fma paper on the .ph domain administration

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 to

ensure 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 location on the Internet.1 The DNS is a single-rooted hierarchy of Internet domain names, the classification of which is based on rules that have evolved over time. A top-level domain, or TLD, is either a country code top-level domain (“ccTLD”), such as “.ph” for the Philippines, or one 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 overall coordination and management of the DNS, including the delegation of top-level domains and ccTLDs.3 ccTLDs were established by the IANA to facilitate and promote the spread of the Internet globally.4 Each ccTLD is identified using a two-character International Organization for Standardization (ISO) identifier. That identifier is drawn from the ISO 3166-1 list, managed by the ISO 3166 Maintenance Agency and envisaged as politically neutral.5

ccTLDs are delegated to designated managers, who operate the ccTLDs according to local policies that are adapted to best meet the economic, cultural and linguistic circumstances of the country or territory involved. Starting in 1985, ccTLD managers received delegations to

1 Fisher, William; Kornfeld, Dori; and Oliar, Dotan. “Domain Names,” from Materials for the Internet Law Program 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.htm 5 Caslon Analytics profile: domain and the DNS http://www.caslon.com.au/domainsprofile2.htm.

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administer ccTLDs from IANA, or from Dr. Jon Postel as IANA's chief, based on informal criteria. Generally, but not invariably, these managers were recognized as being an Internet authority 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 in the relevant territory. While ccTLDs were first established as simple identifiers, rather than as sovereign property of individual states, the thinking has changed, given the position adopted by governments that ccTLDs should be exploited as a “strategic resource.”6 The administration of ccTLDs gains significance within the context of governance as it affects the viability of web sites and email addresses. Administration of the domain registry involves maintaining vital links to the Internet, which permit identification of websites as well as directing 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 ccTLD under 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 were exerted to transfer the administration of the .PH ccTLD from Mr. Disini to a multi-stakeholder body largely through negotiations refereed by Dr. Postel, subsequently leading to the delegation of the administration of the sub-domains .edu.ph and .gov.ph to PHnet and to the Department of Science and Technology (“DOST”), respectively. By 2004, Guidelines in the Administration of the .ph Domain Name (the “Guidelines”) were promulgated by the Commission on Information and Communications Technology.

This Study delves into the administration of the .PH ccTLD from 1989, when Mr. Disini was informally delegated as manager, up to the issuance of the Guidelines in 2004, and raises issues for consideration in the determination of the next steps in administration of the .PH ccTLD, principally related to: (a) creation of the entity which may perform the functions of registry and (b) strategies in relation to redelegation.

II. Principles Related to the Delegation and Administration of ccTLDs

A. RFC 1591 and ICP-1 Traditionally, 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 for communication and commerce became increasingly clear, the need for a formal set of policies was underscored. As a result, Dr. Postel published RFC 1591 in March 1994, discussing the DNS structure and guidelines for delegation. RFC 1591 laid out the criteria for the delegation of a ccTLD to a manager, and on this basis, all further ccTLDs were delegated to their respective managers. The issuance indicates the two basic principles of the delegation of any ccTLD from IANA 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.



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 responsibility for 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 by ICANN of IANA.7 In May 1999, ICANN and IANA jointly issued a document entitled "Internet Domain 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 the practice of IANA. ICP-1 summarized the policies observed by the IANA in connection with ccTLDs. Most of these were reiterations of the principles in RFC 1591. Since that time, RFC 1591 as elaborated by ICP-1, taken together, have been the governing documents from which ccTLD 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 1591's recognition of the important role that governments play in the

administration of ccTLDs, ICANN has espoused the principle that the DNS is a public resource to be administered in the public interest. As such, governments or public authorities maintain ultimate policy authority over their respective ccTLDs and should ensure that they are operated in conformity with domestic public policy objectives, laws and regulations, and international law and applicable international conventions.9 B. Trends

7 Ibid. 8 Jon Postel, ICANN : “ICP-1 - Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation)”, May 1999 <http://www.icann.org/icp/icp-1.htm> 9 ICANN Principles for Delegation and Administration of ccTLDs Presented by Governmental Advisory Committee, http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm.



Notwithstanding the basic policy infrastructure under RFC 1591 and ICP-1, ccTLD governance 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 to individuals without formal documentation relating to the delegation. This situation remained unchanged 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 a ccTLD led to the replacement of a ccTLD manager by way of an ICANN/IANA process known as redelegation.

In a document entitled “ccTLD Constituency's Best Practice Guidelines”10, the successful performance of a ccTLD manager depends on its approval and acceptance by the local and global Internet communities, as well as the competent fulfillment of the technical operations of the ccTLD.11 While there is no single model for ccTLD administration,12 ICANN however, is trying to shift ccTLD delegations from individuals, who were designated informally as administrative and technical contacts, to organizations operating under a framework of accountability. This, the ICANN believes, is a positive step toward the stable and professional operation of ccTLDs in the public interest. This framework of accountability is necessary to promote the global interoperability of the DNS and to ensure that the interests of local Internet communities are well served. Due to its growing impact, governments have likewise taken an interest in the Internet, particularly where matters of public policy are concerned.

Starting in the year 2000, ICANN encouraged ccTLD Administrators to document their relationship 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 and the ccTLD Administrator wherein the parties agree that the government will assume responsibility for overseeing the interest of the country concerned and its Internet community in the management and administration of the pertinent ccTLD; and (b) a bilateral set-up, evidenced by a Memorandum of Understanding between ICANN and the ccTLD Administrator

To this end, ICANN has entered into Sponsorship Agreements with the ccTLD Administrators of Australia, Kenya, Japan, Sudan, Taiwan and Uzbekistan. It also has existing Memoranda of Agreement with the ccTLD Administrators of Palestine, Nigeria, Afghanistan, Burundi, Lao People’s Democratic Republic and Malawi. This means that, to date, not all ccTLD 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 : Best Practice Guidelines for ccTLD Managers, June 2000 11 There is some indication that the statements made under this document have not been spared from criticism, including assertions that this was an attempt at the bureaucratization of the Net, similar to developments in 1850s with postal networks, 1870s with telegraphic networks, 1950s with radio and television broadcasting (Caslon Analytics). 12 Instead, across the globe, as will be further discussed in this paper, ccTLD registry has been the responsibility 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).



C. Structure of ccTLDs as an Industry

While there is as yet no definitive study on the structure of the ccTLD industry in the Philippines, 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. To provide sufficient context and aid in the understanding of the importance of structuring the administration of the .PH ccTLD, the authors feel it necessary to discuss briefly the structure of the ccTLD as an industry.

What is essentially characterized as regulation of the domain name industry involves two

primary actors – the relevant government agency and private entities. Caslon Analytics indicates that governments across the globe generally do not yet have departments or agencies dedicated to the task of regulating the domain name industry. An observable lack in ccTLD specific legislation has also been noted in various jurisdictions. It is relevant, under this Study, to note further 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 April 2002 on the Technical Specifications and Policies of ccTLD Operations, assuming registry or ccTLD administration and management requires technical undertakings, amongst which are connectivity, 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 and resellers. Certain jurisdictions recognize agents. Registrars register domain names in behalf of domain name holders. In certain jurisdictions, registrars may be ISPs. Retail prices charged by registrars may be affected by the registry’s wholesale price.

According to Caslon Analytics, the resale sector is constituted by entities that deal in previously 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 with

13 NEDA : Memorandum re: Study Group’s Findings on the .PH Controversy, 14 January 2002 14 In order to avoid any confusion that may arise due to the multiplicity of company names and the various Disini companies (as noted in the NEDA report, above), then, unless otherwise specifically indicated, in this paper “DotPH” shall be used as a generic term for these Disini companies, including PH Domain Foundation and DotPH Domains. 15 http://www.caslon.com.au/domainsprofile7.htm.



agents…means that comprehensive figures on registrations through agents aren’t available….16

D. Principles behind Redelegation Earlier it had been mentioned that in many instances, informal delegations have had to give way to redelegation. This is a scenario that may be relevant to the .PH ccTLD administration, necessitating a brief discussion of the principles behind redelegation.

Since the issuance of ICP-1, several redelegations have been effected by IANA and/or ICANN. It is worthy of note, however, that rarely are two redelegation situations exactly the same. 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 progress and urgency of each case may vary.

Ideally, the IANA prefers a negotiated request for redelegation, whereby the interests of the local Internet community, the government or public authority involved, and the ccTLD manager are adequately represented. It tries to have any contending parties reach agreement amongst themselves, and generally takes no action to change things unless all the contending parties agree. Originally, only in cases where the designated manager has substantially misbehaved would IANA step in.17

In February 2000, ICANN formulated the Principles for Delegation and Administration of ccTLDs, presented by Governmental Advisory Committee18, which discussed the basic principles 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 communication

16 Ibid. 17 Postel, Jon. RFC 1591, March 1994. 18 ICANN-GAC: Principles for Delegation and Administration of ccTLDs http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm.



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 Scenario

A. Background

In the Philippines, the ccTLD .PH domain is currently administered by Philippine Domain Foundation, Inc. Sources indicate that in 1989, Dr. Jon Postel had informally assigned the .PH domain in care of Mr. Jose Emmanuel Disini, who continued to administer the same, as sole 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 of his own Internet service provider, the E-Mail Company (“EMC”), since there was no real connection to the Internet at the time. During this period, the administration of the .PH domain name was run informally, not as a fully formed company or foundation. According to the White Paper submitted by the Philippine Domain Administration Convenors (“PhilDAC”), “[c]hecks for the PH domain registrations were made payable directly to Mr. Disini, and no official receipts were issued for these services. Domain fees ranged from PhP450.00 to PhP1,350.00 per domain 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 country code domain assigned to the Philippines, for the latter’s identification and promotion of its culture, products and services. Moreover, in other countries, the local Internet community has a significant 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 and

Internet addresses—from the registrar, or the entity that sells the domain names. It also proposed 19 PhilDAC, “The PH Domain and the Need for Policy Reforms.” 20 Ibid.



that the registry should be administered by an independent organization that is representative of the Philippine Internet community, while registrars are permitted to compete freely to improve pricing and service.21

In 1994, however, when the first live link to the Internet was established in the

Philippines through the PHnet Foundation under the helm of Dr. Rodolfo Villarica, PHnet negotiated with Mr. Disini for the foundation to assume responsibility for operating the .PH domain 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 the non-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 transferred administration of “.gov.ph” to the Department of Science and Technology (“DOST”). Dr. Postel passed-away before this agreement could be fully implemented.22

In 1999, Mr. Disini established the PH Domain Foundation, Inc.23 as the new body charged with selling .PH domains to the public. Domain registration fees were raised to US$50.00 for two years with annual renewal fee of US$25.00. The lifetime domain policy was unilaterally 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 annual renewal 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 issues regarding the administration of the .PH ccTLD, which he was able to collate as moderator of an Internet community mailing list. The initial issues had to do with (a) series of recruitment letters from the DotPH staff and (b) “repeated waves of unsolicited email from EMC marketing addressed to Filipino eGroups using a 3rd party mailing service.” He also noted an “overall feeling … that PH domains would have been attractive from a nationalistic point of view, but most people found gneric “.coms” cheaper. Even then, he already observed that one list member mentioned the term “redelegation” in relation to comments regarding DotPH.26 At around the

21 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.



same time, news of DotPH launching commercial exploitation of .PH ccTLD as a domain for phones 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 Protection Subcommittee then headed by DTI Assistant Secretary Toby Melissa Monsod. A series of mediation meetings were held between Mr. Joel Disini and PhilDAC. Subsequently, DTI requested PhilDAC to gather complaints against DotPH and file the same before the Bureau of Trade 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 of transferring management of the domain name registry to a more representative body.

In a letter dated 27 November 2002, DTI-NCR informed the Corporate Communications Manager 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 because the BTRCP did not consider them consumer issues, but rather one of policy and governance, and thus not within the ambit of the BTRCP. Only one case seems to have been dismissed “with merit” as, during the course of the hearings, DotPH stopped it's 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 [email protected]



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 Ayson's complaint was referred elsewhere since "policy issues were not within the

jurisdiction of the mediation meetings." The complaints should then have been referred to the DTI's Office of Special Concerns, but before that could happen the entire .PH issue was transferred back to ITECC. Indeed, as many of the issues were considered policy concerns rather than trade and consumer issues; hence, these were then subsequently referred by ITECC to the National Economic Development Authority (“NEDA”).

These issues were specifically referred to a task force headed by the National Economic Development Authority, which, in January 2002, submitted a Memorandum to the President of the Republic of the Philippines (“Memorandum”)28. This Memorandum provides in pertinent parts 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 2002



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.



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 A Memorandum 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 local Internet community. Those that submitted position papers included the Philippine Internet Commerce Society (“PICS”) and the Philippine Internet Service Providers Organization (“PISO”). The Philippine Computer Society (“PCS”) submitted an endorsement of the PICS position paper. PhilDAC also reiterated the position it had taken under its White Paper. PICS released its position paper in October 2003, in which it referred to the Report of the NEDA Study Group, highlighting the four options. PICS stressed the importance of creating the proper industry structure by pointing out the necessity of unbundling the offerings of the current administrator and segregating the registry and registrar functions. The group’s position paper included a discussion of policy recommendations towards ccTLD governance reform in the Philippines, emphasizing the nature of .PH as a public resource and calling for transparency in administration, active community participation, and creation of competitive and fair business

29 Alberto Romulo, Executive Secretary, Office of the Presdient: Executive Memorandum to NTC: Delegating Oversight Function Over Domain Name Registration and Internet-related Concerns to the National Telecommunications Commission, 2 September 2003 30 Creation of ITECC and subsequent dissolution, following creation of the Commission on Information and 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 Internet Governance”, Para. 12, Château de Bossey, June 2005 http://www.wgig.org/WGIG-Report.html



environment. Disini and DotPH were also invited to submit its own position paper. We have seen no 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 NTC was formed including as members, representative/s from the NTC, the ITECC Legal and Regulatory Committee private sector Co-Chair, representatives from DOST-ASTI, the academe, PhilDAC, PISO, PCS, PETEF and PICS, with representatives acting in principal and observer capacity.

DotPH was invited to nominate a representative to the NTC-AB. However, save for one meeting where Mr. Emil Avanceña of DotPH was present, DotPH did not participate. According to Eric Tiongson, member of the NTC-AB, the Advisory Board discussed and consulted with industry 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 the proposed guidelines were disclosed to the public for comment and two public hearings were held. 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 its

views public on its website. First, DotPH, on 14 November 2003, criticized the manner of selecting nominees to the NTC-AB. DotPH was of the view that the Advisory Board membership should have accommodated representation by PH nameholders who were customers of 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 with PhilDAC had been “acrimonious and unproductive in the past.”

Second, in its comments to the draft Guidelines, posted 5 February 2004, DotPH stated

that it shared common goals with the government, including reliable and robust domain name service. However, DotPH indicated that the “effects of the regulations on the PH domain must be carefully studied … and specific problems must be identified and solutions found via a collaborative effort of both parties …”

Third, as regards the public hearings conducted on the Guidelines, DotPH confirmed its

refusal to attend the public hearings. DotPH indicated that the “government has not responded to inputs 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 Board



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 Guidelines

reiterating its views and arguments as summarized above. In the same month, a comprehensive monograph rebutting Mr. Disini’s and DotPH’s

comments was made by Horatio Cadiz of PHnet33, salient portions of which may be quoted and summarized 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 of

33 Horacio T. Cadiz, On the DotPH Comments to the NTC Proposed Guidellines on the Administration of the Philippine Country Code Top Level Domain, 16 April 2004 34 ibid. p.5 35 ibid. p.4



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 from

DotPH and its representatives. However, despite initial communications between FMA’s Executive 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 the Administration of the .PH Domain Name.39 Consistent with the framework of accountability that 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 Advisory Committee, http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm 37 Horacio T. Cadiz, On the DotPH Comments to the NTC Proposed Guidellines on the Administration of the Philippine Country Code Top Level Domain, 16 April 2004, p.10 38 Ibid. p.17 39 CICT: Memorandum Circular No. 1 – Guidelines in the Administration of the .PH Domain Name



The CICT Guidelines further gives the government, through the CICT or the NTC, the following 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 CICT

informed Mr. Disini of the requirement under Article XII, Section 2, for the current administrator to choose between retaining the registry function or maintaining its registrar business.

Given the tentative policy direction and apparent local Internet community move towards the redelegation of the .PH domain name administration, what follows are: (a) brief description

40 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.



of the milieu created by the Guidelines, and (b) further issuances that are required under the Guidelines. Notwithstanding the numerous cooperative efforts exerted by CICT to create conditions conducive for Mr. Disini to make the required selection between the registry and registrar functions 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 Disini companies.

Furthermore, instead of progressing towards a decision, DotPH, in a communication to CICT dated 18 February 2005, stated, “for 18 months, you met with the managers of the Gov.PH and Edu.PH to find ways to improve the PH Domain system. Yet, no steps were taken to fix the problems of Gov.PH and Edu.PH … [n]ot attempts were made to get technical data about the service you claimed to improve. You didn’t measure server downtimes. You didn’t check server response 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 the same 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 three distinct, redundant servers. Indeed, there have been downtimes for an individual server, but never an instance when all three servers were down simultaneously. As designed, the servers are intended to provide redundant service for the Edu.PH registry.54 PHnet has been intending to put in two additional servers to be based at United States universities, but PHnet has not been able to modify its delegation on the domain servers controlled by Disini. According to Mr. Horacio Cadiz of PHnet, Mr. Disini has locked the delegation and has not provided PHnet with any means of accessing those records unless a service fee is paid. PHnet has refused to pay this amount for it would in effect be a recognition of Mr. Disini’s right to charge for the Edu.PH delegation, contrary to the spirit of the agreement with Dr. Postel. D. Post Advisory Board & Guidelines

54 Interview with Horacio T. Cadiz of PHnet; also http://www.chinwong.com/index.php/site/comments/our_domain/



Subsequent to issuance of the NTC/CICT Advisory Board Guidelines, the Foundation for Media Alternatives (FMA), starting in November 2005, convened a series of consultative meetings with a view to producing an updated study paper on the matter of .ph domain governance, 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 the support of IDRC-Canada, would provide an overview of the (Philippine) ccTLD issue, both retrospectively and also strategically in terms of moving forward.55 As with the other research papers, 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 the private sector, advocacy groups and government were in attendance, FMA provided an overview of its current projects which are intended as contributory to public interest policy development and the building and strengthening of stakeholder communities in the Philippines. The team for the Internet Governance (.ph domain) study paper led by Winthrop Yu and Gwen Grecia-deVera shall provide a comprehensive historical background on the issue, as well as a recommended roadmap for the redelegation process. The research, paper, consultative meetings, validation workshops and other public fora are being undertaken with a view to contributing to CICT’s work in resolving the issue. Both private sector and government representatives stressed the research paper should also provide strategic steps for actual implementation.57 Several more such consultations with stakeholders and government representatives were convened by FMA and held 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 were submitted by PICS - Gwen Grecia de Vera to FMA in mid-January. The first draft of the ccTLD

55 Al Alegre to Winthrop Yu et al. Email message dated Nov. 12, 2005 10:10 pm 56 Nina Somera FMA - “Meeting on the Technical Aspects ...” v1 - Dec 20, 2005, v2 Jan 05, 2006 57 Nina Somera FMA - Minutes of Dec. 6 Meeting - “DotPH_FGD_6dec05a.rtf”



research paper was likewise submitted to FMA and also circulated to stakeholders for comments/inputs in mid-March. A focus group discussion / meeting was then convened by FMA on April 6, 2006 which included a wider array of representatives of the private sector, advocacy groups and government, as the meeting was intended to review all seven ongoing FMA initiatives/research papers in light of the announced pending resignation of CICT Chair Ver Peña..58 At this meeting Winthrop Yu reported that he had addressed a meeting of the Business Continuity Management Association (BCMAP) where he was able to clarify the domain name issue and address their .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 was circulated on April 14, 2006. Then at an FMA civil society caucus on May 16, 200659 convened for updates 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 circulated copies of the paper’s outline and schedule on May 22, 2006. Subsequently on June 1, 2006 stakeholders and CSOs were convened by FMA prior to meeting at the national consultations on the ICT Roadmap held on June 5, 2006.

In fine, with a view towards breaking the impasse and resolving issues related to .ph ccTLD policy and governance, the FMA-coordinated round-table discussions and consultations garnered significant input from various government agencies, technical experts and other stakeholders.60 These will be incorporated into and substantively inform the latter recommendatory portions of this paper.

Meantime, in order to move forward, the following portions will focus on: (a) survey of

possible models for the administration of ccTLD, consistent with the Guidelines and (b) survey of relevant re-delegation processes undertaken by IANA. The discussion includes a brief overview of the process involved in re-delegation and a summary of selected Asian practices with respect to ccTLD administration.

IV. Survey of ccTLD Administration Models

Professor Michael Geist of the University of Ottawa reviewed the relationships between

national governments, the ccTLD Administrators and ICANN in forty-five (45) countries around the world. The result of the project, known as the ccTLD Governance Project, was published on the web61 and showed that ccTLDs were administered either by agency of government, the private sector (either individuals or private corporations), non-profit corporations or academic institutions. The survey also showed the extent of each ccTLD Administrator’s relationship with government (characterized as formal, informal or none) and the existence of formal documentation of the delegation from ICANN. The list is by no means comprehensive, dealing as 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 on Information and Communications Technologies, Dennis Villorente, Advanced Science and Technology Institute of the Department of Science and Technology ; variousFMA minutes Ibid. 61 http://www.cctldinfo.com



Government-administered Registry Table 1: Countries where the ccTLD is part of the government Country Code Name Government

Relationship Government Activity

ICANN Agreement

China CN CNNIC Formal None None El Salvador SV SVNET Informal Logistical

center None

Finland FI FICORA Formal Legislation None India IN NCST Formal None None Malawi MW Malawi

SDNP Formal None MOU

Malaysia MY MYNIC Formal None None Morocco MA ANRT Formal None None Norway NO NORID Informal Workgroup None Spain ES RED.ES Formal Legislation None Tunisia TN ATI Formal Legislation None

In these countries, governments have taken an active hand in the administration of ccTLDs by designating an agency usually under the auspices of the country’s science and technology department or ministry. Thus, for example, the ccTLD Administrator for China is the China Internet Network Information Center (CNNIC). China’s Ministry of Information Industry takes charge of the business management of CNNIC, while administrative management is done by the Chinese Academy of Science. The .es domain is managed by Entidad Public Empresrial Red.es, which is under Spain’s Ministry of Science and Technology. The ccTLD Administrator for Malawi is the Malawi Sustainable Development Network Programme (Malawi SDNP), a UNDP 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), a division of MIMOS Berhad, a mission-oriented research and development government corporation. India’s ccTLD Administrator is the National Centre for Software Technology (NCST). NCST is a scientific research and development institution under the Ministry of Information Technology. Private Sector Registry Table 2: Countries where the ccTLD is from the private sector Country Code Name Government


ICANN Agreement

Ghana GH NCS None None None Indonesia ID IDNIC Informal None None Japan JP JPRS Formal Endorsement Yes Libya LY nic.ly None None None Tuvalu TV .tvcorporation None None None Ukraine UA Hostmaster None None None United Arab Emirates

UA UAEnic Informal Legislation None



United States

US Neustar Formal Contract None

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 private company 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 private company. Japan is one of the few countries that executed a Sponsorship Agreement with ICANN, with the government taking an active hand in the delegation. The Memorandum of Understanding (“MOU”) executed by and between the Japan Network Information Center (“JPNIC”), the former delegee, and JPRS, explicitly gives JPNIC and the Japanese government the 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 Registry Table 3: Countries where the ccTLD is a non-profit corporation Country Code Name Government


ICANN Agreement

Australia AU AUDA Formal Legislation None Belgium BE DNS.be Informal None None Burundi BI CNI SDNP Formal Legislation Redelegation Canada CA CIRA Formal Agreement None Christmas Island

CX Dot CX Formal Endorsement Under discussion

Czech Republic

CZ CZ.NIC Formal Involved in management

None

Denmark DK .DIFO Informal None None France FR AFNIC Informal Government

reps serve on board

None

Germany DE DENIC Informal Observer on Legal Advisory Committee

None

Hong Kong HK HKIRC Formal MOU Redelegation Ireland IE IEDR None Legislation None Israel IL Israeli

Internet Association

None Analysis by Government

None

Italy ID IDNIC Informal None None Korea KR KRNIC Formal Approval None Netherlands NL SIDN None Cabinet

Review None

New Zealand

NZ InternetNZ Informal Endorsement None

Peru PE Nic.pe None Legislation None Poland PL NASK None Endorsement None



Russia RU RIPN Informal Verbal understanding

None

South Africa

ZA Namespace Informal Legislation None

Sweden SE II-stiftelsen Informal Legislation Government Committee

Taiwan TW TWNIC Informal Endorsement None United Kingdom

UK Nominet Informal Government sits on Board

None

The ccTLD administrator, a non-profit corporation in this set-up, is usually a

representative 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 the development of a broadly accepted mechanism for overseeing the ccTLD administration in a way 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 Communications Commission 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 Registry Table 4: Countries where the ccTLD is academic Country Code Name Government


ICANN Agreement

Guatemala GT Universidad del Valle de Guatemala

None Attempted takeover

None

Mauritania MR NIC-Mauritanie

None None None

Mexico MX NIC-Mexico Informal Proposed legislation

None

Switzerland CH SWITCH Formal Legislation None



SWITCH, the Swiss Academic and Research Network, an academic foundation set-up by

the federal government and Switzerland’s universities, manages both Switzerland’s and Lichtenstein’s ccTLDs. The .mx domain is administered by NIC-Mexico, which is based at the University of Monterrey Technology Center (ITESM), but is independently administrated. Mauritania’s .mr domain is managed by the Faculty of Science and Technology of the University of Nouakchott with the blessing of the government’s Office of Post and Communication. The .gt domain is administered by Guatemala’s Universidad del Valle de Guatemala, apparently without government involvement.

Regarding delegation models, it is interesting to note that, during the discussion on Internet Governance within PrepCom 3 of the World Summit of the Information Society at Geneva in 2003, Vittorio Bertola, Chair of the At-Large Advisory Committee of ICANN said that “neither an intergovernmental organization nor a private Corporation alone would be representative and legitimate enough to manage the Internet …”.62 This was further elaborated upon in the WSIS’ “Declaration of Principles” at Geneva in 2003 viz., “Governments, as well as private sector, civil society and the United Nations and other international organizations have an important role and responsibility in the development of the Information Society and, as appropriate, in decision-making processes”;63 as well as in the “Tunis Commitment” issued by the 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, civil society and international organizations …”.64

V. Survey of Redelegation Models

A. 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 Global Internet Governance”, Geneva, 24 September 2003 http://www.itu.int/wsis/index.htm 63 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.htm 64 World Summit of the Information Society, “Tunis Commitment” Para. 37, Tunis, 15 November 2005 http://www.itu.int/wsis/index.htm 65 ccTLD Redelegation Step-by-Step Overview, http://www.iana.org/cctld/redelegation-overview-19jun02.htm.



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 ICANN's commitment to the US government that it will develop appropriate relationships with entities involved in the Internet's operation, including ccTLD managers.

B. Redelegation Models

Attempts were made to exhaust all available information on the redelegations made by IANA. However, due to lack of materials, the discussion below is limited to those that IANA has deemed to be particularly noteworthy, reports of which are available online.66 Uncontested Redelegations

These redelegation proceedings are characterized by a smooth transition between the old and new delegees, as a result of the cooperation of the old delegee in the process. As shown in the summary of the uncontested redelegation proceedings below, the IANA also requires the support of the government and the local Internet community to the new delegee, before any request for redelegation is granted.67 Country Code Name Nature of

Organization

Reason for Redelegation ICANN Agreement

Tokelau .tk Telecommunication Government (1) mutual agreement of None. 66 http://www.iana.org/reports/cctld-reports. 67 Ibid.



s Corporation of Tokelau (Teletok)

corporation old and new delegees (2) support of government (3) support from local internet community

Iraq .iq National Communications and Media Commission of Iraq

Government Agency

(1) support of government (2) former delegee did not promote the use of the domain or serve the interests of interest users in Iraq

None.

Kazakhstan .kz Kazakhstan Association of IT Companies

Non-profit68 organization

(1) mutual agreement of old and new delegees (2) support of government

None.

Falkland Islands

.fk Falkland Islands Development Corporation

Government agency

(1) mutual agreement of old and new delegees (2) support of government (3) support from local internet community

None.

Faroe Islands

.fo Fo Council Government (1) mutual agreement of old and new delegees (2) support of government (3) support from local internet community

None.

South Africa

.za .za Domain Name Authority

Non-profit corporation


None.

Libya .ly General Post and Telecommunication Company

Government agency

(1) support of government (2) support from local internet community

None.

Spain .es RED.ES Government (1) mutual agreement of old and new delegees (2) support of government (3) support from local internet community

None.

Nigeria .ng NITDA Government agency


MOU.

French Southern Territories

.tf AFNIC Non-profit69 (1) mutual agreement of old and new delegees (2) support of government

Agreed to enter into Sponsorship

68 Composed of 32 companies engaged in software, telecommunications, internet service, system integrators and related sectors.



(3) support from local internet community

Agreement

Palestine .ps Government Computer Center

Government agency


MOU

Haiti .ht Consortium FDS/RDDH

- not clear - (1) mutual agreement of old and new delegees (2) support of government (3) support from local internet community

None.

Canada .ca Canadian Internet Registration Authority (CIRA)



None.

Australia .au .au Domain Administration (AuDA)



Sponsorship Agreement

Japan .jp Japan Registry Service Co., Ltd. (JPRS)

Private corporation



Burundi .bi Centre National de l’Informatique (CNI)

- not clear - (1) mutual agreement of old and new delegees (2) support of government (3) support from local internet community

MOU

Lao People’s Democratic Republic

.la Lao National Internet Committee (LANIC)

Government (1) mutual agreement of old and new delegees (2) support of government

MOU

Sudan .sd Sudan Internet Society

Non-profit society70



69 Created by the French National Institute for Research in Computer Science and Control and the French government, 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 potential effective and efficient applications of the Internet throughout the Sudanese community. It is to provide support and information on all Internet related-issues in Sudan to enable individuals, businesses,



Afghanistan

.af Ministry of Communications

Government (1) mutual agreement of old and new delegees (2) support of government

MOU

Taiwan .tw Taiwan Network Information Center (TWNIC)

Non-profit organization



Tajikistan .tj Information Technical Center (ITC)

Independent body

(1) mutual agreement of old and new administrative contact (2) support of government (3) support from local internet community


Palau .pw Micronesia Investment & Development Corporation (MIDCORP)

Independent body


Agreed to enter into Sponsorship Agreement

Cayman Islands

.ky Information and Communications Technology Authority (ICTA)

Non-government organization

(1) support of government None.

Malawi .mw Malawi Sustainable Development Network Programme (Malawi SDNP)

Government (1) mutual agreement of old and new delegees (2) support of government (3) support from local internet community

MOU

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 currently has more than 500 individual members.



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 UK



Government appoints a Governor of the territory and a Commissioner responsible for liaison between the Governor and the Island Council.

Pitcairn Island's 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 the



country. The Trustee Committee of the Uzinfocom consists of representatives of the private and state Internet companies, the international community and organizations, representatives of state bodies, and of foreign and domestic companies.

In 2001, the IANA received competing requests for redelegation, from Mr. Khamidov, to appoint Euracom representatives, and from Uzbekistan government, to appoint Uzinfocom. The government officially opposed appointment of Euracom because: (a) it is not based in Uzbekistan nor involved in internet business; (b) it is not working cooperatively with the relevant government or public authority to protect the interests of the local Internet community; (c) and its seeming objective to run the domain for the sole purpose of making a profit, as reflected in Euracom’s fee structure and its failure to provide a website in the national Uzbek language, which made it difficult for Uzbekistan Internet users to register the domain

The .uz ccTLD registry was redelegated to Uzinfocom on the following basis: (a) government support; (b) technical competence; (c) undertaking to comply with GAC principles. Moldova

In May 1995, the .md ccTLD was delegated by Dr. Jon Postel (then in charge of the IANA function at the Information Sciences Institute) to Pavel Chirev, of the Republican Centre for Informatics ("RCI") as administrative contact, and David Hoffman of Quantum Innovation, Inc. as technical contact. Thereafter, RCI transferred its rights to Domain Name Trust, a US-based company. Domain Name Trust later sold its rights in the contract for operation of the ccTLD to DotMD, LLC, a company largely controlled by a Mr. Fred Meyer, which went into bankruptcy proceedings in October 2002.

In February 2003, following the Bankruptcy Court proceedings, a US court

ordered, as part of settlement of the case, the return of authority over the .md domain name back to the state of Moldova. In the meantime, RCI was transformed into and succeeded by Moldata, a state enterprise

On 20 May 2003, the IANA received a communication from Morton Levine, informing the IANA that on 11 February 2003, the United States Bankruptcy Court entered a final order authorizing Morton Levine, trustee of the Chapter 11 bankruptcy estate of DotMD LCC, to transfer to MolData all of the Trustee's rights, title and interest in and to the .md domain including technological and operational control. Mr. Levine communicated to the IANA that he was authorized to take such actions as may be necessary and proper to ensure that MolData is the "only authorized sponsoring organization, technical contact and administrative contact who has authority to take any action on behalf of country-code top level domain name .MD." Pursuant thereto, the Ministry of Transport and Communication of the Republic of Moldova designated MolData as the appropriate Sponsoring Organization for the .md ccTLD. Mr. Pavel Chirev thereafter filed a request for the redelegation of the .md ccTLD to MolData.

Despite objections from Mr. Frank Weyer, Mr. Hoffman, and other parties, claiming that they still maintained a right in the management of the .md ccTLD, IANA found that: “Under RFC 1591 and ICP-1, the trustee must always act in the interests of



the local Internet community. It is clear that as administrative contact, RCI (predecessor to MolData) entered into a relationship for the operation of the ccTLD that eventually caused significant problems in the administration of the .md ccTLD. A trustee of a ccTLD does not have the ability to irrevocably transfer, delegate, or license out the rights to manage the ccTLD, without itself maintaining ultimate responsibility. The dispute and challenges involving the administration of the .md ccTLD have been difficult, contributed to by the bankruptcy of DotMD LLC and related Bankruptcy Court proceedings, and the ensuing financial disputes between various creditors of the DotMD estate and other interested parties.” The request for redelegation was granted on the following grounds: (a) the request from Pavel Chirev for the return of operation of the ccTLD to MolData; (b) the order by the Bankruptcy Court and (c) the recognition by the government of Moldova that MolData is the appropriate Sponsoring Organization, identifying both an administrative and technical contact within MolData.

Only some ccTLD administrators have formal agreements with ICANN. ICANN appears

keen to extend that coverage, both to reinforce legitimacy and more broadly to encourage good practice. Since May 1999, ICANN has approved requests for redelegation of ccTLDs for Australia, Canada, Japan, Laos and the Pitcairn Islands. It has concluded agreements with Sudan, Kenya, and Afghanistan. ICANN has implicitly presented auDA as the model for a nonprofit ccTLD administrator that is endorsed by government (and underpinned by national legislation), is broadly representative, serves national and international community interests and is located within the country. The organization has tended not to favor redelegations from the wizards to government agencies, instead preferring delegations to representative nonprofit entities. Given its emphasis on consensus it has also proven reluctant to choose between competing redelegation requests, although noting that "the desires of the government of a country with regard to delegation of a ccTLD are taken very seriously."71

VI. Public Policy and Interest

Drawing from both the CICT/NTC Advisory Board Guidelines, as well as the preceding examples from other ccTLDs, a 'model' ccTLD administrative organization that serves the public interest should –

1. Be inclusive of and accountable to all members of the country's online community; 2. Employ open, transparent and consultative processes; 3. Be led by the private sector and include representatives of the user, business,

academic and civil society sectors; 4. Endorsed by, but operate independently of, the government; 5. Operate as a fully self-funding and not-for-profit organization;

71 Jon Postel, ICANN : “ICP-1 - Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation)”, May 1999 <http://www.icann.org/icp/icp-1.htm>



6. Administer the ccTLD primarily to foster development of the national and global internet community;

7. Not acquire any property rights in the ccTLD, in line with the emphasis on trusteeship;

8. Enhance benefits to Internet users by promoting competition, fair trading, and consumer protection and providing access to technical support;

9. Establish dispute resolution mechanisms that take into account intellectual property, consumer protection and other internationally accepted laws;

10. Abide by ICANN's policies.

Clearly, there are several points where current ad hoc practice diverges from the foregoing, including:

1. There is a “lack of transparency and consultation in policy changes and management

of the .ph domain” and “there is an obvious break in trust between the DotPH registry and the local Internet community”72

2. There is a lock on both Registy management and the Registrar business that does not provide a level playing field as “DotPH, Inc. and its related companies can be found in all levels of activity” and “that the 150 partners of DotPH, Inc. are more resellers than registrars.”73

3. Both the administration of the.ph ccTLD Registry and the Registrar functions are compounded and treated as a private business, in conflict with the principles74 of RFC 1591 and ICP-1 which states “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.”75 As further reiterated by GAC as follows: “No private intellectual nor property rights should inhere in the ccTLD itself, nor accrue to the delegee as the result of delegation or to any entity as a result of the management, administration or marketing of the ccTLD.”76

4. The current Administrator has denied government its proper role, which denial conflicts with ICP-1 which states: “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.”77 The point being further reinforced by NEDA when it states: “ccTLD administration being in the nature of a public trust, the government has responsibility to ensure that this public trust is safeguarded.”78

72 NEDA: Memorandum re: Study Group’s Findings on the .PH Controversy, 14 January 2002, Section 7 73 ibid., Sections 6 and 7 74 ibid., Section 4 75 Jon Postel, ICANN : “ICP-1 - Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation)”, May 1999 <http://www.icann.org/icp/icp-1.htm> 76 ICANN Principles for Delegation and Administration of ccTLDs Presented by Governmental Advisory Committee, http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm. 77 ICP-1 - Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation), also ICANN Principles for Delegation and Administration of ccTLDs Presented by Governmental Advisory Committee, as above. 78 NEDA: Memorandum re: Study Group’s Findings on the .PH Controversy, 14 January 2002, Section 8



5. Indications that the current ccTLD administration may be less than diligent with regard to Intellectual Property Rights which may be exemplified by an article by Atty. Vicente Amador which cites the PLDT vs. Kaimo case and also states in part: “DotPh, announced that it has started offering anonymous registrations for the i.ph domain. … This is unprecedented, and it is uncertain whether it would encourage Internet use in the Philippines without sacrificing IP rights …”, also noting that “DotPh dispenses with ICANN's requirement that the registrant warrant that ‘to (his) knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party’ andthat he ‘will not knowingly use the domain name in violation of any applicable laws or regulations.’"79

VII. Recommended Actions

This portion discusses how to move forward based on the Guidelines, with due regard for the inclusion of stakeholder and community interests. It covers: (a) the emerging role of the government of the Republic of the Philippines, (b) considerations in the establishment of the ccTLD industry structure, including the creation of the successor registry, and (c) strategies in relation to redelegation. The policy direction as regards the Philippine ccTLD has been largely defined in the (CICT/NTC) Guidelines, with the government, taking on, not so much a regulatory role, but a marked policy-making role, in order to ensure that the administration of the ccTLD complies with best practices. The basic arguments presented which deny that the Philippine government has any interest in the ccTLD administration must fail, in light of the well-recognized participation of governments documented by ICANN/IANA.

Further, legal issues and the role of government are highlighted within the WSIS’ “Geneva Declaration of Principles”, which states, “The rule of law, accompanied by a supportive, transparent, pro-competitive, technologically neutral and predictable policy and regulatory framework reflecting national realities, is essential for building a people-centred Information Society. Governments should intervene, as appropriate, to correct market failures, to maintain fair competition, to attract investment, to enhance the development of the ICT infrastructure and applications, to maximize economic and social benefits, and to serve national priorities”,80 and “Policy authority for Internet-related public policy issues is the sovereign right of States.”81 Implementation strategies for WSIS Geneva are further elaborated in its “Plan of Action”.82 79 Vicente Amador : Philippines: DotPh's Anonymous Domains: A Boon For Cyber-Gripers?, 21 June 2007 80 World Summit of the Information Society, “Geneva – Declaration of Principles” Sec. B-6, Para. 39, Geneva, 12 December 2003 http://www.itu.int/wsis/index.htm 81 Ibid. Sec. B-6, Para. 49(a); also: World Summit of the Information Society, “Tunis – Agenda for the Information Society” Para. 35(a) http://www.itu.int/wsis/index.htm 82 World Summit of the Information Society, “Geneva – Plan of Action” Sec. C-1, Para. 8 and Sec. C-6, Para. 13, Geneva, 12 December 2003 http://www.itu.int/wsis/index.htm



It is for this reason that, without any hint of appropriation, the Guidelines stress that the

.ph ccTLD is a public resource and that government has an interest as regards the policy aspect of its administration. What the government now must explore, through the CICT and in line with the CICT’s Roadmap, is the pivotal role of the ccTLD in the future of information and communications technology in the Philippines. A. The Role of Government

This pivotal role of the Government in providing adequate policy in the administration of the .ph ccTLD deserves emphasis. ICANN/IANA considers the DNS a public resource to be administered in the public interest and recognizes that public authorities maintain ultimate authority over ccTLDs.

Further, the United Nations Working Group on Internet Governance in its (post-WSIS

Geneva) Report83 lists the roles and responsibilities of Government which include, inter alia: • Public policymaking and coordination and implementation, as appropriate, at

the national level, and policy development and coordination at the regional and international levels.

• Oversight functions. • Development and adoption of laws, regulations and standards. • Development of best practices. To be sure, assertion of proprietary interest is not required on the part of the Government,

nor is this the direction that the Philippine Government has taken. Rather, as provided in the “whereas” clauses of the CICT Guidelines, the government is interested in providing policy to ensure the proper administration of the .ph ccTLD. Ensuring the Sound Administration of the .ph ccTLD While the latest government efforts (through the CICT) have been focused on communicating with the current administrator towards making the required decision on taking on either the role of Registry or Registrar, this is but a single step towards the overall policy goal of affirming and implementing the NTC/CICT Guidelines. The Guidelines also direct the proper government agency to implement other measures, the most significant of which include:

• Conducting continuing 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 community;84

• Formulating implementing rules for service and technical requirements;85 83 United Nations “Report of the Working Group on Internet Governance”, Sec. IV, Para. 30, Château de Bossey, June 2005 http://www.wgig.org/WGIG-Report.html 84 CICT: Memorandum Circular No. 1 – Guidelines in the Administration of the .PH Domain Name, Sec. 10. 85 Id, at Article VIII, Section 4.



• Requiring bi-annual reports on network design, backup and disaster recovery strategy and recovery commitments, physical and network-based strategies, and related documents;86

• Addressing registry administration concerns related to (business) continuity and (network and national) security, including:

• Exercising oversight authority over the location and functioning of the primary servers, particularly in jurisdictions outside the Philippines;87 and

• Approval and implementation of escrow agents and/or mirror sites.88

Whilst attending to specific implementation details including those outlined above, it is imperative for government to continue addressing policy needs in the area of the .ph ccTLD administration. Thus, further positive government involvement in ccTLD policy development should likewise include:

• Moving from definition of inputs by the current administrator and the Internet

community, towards defining and advancing a public discourse on desired outcomes through ongoing stakeholder consultations;

• Including identification of community and public sector needs; • Examining current policies vis-à-vis the conduct of the current administrator,

particularly on enforcing the CICT Guidelines; • Drafting and promulgating further necessary issuances (such as implementing

rules) under the NTC/CICT Guidelines.

Given the response of the current administrator of 18 and 25 February, 2005, the inability of the government to take action as provided by the Guidelines remains inexplicable. That government has not yet taken any steps in these matters may be indicative of it having become lukewarm in attending to the matter of the .PH ccTLD. Indeed, the importance of setting service standards (for which ICANN/IANA has full documentation), to govern the .PH ccTLD, including any .PH sub-domain operations (such as those of PHnet and DOST-ASTI.) Redelegation as an Option

As indicated in preceding sections, there are indications that the current administrator

may prove recalcitrant, not only in the matter of limiting its operations to Registry or Registrar functions. Under the Guidelines, in default of the current administrator’s making a decision between retaining either Registry or Registrar functions, the Government may commence redelegation procedures.

The Government is not without options, considering its experience in encouraging public

and private sector collaboration in other areas. There is no proscription against approaching the current administrator with a proposal towards a collaborative effort that addresses both the requirements of the Guidelines and the needs of the local Internet community. Should this prove to be unproductive, the Guidelines allow the Government to consider redelegation. Indeed, the

86 Id, at Section 10. 87 Id, at Section 5. 88 Id, at Article IV, Section 4.



aforementioned instances of successful contested redelegation illustrate some conditions where Government may take the lead, including:

(a) the current administrator’s failure to substantially cooperate in carrying out

realization of public sector programs on the development of computerization, information and the Internet in the country;

(b) the current administrator not working cooperatively with the relevant

government or public authority to protect the interests of the local Internet community;

(c) the current administrator’s apparent objective to run the domain for the sole

purpose of making a profit; (d) lack of consultation with the local internet community and/or regulation by

relevant government agencies regarding pricing and/or disposition of a resource allocated to and associated with the political entity to which the ccTLD is assigned;

(e) absence of transparency and a level playing field for registrar/resellers

(existence of conflicts of interest); (f) the current administrator’s unresponsiveness to the needs of and failure to

engage in cooperative dialogue with the local Internet community; and (g) the current administrator’s failure to maintain consistent recognition that it is

critical to ensure that the name “Philippines” and its ISO-3166 abbreviated form “PH” should serve the interest of the country and its citizens, rather than the interest of any individual or business, and that ccTLDs are intended to be operated for the benefit of the internet community in the nation with which the country code (abbreviation) is associated.

Moreover, the survey of redelegation cases indicate that elements of successful

redelegation include: (1) participation of Government and the local Internet community and (2) a ready successor entity, which likewise joins the petition for redelegation before ICANN. That is, notwithstanding strong collaboration between Government and the local Internet community, the existence of an acceptable successor entity appears to be crucial in successful redelegation. It is this latter element that is sorely lacking. In the Philippine scenario, the Guidelines provide that the government, through the proper agency must likewise formulate guidelines for redelegation and replacement procedures. B. Transition and Succession Considerations Continuity and Security Concerns

Of critical importance during any transition are considerations regarding continuity of service, as well as national and other security issues.



During several FMA fora held in 2005-200689, discussions often touched on the

desirability of a trust or escrow system for ccTLD administration data, which would serve as back-up and minimize any possible disruption. However it was also noted that many ccTLD administrators may balk at such a system as it would make redelegation easier. Jayson Yu, a director of the Philippine Internet Services Organization (PISO) initially presented a non-intrusive method of gathering some domain name to domain registrant (site) info that will cover a large portion of actively used .ph domain names within a three month period. Denis Villorente of DOST-ASTI recommended that an agency of the Philippine government simply request a copy of this information through ICANN.

Serious problems regarding transparency in the management of the domain likewise

affect security and continuity of service. It was noted that the lack of redundancy (back-up) and transparency regarding .ph domain registrants may be used to create “FUD” (fear, uncertainty and doubt) regarding continuity of service, thereby seriously undermining stakeholder confidence in the Internet as a reliable business medium. As a step towards addressing these issues, a representative of the FMA research group addressed a meeting of the Business Continuity Managers Association (BCMAP) at the Bangko Sentral ng Pilipinas to clarify this matter of continuity and address any other concerns the BCMAP may have regarding .ph domain names.

In this vein, further steps must be taken to ensure that disruption of service is minimized

and that the general public is informed of the new arrangements to minimize any possible confusion or uncertainty. Interim policies should be drafted and communicated effectively. These policies and communications will deal with such issues including:

(a) verifying domain ownership/reconstructing whois information; (b) where to direct new registrants and renewals of registration; (c) policies for multi-year registrations which span the length of the transition

period and into the new regime. Ensuring an Orderly Transition

Bearing the foregoing in mind, the absence of a ready successor has been cited as a difficulty in achieving a successful contested delegation. For the Guidelines to be implemented towards the direction of replacing the present administrator in the absence of a ready successor, a Transition Period may be deployed by the Government under procedures specifically drafted for redelegation. That this model may gain acceptance is apparent in the support expressed by former CICT Commissioner Damian Domingo O. Mapa and the DOST, in informal consultations held by the Foundation for Media Alternatives (FMA) in 2005 and 2006.

Given that the designation of the new administrator has not been effected, a Transition

Period may be called for wherein the registry/registrar operations continue with the minimum of disruption, while the process of choosing the new administrator is decided on and implemented. (An initial period of six months is contemplated, with possible extension.) 89 Nina Somera FMA - “Meeting on the Technical Aspects ...” v1 - Dec 20, 2005, v2 Jan 05, 2006



While it is understood that the redelegation of the .PH ccTLD will entail a transition period, a transitional body was not explicitly contemplated in the current NTC Guidelines. Nevertheless, Article XI, Section 6 may be used to justify the need for a transitional body: “The CICT shall issue redelegation and replacement procedures, rules and criteria internal to .ph domain, as may be appropriate. Such procedures shall be guided by the ICANN/GAC Principles on Redelegation.”

Although the creation of a transitional body may have no precedent in ICANN, the

government may justify the creation of a transitional body by citing the unique circumstances of the Philippine case (i.e., possibility of an acrimonious transition, the extra care in choosing a new administrator, etc.). This situation needs to be communicated to ICANN.

Moving forward, initial steps which the government may take include:

• Coordinating with ICANN, the current administrator and/or other technical entities regarding ccTLD data escrow and/or mirroring and other measures intended to address the continuity and security concerns outlined at the beginning of this section;

• Determining the transition period and drafting other transition guidelines (including pre-qualification requirements, if any);

• Choosing the ad interim transition/successor which may include government agencies such as DOST-ASTI or government/private partnerships (with the understanding that any such temporary transition administration will not be included in considerations for the final successor ccTLD administration).

Government may strongly support the creation of the successor entity in order for it to

exercise the authority to designate the administrator under the Guidelines, by also obtaining transaction advisory services, in cooperation with the local Internet community. It must be emphasized that the .PH ccTLD, while deemed a public resource subject to administration in trust for the local Internet community (not ownership), is not proprietary to the Government or any agency and instrumentality thereof. The Government’s reach is defined by its interest on the level of policy; hence, the advisory services. To further spur and aid in the establishment of a successor registry, the Government should engage in further consultative processes.

It is further urged that the Government, through the proper agency, assert its right on a

policy level to participate in designation and delegation, particularly by ensuring that a tripartite agreement with ICANN is concluded. Government should further commence drafting the issuances contemplated under the Guidelines. Since much of what is in the CICT Roadmap were not specifically provided for in the Guidelines, it may be essential for the CICT, considering the Roadmap, to issue the redelegation rules/procedures to guide the process, including the transitory period. With this in place, the critical parts may be included in any Memorandum of Agreement with the eventual successor as well. An Applicable ccTLD Model for the Philippines



Article II, Section 1 of the CICT Guidelines provides that the .PH administrator should be a corporation organized under Philippine laws, at least sixty percent (60%) of the capital of which is owned by Philippine citizens. No member of its board of directors/trustees must be related up to the fourth degree of consanguinity or affinity or have any interest in any Registrar or the Registrar business. The Administrator should recognize that the administration and management of the ccTLD Registry is a special function, a trust, and thus, imposes unique duties and responsibilities, which must never be abused.90

In response to the conflict of interest issues raised against the current administrator, the CICT Guidelines further require that the Administrator of the Registry shall not perform Registrar functions.91 The Guidelines likewise require the .PH Administrator to enter into a Memorandum of Agreement or a tripartite agreement with ICANN.92

Based on the foregoing, and in order to address the issues raised against the current administrator, it appears that the .PH domain name must be administered by a non-profit organization sufficiently representative of the Philippine Internet community. Further, the proposed body must document its delegation as the country’s ccTLD administrator through a Memorandum of Agreement or a Sponsorship Agreement with ICANN. The Philippine government will exercise a measure of control, insofar as public policy issues are concerned, as set forth in the CICT Guidelines. If the auDA model may be used as sufficient guide, auDA was formed to:

(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. Choosing a Successor ccTLD Registry Administrator Bearing in mind the various ccTLD models heretofore presented, the Government may move forward on choosing the successor ccTLD administrator by:

(a) Conducting public information and community stakeholder consultations; (b) Determining the appropriate mode of selection (e.g. whether through – a request

for proposals and/or acceptance of unsolicited bids/proposals) and including pre-qualifications and disqualifications, if any;

90 CICT: Memorandum Circular No. 1 – Guidelines in the Administration of the .PH Domain Name, Article V, Section 2. 91 Id., at Section 4. 92 Id., at Article III, Section 2.



(c) Indicating the preferred organizational form or structure (e.g. private for-profit,

private non-profit or public-private non-profit) of the successor ccTLD administration entity;

(d) Defining the relationship between the ccTLD administration (Registry) and

Registrars;

(e) Setting service level and pricing guidelines;

(f) Drafting a Memorandum of Agreement.

Touching on [b] above, FMA forum discussions93 on the mode of redelegation indicated a preference for maximum transparency (perhaps some variation on public bidding). Though not completely excluding other modes of selection, provided that any such appointment is undertaken after consultation and arriving at a consensus with Internet community, stakeholder and civil society groups.

Related to [e] above, an important consideration would be the financial viability of any

new ccTLD administration (Registry). The two critical factors are the number of domains and the pricing for each domain. To provide some sense of the figures involved, Joel Disini, in a reply regarding .ph domain pricing on a blog94, indicates that DotPH’s current lowest (bulk wholesale) price for .ph domains is US$15 per year. While neither Disini nor DotPH have released definitive figures on the number of domains, this has remained a matter of concern to stakeholders for sometime.95 Meantime, the Webometrics Ranking of World Countries - January 200796 estimates the number of .ph domains at 191,000. Taking these figures together, we can derive an estimated annual cash flow of US$ 2,865,000 per annum. Even allowing for a significant downward adjustment of these numbers, it seems apparent that such income is more than sufficient to support ccTLD Registry administration operations. C. Strategies with Respect to Redelegation Government and Community Initiative

It is noteworthy that in requests for redelegation, whether contested or not, the government and the local Internet community play significant roles in IANA's (and subsequently ICANN's) evaluation of the request.

The importance of the government's participation in the request is highlighted by ICANN's policy that a ccTLD is a public resource, and that the respective government has ultimate policy authority over it. As a consequence, governments are essentially given full 93 Nina Somera FMA - “Meeting on the Technical Aspects ...” v1 - Dec 20, 2005, v2 Jan 05, 2006 94 Joel Disini – Yugatech “Why dotPH is still expensive” http://www.yugatech.com/blog/?p=1290; also http://www.yugatech.com/blog/?p=1784 95 Chin Wong – “Are there really 125,000 PH domains?” http://www.chinwong.com/index.php/site/article/are_there_really_125000_ph_domains/ 96 http://www.webometrics.info/Number_National_Domains_World.asp?offset=50



discretion in the treatment of ccTLDs, guided by the GAC principle that the manager should not be subject to discriminatory or arbitrary practices, policies or procedures.

As illustrated by the Pitcairn case, the participation of the local Internet community also

played a big part in the re-delegation of the .PN domain. IANA and ICANN have emphasized the importance of the Internet community's opinion on the administration of the relevant ccTLD. This is further emphasized by the principle that the ccTLD is administered in trust for the local Internet community.

What the .PN re-delegation case does teach is that a request for redelegation pertaining to the .PH domain should be properly supported not just by the local Internet community, but also by the Philippine government, in order to prosper. Seeking re-delegation necessitates a representative body; a strong and unequivocal lobby, which does not seem to yet obtain in the Philippine setting. The United Nations Report of the Working Group on Internet Governance97 lists certain roles which the community, through civil society groups, should undertake. These include, inter alia:

• Awareness-raising and capacity-building (knowledge, training, skills

sharings). • Promoting various public interest objectives. • Facilitating network building. • Mobilizing citizens in democratic processes. • Engaging in policy processes. • Contributing to policy processes and policies that are more bottom-up, people-

oriented and inclusive. • Development and dissemination of best practices. • Helping to ensure that political and market forces are accountable to the needs

of all members of society. • Encouraging social responsibility and good governance practice.

At the very least, the local Internet community and other stakeholders should closely

monitor the Government’s (particularly the GAC representative’s) stance and actions, or lack thereof, on the .ph ccTLD issue, in order to ensure that these are in consonance with the wishes of the community.

Redelegation itself does not present a problem, what the local Internet community and the concerned government agencies must confront is the very desirability and propriety of redelegation and the policy direction which must be shaped in determining to whom or to which body the administration of .PH domain name must be redelegated. There are public-private collaboration principles which may be applied. Legal Aspects

At this juncture, it is not yet certain if a request for redelegation of the .PH domain will be contested or negotiated. If contested by the current administrator, then there is a need to 97 United Nations “Report of the Working Group on Internet Governance”, Sec. IV, Para. 32, Château de Bossey, June 2005 http://www.wgig.org/WGIG-Report.html



ensure that government is prepared. Government should prepare for this eventuality by: assembling a legal team (e.g. government lawyers, the Office of the Government Corporate Counsel, possibly with the assistance of private volunteer and civil society lawyers); ensuring that such a team is properly oriented and briefed; and formulating a legal strategy.

Legal considerations must likewise include a sense of ICANN’s position, should ICANN

decide to revoke its delegation to Disini, regardless of the government’s level of preparedness.

Coordinating with ICANN

Obtaining the cooperation of ICANN is crucial in the redelegation process, and an ongoing communication process (through the government’s representative to GAC or through other government instrumentalities and/or representatives of the Internet community) must be established and maintained. ICANN’s approval of the government's actions, for instance, lessens the questions on legality that Disini or DotPH may raise before the local courts. It is for this reason that the CICT must nurture its communication with ICANN even beyond the transition period.

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Bibliography Amador, Vicente : “Philippines: DotPh's Anonymous Domains: A Boon For Cyber-Gripers?”, 21 June 2007 <http://www.mondaq.com/article.asp?articleid=49480> Best Practices and Redelegation Working Group of the ccTLD Constituency of the DNSO : “Best Practice Guidelines for ccTLD Managers”, June 2000 Cadiz, Horacio T. : “On the DotPH Comments to the NTC Proposed Guidelines on the Administtration of the Philippine Country Top Level Domain”, 16 April 2004 <http://www.ph.net/phildac/> Canlas, Dante B., National Economic and Development Authority (NEDA) : Memorandum re: “Study Group’s Findings on the .PH Controversy”, 14 January 2002 <http://www.ph.net/phildac/> Disini, Jose Emmanuel, dotPH : Open Letter to CICT Secretary Ver Peña, 14 November 2003 Disini, Jose Emmanuel, dotPH : Position Paper submitted to NTC “Additional Comments on the NTC Proposed Guidelines on the Administration of the .PH ccTLD, 30 March 2004 Disini, Jose Emmanuel, PH ccTLD Administrator : “Opposition” submitted to the National Telecommunications Commission, received at NTC 30 April 2004 Foundation for Media Alternatives (FMA) : “.ph ccTLD Redelegation: Towards an Initial Roadmap”, April 2006



Government Advisory Council (GAC), ICANN : “Principles for Delegation and Administration of ccTLDs”, March 2005 <http://www.icann.org/committees/gac/> International Standards Organization,: “ISO 3166, English Country Names and Code Elements”, June 2001 Miller, Garth : Draft presented to ICANN / ICU ccTLD Workshop “Understanding ICANN’s Trilateral Model: A Layman’s Guide to ICANN’s Proposal for ccTLD Administration”, July 2004 Peña, Virgilio L., Secretary, Commission on Information and Communications Technology (CICT) : Memorandum Circular No. 1 “Guidelines in the Administration of the .PH Domain Name”, August 2004 <http://www.ph.net/phildac/> Philippine Domain Name Authority Convenors (PhilDAC) : “The PH Domain and the Need for Policy Reforms”, October 2001 <http://www.ph.net/phildac/> Philippine Internet Commerce Society (PICS): Letter to Damian Domingo O. Mapa, Chair, PH Domain Technical Working Group, CICT re: “Successor Entity to the de facto .PH ccTLD Domain Administrator”, July 2005 Philippine Internet Commerce Society (PICS): Position Paper on “The Administration of the .PH ccTLD”, October 2003 Postel, Jonathan B., ICANN : “ICP-1 - Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation)”, May 1999 <http://www.icann.org/icp/icp-1.htm> Postel, Jonathan B., Internet Engineering Task Force (IETF) : “RFC 1591 - Domain Name System Structure and Delegation”, March 1994 <http://www.ietf.org/rfc/rfc1591.txt> Romulo, Alberto, Executive Secretary, Office of the President : Executive Memorandum to NTC “Delegating Oversight Function Over Domain Name Registration and Internet-related Concerns to the National Telecommunications Commission”, 2 September 2003 Wong, Chin Wah: “Our Domain” http://www.chinwong.com/index.php/site/comments/our_domain/ Yap, Julia, President, Philippine Internet Services Organization (PISO) : Letter to Virgilio L. Peña, ITECC, 22 September 2003

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