by the time the contract ends.

The Internet Commerce Association, some of its supporters, Namecheap, the Registrars Stakeholder Group, the Cross-Community Working Party on ICANN and Human Rights (CCWP-HR), and TurnCommerce all oppose the price increases.

The RrSG said the price provisions “are without sufficient justification or an analysis of its potentially substantial impact on the DNS”.

These commenters and others who did not directly oppose the increases, including the At-Large Advisory Committee and consultant Michael Palage, called for ICANN to conduct an economic analysis of the domain name market.

The Business Constituency was the only commenter to openly support the increases, though its comment noted that it is opposed in principle to ICANN capping prices at all.

The Intellectual Property Constituency did not express a view on pricing, but called for greater transparency into the side-deal that sees ICANN get an extra $4 million a year for unspecified security-related work. ICANN has never revealed publicly how this money is spent.

In terms of the number of submissions, the biggest concern people seem to have is that the proposed contract contains language obliging Verisign to take down domains to comply with “applicable law, government rules or regulations, or pursuant to any legal order or subpoena of any government, administrative or governmental authority, or court of competent jurisdiction”.

This language is already in the .com contract, but before ICANN clarified this on April 26 several concerned registrants had made comments opposing its inclusion.

Notably, the founder of the controversial troll forum kiwifarms.net, which has been kicked out of registrars after being linked to suicides, submitted his own “ICANN should be destroyed” comment.

Several commenters also noted that the definition of “security and stability” in the .net contract differs to the Base Registry Agreement that almost all other registries have signed in such a way that it is feared that Verisign would not have to abide by future ICANN Consensus Policies under certain circumstances.

As several commenters note, the usual protocol following an ICANN public comment period is for ICANN to issue a summary report, pay lip service to having “considered” the input, and then make absolutely no changes at all.

This time, some commenters held out some hope that ICANN’s new, surprisingly sprightly and accommodating leadership may have a different approach.

The comments can be read here.

.web delay likely after Verisign rival files ICANN appeal

The .web gTLD appears unlikely to see the light of day any time soon, after the Afilias spin-off that came second to Verisign in the $135 million auction in 2016 kicked off another appeals process.

Altanovo, which is made up of bits of Afilias left over when Identity Digital acquired the company, has asked ICANN to enter a Cooperative Engagement Process, according to ICANN’s records.

The CEP is a form of mediation companies can force ICANN into when they have beef. It’s designed to avoid the relative expense of a full-on Independent Review Process. They usually result in an IRP anyway.

Altanovo made its request the same day ICANN announced that its board of directors had decided to take .web off hold and resume registry contract negotiations with Verisign, following Altanovo’s original, unsuccessful IRP.

Verisign yesterday said the move amounted to an “abuse of process” and “baseless procedural maneuvering”, likely to lead to “delay for delay’s sake”.

IRPs typically last years and cost many hundreds of thousands of dollars in panel fees, not counting each party’s lawyer fees.

Altanovo believes that Verisign broke ICANN’s new gTLD program rules when it bid for .web via a secret intermediary. Verisign has countered that its rival, then Afilias, broke the rules by trying to negotiate a private deal during the auction’s “black out” period.

Verisign “pleased” at ICANN’s .web call

Verisign said it is “pleased” that ICANN has decided it should be awarded the .web gTLD, but hinted that it might not launch this year.

“We now look forward to NDC’s execution of the .web Registry Agreement and submission to ICANN of the request for assignment of the .web Registry Agreement to Verisign,” the company said in a statement this afternoon.

It follows the news this morning that ICANN’s board of directors decided that the company did not break any rules when it won the auction for .web via a secret intermediary company, Nu Dot Co.

Verisign reiterated that its current financial guidance for the year does not include any impact from .web.