March 20, 1998

Ms. Karen A. Rose
Office of International Affairs
National Telecommunications &
Information Administration
US Department of Commerce
14th and Constitution Ave., N.W.
Washington, DC 20230

RE:Ex Parte Meeting of March 13, 1998

Dear Ms. Rose:

Per your request, this letter is being filed to document the ex parte meeting that took place in the office of Becky Burr at 10:30 AM on Friday, March 13, 1998 regarding the Department of Commerce’s ("DoC’s") proposed rule on management of the Internet Domain Name System. In attendance at the meeting was myself and Glenn Manishin of Blumenfeld & Cohen - Technology Law Group, Paul Garrin, President of Name.Space, a pgMedia Company, as well as you and Ms. Burr on behalf of NTIA.

During the meeting, my colleagues and I described the nature of the services and technology provided by Name.Space. In particular, we detailed how Name.Space provides Internet users with a wide variety of generic top level domain names (gTLDs), or domain names that reside after the dot (e.g. ".sports" or ".fun").

We also indicated that pgMedia, the parent company of Name.Space, will be filing comments regarding DoC’s proposed rule. Much of our conversation centered around the nature of those comments, which can summarized as follows:

I.THE NEED FOR UNIVERSAL RESOLVABILITY OF DOMAIN NAMES REQUIRES, AS NTIA PROPOSES, THAT ROOT SERVER FUNCTIONS BE COORDINATED

A.The Internet root servers (the "dot") function as the "traffic cop" of the Internet, allowing all name service providers to look to authoritative servers for the "toplevel zone" files necessary for a seamless Internet

B.Root server functions for gTLDs are currently monopolized by NSI, which has led to significant competitive disparities and thus to pgMedia’s pending antitrust lawsuit against NSI and NSF

C.Coordination of root servers does not require a single "root," but rather consistent technical standards for interoperability and symmetry of all servers so to maintain universal connectivity on the Internet

1.pgMedia’s technology can work to maintain root server synchronization by implementation of SINDI (Secure Internet Name Data Integrator)

D.Transferring control of root servers to an independent, non-profit corporation, with wide representation is a valid approach

II.gTLDs ARE A PUBLIC DOMAIN RESOURCE WHICH MUST BE SHARED AMONG COMPETING REGISTRARS

A.NTIA correctly adopted pgMedia’s approach of "shared" registries, under which all gTLDs, including existing ".com" registry, will be open to competitive registration of second-level domains

B.pgMedia has long supported shared gTLDs, and believes that gTLDs are a public resource that should not be within the commercial or competitive control of any one entity; in addition, pgMedia has developed technology to facilitate seamless, interoperable sharing of toplevel domains by registries using SINDI

C.A market-driven system will allow for the greatest introduction of efficiency, innovation and price reduction into a registration services market that has suffered greatly from the stifling effects of monopolization

1.Name.Space innovations to date include seamless "smart" Whois service; Instant, fully automated name registration with secure online payment options; Portable Address Management; Secure, realtime synchronization of toplevel zones

2.Name.Space system is working today -- competitive gTLDs are a reality

D.Shared gTLD registration is possible today in the Name.Space gTLDs, using the SINDI protocol that pgMedia has developed independently

III.NTIA HAS INAPPROPRIATELY LIMITED THE SCOPE OF DNS COMPETITION OUT OF FALSE, UNSUBSTANTIATED CONCERNS REGARDING THE TECHNICAL STABILITY OF THE INTERNET

A.There are no technical constraints on the number of gTLDs that can operate simultaneously on the Internet, and absolutely no basis for any concern that expansion of the TLD namespace will contribute even to transitional instability of the Internet

1.The current "root.zone" or "dot" file which lists the currently recognized toplevel domains is simply a 75K text file, and updating the file for new gTLDs is technically trivial and transparent to the end users--new toplevel namespaces will simply become available and functional just as any new country code or new second level domain becomes transparently available as changes are made to the DNS listings on a daily basis without interruption of service or other noticeable change

2.The current zone file for "com." contains over 1.5 million entries and can scale indefinitely. The structure of all zonefiles is identical and used in the same way by the software--structurally, the "root.zone" file and the "com" file are identical, therefore the number of possible toplevel domains is equally as scaleable as is any other zone file in the existing DNS system

3.Record before DoC from August comments does not support any technical reason substantiating NTIA’s conclusion that the number of gTLDs in the short run "should not be so large as to destabilize the Internet"

B.Hence, there is no justification for:

1.Arbitrary restriction of five new gTLDs between now and 9/98

2.Role of non-profit corporation in setting policy for determining "the circumstances under which new top-level domains are added to the root system"

C.Any gTLD administered by a technically competent registry should be included in the root server system.

D.Trademark concerns are irrelevant to DNS administration, and thus whether or not it would be "more difficult for trademark holders to protect their trademarks if they had to police a large number of top-level domains" is no excuse or justification for restricting gTLD competition.

1.No registry/registry trademark dispute resolution process should be required, and domain holders should not be compelled to agree to judicial jurisdiction in any specific location

E.Even if transitional limits are believed necessary, the US government should not (and cannot, per section IV) sanction any system that does not allow unlimited competition for gTLDs

1.Green Paper’s "first-come, first-served" approach to the 5 new gTLD registries is unworkable and foolish

2.Non-profit corporation’s charter must require that it permit gTLDs served by all technically qualified registries to be included in the root server system on a non-discriminatory basis

3.NTIA should support immediate movement to a fully market-driven, openly competitive system of gTLD creation and registration

IV.NEITHER THE UNITED STATES GOVERNMENT NOR THE DEPARTMENT OF COMMERCE HAS THE LEGAL AUTHORITY TO RESTRICT THE NUMBER OF gTLDs

A.pgMedia is sympathetic with NTIA’s concern over coordination of essential Internet functions, but the agency, and the entire US government, lack the power to control the number of gTLDs, even in the short run

B.gTLDs are not a United States, but rather a global resource. The U.S. lacks the authority, under the U.N. charter and customary international law, to assert extra-territorial jurisdiction by restricting the number of gTLDs. As policy matter, exclusion of EU and other nations from policy process highlights risks of unilateral US action

C.NSI has operated root servers pursuant to "cooperative agreement" contract with NSF, but neither that contract, nor NSF’s statutory charter, grant either NSI or NSF the legal authority to restrict gTLDs and exclude competitors from the existing "root.zone"

D.DoC has no rulemaking or regulatory authority over the Internet, and thus cannot by regulation dictate that the root servers be restricted to any fixed number of gTLDs.

If you have any questions regarding this ex parte notice, please do not hesitate to contact me.

Sincerely

 

 

Frank V. Paganelli

Blumenfeld & Cohen

- Technology Law Group