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ICANN and VeriSign Reach Deal for Ten Year .Com Agreement Extension by Philip Corwin, Internet Commerce Association

Internet Commerce Association logo: On February 11th VeriSign held its Fourth Quarter and Full-Year 2015 Earnings Call with stock analysts. In the course of the call VeriSign revealed that it had reached tentative agreement with ICANN to extend the .Com Registry Agreement (RA) by ten years, with the extension’s start coinciding with the effective date of the IANA contract transition. The current .Com RA is scheduled to terminate on November 30, 2018, with VeriSign having a presumptive right of contract renewal so long as it has effectively managed the premier gTLD and has not materially breached the RA.

Our review of the analyst call yields this preliminary analysis:

  • Verisign has negotiated an agreement with ICANN that would establish a new 10-year Root Zone Maintainer Agreement (with ICANN stepping into NTIA’s shoes) and link it to a 10-year extension of the separate .Com RA, both of which would commence on the date of the IANA transition. (So, if the transition occurs on October 1, 2016 – the date on which the current Congressional appropriations freeze on transfer of the IANA contract lapses — the expiration date of the .Com registry agreement would change from November 30, 2018 to October 1, 2026.)
  • The deal requires approval of the ICANN and VeriSign Boards, and then of the NTIA. It will be subject to public comment.
  • The deal does not lift the .Com price freeze contained in a separate Cooperative Agreement between VeriSign and NTIA. VeriSign retains its existing contract rights to petition for pricing relief if market conditions change sufficiently to restrain its .Com pricing power.

As we presently understand the situation, the Cooperative Agreement between VeriSign and the NTIA that imposed the .Com price freeze would remain unchanged and in place through late 2018, and any request by VeriSign to ease the pricing restrictions would be reviewed by NTIA and not by ICANN. That is important, because in 2012 ICANN’s Board approved a .Com renewal agreement that would have permitted four separate seven percent price increases during its six year term, and it was NTIA that imposed the price freeze urged by ICA. It’s also worth noting the near-final ICANN Accountability Proposal that will be delivered to ICANN’s Board next month restricts ICANN’s mission and core functions so that it cannot take on regulatory powers, including those of a competition authority.

ICA will carefully monitor this developing situation as it moves toward the public comment stage, when we will have an opportunity to review the actual written terms of the proposed agreement.

Our preliminary understanding of the agreement is based on the following statements made by VeriSign CEO D. James Bidzos during yesterday’s call:

ICANN and VeriSign are in the final stages of drafting the new Root Zone Maintainer Agreement to perform this Root Zone Maintainer role as a commercial service for ICANN upon the successful transition of the IANA functions… To ensure that root operations continue to perform at the same high level during the expected 10-year term of the Root Zone Maintainer Agreement, ICANN and VeriSign are in discussions to extend the term of the .com Registry Agreement to coincide with the expected 10-year term of the Root Zone Maintainer Agreement, ensuring that the terms of the two agreements are the same, will promote the stability of root operations, and will remove potential instability that might otherwise arise if the terms did not coincide…

While ICANN and VeriSign are in the final stage of preparing the Root Zone Maintainer Agreement and the .com Registry Agreement extension documents, there are several important steps that still need to occur including completing the drafting of the agreements, posting them for public comment and obtaining approvals from ICANN’s and VeriSign’s Board of Directors.

Additionally, under the Cooperative Agreement, we may not enter into the contemplated extension of the .com Registry Agreement without the prior written approval of the Department of Commerce. If the department does not approve the extension, then the current .com Registry Agreement will remain unchanged. We will provide periodic updates, as appropriate, on our progress toward these objectives…

So, first of all, I think it helps to just understand that we’re not actually changing the terms of the .com Registry Agreement. And this is not a renewal. This is an extension… In order to ensure the same steady, available, uninterrupted, secure and stable environment that we’ve been providing for three decades as a Root Zone Maintainer, it is also anticipated – we are discussing – the extension of the .com Registry Agreement for 10 years.

So at that point, should all of these conditions that I described earlier, for example, approval of ICANN’s Board of Directors and VeriSign’s Board of Directors, no changes whatsoever can be made to the .com Registry Agreement without the consent of the NTIA.

So subject to those approvals and the transition occurring, then we would have 10-year concurrent terms for the Root Zone Maintainer Agreement and the .com Registry Agreement. So what you would see is essentially a change of the date, the term, of the .com Registry Agreement.

That’s essentially the change. From an investor viewpoint, instead of a renewal in 2018, you would see a 10-year term that starts with the effective date of the two changes, the Root Zone Maintainer Agreement and the extended .com Registry Agreement. So, instead of November 30, 2018, you would see a date that is 10 years from the effective date of those two…

So, again, qualifying all of this to say that if we conclude our negotiations, we get all the necessary approvals, the triggering event that marks the “effective date” would then be the IANA transition occurring… The target date is September of 2016… I would just reiterate again that what we’re contemplating here, what we’re working towards, is an extension of the .com agreement. So, the terms wouldn’t change in the .com agreement…

So let me just say that, first of all, the terms of the .com agreement will not change, and the presumptive right of renewal, of course, would remain in the .com agreement. The .com agreement doesn’t actually address pricing. That’s addressed separately in the Cooperative Agreement.

The Amendment 11 of the Cooperative Agreement is the section that describes our contractual relationship with NTIA with respect to the root zone maintainer role. And that is the portion that it’s contemplated would essentially move into a new contract, the RZMA that we’re negotiating with ICANN.

Amendment 32 is a separate part of the Cooperative Agreement that addresses pricing with respect to our ability to seek a price change if we think it’s justified by market conditions. So I certainly don’t anticipate that that would change. That would remain. So VeriSign’s right to seek relief from price controls based on market conditions that would warrant it would remain…

I think the extension means that the date changes on the agreement. But any change to the agreement requires the consent of the NTIA. And so, I can’t speak for NTIA. This is their process. The part of the process we’re involved in would be to negotiate the Root Zone Maintainer Agreement with ICANN to present that along with a .com contract that has the date extended and present that to NTIA.

This is, of course, in response to their March 2015 request for a way to transition the root zone maintainer role and to take NTIA out of that process. So that will be up to them when they see it. So I think that’s what they asked for and that’s what they’re looking for. This is not a renewal in the sense that all of the normal things that happen during a renewal would happen. So I don’t quite see it that way…

I anticipate that we would have our Amendment 32 rights to petition based on changing market conditions for price relief. And also that, certainly, the agreement calls for the ability for VeriSign to seek so-called cost-justified price increases and that includes things like cost of implementing Consensus Policies or specific threats to the DNS that are extraordinary that we have to respond to – unanticipated expenses associated with responding to threats. So I don’t see those changing at all… What we’re doing here is we’re seeking an extension to the .com Registry Agreement. The Cooperative Agreement expires in 2018, and we are not seeking any change to that. That is up to NTIA. That is their process, their contract, so I would certainly defer to them… It expires in 2018, but it’s up to NTIA to decide at that point what happens.

 (Emphasis added)

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from: