DoC's letter rejected the petition for rulemaking not because the department is too busy, but because, it said, the department has an official policy of leaving gTLD decisions to the private sector (i.e. ICANN): "In July 1998, the Department of Commerce made it clear that it would not participate in the selection process of new TLDs ... the selection of new TLDs should be conducted by the private sector through a not-for-profit organization, globally representative of the Internet stakeholder community. The Department recognized ICANN as that organization in November 1998 through a Memorandum of Understanding."
Although this hands-off attitude will hardly come as news to anyone who has been following DNS politics for the last three years, as a legal matter, this letter is significant. The 1998 White Paper was, under US law, a mere nonbinding "statement of policy". Such agency documents, issued to explain to the public how the agency intends to use its discretionary authority, do not actually have the force of law, and as such are also easily disclaimed in the event of any court challenge to agency actions. In particular, it remained open to the agency to conduct a case-by-case review of ICANN's decisions, as indeed it did in the case of the VeriSign contracts.
In contrast to a statement of policy, a denial of a petition for rulemaking is a real agency decision with legal consequences, albeit one of the hardest types to challenge in court because of the great deference courts usually give to an agency's choices about the issues it believes potentially need regulation. By predicating its refusal on a policy of deference to ICANN, and also by its actions in approving .info and .biz within hours of ICANN's IANA-hatted recommendation that it do so, the agency has shown that it adheres to the statement of policy when it matters. That candor will certainly clarify the issues enormously in the event of any court challenge alleging that DoC's relies on ICANN for policy judgments more than the law allows a public body to rely on a private body.
A particularly striking aspect of DoC's reliance on ICANN, one scarcely addressed in either the White Paper or DoC's latest letter, is how or why DoC's delegation to ICANN of the power to decide which TLD strings get into the legacy root should bring with it the power to establish lengthy contractual conditions as to how the TLD is to be managed. While the choice of TLDs might be defended as a ‘technical' matter, the close control over the business of being a registry cannot seriously be called anything other than a whole series of policy choices. It's understandable why DoC might enjoy being out of the line of fire, but much less clear that the law allows it this passive role.
Here's the full text of the letter sent by the Department of Commerce:
[Date stamped Jun 25 2001]
Mr. William H. Bode
Bode & Beckman, LLP
1150 Connecticut Avenue, NW
Washington, DC 20036-4192
Dear Mr. Bode:
The National Telecommunications and Information Administration (NTIA) is in receipt of your letter on behalf of your client the Atlantic Root Network, Inc. regarding its concerns about the process by which the Internet Corporation for Assigned Names and Numbers (ICANN) selects new top level domains (TLDs).
In July 1998, the Department of Commerce made it clear that it would not participate in the selection process of new TLDs as set forth in the Statement of Policy, entitled Management of Internet Names and Addresses, 63 Fed. Reg. 31741 (1998). In the Statement of Policy, the Department recognized that the selection of new TLDs should be conducted by the private sector through a not-for-profit organization, globally representative of the Internet stakeholder community. The Department recognized ICANN as that organization in November 1998 through a Memorandum of Understanding.
We note that at its May 2001 board of directors meeting, ICANN approved the establishment of a New TLD Evaluation Process Planning Task Force (Task Force) ro monitor the implementation process and to evaluate the selection process of the new TLDs. The ICANN board resolution stated that the Task Force will make recommendations to the ICANN board and the Internet community regarding the selection process. It is our understanding that the Task Force will allow public input when formulating its recommendations. We encourage you to participate in this opportunity. In a recent letter to ICANN, the Department encouraged ICANN to move forward in the selection of new TLDs in order to increase competition in the domain name space.
Again we encourage you to direct Atlantic Root Network's concerns regarding ICANN's selection process directly to ICANN.
John F. Sopko
Acting Assistant Secretary for
Communications and Information