FMA Paper on the .PH Domain Administration

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The study on the .PH Domain administration prepared by FMA (Foundation of Media Alternatives)

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FMA Paper on the .PH Domain Administration

  1. 1. Final STUDY PAPER ON THE ADMINISTRATION OF THE .PH ccTLD FOUNDATION FOR MEDIA ALTERNATIVES I. Introduction The Domain Name System ("DNS") is a hierarchical identification scheme designed toensure that each Internet address is globally unique and corresponds to a distinct numeric value.The system resolves a domain name into a unique IP address, which points to a single locationon the Internet.1 The DNS is a single-rooted hierarchy of Internet domain names, theclassification of which is based on rules that have evolved over time. A top-level domain, orTLD, is either a country code top-level domain (“ccTLD”), such as “.ph” for the Philippines, orone of the generic (global) top-level domains (“gTLD”), such as “.com”.2 The Internet Assigned Numbers Authority (“IANA”), headed by Dr. Jon Postel,implemented the DNS sometime in 1985. IANA was then responsible for the overallcoordination and management of the DNS, including the delegation of top-level domains andccTLDs.3 ccTLDs were established by the IANA to facilitate and promote the spread of theInternet globally.4 Each ccTLD is identified using a two-character International Organization forStandardization (ISO) identifier. That identifier is drawn from the ISO 3166-1 list, managed bythe ISO 3166 Maintenance Agency and envisaged as politically neutral.5 ccTLDs are delegated to designated managers, who operate the ccTLDs according tolocal policies that are adapted to best meet the economic, cultural and linguistic circumstances ofthe country or territory involved. Starting in 1985, ccTLD managers received delegations to1 Fisher, William; Kornfeld, Dori; and Oliar, Dotan. “Domain Names,” from Materials for the Internet LawProgram 2003.2 Report of the NEDA Study Group.3 Postel, Jon. RFC 1591, March 1994.4 ICANN Montevideo Meeting Topic: Update on ccTLD Agreements,http://www.icann.org/montevideo/cctld-update-topic.htm5 Caslon Analytics profile: domain and the DNS http://www.caslon.com.au/domainsprofile2.htm.
  2. 2. FMA - .PH cc TLD Policy Study Paper 2administer ccTLDs from IANA, or from Dr. Jon Postel as IANAs chief, based on informalcriteria. Generally, but not invariably, these managers were recognized as being an Internetauthority within the territory described by the ccTLD code, either because of technical expertise,renown in the global Internet community, or because of standing within Internet community inthe relevant territory. While ccTLDs were first established as simple identifiers, rather than assovereign property of individual states, the thinking has changed, given the position adopted bygovernments that ccTLDs should be exploited as a “strategic resource.”6 The administration of ccTLDs gains significance within the context of governance as itaffects the viability of web sites and email addresses. Administration of the domain registryinvolves maintaining vital links to the Internet, which permit identification of websites as well asdirecting email and other data to and from the proper addresses or computers on the Internet. In the Philippines, PH Domain Foundation, Inc., presently administers the .PH ccTLDunder the control of Mr. Jose Emmanuel Disini, pursuant to an informal arrangement with Dr.Postel. Soon after the establishment of an actual Philippine link to the Internet, efforts wereexerted to transfer the administration of the .PH ccTLD from Mr. Disini to a multi-stakeholderbody largely through negotiations refereed by Dr. Postel, subsequently leading to the delegationof the administration of the sub-domains .edu.ph and .gov.ph to PHnet and to the Department ofScience and Technology (“DOST”), respectively. By 2004, Guidelines in the Administration ofthe .ph Domain Name (the “Guidelines”) were promulgated by the Commission on Informationand Communications Technology. This Study delves into the administration of the .PH ccTLD from 1989, when Mr. Disiniwas informally delegated as manager, up to the issuance of the Guidelines in 2004, and raisesissues for consideration in the determination of the next steps in administration of the .PHccTLD, principally related to: (a) creation of the entity which may perform the functions ofregistry and (b) strategies in relation to redelegation. II. Principles Related to the Delegation and Administration of ccTLDsA. RFC 1591 and ICP-1Traditionally, the implementation of policies governing the Internet has been informal. However,as the use of the Internet spread throughout countries and its role as a major avenue forcommunication and commerce became increasingly clear, the need for a formal set of policieswas underscored. As a result, Dr. Postel published RFC 1591 in March 1994, discussing theDNS structure and guidelines for delegation. RFC 1591 laid out the criteria for the delegation ofa ccTLD to a manager, and on this basis, all further ccTLDs were delegated to their respectivemanagers. The issuance indicates the two basic principles of the delegation of any ccTLD fromIANA to its manager as: (i) the stability of the technical functioning of the delegated zone, and(ii) service to the Internet community, both local and global.6 Caslon Analytics profile: domain and DNS.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 2 of 43
  3. 3. FMA - .PH cc TLD Policy Study Paper 3 In the fall of 1998, the Internet Corporation for Assigned Names and Numbers("ICANN") was incorporated as a private sector, non-profit corporation to assume responsibilityfor the technical coordination of the DNS, including IANA’s functions. In February 2000,ICANN entered into a contract with the Government of the United States for the operation byICANN of IANA.7 In May 1999, ICANN and IANA jointly issued a document entitled "InternetDomain Name System Structure and Delegation (ccTLD Administration and Delegation)" or"ICP-1." The release of ICP-1 was due, in part, to the need to harmonize the principles with thepractice of IANA. ICP-1 summarized the policies observed by the IANA in connection withccTLDs. Most of these were reiterations of the principles in RFC 1591. Since that time, RFC1591 as elaborated by ICP-1, taken together, have been the governing documents from whichccTLD managers have, at least officially, taken their instructions. The relevant portions of ICP-18 may be summarized as follows: • TLD managers are trustees for the delegated domain, and have a duty to serve the community. ccTLD managers are performing a public service on behalf of the Internet community. Concerns about "rights" and "ownership" of domains are inappropriate. It is appropriate, however, to be concerned about "responsibilities" and "service" to the community. The TLD manager must also extend fair treatment to all groups in the domain that request domain names, and should demonstrate operational capability in the administration of the DNS service. • The desires of the government of a country with regard to delegation of a ccTLD will be taken very seriously. IANA and/or ICANN will make them a major consideration in any TLD delegation or transfer discussions. • Significantly interested parties in the domain should agree that the proposed TLD manager is the appropriate party. • In cases where there is misconduct or violation of the policies set forth in RFC 1591 or ICP-1, IANA may revoke and re-delegate a TLD to another manager. Since RFC 1591s recognition of the important role that governments play in theadministration of ccTLDs, ICANN has espoused the principle that the DNS is a public resourceto be administered in the public interest. As such, governments or public authorities maintainultimate policy authority over their respective ccTLDs and should ensure that they are operatedin conformity with domestic public policy objectives, laws and regulations, and international lawand applicable international conventions.9B. Trends7 Ibid.8 Jon Postel, ICANN : “ICP-1 - Internet Domain Name System Structure and Delegation (ccTLDAdministration and Delegation)”, May 1999 <http://www.icann.org/icp/icp-1.htm>9 ICANN Principles for Delegation and Administration of ccTLDs Presented by Governmental AdvisoryCommittee, http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 3 of 43
  4. 4. FMA - .PH cc TLD Policy Study Paper 4 Notwithstanding the basic policy infrastructure under RFC 1591 and ICP-1, ccTLDgovernance has not been without its peculiar challenges. These are attributable, for the most part,to the early practice observed by Dr. Postel who delegated the ccTLD administration toindividuals without formal documentation relating to the delegation. This situation remainedunchanged for a time. While some delegees managed to become vital Internet institutions,enjoying the support of the local Internet community, in other instances, the mismanagement of accTLD led to the replacement of a ccTLD manager by way of an ICANN/IANA process knownas redelegation. In a document entitled “ccTLD Constituencys Best Practice Guidelines”10, the successfulperformance of a ccTLD manager depends on its approval and acceptance by the local andglobal Internet communities, as well as the competent fulfillment of the technical operations ofthe ccTLD.11 While there is no single model for ccTLD administration,12 ICANN however, istrying to shift ccTLD delegations from individuals, who were designated informally asadministrative and technical contacts, to organizations operating under a framework ofaccountability. This, the ICANN believes, is a positive step toward the stable and professionaloperation of ccTLDs in the public interest. This framework of accountability is necessary topromote the global interoperability of the DNS and to ensure that the interests of local Internetcommunities are well served. Due to its growing impact, governments have likewise taken aninterest in the Internet, particularly where matters of public policy are concerned. Starting in the year 2000, ICANN encouraged ccTLD Administrators to document theirrelationship with ICANN with respect to the delegation. In this regard, it developed two models:(a) a triangular or trilateral set-up, evidenced by a Sponsorship Agreement between ICANN andthe ccTLD Administrator wherein the parties agree that the government will assumeresponsibility for overseeing the interest of the country concerned and its Internet community inthe management and administration of the pertinent ccTLD; and (b) a bilateral set-up, evidencedby a Memorandum of Understanding between ICANN and the ccTLD Administrator To this end, ICANN has entered into Sponsorship Agreements with the ccTLDAdministrators of Australia, Kenya, Japan, Sudan, Taiwan and Uzbekistan. It also has existingMemoranda of Agreement with the ccTLD Administrators of Palestine, Nigeria, Afghanistan,Burundi, Lao People’s Democratic Republic and Malawi. This means that, to date, not allccTLD Administrators have a formal contract with ICANN, though the process is on-going.10 Best Practices and Redelegation Working Group of the ccTLD Constituency of the DNSO : BestPractice Guidelines for ccTLD Managers, June 200011 There is some indication that the statements made under this document have not been spared fromcriticism, including assertions that this was an attempt at the bureaucratization of the Net, similar todevelopments in 1850s with postal networks, 1870s with telegraphic networks, 1950s with radio andtelevision broadcasting (Caslon Analytics).12 Instead, across the globe, as will be further discussed in this paper, ccTLD registry has been theresponsibility of – a. Individuals; b. Academic institutions; c. Government agencies; d. Specialist NGOs; e. Commercial entities (some of which do not have a close association with the particular nation or territory and, as in the case of Gambia, may involve a single person).FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 4 of 43
  5. 5. FMA - .PH cc TLD Policy Study Paper 5C. Structure of ccTLDs as an Industry While there is as yet no definitive study on the structure of the ccTLD industry in thePhilippines, the Report of the NEDA Study Group rendered in 200213 indicates that DotPH,Inc.14 and its related companies can be found in all levels of activity in the ccTLD industry. Toprovide sufficient context and aid in the understanding of the importance of structuring theadministration of the .PH ccTLD, the authors feel it necessary to discuss briefly the structure ofthe ccTLD as an industry. What is essentially characterized as regulation of the domain name industry involves twoprimary actors – the relevant government agency and private entities. Caslon Analytics indicatesthat governments across the globe generally do not yet have departments or agencies dedicated tothe task of regulating the domain name industry. An observable lack in ccTLD specificlegislation has also been noted in various jurisdictions. It is relevant, under this Study, to notefurther that – On a day-to-day basis most government regulatory involvement with the industry involves trade practices concerns, primarily at the retail level. There has been little attention to industry concentration …15 Part of the industry structure is registry operation. Per an IANA document dated 1 April2002 on the Technical Specifications and Policies of ccTLD Operations, assuming registry orccTLD administration and management requires technical undertakings, amongst which areconnectivity, operational capability, RFC compliance, and tagged domain names. In brief,registry operations involve maintenance of databases. The retail sector of the industry is understood as being comprised of registrars andresellers. Certain jurisdictions recognize agents. Registrars register domain names in behalf ofdomain name holders. In certain jurisdictions, registrars may be ISPs. Retail prices charged byregistrars may be affected by the registry’s wholesale price. According to Caslon Analytics, the resale sector is constituted by entities that deal inpreviously registered domain names, and …[t]here are no generally accepted figures on the number of participants in the retail sector or its dimensions. Major registrars are often public companies whose disclosures provide statistics about transactions and revenue. However, the nature of their relationship with13 NEDA : Memorandum re: Study Group’s Findings on the .PH Controversy, 14 January 200214 In order to avoid any confusion that may arise due to the multiplicity of company names and the variousDisini companies (as noted in the NEDA report, above), then, unless otherwise specifically indicated, inthis paper “DotPH” shall be used as a generic term for these Disini companies, including PH DomainFoundation and DotPH Domains.15 http://www.caslon.com.au/domainsprofile7.htm.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 5 of 43
  6. 6. FMA - .PH cc TLD Policy Study Paper 6 agents…means that comprehensive figures on registrations through agents aren’t available….16D. Principles behind Redelegation Earlier it had been mentioned that in many instances, informal delegations have had togive way to redelegation. This is a scenario that may be relevant to the .PH ccTLDadministration, necessitating a brief discussion of the principles behind redelegation. Since the issuance of ICP-1, several redelegations have been effected by IANA and/orICANN. It is worthy of note, however, that rarely are two redelegation situations exactly thesame. Some requests for redelegation are highly contested, while others are negotiated. Thus,while there are basic procedures to follow in the redelegation of ccTLD managers, the progressand urgency of each case may vary. Ideally, the IANA prefers a negotiated request for redelegation, whereby the interests ofthe local Internet community, the government or public authority involved, and the ccTLDmanager are adequately represented. It tries to have any contending parties reach agreementamongst themselves, and generally takes no action to change things unless all the contendingparties agree. Originally, only in cases where the designated manager has substantiallymisbehaved would IANA step in.17 In February 2000, ICANN formulated the Principles for Delegation and Administrationof ccTLDs, presented by Governmental Advisory Committee18, which discussed the basicprinciples behind delegations, summarized below as follows: • In cases where there is an agreement between the government and the manager, and the manager contravenes the terms and conditions of such agreement or the term of such agreement expires, the government has the right to notify ICANN of such occurrence, and ICANN shall act with promptness to reassign the delegation in coordination with the government. • In the absence of an agreement between the government and the manager, ICANN may reassign the delegation upon the request of the government and presentation of evidence that the administrator does not have the support of the relevant local community and government, or if the manager breached and failed to remedy other material provisions of RFC 1591. • If ICANN notifies the relevant government that the ccTLD is being operated in a manner that threatens the stability of the DNS or the Internet, or has otherwise breached and failed to remedy other material provisions of the communication16 Ibid.17 Postel, Jon. RFC 1591, March 1994.18 ICANN-GAC: Principles for Delegation and Administration of ccTLDshttp://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 6 of 43
  7. 7. FMA - .PH cc TLD Policy Study Paper 7 between ICANN and the manager, the government should cooperate with ICANN to remedy the situation or effect the reassignment of the delegation for the ccTLD. • With respect to future delegations or reassignment of delegations, ICANN should delegate the administration of a ccTLD only to an organization, enterprise or individual that has been designated by the government. • The manager should enjoy the appropriate rights under applicable law and should not be subject to discriminatory or arbitrary practices, policies or procedures from ICANN or the government. III. The Philippine ScenarioA. Background In the Philippines, the ccTLD .PH domain is currently administered by PhilippineDomain Foundation, Inc. Sources indicate that in 1989, Dr. Jon Postel had informally assignedthe .PH domain in care of Mr. Jose Emmanuel Disini, who continued to administer the same, assole registrar of commercial .PH domain names, through his company, DotPH, Inc.19 From 1990 to 1994, it appears that Mr. Disini issued .PH domains only to customers ofhis own Internet service provider, the E-Mail Company (“EMC”), since there was no realconnection to the Internet at the time. During this period, the administration of the .PH domainname was run informally, not as a fully formed company or foundation. According to the WhitePaper submitted by the Philippine Domain Administration Convenors (“PhilDAC”), “[c]hecksfor the PH domain registrations were made payable directly to Mr. Disini, and no officialreceipts were issued for these services. Domain fees ranged from PhP450.00 to PhP1,350.00 perdomain and were originally intended to be one-time charges, with no annual renewal fees.”20 PhilDAC spearheaded the move for reforms in the administration of the .PH domain.PhilDAC stressed the importance of the .PH domain as the only globally recognized countrycode domain assigned to the Philippines, for the latter’s identification and promotion of itsculture, products and services. Moreover, in other countries, the local Internet community has asignificant say in managing their country ccTLDs, for the following reasons: • ccTLDs affect the national image and interest; • proper representation is equitable and fair, and is the growing trend worldwide; • proper representation guards against conflicts of interest and unfair competition. PhilDAC espoused the separation of the registry, or the list of people, companies andInternet addresses—from the registrar, or the entity that sells the domain names. It also proposed19 PhilDAC, “The PH Domain and the Need for Policy Reforms.”20 Ibid.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 7 of 43
  8. 8. FMA - .PH cc TLD Policy Study Paper 8that the registry should be administered by an independent organization that is representative ofthe Philippine Internet community, while registrars are permitted to compete freely to improvepricing and service.21 In 1994, however, when the first live link to the Internet was established in thePhilippines through the PHnet Foundation under the helm of Dr. Rodolfo Villarica, PHnetnegotiated with Mr. Disini for the foundation to assume responsibility for operating the .PHdomain registry. With the assistance and approval of Dr. Postel as well as Mr. Steve Goldstein,the parties then negotiated an agreement transferring “.edu.ph”, “.gov.ph” and “.org.ph” to thenon-profit PHnet Foundation, while Disini would retain the commercial “.com.ph” sub-domain.Subsequently, only a partial transfer of sub-domains was effected, with management of “.edu.ph”and “.gov.ph” being turned-over to PHnet. PHnet subsequently voluntarily transferredadministration of “.gov.ph” to the Department of Science and Technology (“DOST”). Dr. Postelpassed-away before this agreement could be fully implemented.22 In 1999, Mr. Disini established the PH Domain Foundation, Inc.23 as the new bodycharged with selling .PH domains to the public. Domain registration fees were raised toUS$50.00 for two years with annual renewal fee of US$25.00. The lifetime domain policy wasunilaterally removed. In 2000, DotPH, Inc.24 was established as the entity to deal with consumers and resellers.Registration fees were once again unilaterally raised, to US$70.00 for two years, with an annualrenewal fee of US$35.00. Subsequently, Mr. Disini also set up a company called DotPhone,Inc.25 Writing in March 2001, Mr. Jim Ayson summarized what were then the emerging issuesregarding the administration of the .PH ccTLD, which he was able to collate as moderator of anInternet community mailing list. The initial issues had to do with (a) series of recruitment lettersfrom the DotPH staff and (b) “repeated waves of unsolicited email from EMC marketingaddressed to Filipino eGroups using a 3rd party mailing service.” He also noted an “overallfeeling … that PH domains would have been attractive from a nationalistic point of view, butmost people found gneric “.coms” cheaper. Even then, he already observed that one list membermentioned the term “redelegation” in relation to comments regarding DotPH.26 At around the21 C. Wong, “Settling the Domain Debate” in Digital Life, 29 July 2003,http://www.info.com.ph/~chinwong/settlingthedomain.html.22 Interview with Dr. Rodolfo M. Villarica.23 Ibid.24 Ibid.25 Ibid. Note that PhilDAC White Paper indicates that DotPhone is not a Philippine-registered company.26 “DotPH - Dousing the flames, http://lists.q-linux.com/pipermail/ph-isp/2001-March/000672.html. Mr.Ayson shared his personal views at the time, as follows: b) The perception of the market is that DotPh domains at $35/month are expensively priced, which leads most users to prefer obtaining dotcoms. I would prefer more attractive pricing to promote use of the .PH domain. c) The commercial exploitation of .PH as domain for phones should have been done with consultation with the Net community and/or the Philippine government, since the TLD involved represents the Republic of the Philippines. d) The special access to domains afforded by the ccTLD to the E-Mail Company (EMC) and DotPhone Inc is an unfair advantage for these Disini companies.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 8 of 43
  9. 9. FMA - .PH cc TLD Policy Study Paper 9same time, news of DotPH launching commercial exploitation of .PH ccTLD as a domain forphones spread. As the local Internet community had not been consulted about this launch,concerns were raised about the possible alienation of the .PH domain to a foreign entity.27 In 2001, the issues were brought before the Department of Trade and Industry (“DTI”),through the Information Technology and E-Commerce Council (“ITECC”) Consumer ProtectionSubcommittee then headed by DTI Assistant Secretary Toby Melissa Monsod. A series ofmediation meetings were held between Mr. Joel Disini and PhilDAC. Subsequently, DTIrequested PhilDAC to gather complaints against DotPH and file the same before the Bureau ofTrade Relations and Consumer Protection (BTRCP) of the DTI. According to PhilDAC,negotiations with Mr. Disini fell apart following his declaration that he had no intention oftransferring management of the domain name registry to a more representative body. In a letter dated 27 November 2002, DTI-NCR informed the Corporate CommunicationsManager of DotPH, Inc. that four out of five cases filed against DotPH, Inc. were dismissed.Complainants, including Ayson point-out that some of the complaints were dismissed becausethe BTRCP did not consider them consumer issues, but rather one of policy and governance, andthus not within the ambit of the BTRCP. Only one case seems to have been dismissed “withmerit” as, during the course of the hearings, DotPH stopped its campaign to market .PH as.PHone. This highlights what strides can be achieved given community participation and unity.Minutes for that particular case provide in part: Admin case #02-73 FEBC Philippines represented by Mr. Jaime I. Reyes (counsel by the same) vs. DotPH Inc. represented by Mr. Emil Avanceña (counsel by Atty. Excelsis V. Antolin) e) It is time for the Philippine government to be made aware of the ccTLD administration and to exercise some say in the way the PH domain is applied. Furthermore, the DNS issues needs to be considered in the evolving Philippine IT policy…. f) After 12 years of the ccTLD administration by the current party, it is time for a performance review, given that complaints are reported now and then. If there are deficiencies reported these should be made clear to the existing ccTLD so they can be addressed and corrected. The review in my opinion should be conducted by the Philippine government in consultation with members of the Net community, g) If the ccTLD performance review has been deemed extremely unsatisfactory, then the process of redelegation as defined by ICANN can be taken – but only as a last resort. h) In the event that redelegation is successful, the ccTLD administration should be handled by a non-profit foundation guided by a board of advisors with proper representatives from various sectors….27 Archives of the email list ph-cyberview@yahoogroups.comFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 9 of 43
  10. 10. FMA - .PH cc TLD Policy Study Paper 10 Hearing officer: Atty. F.O. Sayas Actions taken: ================ Verbatim: Complainant has formally withdrawn complaint against DotPH on the ground that the marketing strategies they were complaining before (dotphone domain) and the evidences as such are not there anymore so there is nothing to complain about. Jim Aysons complaint was referred elsewhere since "policy issues were not within thejurisdiction of the mediation meetings." The complaints should then have been referred to theDTIs Office of Special Concerns, but before that could happen the entire .PH issue wastransferred back to ITECC. Indeed, as many of the issues were considered policy concerns ratherthan trade and consumer issues; hence, these were then subsequently referred by ITECC to theNational Economic Development Authority (“NEDA”). These issues were specifically referred to a task force headed by the National EconomicDevelopment Authority, which, in January 2002, submitted a Memorandum to the President ofthe Republic of the Philippines (“Memorandum”)28. This Memorandum provides in pertinentparts as follows: The Philippine Case 6. DotPH, Inc. and its related companies can be found in all levels of activity. At present, DotPH, Inc. claims to have 150 registrars here and abroad that offer .ph sub-domain names to the consumer. DotPH, Inc. is also saying that the proposed phone features of the .ph domain is a technology that will link cellular phones with the Internet in an affordable, easy-to-use package. 7. In examining the alleged ‘dilution’ issue, the Study Group had found out that the 150 partners of DotPH, Inc. are more resellers than registrars in that while the system is automated, direct access to the registry can only be done through an access (a shared registry system) designed by DotPH, Inc. It had also established that the more relevant issue is the lack of transparency and consultation in policy changes and management of the .ph domain, thus, a governance issue. While the company sometimes attempts to engage in consultations via e-groups, there is an obvious break in trust between the DotPH registry and the local Internet community.28 NEDA: Memorandum re: Study Group’s Findings on the .PH Controversy, 14 January 2002FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 10 of 43
  11. 11. FMA - .PH cc TLD Policy Study Paper 11 Options Available to the Philippine Internet Community 8. The ccTLD administration being in the nature of a public trust, the government has responsibility to ensure that this public trust is safeguarded. In this case, therefore, there is a rationale for the government to determine or facilitate the selection of a solution from among the following options: Option 1: status quo – In this situation, policies for the registry and mechanisms for accountability and transparency are left to the discretion of DotPH, Inc. Option 2: status quo + internal policy board – DotPH, Inc. will formalize an internal policy board for purposes of policy making for the registry, with an ex-officio seat for a government appointee. Option 3: status quo + external policy board – DotPH, Inc. voluntarily submits policy-making of the registry to an external policy board with open or restricted membership. Option 4: request for redelegation of the ccTLD to a non-profit organization – There are two possible permutations to this option: Option 4A where the non-profit organization both policy authority and registry, and Option 4B where there is a not-for-profit policy authority and separate registry/ies. Next Steps 9. Options 1, 2, and 3 possible in the immediate term while Option 4 will need redelegation by IANA, now subsumed under the Internet Corporation for Assigned Names and Numbers (ICANN). If Option 3 is selected, the DTI, by its legal mandate, will be tasked to come up with an implementing mechanism, preferably through public consultations. If Option 4, a wider public consultation should be undertaken to determine whether Option 4A or 4B would be selected. A formal request should then be transmitted to ICANN immediately. 10. The Study Group is also recommending that the government confirm/formalize its official representative to the ICANN- GAC, inform ICANN, through a letter addressed to its President, about the position of the government on the .ph ccTLD management issue and the steps the latter has taken and are underway to resolve the matter.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 11 of 43
  12. 12. FMA - .PH cc TLD Policy Study Paper 12 The draft version of the attached report was presented in the 12th ITECC Meeting on 08 October 2001. The agreements during meeting were the following: (a) the implementation of Option 3 in the short-term an Option 4 in the long-term will be explored; and (b) the DTI will discuss with DotPH, Inc. the ITECC decision on the matter.B. The NTC/CICT Advisory Board On 2 September 2003, oversight function over domain name registration and internet-related concerns were delegated to the National Telecommunications Commission (“NTC”).29 AMemorandum from the Executive Secretary to the Commissioner of the NTC states: Pursuant to the 15th Meeting of the Information Technology and E- Commerce Council (ITECC)30 held on 25 June 2003, it was agreed that the oversight function over the domain name registration and internet-related concerns31 shall be delegated to the National Telecommunications Commission (NTC). In view thereof, the NTC is hereby directed to draft the guidelines in the performance of its oversight function and conduct public consultations necessary thereto. An advisory board shall also be created to assist the NTC in the performance of this oversight function. The Board shall be composed of the NTC, ITECC Legal and Regulatory Committee private sector Co-Chair and representatives from the DOST-ASTI, the private sector and the academe. As an initial step, the NTC called for position papers from the members of the localInternet community. Those that submitted position papers included the Philippine InternetCommerce Society (“PICS”) and the Philippine Internet Service Providers Organization(“PISO”). The Philippine Computer Society (“PCS”) submitted an endorsement of the PICSposition paper. PhilDAC also reiterated the position it had taken under its White Paper. PICSreleased its position paper in October 2003, in which it referred to the Report of the NEDA StudyGroup, highlighting the four options. PICS stressed the importance of creating the properindustry structure by pointing out the necessity of unbundling the offerings of the currentadministrator and segregating the registry and registrar functions. The group’s position paperincluded a discussion of policy recommendations towards ccTLD governance reform in thePhilippines, emphasizing the nature of .PH as a public resource and calling for transparency inadministration, active community participation, and creation of competitive and fair business29 Alberto Romulo, Executive Secretary, Office of the Presdient: Executive Memorandum to NTC:Delegating Oversight Function Over Domain Name Registration and Internet-related Concerns to theNational Telecommunications Commission, 2 September 200330 Creation of ITECC and subsequent dissolution, following creation of the Commission on Informationand Communications Technology.31 Refer also to: World Summit of the Information Society, “Tunis – Agenda for the Information Society”Sec. 58 http://www.itu.int/wsis/index.htm ; Also: United Nations “Report of the Working Group on InternetGovernance”, Para. 12, Château de Bossey, June 2005 http://www.wgig.org/WGIG-Report.htmlFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 12 of 43
  13. 13. FMA - .PH cc TLD Policy Study Paper 13environment. Disini and DotPH were also invited to submit its own position paper. We have seenno indication that, up to this point in time, Mr. Joel Disini or DotPH submitted a paper. Pursuant to the Memorandum of the Executive Secretary, an Advisory Board to the NTCwas formed including as members, representative/s from the NTC, the ITECC Legal andRegulatory Committee private sector Co-Chair, representatives from DOST-ASTI, the academe,PhilDAC, PISO, PCS, PETEF and PICS, with representatives acting in principal and observercapacity. DotPH was invited to nominate a representative to the NTC-AB. However, save for onemeeting where Mr. Emil Avanceña of DotPH was present, DotPH did not participate. Accordingto Eric Tiongson, member of the NTC-AB, the Advisory Board discussed and consulted withindustry experts and community representatives regarding the .ph administration guidelines,which were drafted on 28 June 2004.32 After a series of meetings and discussions, drafts of theproposed guidelines were disclosed to the public for comment and two public hearings wereheld. DotPH did not send an official representative to the two public hearings. Despite DotPH’s refusal to participate in the proceedings of the NTC-AB, it made itsviews public on its website. First, DotPH, on 14 November 2003, criticized the manner ofselecting nominees to the NTC-AB. DotPH was of the view that the Advisory Boardmembership should have accommodated representation by PH nameholders who were customersof DotPH’s services, as well as DotPH registrar/resellers. DotPH further insisted that “extremist”groups, such as PhilDAC, should have been excluded, as Disini felt that discussions withPhilDAC had been “acrimonious and unproductive in the past.” Second, in its comments to the draft Guidelines, posted 5 February 2004, DotPH statedthat it shared common goals with the government, including reliable and robust domain nameservice. However, DotPH indicated that the “effects of the regulations on the PH domain must becarefully studied … and specific problems must be identified and solutions found via acollaborative effort of both parties …” Third, as regards the public hearings conducted on the Guidelines, DotPH confirmed itsrefusal to attend the public hearings. DotPH indicated that the “government has not responded toinputs given by DotPH.” Fourth, on 30 March 2004, DotPH provided additional comments on the Guidelines,which may be summarized as follows: 1) The Guidelines create more problems than they solve. NTC can provide effective oversight by monitoring service levels and ensuring robust and efficient Domain Name Service is provided. 2) The Government does not have sovereign rights over the PH domain. Asserting such rights violates the principle by which Top Level Domains are operated.32 Interview with Eric Jose P. Tiongson, member, NTC Advisory BoardFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 13 of 43
  14. 14. FMA - .PH cc TLD Policy Study Paper 14 3) The Guidelines violate the Constitution by arbitrarily compelling the Administrator to give up his Registrar business. Shutting down the DotPH Registrar will be detrimental to consumers and PH registrants. 4) The Guidelines are discriminatory since they specifically target DotPH and yet leave the competition free to operate as they wish. 5) There is potential for collusion between the NTC and those who resell competing domains. On 30 April 2004, DotPH formally submitted to the NTC its Opposition to the Guidelinesreiterating its views and arguments as summarized above. In the same month, a comprehensive monograph rebutting Mr. Disini’s and DotPH’scomments was made by Horatio Cadiz of PHnet33, salient portions of which may be quoted andsummarized as follows: 1) “Contrary to DotPH’s assertions, the Guidelines are indeed focused on problems which need solutions …”34, viz. accountability, transparency and a level and competitive environment. 2) Disini cites the provisions of RFC 1591 that state “… concerns about rights and ownership are inappropriate …” in order to deny that the government has sovereign rights over the domain. However, this same citation also indicates that there are no private (proprietary) rights attached to the same. Since the .PH domain is not a private resource or property, then “… it logically follows that the government should be involved in its policy formulation as the ultimate representative of the community …”.35 To further support the role of government, Cadiz quotes IANA ccTLD News Memo #1 which states, in part: “An additional factor has become very important since RFC 1591 was written … The IANA takes the desires of the government of the country very seriously, and will take them as a major consideration in any transition discussion regarding the ccTLDs.” 3) Any claim that government is compelling the surrender of a (domain registration) business, likewise contradicts RFC 1591 which Disini himself refers to as “… universally recognized as the basis for which all Top Level Domains are delegated …”. Further, ICANN’s GAC clearly states that: “No private intellectual nor property rights should inhere in the ccTLD itself, nor accrue to the delegee as the result of33 Horacio T. Cadiz, On the DotPH Comments to the NTC Proposed Guidellines on the Administration ofthe Philippine Country Code Top Level Domain, 16 April 200434 ibid. p.535 ibid. p.4FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 14 of 43
  15. 15. FMA - .PH cc TLD Policy Study Paper 15 delegation or to any entity as a result of the management, administration or marketing of the ccTLD.”36 4) There is no competition to discriminate against as “… DotPH is [unlike] the COM and NET Registries. DotPH is the only Registry for the Philippine ccTLD. The COM and NET Registries are registries for different domains …”,37 thus the discrimination argument fails. 5) Cadiz also refutes Disini’s comments on collusion with NTC, as the NTC Advisory Board is composed of members drawn from a broad spectrum of the IT Industry. Further, the draft Guidelines have been circulated widely and public hearings have been held. “The process had not been held in secret.”38 Attempts were made in 2006 by FMA and the researchers to solicit direct input fromDotPH and its representatives. However, despite initial communications between FMA’sExecutive Director and a representative of DotPH, no substantive response has been received.Thus the views of DotPH have instead been quoted from publicly available sources.C. Salient Features of the NTC/CICT Guidelines In August 2004, the Commission on Information and Communications Technology(“CICT”) issued Memorandum Circular No. 1 (series of 2004), the Guidelines in theAdministration of the .PH Domain Name.39 Consistent with the framework of accountabilitythat is now being espoused by the ICANN/IANA, the CICT Guidelines provides that: (a) the .PH domain is a public resource administered in trust for, and in the interest of the Internet community and the Philippines; (b) the .PH Administrator, as trustee, is accountable to the internet community; (c) the Philippine government has public-policy authority over the .PH domain name to ensure a legal and policy environment for .PH domain name registration that fosters effective and fair conditions of competition; (d) the administration and management of the .PH domain name must comply with the public policy objectives of the Philippine Government, guided by the Principles and Best Practice Guidelines of ICANN, GAC, WIPO, ITU and other recognized international bodies and by effective and meaningful communication and consultation primarily with the internet community, while mindful of the interests of the global community; and (e) the local Internet community must be assured of an efficient, stable, equitable and transparent administration of the .PH domain.36 ICANN Principles for Delegation and Administration of ccTLDs Presented by Governmental AdvisoryCommittee, http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm37 Horacio T. Cadiz, On the DotPH Comments to the NTC Proposed Guidellines on the Administration ofthe Philippine Country Code Top Level Domain, 16 April 2004, p.1038 Ibid. p.1739 CICT: Memorandum Circular No. 1 – Guidelines in the Administration of the .PH Domain NameFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 15 of 43
  16. 16. FMA - .PH cc TLD Policy Study Paper 16 The CICT Guidelines further gives the government, through the CICT or the NTC, thefollowing powers, among others: (a) To designate the delegee for the .PH ccTLD. No delegation from ICANN/IANA shall be deemed valid in the Philippines, unless the delegee has been previously designated by the CICT40; (b) To exercise oversight function over .PH domain name concerns41; (c) To require annual reports on the implementation of the CICT Guidelines42; (d) To conduct periodic evaluations of the performance of the Administrator in terms of its compliance with the CICT Guidelines and the extent to which it satisfies the needs of the local and global internet community43; Designate a new manager in the event of redelegation44; (e) Access to all zones on a continuing basis to check the domain’s operational status and database accuracy45; (f) To formulate guidelines for redelegation and replacement procedures.46 (g) To commence redelegation proceedings for contravention by the Administrator of the Memorandum of Agreement47. (h) To formulate guidelines for service requirements48; (i) To require bi-annual reports on network design, backup and disaster recovery strategy and recovery commitments, physical and network-based strategies, and related documents49; (j) Formulate guidelines for an alternative dispute resolution system50; (k) Authority to approve the relocation of the primary servers to places outside the Philippines51; (l) Approval of the escrow agent or mirror site52; and (m) A right to be kept informed of any changes to the information concerning the domain that is maintained in the ICANN’s root registry database.53 Upon the effectivity of the Guidelines and pursuant to its Interim Provisions, the CICTinformed Mr. Disini of the requirement under Article XII, Section 2, for the current administratorto choose between retaining the registry function or maintaining its registrar business. Given the tentative policy direction and apparent local Internet community move towardsthe redelegation of the .PH domain name administration, what follows are: (a) brief description40 Article III, Section 4 of the CICT Guidelines.41 Id, at Article V, Section 6.42 Id, at Section 9.43 Id., at Section 10.44 Id, at Section 3.45 Id, at Section 6.46 Id, at Section 6.47 Id. at Article XI, Section 2[c];48 Id, at Article VIII, Section 4.49 Id, at Section 10.50 Id, at Article X, Section 6.51 Id, at Section 5.52 Id, at Article IV, Section 4.53 Id, at Section 7.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 16 of 43
  17. 17. FMA - .PH cc TLD Policy Study Paper 17of the milieu created by the Guidelines, and (b) further issuances that are required under theGuidelines. Notwithstanding the numerous cooperative efforts exerted by CICT to create conditionsconducive for Mr. Disini to make the required selection between the registry and registrarfunctions as provided under the Guidelines, neither Disini nor DotPH have indicated a choice.Thus, both Registry and Registrar functions continue to be under the control of the Disinicompanies. Furthermore, instead of progressing towards a decision, DotPH, in a communication toCICT dated 18 February 2005, stated, “for 18 months, you met with the managers of the Gov.PHand Edu.PH to find ways to improve the PH Domain system. Yet, no steps were taken to fix theproblems of Gov.PH and Edu.PH … [n]ot attempts were made to get technical data about theservice you claimed to improve. You didn’t measure server downtimes. You didn’t check serverresponse times. Nor did you fix lame delegations on the Gov.PH and Edu.PH nameservers.” In another letter dated 25 February 2005 to Secretary Virgilio Peña, DotPH reiterated thesame points, and added – The people running the Gov.PH or Edu.PH registries were both on your Domain Advisory Board which drafted the Guidelines, and supposedly had significant input in formulating these. Yet their inability to run their own systems efficiently is shocking ... ……… The question is – if you succeed in gaining control of the DotPH Registry – is who will run the PH Domain? ……… Transferring DotPH’s operations to a mom-and-pop operation will simply kill the PH Domain and strand thousands of existing nameholders…. In order to clarify and by way of rejoinder, it has been pointed out that PHnet has threedistinct, redundant servers. Indeed, there have been downtimes for an individual server, butnever an instance when all three servers were down simultaneously. As designed, the servers areintended to provide redundant service for the Edu.PH registry.54 PHnet has been intending to putin two additional servers to be based at United States universities, but PHnet has not been able tomodify its delegation on the domain servers controlled by Disini. According to Mr. HoracioCadiz of PHnet, Mr. Disini has locked the delegation and has not provided PHnet with anymeans of accessing those records unless a service fee is paid. PHnet has refused to pay thisamount for it would in effect be a recognition of Mr. Disini’s right to charge for the Edu.PHdelegation, contrary to the spirit of the agreement with Dr. Postel.D. Post Advisory Board & Guidelines54 Interview with Horacio T. Cadiz of PHnet; alsohttp://www.chinwong.com/index.php/site/comments/our_domain/FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 17 of 43
  18. 18. FMA - .PH cc TLD Policy Study Paper 18 Subsequent to issuance of the NTC/CICT Advisory Board Guidelines, the Foundation forMedia Alternatives (FMA), starting in November 2005, convened a series of consultativemeetings with a view to producing an updated study paper on the matter of .ph domaingovernance, which would inform and assist government agencies, as well as other stakeholders.This paper, forming part of a seven-part research series which FMA was preparing with thesupport of IDRC-Canada, would provide an overview of the (Philippine) ccTLD issue, bothretrospectively and also strategically in terms of moving forward.55 As with the other researchpapers, this paper is “primarily meant to supplement the work of the CICT.”56 During a preliminary meeting held on Dec. 6, 2005 during which representatives of theprivate sector, advocacy groups and government were in attendance, FMA provided an overviewof its current projects which are intended as contributory to public interest policy developmentand the building and strengthening of stakeholder communities in the Philippines. The team forthe Internet Governance (.ph domain) study paper led by Winthrop Yu and Gwen Grecia-deVerashall provide a comprehensive historical background on the issue, as well as a recommendedroadmap for the redelegation process. The research, paper, consultative meetings, validationworkshops and other public fora are being undertaken with a view to contributing to CICT’swork in resolving the issue. Both private sector and government representatives stressed theresearch paper should also provide strategic steps for actual implementation.57 Several more suchconsultations with stakeholders and government representatives were convened by FMA andheld throughout the first half of 2006. Salient points raised during these meetings include: 1. The need for a political decision on the part of government to enforce its guidelines on the matter; 2. Clarification of internal redelegation processes, including: the recommended modality of choosing a successor Registry, consideration of bidding modes, pre-qualification requirements and other terms; 3. Re-statement of the fact that external redelegation (with ICANN) will only proceed after internal redelegation processes (e.g. choosing a successor domain manager) has been completed; 4. Noting that back-up (or mirroring) of .ph ccTLD servers can be effected by ICANN and various regional NICs or large IXs immediately upon the request of government even without a redelegation request; 5. Moving the transition forward by - communications with ICANN, initiating data escrow provisions ([4] above), transition period oversight by DOST- ASTI and CICT, finalizing these and other issues such as fees and funding, transition body, term, etc. by CICT; 6. Setting of “next steps” including drafting and submission of various communications. Subsequently, drafts of communications, including a ccTLD transition roadmap weresubmitted by PICS - Gwen Grecia de Vera to FMA in mid-January. The first draft of the ccTLD55 Al Alegre to Winthrop Yu et al. Email message dated Nov. 12, 2005 10:10 pm56 Nina Somera FMA - “Meeting on the Technical Aspects ...” v1 - Dec 20, 2005, v2 Jan 05, 200657 Nina Somera FMA - Minutes of Dec. 6 Meeting - “DotPH_FGD_6dec05a.rtf”FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 18 of 43
  19. 19. FMA - .PH cc TLD Policy Study Paper 19research paper was likewise submitted to FMA and also circulated to stakeholders forcomments/inputs in mid-March. A focus group discussion / meeting was then convened by FMAon April 6, 2006 which included a wider array of representatives of the private sector, advocacygroups and government, as the meeting was intended to review all seven ongoing FMAinitiatives/research papers in light of the announced pending resignation of CICT Chair Ver Peña..58At this meeting Winthrop Yu reported that he had addressed a meeting of the Business ContinuityManagement Association (BCMAP) where he was able to clarify the domain name issue and addresstheir .ph domain concerns, while Atty. Gwen Grecia de Vera indicated that a second draft of the“ccTLD .ph domain” paper would be circulated after Easter. This second version of the paper wascirculated on April 14, 2006. Then at an FMA civil society caucus on May 16, 200659 convened forupdates on all seven initiatives, Atty. Gwen de Vera informed those present that the “.ph ccTLD”research team would be conducting interviews prior to a final draft. Atty. de Vera then circulatedcopies of the paper’s outline and schedule on May 22, 2006. Subsequently on June 1, 2006stakeholders and CSOs were convened by FMA prior to meeting at the national consultations on theICT Roadmap held on June 5, 2006. In fine, with a view towards breaking the impasse and resolving issues related to .phccTLD policy and governance, the FMA-coordinated round-table discussions and consultationsgarnered significant input from various government agencies, technical experts and otherstakeholders.60 These will be incorporated into and substantively inform the latterrecommendatory portions of this paper. Meantime, in order to move forward, the following portions will focus on: (a) survey ofpossible models for the administration of ccTLD, consistent with the Guidelines and (b) surveyof relevant re-delegation processes undertaken by IANA. The discussion includes a briefoverview of the process involved in re-delegation and a summary of selected Asian practiceswith respect to ccTLD administration. IV. Survey of ccTLD Administration Models Professor Michael Geist of the University of Ottawa reviewed the relationships betweennational governments, the ccTLD Administrators and ICANN in forty-five (45) countries aroundthe world. The result of the project, known as the ccTLD Governance Project, was published onthe web61 and showed that ccTLDs were administered either by agency of government, theprivate sector (either individuals or private corporations), non-profit corporations or academicinstitutions. The survey also showed the extent of each ccTLD Administrator’s relationship withgovernment (characterized as formal, informal or none) and the existence of formaldocumentation of the delegation from ICANN. The list is by no means comprehensive, dealingas it does with only 45 of the ccTLD Administrators around the world.58 Nina Somera FMA - Email dated April 5, 2006 re: “Notes on April 4, 2006 CSO Meeting”59 Nina Somera FMA - Email dated May 18, 2006 re: “Civil Society Caucus on ICT Policy Development”60 Damian Domingo Mapa and Dr. Emmanuel Lallana, Jr., commissioners of the Commission onInformation and Communications Technologies, Dennis Villorente, Advanced Science and TechnologyInstitute of the Department of Science and Technology ; variousFMA minutes Ibid.61 http://www.cctldinfo.comFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 19 of 43
  20. 20. FMA - .PH cc TLD Policy Study Paper 20Government-administered RegistryTable 1: Countries where the ccTLD is part of the governmentCountry Code Name Government Government ICANN Relationship Activity AgreementChina CN CNNIC Formal None NoneEl Salvador SV SVNET Informal Logistical None centerFinland FI FICORA Formal Legislation NoneIndia IN NCST Formal None NoneMalawi MW Malawi Formal None MOU SDNPMalaysia MY MYNIC Formal None NoneMorocco MA ANRT Formal None NoneNorway NO NORID Informal Workgroup NoneSpain ES RED.ES Formal Legislation NoneTunisia TN ATI Formal Legislation None In these countries, governments have taken an active hand in the administration ofccTLDs by designating an agency usually under the auspices of the country’s science andtechnology department or ministry. Thus, for example, the ccTLD Administrator for China is theChina Internet Network Information Center (CNNIC). China’s Ministry of Information Industrytakes charge of the business management of CNNIC, while administrative management is doneby the Chinese Academy of Science. The .es domain is managed by Entidad Public EmpresrialRed.es, which is under Spain’s Ministry of Science and Technology. The ccTLD Administratorfor Malawi is the Malawi Sustainable Development Network Programme (Malawi SDNP), aUNDP funded government programme that assists in the development of the Internet in Malawi.Malaysia’s ccTLD is managed by the Malaysian Network Information Centre (MYNIC), adivision of MIMOS Berhad, a mission-oriented research and development governmentcorporation. India’s ccTLD Administrator is the National Centre for Software Technology(NCST). NCST is a scientific research and development institution under the Ministry ofInformation Technology.Private Sector RegistryTable 2: Countries where the ccTLD is from the private sectorCountry Code Name Government Government ICANN Relationship Activity AgreementGhana GH NCS None None NoneIndonesia ID IDNIC Informal None NoneJapan JP JPRS Formal Endorsement YesLibya LY nic.ly None None NoneTuvalu TV .tvcorporation None None NoneUkraine UA Hostmaster None None NoneUnited UA UAEnic Informal Legislation NoneArabEmiratesFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 20 of 43
  21. 21. FMA - .PH cc TLD Policy Study Paper 21United US Neustar Formal Contract NoneStates In these countries, the ccTLD Administrator is from the private sector. For example, the.ua domain (for Ukraine) is operated by an entity identified only as Hostmaster, Ltd., a privatecompany that appears to be free from government representation or control. On the other hand,the ccTLD Administrator for Japan is the Japan Registry Service Co. (“JPRS”), a privatecompany. Japan is one of the few countries that executed a Sponsorship Agreement withICANN, with the government taking an active hand in the delegation. The Memorandum ofUnderstanding (“MOU”) executed by and between the Japan Network Information Center(“JPNIC”), the former delegee, and JPRS, explicitly gives JPNIC and the Japanese governmentthe right to examine whether JPRS complies with the responsibilities set out in the MOU.Should repeated breaches occur, redelegation of the ccTLD is one of the recognized options.Private Sector Not-For-Profit RegistryTable 3: Countries where the ccTLD is a non-profit corporationCountry Code Name Government Government ICANN Relationship Activity AgreementAustralia AU AUDA Formal Legislation NoneBelgium BE DNS.be Informal None NoneBurundi BI CNI SDNP Formal Legislation RedelegationCanada CA CIRA Formal Agreement NoneChristmas CX Dot CX Formal Endorsement UnderIsland discussionCzech CZ CZ.NIC Formal Involved in NoneRepublic managementDenmark DK .DIFO Informal None NoneFrance FR AFNIC Informal Government None reps serve on boardGermany DE DENIC Informal Observer on None Legal Advisory CommitteeHong Kong HK HKIRC Formal MOU RedelegationIreland IE IEDR None Legislation NoneIsrael IL Israeli None Analysis by None Internet Government AssociationItaly ID IDNIC Informal None NoneKorea KR KRNIC Formal Approval NoneNetherlands NL SIDN None Cabinet None ReviewNew NZ InternetNZ Informal Endorsement NoneZealandPeru PE Nic.pe None Legislation NonePoland PL NASK None Endorsement NoneFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 21 of 43
  22. 22. FMA - .PH cc TLD Policy Study Paper 22Russia RU RIPN Informal Verbal None understandingSouth ZA Namespace Informal Legislation NoneAfricaSweden SE II-stiftelsen Informal Legislation Government CommitteeTaiwan TW TWNIC Informal Endorsement NoneUnited UK Nominet Informal Government NoneKingdom sits on Board The ccTLD administrator, a non-profit corporation in this set-up, is usually arepresentative body composed of all entities in the country with a stake in the Internet industry.The creation of the body is a result of a consultative process undertaken towards thedevelopment of a broadly accepted mechanism for overseeing the ccTLD administration in away that includes participation by the stakeholders. Australia’s .au Domain Administration(auDA) is the model for this set-up. AuDA was formed with the following objectives: (a) operate as a fully self-funding and not-for-profit organization; (b) be inclusive of, and accountable to, members of the Internet community including both the supply and demand sides; (c) adopt open, transparent and consultative processes; (d) aim to enhance benefits to Internet users through the promotion of competition, fair trading and provisions for consumer protection and support; (e) establish appropriate dispute resolution mechanisms; and (f) represent Australian Internet industry interests in the Internet domain-name system at national and international fora. Similarly, Kenya’s ccTLD Administrator is the Kenya Network Information Center,Limited (KENIC), a non-profit organization. This body was formed after the CommunicationsCommission of Kenya, together with a group of Kenyan Internet stakeholders(telecommunications providers, internet associations, information society, education network,government agencies, among others), conducted consultations and research on the idea of a non-profit organization to manage both the administrative and technical aspects of the registry.Academe-Based RegistryTable 4: Countries where the ccTLD is academicCountry Code Name Government Government ICANN Relationship Activity AgreementGuatemala GT Universidad None Attempted None del Valle de takeover GuatemalaMauritania MR NIC- None None None MauritanieMexico MX NIC-Mexico Informal Proposed None legislationSwitzerland CH SWITCH Formal Legislation NoneFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 22 of 43
  23. 23. FMA - .PH cc TLD Policy Study Paper 23 SWITCH, the Swiss Academic and Research Network, an academic foundation set-up bythe federal government and Switzerland’s universities, manages both Switzerland’s andLichtenstein’s ccTLDs. The .mx domain is administered by NIC-Mexico, which is based at theUniversity of Monterrey Technology Center (ITESM), but is independently administrated.Mauritania’s .mr domain is managed by the Faculty of Science and Technology of the Universityof Nouakchott with the blessing of the government’s Office of Post and Communication. The .gtdomain is administered by Guatemala’s Universidad del Valle de Guatemala, apparently withoutgovernment involvement. Regarding delegation models, it is interesting to note that, during the discussion onInternet Governance within PrepCom 3 of the World Summit of the Information Society atGeneva in 2003, Vittorio Bertola, Chair of the At-Large Advisory Committee of ICANN saidthat “neither an intergovernmental organization nor a private Corporation alone would berepresentative and legitimate enough to manage the Internet …”.62 This was further elaboratedupon in the WSIS’ “Declaration of Principles” at Geneva in 2003 viz., “Governments, as well asprivate sector, civil society and the United Nations and other international organizations have animportant role and responsibility in the development of the Information Society and, asappropriate, in decision-making processes”;63 as well as in the “Tunis Commitment” issued bythe WSIS at Tunis in 2005, “…our goals can be accomplished through the involvement,cooperation and partnership of governments and other stakeholders, i.e. the private sector, civilsociety and international organizations …”.64 V. Survey of Redelegation ModelsA. Procedures for Redelegation The procedures for re-delegation may be summarized as follows65: 1. The entity seeking re-delegation sends a complaint to ICANN (using the template found at http://www.iana.org/cctld/cctld-template.txt) with the following (complaints were formerly received by IANA, but this is one of the functions assumed by ICANN in its contract with the US government):62 World Summit of the Information Society, “Individual Internet Users unsatisfied with their Role in GlobalInternet Governance”, Geneva, 24 September 2003 http://www.itu.int/wsis/index.htm63 World Summit of the Information Society, “Geneva – Declaration of Principles” Sec. B-1, Para. 20,Geneva, 12 December 2003 http://www.itu.int/wsis/index.htm64 World Summit of the Information Society, “Tunis Commitment” Para. 37, Tunis, 15 November 2005http://www.itu.int/wsis/index.htm65 ccTLD Redelegation Step-by-Step Overview, http://www.iana.org/cctld/redelegation-overview-19jun02.htm.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 23 of 43
  24. 24. FMA - .PH cc TLD Policy Study Paper 24 a. documentation showing that the re-delegation serves the interests of the local Internet community, including demonstration of local support and a summary of the intended operation of the domain name; b. documentation establishing that the organization to which the re- delegation is sought has the appropriate technical and other skills to operate a TLD registry; c. legal documentation demonstrating the legal authenticity, status and character of the proposed organization; and d. documentation indicating that the appropriate government officials have been informed about the upcoming re-delegation. 1. IANA then reviews the request and materials, and takes appropriate verification steps. There is no specified period within which IANA commits to finish the review of the materials, and thus this procedure may take time. 2. IANA requests confirmation of the re-delegation from the existing manager. If confirmation is not received, further consultation may be required until a satisfactory resolution is achieved. 3. All parties involved negotiate and consummate appropriate ccTLD-ICANN agreements. This requirement is in line with ICANNs commitment to the US government that it will develop appropriate relationships with entities involved in the Internets operation, including ccTLD managers.B. Redelegation Models Attempts were made to exhaust all available information on the redelegations made byIANA. However, due to lack of materials, the discussion below is limited to those that IANAhas deemed to be particularly noteworthy, reports of which are available online.66Uncontested Redelegations These redelegation proceedings are characterized by a smooth transition between the oldand new delegees, as a result of the cooperation of the old delegee in the process. As shown inthe summary of the uncontested redelegation proceedings below, the IANA also requires thesupport of the government and the local Internet community to the new delegee, before anyrequest for redelegation is granted.67Country Code Name Nature of Reason for Redelegation ICANN Organizatio Agreement nTokelau .tk Telecommunication Government (1) mutual agreement of None.66 http://www.iana.org/reports/cctld-reports.67 Ibid.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 24 of 43
  25. 25. FMA - .PH cc TLD Policy Study Paper 25 s Corporation of corporation old and new delegees Tokelau (Teletok) (2) support of government (3) support from local internet communityIraq .iq National Government (1) support of government None. Communications Agency (2) former delegee did not and Media promote the use of the Commission of domain or serve the Iraq interests of interest users in IraqKazakhstan .kz Kazakhstan Non-profit68 (1) mutual agreement of None. Association of IT organization old and new delegees Companies (2) support of governmentFalkland .fk Falkland Islands Government (1) mutual agreement of None.Islands Development agency old and new delegees Corporation (2) support of government (3) support from local internet communityFaroe .fo Fo Council Government (1) mutual agreement of None.Islands old and new delegees (2) support of government (3) support from local internet communitySouth .za .za Domain Name Non-profit (1) mutual agreement of None.Africa Authority corporation old and new delegees (2) support of government (3) support from local internet communityLibya .ly General Post and Government (1) support of government None. Telecommunication agency (2) support from local Company internet communitySpain .es RED.ES Government (1) mutual agreement of None. old and new delegees (2) support of government (3) support from local internet communityNigeria .ng NITDA Government (1) mutual agreement of MOU. agency old and new delegees (2) support of government (3) support from local internet communityFrench .tf AFNIC Non-profit69 (1) mutual agreement of Agreed toSouthern old and new delegees enter intoTerritories (2) support of government Sponsorship68 Composed of 32 companies engaged in software, telecommunications, internet service, systemintegrators and related sectors.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 25 of 43
  26. 26. FMA - .PH cc TLD Policy Study Paper 26 (3) support from local Agreement internet communityPalestine .ps Government Government (1) mutual agreement of MOU Computer Center agency old and new delegees (2) support of government (3) support from local internet communityHaiti .ht Consortium - not clear - (1) mutual agreement of None. FDS/RDDH old and new delegees (2) support of government (3) support from local internet communityCanada .ca Canadian Internet Non-profit (1) mutual agreement of None. Registration corporation old and new delegees Authority (CIRA) (2) support of government (3) support from local internet communityAustralia .au .au Domain Non-profit (1) mutual agreement of Sponsorship Administration corporation old and new delegees Agreement (AuDA) (2) support of government (3) support from local internet communityJapan .jp Japan Registry Private (1) mutual agreement of Sponsorship Service Co., Ltd. corporation old and new delegees Agreement (JPRS) (2) support of government (3) support from local internet communityBurundi .bi Centre National - not clear - (1) mutual agreement of MOU de l’Informatique old and new delegees (CNI) (2) support of government (3) support from local internet communityLao .la Lao National Government (1) mutual agreement of MOUPeople’s Internet old and new delegeesDemocratic Committee (2) support of governmentRepublic (LANIC)Sudan .sd Sudan Internet Non-profit (1) mutual agreement of Sponsorship Society society70 old and new delegees Agreement (2) support of government (3) support from local internet community69 Created by the French National Institute for Research in Computer Science and Control and the Frenchgovernment, represented by the Ministries of Telecommunications, Industry and Research.70 The Sudan Internet Society is a non-profit, open membership society formally registered in Sudan.According to its stated mission, the organization " is dedicated to identifying and surfacing the potentialeffective and efficient applications of the Internet throughout the Sudanese community. It is to providesupport and information on all Internet related-issues in Sudan to enable individuals, businesses,FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 26 of 43
  27. 27. FMA - .PH cc TLD Policy Study Paper 27Afghanista .af Ministry of Government (1) mutual agreement of MOUn Communications old and new delegees (2) support of governmentTaiwan .tw Taiwan Network Non-profit (1) mutual agreement of Sponsorship Information organization old and new delegees Agreement Center (TWNIC) (2) support of government (3) support from local internet communityTajikistan .tj Information Independent (1) mutual agreement of Sponsorship Technical Center body old and new administrative Agreement (ITC) contact (2) support of government (3) support from local internet communityPalau .pw Micronesia Independent (1) mutual agreement of Agreed to Investment & body old and new delegees enter into Development (2) support of government Sponsorship Corporation (3) support from local Agreement (MIDCORP) internet communityCayman .ky Information and Non- (1) support of government None.Islands Communications government Technology organization Authority (ICTA)Malawi .mw Malawi Government (1) mutual agreement of MOU Sustainable old and new delegees Development (2) support of government Network (3) support from local Programme internet community (Malawi SDNP) Palau The latest report of a negotiated redelegation pertains to the .PW domain of Palau. In May 1997, the .PW ccTLD was delegated by Dr. Postel to Rakel Kamigaki of PW Domain Registry as administrative contact, and Hostmaster of NetNames as the technical contact. In late 2002, ICANN received an expression of interest to re-delegate the .PW ccTLD to the Micronesia Investment & Development Corporation ("MIDCORP"). The request was duly supported by the Palau government. Both managers also expressed support for the request.professionals, and organizations achieve their goals more effectively." Sudan Internet Society currentlyhas more than 500 individual members.FMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 27 of 43
  28. 28. FMA - .PH cc TLD Policy Study Paper 28 As a consequence of the negotiated request, ICANN and MIDCORP were able to execute the appropriate agreement for the re-delegation of the .PW domain on June 2003, only a few months after the initial request was filed. The report further noted that by migrating the delegation of the ccTLD from the responsibility of an individual acting under informal understandings with the IANA to a more formal, legally enforceable set of arrangements among a delegee organization, the relevant government, and ICANN, the re-delegation will promote service to the local Internet community and will help assure continued Internet interoperability through the global technical coordination that ICANN was created to provide.Contested Redelegations Due to the resistance expected from the current ccTLD Administrator in the Philippines,a more detailed discussion on the contested redelegations is set forth below. Kenya The .ke ccTLD registry was originally delegated in 1993 by IANA to Dr. Shem J. Ochuodho of Kenya, as Administrative contact, and Randy Bush of the United States, as the technical contact. In December 2002, the ccTLD registry was redelegated to the Kenya Network Information Center, Limited (KENIC), a community based, participatory, non- government and non-profit organization composed of Kenyan Internet stakeholders (telecommunications providers, internet associations, information society, education network, government agencies, among others) The request for redelegation was written by KENIC, and was supported with a letter from Kenya’s Secretary of Ministry of Transport and Communications expressing Kenyan government’s recognition of KENIC. The main reason for the request for redelegation was Dr. Ochuodho’s (a) unresponsiveness to the needs of the local internet community; and (b) his failure to engage in dialogue with the Kenyan internet community. Despite objections from Dr. Ochuodho, IANA granted the request for redelegation on the following grounds: (a) Dr. Ochuodho’s failure to respond to Kenyan internet community; (b) Dr. Ochuodho’s failure to respond to IANA’s inquiries; (c) overwhelming support for KENIC from internet stakeholders; (d) government support, (e) undertaking by KENIC to comply with GAC principles. Pitcairn Island Pitcairn Island is an overseas territory of the United Kingdom located in the South Pacific. It has a total population consisting of approximately 50 descendants of the Bounty mutineers and their Tahitian wives. Local government of Pitcairn Island consists of an Island Council elected mostly by the inhabitants of the island (with a few appointed members) and an elected Island Magistrate and Chairman of the Island Council. The UKFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 28 of 44
  29. 29. FMA - .PH cc TLD Policy Study Paper 29 Government appoints a Governor of the territory and a Commissioner responsible for liaison between the Governor and the Island Council. Pitcairn Islands telephone service consists of a local party-line telephone system. International telephone service is limited to Inmarsat service within a daily window. The local system is not presently capable of transmitting e-mail. The island has no airstrip. The economy consists of subsistence farming, fishing, and handicrafts made for sale to passing ships. The .pn ccTLD registry was originally delegated in 1997 by IANA to Tom Christian as Administrative contact, and Nigel Roberts, as the technical contact. The listed organization was Pitcairn Names (Orichalk Ltd). Mr. Christian is resident on Pitcairn. Mr Roberts is a private computer consultant with an address in the Channel Islands and is associated with Orichalk Ltd. The .pn top-level domain was used predominantly for registration of domain names to entities not affiliated with the territory, in exchange for a fee collected by Orichalk. In February 2000, the ccTLD registry was redelegated to the Office of the Governor of Pitcairn Island. The request for redelegation was written by the Commissioner of Pitcairn Island, endorsed by the UK Government Minister for UK Overseas Territories, with petition signed by 48 out of the 50 Pitcairn residents (excluding Tom Christian and his wife). Allegedly, the original delegates were not providing service to the community. Moreover, the Pitcairn Island Council felt that it was important to ensure that the name “Pitcairn Island” and its abbreviated form should serve the interest of Pitcairn Island and the Islanders rather than the interest of any individual or organization not connected with the island. Despite the initial objections raised by Mr. Christian, the IANA granted the request for redelegation for the following reasons: (a) ccTLDs are intended to be operated for the benefit of the internet community in the nation within which the country code is associated; (b) government’s views, as expressed by Pitcairn Council and UK Government minister; (c) the views of the persons concerned or affected by the transfer, as shown by petition of Pitcairn residents. Uzbekistan In April 1995, the .uz ccTLD was delegated by Dr. Jon Postel initially to Alex Vostrikov, a resident of Uzbekistan and thereafter, to Rustam Khamidov, as administrative contact. Mr. Khamidov established a relationship with a company known as Euracom, with its main office located in Berlin and the relevant operations in Tashkent, through which he handled technical operations for the .uz ccTLD. Mr. Vostrikov, initially the technical consultant, was thereafter replaced by Euracom. Interestingly, Euracom was not based in Uzbekistan, nor was it engaged in the Internet business. In April 2003, the administration of the .uz ccTLD was redelegated by IANA to the Computerization and Information Technology Developing Center (Uzinfocom), a non-governmental organization formed in June 2002 with the encouragement of the Uzbekistan Government, to carry out the realization of the Program of the Republic of Uzbekistan on the development of computerization, information, and the Internet in theFMA_Study_Paper_ccTLD_v6__finaledit.doc printed: 12/4/12 Page 29 of 44

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