One of the aims of The Guidelines is to ensure that such a competitive multiple-Registrar environment for the PH ccTLD, as described above, is realized. For such an environment to exist two conditions are necessary:
Condition 2 is necessary because no Registrar would be able to compete against the Registry if the Registry itself were allowed to directly solicit business from the Registrants.
Condition 1 is necessary to prevent one Registrar from gaining any undue advantage in the market. It is not unreasonable to believe that if the Registry were involved in one of the Registrars, say as a subsidiary, a directly-owned company, or as another company with inter-locking ownership, the Registry would find ways to favor its own Registrar. Perhaps this Registrar would receive lower prices, better service, or get advance notice of policies which would affect all the other Registrars. The mere fact that the Registry could have an interest in a Registrar would be a barrier to the entry of other non-Registry-affiliated Registrars because the latter would always be at a competitive disadvantage against the Registry-affiliated Registrar. To prevent this situation, The Guidelines has mandated that the Registry should be separate from the Registrar(s). The separation of the Registry from the Registrar will ensure that there is a level playing field in the Registrar market.
Mr Disini has a very interesting theory that this provision violates his private property rights. He claims the following:
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 Constitution. 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.
He goes on to state:
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.He then finishes his theory by citing Article III, Section 9 of the Constitution which states that ``private property shall not be taken for public use without just compensation.''
In one illogical train of thought, Mr Disini has equated the separation of the Registry from the Registrar into the confiscation of his private property! In fact, nothing is being confiscated from Mr Disini. Nothing he owns is being carted away. Neither his computers, his offices, his desks, his cubicles, nor his mansions are being confiscated. Nothing he owns is being transferred from his possession to another's possession.
Mr Disini could be likened to an individual who drives an automobile without a license. The competent state authority has advised him that stricter rules would be implemented and he is asked to follow the traffic rules before he is granted a license. Mr Disini then jumps up and down claiming that the state agency has confiscated his automobile!
In fact, it is entirely up to Mr Disini to choose whether he wants to engage in the Registrar business or not. The Guidelines does not make that choice for him. Therefore, there is nothing being confiscated and nothing arbitrary in the Guidelines.
If Mr Disini chooses to remain as one of the Registrars because he thinks being a Registrar is his private property, then the community will search for a new organization which can competently run the Registry in his place. After all, notwithstanding the fact that he as been beneficial owner of the PH ccTLD for the past fourteen years, he does not own the PH ccTLD. Now, whether Mr Disini's Registrar business will flourish or flounder (and be taken away from him, so to speak) in a new environment where the Registry and Registrars are separate is a question which The Guidelines can not answer.
Some have commented that separating the Registry from Registrar might be a radical step in reforming the PH ccTLD. Could there be, perhaps, other alternatives which would assure that a competitive multiple-Registrar market would exist? After more than 5 months of work and more than 12 meetings, the Adboard had found no better alternative. After two public hearings and the active solicitation of comments from all interested groups, no other alternative had been presented. The NTC and ITECC, after three meetings with Mr Disini, had not received an alternative proposal from Mr Disini. DotPH representative Mr Emil Avanceña's presentation to the Adboard in February 2004 contained no alternatives. Even the Disini Paper itself presents no alternative! Is it not logical to conclude that the separation of the Registry from the Registrar is the only available option?
If we grant Mr Disini's argument that being a Registrar is a private property he owns and that forbidding him from becoming a Registrar is a confiscation of his private property, then there is no other choice for the community. We have to look for a better operator of the Registry. This argument only forces the hand of the competent government authority.