>Date: Fri, 26 Feb 1999 07:28:53 -0500
>From: "Harold Feld" <[EMAIL PROTECTED]>
>To: <[EMAIL PROTECTED]>
>Subject: Fwd: USG has no power over NSI?
>Mime-Version: 1.0
>
>Can you forward to IFWP? Thanks.
>
>Date: Thu, 25 Feb 1999 18:51:59 -0500
>From: "Harold Feld" <[EMAIL PROTECTED]>
>Subject: USG has no power over NSI?
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>I find Dave Crocker's statement that the USG has no power
>over NSI incredible. Dave, do you believe that NSI submitted to
>ICANN jurisdiction (before it was even settled what the shape would
>be, essentially buying a pig in a poke) and agreed to open its
>databases because it *wanted* to do so?
>
>As I recall, there was significant buzz on the Net regarding the
>lengthy negotiations between NSI and Commerce as
>September 30 approached and then passed. Clearly
>Commerce exercised considerable power over NSI and
>forced various contract concessions.
>
>Incidentally, the difficulty with the term "monopoly" is that it
>is necessary to define the relevant market. For example,
>Empire Kosher has a monopoly on kosher poultry, but
>DOJ and FTC do not consider it a "monopoly" because
>it defines the market as all poultry and "kosher" is simply
>a gourmet segment.
>
>At the moment, NSI has a monopoly on gTLDs, and is dominant
>player (but not a monopoly) in domain names. It is unclear what
>the relevant market should be. POC/CORE/etc. have consistently
>defined "monopoly" on a TLD by TLD basis, thus the need to have
>a shared registry to eliminate the monopoly. I (and other supporters
>of proprietary TLDs) think this is to narrow a market definition.
>This is like defining the market as "Coke" rather than as
>"soda" or even "cola."
>
>Even if it is a monopoly, it is unclear what the appropriate
>remedy should be. You seem unsatisfied with any solution
>that leaves NSI has anything other than a smoking crater.
>This is both extreme and presents a potential takings
>problem. (That the government has the power to prevent
>monopolistic practices and cause divestitutres does not
>give it unlimited authority.) The solution Commerce
>has inmplemented is based on the "unbundling" approach
>utilized by the Telecom Act of 1996. NSI is being forced to
>unbundle its registration services in the same way the RBOCs
>are theoretically being forced to unbundle their network
>elements. This approach also worked well in the natural
>gas market and the electric market.
>
>Whether you think it is the correct approach is a point
>that can be argued, but it overstates the case to the point
>of absurdity to say that USG has not, and therefore cannot, taken
>steps to terminate the existing NSI monopoly on .com, .org, and .net.
>
>Harold
>
