Though there is much that is legally questionable with the proposed Guidelines, dotPH seeks to ensure that the PH Domain is administered for the good of the local and global community.
The Guidelines seem to create more problems than they would solve. If the NTC is intent on providing effective oversight over DNS activities, NTC should endeavor to either:
(1) look for problems that need solving, or
(2) if there are no problems that need solving, NTC must seek to ensure that DotPH's current standard of service is maintained.
By monitoring this standard of service and ensuring that DotPH does not perform below acceptable levels, the NTC can ensure robust and efficient Domain Name service of the .PH domain for the benefit of the local and global Internet communities.
I. The PH Domain is not a public resource over which the State has a sovereign right.
The Guidelines define the .PH ccTLD as a public resource over which the State has a sovereign right. However, the State has made no contribution to the development of the Internet, the DNS system, or even the establishment of the local registry itself.
The only basis for the State asserting its 'rights' is that .PH was designated as the domain identifying the Philippines. But mere identification does not bestow such rights to the State.
1) Does the State have any rights over the 'Philippine Fund' that is traded on the NYSE? Can it dictate which stocks comprise that fund or where it can be traded?
2) Does the State have rights over Google keywords that include 'Philippines' and 'PH'? Can the State determine what ads are appropriate to use on Philippine keyword searches on Google? For that matter, is Yehey a public resource that the State can regulate? Yehey, the Philippine ccTLD and Google are all merely tools that help locate objects on the Net that are associated with the Philippines.
3) Is Verisign's Sitefinder service a public resource? Does the Philippine government have rights to any Sitefinder results or ads that contain the string "PH" or "Philippines", like unionbankph.com?
In all three cases, as with the DNS system, the technology was developed by private companies or the US Government. The Philippine Government provided no assistance or participation whatsoever. Hence, like any of the others, the DNS cannot be said to be a public resource over which the State has rights.
In fact, the assertion of State 'rights' flies in the face of RFC-1591, universally recognized as the basis for which all Top Level Domains are delegated. RFC-1591 states that "concerns about 'rights' and 'ownership' are inappropriate....(i)t is appropriate to be concerned about 'responsibilities' and 'service'." To date, the NTC has not yet identified how the Registry has failed to live up to its responsibility of providing robust domain name service, nor what problems the said service may have.
II. The Guidelines violate Mr. Disini's rights.
The proposed separation of the Registry and Registrar functions requires that Mr. Disini give up his Registrar business. The NTC, by compelling Mr. Disini to do so, may be violating the Consitution1. It arbitrarily takes away the Registrar business which is lawfully Mr. Disini's, and in which he has invested time, effort and money in establishing. That the NTC is planning to take it away and hand it over to other private entities to be designated by the NTC makes the situation worse.
Furthermore, it is the consumer who will suffer by shutting down the DotPH Registrar. Consumers will face added costs and downtime because:
1) Many domains will not work. Many clients use DotPH's free Webforwarding service to direct their domains to an existing site. These users will need to buy webhosting, since there are few registrars to turn to that offer Webforwarding for free.
2) Websites will go down. DotPH is one of the few Registrars that provides free Nameserver hosting to its clients. Existing users will have to purchase nameserver hosting or get DSL lines with fixed IP addresses and host their own nameservers.
3) E-mail will bounce since the Mailforwarding service will be shut down. Users will either have to pay their ISPs extra to MX mail on their ISP mailboxes or else resort to using Hotmail and Yahoo addresses. Mailforwarding gives users the freedom to change ISPs without their mail bouncing or changing email addresses. Without this, many users will be stuck with their ISPs and be unable to shift easily.
Clearly, separation of the Registry and Registrar functions may be unconstitutional, and works against the interests of the general public as well.
The Guidelines also compel Mr. Disini to give up the database of registrants and impose limitations on the use of that database. The NTC has no right to do so, in the same way that it has no rights over the database of Smart, Globe or any ISP.
III. The Guidelines are discriminatory.
The Guidelines are targeted specifically at DotPH while leaving similar
entities unhampered. This results in a denial of equal protection under the
Other Registries which compete for the same customers as DotPH - such as .COM and .NET - are free to operate as they see fit without being bound by these regulations. Even the other local registries - .gov.ph (DOST) and edu.ph (PHNet) - are exempt from the Guidelines.
IV. The Guidelines prevent .PH from competing freely by weakening it vis-a-vis .COM and other Top Level Domains.
Instead of enhancing the service provided by DotPH, the Guidelines would diminish its quality and effectively drive people away from using the .PH ccTLD.
1) Regulating pricing makes the Registry less responsive to market forces and the needs of the global Internet community. It would affect the level of service that the Registry offers. Also, pricing the domain too low will shrink margins and drive away Registrars; while pricing it too high would drive away registrants. Pricing should be set by market forces and not artificially controlled by the Government.
2) Separating the Registry and Registrar will hamper innovation and limit the speed by which new technology is deployed. Experience has shown that Registrars will not implement systems to support the Registry's innovations unless there is sufficient market demand. This may take a while in a small, underdeveloped market like the Philippines. As Registry and Registrar, DotPH can get innovations into the market more quickly - innovations which benefit the consumer and make the .PH domain more attractive.
3) The Government seeks to define who may and may not be Registrars. This limits the Registry's ability to expand the Registrar channel and make .PH more accessible to a greater number of users.
4) Forcing the Registry to locate its primary Nameservers in the Philippines prevents the use of the best available technology. For example, multicast nameservers - which today are the best for robust DNS service- are not available locally. In addition, we would be more susceptible to underwater cable outages. Websites and e-mail services will not work since secondary nameservers worldwide would not be updated while the Philippines is cut off from the rest of the world.
5) By forcing the Registry to operate as a non-profit organization, the Guidelines limit the Registry's ability to seek capital neccesary to expand and improve services.
The Philippines has embraced the principle of free market competition and deregulation. The Guidelines prevent, by artificial means, free competition and are most likely contrary to Article 186 of the Revised Penal Code. Contrary to the national policy of deregulation, the Guidelines attempt to control and heavily regulate the domain name system by prescribng pricing and other technical requirements, instead of allowing the market and the industry to make the regulation.
V. There is potential for collusion between the NTC and .COM resellers.
The Guidelines are being formulated with the participation of entities which profit from the sale of .COM domains, including PISO representative PhilOnline.com. This could be construed as collusion since:
1) The Guidelines regulate dotPH yet leave COM and its resellers to operate freely.
2) The Guidelines appoint NTC as the body which negotiates pricing on behalf of Registrars, who also resell .COM domains.
3).COM resellers are on the Advisory Board, yet no one represents the Consumer or .PH Registrants