Registry Services Evaluation Process – Preliminary Determination Of Competition Issues
ICANN’s Registry Services Evaluation Process (RSEP) was developed through ICANN’s consensus policy development process. All gTLD registry operators must follow the RSEP when submitting a request for new Registry Services, as defined at Section 1.1 of the Registry Services Evaluation Policy (at http://www.icann.org/en/resources/registries/rsep/policy).
One component of ICANN’s consideration of each RSEP request is that ICANN must make a preliminary reasonable determination of whether the proposed Registry Service “could raise significant competition issues.” The review for potentially significant competition issues is one part of the “ICANN Preliminary Determination” stage set out on the Registry Services Workflow diagram, at http://www.icann.org/en/resources/registries/rsep/workflow.
When performing an assessment of the possibility that an RSEP request could raise significant competition issues, ICANN performs the review described below.
- After the Registry submission of the RSEP request, and ICANN’s completeness check is completed, General Counsel reviews the RSEP request for potential competition issues. 1 The main factors evaluated are:
- Price issues – To the extent a RSEP request could reasonably be determined to affect, or cause the setting or changing of a price of a registry service (as defined in the Policy), the price component is analyzed for potential anticompetitive effects.
- Market definition issues:
- Identify the market that the proposed registry service may create or affect.
- Analyze potential effect(s) on the market, if any, and the significance of the effect (including potential innovation effects in technology markets).
- Analyze if there are other markets that may be impacted, and potential significance.
- Allocation issues:
- Analyze whether the proposed registry service proposes or could reasonably be determined to result in allocation of products or markets, and if so, potential competitive effects.
- Analyze whether the proposed registry service could reasonably be determined to favor certain customers or registrars.
- Analyze possible impact on the operation of other registries, and competitive effects of that impact.
- Based on the analysis, General Counsel reaches a preliminary determination on the competition issues (i.e., no significant competition issues or significant competition issues could be raised).
- If preliminary determination is that no significant competition issues could be raised, the competition review is complete.
- If preliminary determination is that significant competition issues could be raised by the RSEP request, ICANN, through the General Counsel, will refer the matter to the appropriate competition authority or authorities with jurisdiction of the matter. The appropriate competition authority is to be determined on a broad jurisdictional basis.
- Factors for determination include:
- The location of the requesting registry;
- The geographic dispersion and corresponding concentration of potentially affected parties (such as registrars or registrants); and
- The location of any specific geographic market effects identified, if any.
- For example, the proposed registry service of a U.S.-based registrar with a majority of registrants in the United States would likely be appropriately referred to the Antirust Division of the United States Department of Justice or the Federal Trade Commission. A proposed registry service of a registry based in one of the countries of the European Union with a majority of registrants in the European Union would likely be appropriately referred to the European Commission. The broader the concentration of registrants (or other affected parties) over multiple jurisdictions, the more likely it will be that ICANN would refer the matter to multiple jurisdictions where there are likely to be potential competitive effects.
- The jurisdictional review and reference becomes a more complex issue where significant competitive effects are anticipated in parts of the world without established competition authorities, and international competition law experts would be consulted for guidance.
- Factors for determination include:
1 Outside counsel specializing in Competition Law is often consulted to assist in the competition review described here.