[address-policy-wg] 2013-03 New Draft Document and Impact Analysis Published (No Need - Post-Depletion Reality Adjustment and Clean up)

On 05/08/2013 11:41, Milton L Mueller wrote:
> Nigel,
> Thanks, interesting. I had not read the full analysis before With due respect, I think the legal analysis in the impact statement is confused or at least unconvincing.
>
> The analysis says:
> "From an EU competition point of view, it is important that IPv4 allocations and transfers are conducted in a way that cannot be seen as discriminatory or exclusionary."
>
> This I agree with. And a no-need policy, which eliminates the RIPE-NCC's judgment from the picture, also eliminates the possibility that RIPE-NCC's judgment could be construed as discriminatory or exclusionary.
> But the statement goes on to say:
>
> "The fact that the allocation of IP addresses by the RIPE NCC occurred on the basis of the proof of objective need, rather than purely economic considerations, has protected the RIPE NCC from competition law claims."
>
> First, I would ask for evidence. Has anyone ever threatened NCC with competition law claims before and had their case thrown out based on th existence of needs assessment? I strongly suspect not, but if so, let us know. It seems obvious to me that RIPE-NCC is more likely to be challenged legally if it is directly responsible for making the decision as to who gets and does not get addresses. A court might uphold their methods of assessing need, but this does not tell us anything about whether they would be more or less subject to such challenges if needs assessment goes away.
I'm always wary of statements about legal matters that start "it seems 
obvious to me". Whilst it might seem, to the layman, that the law is an 
ass, we unfortunately have to deal with it in its own strange twilight 
zone, with its own rules. As a layman, I agree with you. Unfortunately 
in the twilight zone we have to rely on the guides that we have engaged.
> Second, the statement says "Removing the needs-based requirement would create an exposure to competition law claims based on discriminatory treatment or refusal to supply." This is just wrong. If RIPE is not involved in a transfer of number blocks, it simply cannot be accused of discriminatory treatment. It offers no "treatment" whatsoever.
>
> Indeed, the legal analysis suggests the correct conclusion:
>
> "Competition law claims would be mainly addressed to LIRs that could be seen as coordinating in stockpiling and applying discriminatory practices."
>
> In other words, a more market-based allocation regime might involve competition policy claims against individual buyers of IP numbers who are stockpiling addresses for anti-competitive purposes. But RIPE would not be liable.
>
> The statement adds, "Such claims may also be addressed to the RIPE NCC, if only in order to make more publicity for the claim." In other words, these claims would have no legal merit and might  be filed only for publicity purposes. But if publicity is the object, then the existence of needs assessment will not protect RIPE either - a litigant could sue RIPE-NCC to gain publicity either way.
Our twilight zone guides think not, and I personally wouldn't presume to 
have an opinion one way or the other. All the impact analysis says is 
"if this proposal goes through then you *may* wish to think about 
putting aside a small additional pot to pay your lawyers". The RIPE NCC 
will almost certainly be doing so in the next budget, if this proposal 
goes through. It probably won't be a huge amount, but we'll do it 
because we run the RIPE NCC in an extremely conservative manner.
> QED
>
Remember that the Romans met their final fate at the hands of the 
barbarian hordes.

Nigel