Defendant National Science Foundation ("NSF"), by its
Attorney, Mary Jo White, United States Attorney for the Southern
District of New York, answers the Second Amended Complaint, upon
information and belief, as follows:
1. The allegations contained in paragraph 1 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF (1) denies that the domain
name format is arcane or arbitrarily limited; and (2) admits that
there was a time when the Internet was exclusively operated and
controlled by military, governmental and educational research
facilities.
2. The allegations contained in paragraph 2 of the
Second Amended Complaint set forth legal conclusions or requests
for relief for which no response is required, except that NSF (1)
denies that Network Solutions, Inc. ("NSI") exclusively controls
and operates the root zone file; (2) respectfully refers this Court
to NSF's June 25, 1997 and August 11, 1997 letters to NSI, for an
accurate statement of NSF's response to NSI's request to add new
generic top level domain names to the root zone file; (3) denies
that NSF injected itself into the dispute between NSI and PGMedia,
Inc. ("PGMedia"); (4) denies that NSF has acted without authority
or in violation of the First Amendment; (5) denies that PGMedia is
seeking narrowly tailored relief; and (6) denies that PGMedia is
entitled to the relief sought as against NSF.
3. NSF lacks sufficient knowledge or information to form
a belief as to the truth of the allegations contained in paragraph 3
of the Second Amended Complaint.
4. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in
paragraph 4 of the Second Amended Complaint, except that NSF denies
that NSI exclusively controls and operates the root zone file.
5. NSF admits the allegations contained in paragraph 5
of the Second Amended Complaint, except that the statements
regarding the authority for NSF's joinder in this litigation are
legal conclusions for which no response is required.
6. The allegations contained in paragraph 6 of the
Second Amended Complaint set forth legal conclusions for which no
response is required. To the extent a response might be deemed
required, NSF lacks sufficient knowledge or information to form a
belief as to the truth of the allegations contained in paragraph 6.
2
7. The allegations contained in paragraph 7 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF (1) admits that the domain
name system is international in scope; and (2) denies that the
domain name system extends to every host on the Internet.
8. The allegations contained in paragraph 8 of the
Second Amended Complaint set forth legal conclusions for which
no response is required.
9. The allegations contained in paragraph 9 of the
Second Amended Complaint set forth legal conclusions for which
no response is required.
10. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in
paragraph 10 of the Second Amended Complaint, except that NSF
admits (1) that the Internet had its origins in a network created
in the 1960s by the Advanced Research Project Agency; and (2) that
the network was designed to be redundant.
11. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in
paragraph 11 of the Second Amended Complaint, except that NSF
admits that a communication standard was developed and implemented.
12. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first two sentences of paragraph 12 of the Second Amended
Complaint, except that NSF admits that the Transmission Control
Protocol was implemented on the ARPANET. NSF admits the
3
allegations contained in the third sentence of paragraph 12. The
fourth sentence of paragraph 12 is a statement of nomenclature that
requires no response.
13. NSF denies the allegations contained in paragraph 13
of the Second Amended Complaint, except that NSF admits (1) that
the domain name entered by the requesting host equates to a
corresponding IP address, and (2) that the requesting host may
communicate directly with the host at the IP address corresponding
to the domain name originally entered.
14. NSF denies the allegations contained in paragraph 14
of the Second Amended Complaint, except that NSF (1) admits that
the domain name was divided into hierarchical fields, separated by
periods; and (2) admits that the field farthest right in the domain
name is known as the "top level domain" or "TLD."
15. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first two sentences of paragraph 15 of the Second Amended
Complaint. NSF denies the allegations contained in the third
sentence of paragraph 15, except that NSF lacks sufficient
knowledge or information to form a belief as to the truth of the
allegation that PGMedia does not claim any exclusivity with respect
to the "PGM Shared TLDs."
16. NSF denies the allegations contained in paragraph 16
of the Second Amended Complaint, except that NSF lacks sufficient
knowledge or information to form a belief as to the truth of the
allegation contained in sentence five of that paragraph.
4
17. NSF denies the allegations contained in paragraph 17
of the Second Amended Complaint, except that the allegations
regarding the existence of an essential facility set forth legal
conclusions for which no response is required.
18. As to the first sentence of paragraph 18 of the
Second Amended Complaint, NSF (1) admits that the United States of
America (represented by NSF) entered into Cooperative Agreement No.
NCR-9218742 (the "Cooperative Agreement") with NSI on or about
January 1, 1993, and respectfully refers the Court to that
agreement for an accurate statement of its contents; and (2) denies
that NSI was given exclusive control of the root nameservers and
the root zone file. NSF denies the allegations contained in the
second sentence of paragraph 18, except admits that the root zone
file are maintained exclusively by NSI. The remainder of paragraph
18 sets forth legal conclusions for which no response is required,
except that NSF (1) denies that it did not reserve to itself or any
other Government agency any control or authority with respect to
changes to the top level domain namespace; and (2) admits that the
Cooperative Agreement was amended on or about September 13, 1995,
and respectfully refers the Court to the text of that amendment for
an accurate statement of its contents.
19. As to the allegations contained in the first
sentence of paragraph 19 of the Second Amended Complaint, NSF
respectfully refers the Court to the text of the Cooperative
Agreement and its amendments for an accurate statement of their
contents. The second sentence of paragraph 19 sets forth a legal
5
conclusion for which no response is required. NSF denies the
allegations contained in the third sentence of paragraph 19. The
fourth sentence of paragraph 19 sets forth legal conclusions for
which no response is required, except that NSF respectfully refers
the Court to the text of the Cooperative Agreement and its
amendments for an accurate statement of their contents.
20. The allegations contained in paragraph 20 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF (1) denies that there has
been any "total disengagement" by NSF; (2) lacks sufficient
knowledge or information to form a belief as to whether there is
considerable dissatisfaction within the Internet community over the
domain name registration system; (3) denies that NSF no longer
maintains any authority regarding the changes to the root zone file
sought by PGMedia; and (4) denies that NSF's actions have violated
the First Amendment.
21. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first three sentences of paragraph 21 of the Second Amended
Complaint, except that NSF (1) admits that there has been an
increased demand for domain name registration services; (2) denies
that the top level domain names are arbitrarily limited; and (3)
denies that NSI has exclusive control of the root zone file. NSF
denies the allegations contained in the remainder of paragraph 21.
6
22. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in
paragraph 22 of the Second Amended Complaint.
23. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first, second, and fifth sentences of paragraph 23 of the Second
Amended Complaint, except that NSF denies (1) that the top level
domain names are arbitrarily limited; and (2) that "PGM's shared
TLDs" will enable new and expanded modes of political speech. NSF
denies the allegations contained in the remainder of paragraph 23.
24. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first, second, and fifth sentences of paragraph 24 of the Second
Amended Complaint. NSF denies the allegations contained in the
remainder of paragraph 24.
25. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in
paragraph 25 of the Second Amended Complaint.
26. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in
paragraph 26 of the Second Amended Complaint.
27. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first sentence of paragraph 27 of the Second Amended Complaint.
The second sentence of paragraph 27 sets forth legal conclusions
for which no response is required.
7
28. NSF denies the allegations contained in the first
sentence of paragraph 28 of the Second Amended Complaint. The
second sentence of paragraph 28 sets forth a legal conclusion for
which no response is required.
29. The first three sentences of paragraph 29 of the
Second Amended Complaint set forth legal conclusions for which no
response is required. As to the fourth sentence of paragraph 29,
NSF respectfully refers the Court to NSI's March 17, 1997 letter to
PGMedia for an accurate statement of its contents. The fifth
sentence of paragraph 29 sets forth legal conclusions for which no
response is required.
30. As to the first sentence of paragraph 30 of the
Second Amended Complaint, NSF respectfully refers the Court to
PGMedia's March 11, 1997 letter to NSI for an accurate statement of
its contents. The second sentence of paragraph 30 sets forth legal
conclusions for which no response is required, except that NSF (1)
denies that PGMedia seeks narrowly tailored relief; and (2) admits
that granting PGMedia the relief sought herein will greatly expand
the number of generic top level domain names.
31. NSF lacks sufficient knowledge or information to
form a belief as to the truth of the allegations contained in the
first sentence of paragraph 31 of the Second Amended Complaint. As
to the second sentence of paragraph 31, NSF respectfully refers the
Court to NSI's March 17, 1997 letter to PGMedia for an accurate
statement of its contents. The remainder of paragraph 31 sets
forth legal conclusions for which no response is required.
8
32. As to the first sentence of paragraph 32 of the
Second Amended Complaint, NSF respectfully refers the Court to
NSI's June 10, 1997 letter to NSF for an accurate statement of its
contents. The second sentence of paragraph 32 sets forth legal
conclusions for which no response is required, except that NSF
denies that NSI's proposal would allow for unlimited top level
domain names.
33. As to paragraph 33 of the Second Amended Complaint,
NSF respectfully refers the Court to NSF's June 25, 1997 letter to
NSI for an accurate statement of its contents.
34. As to paragraph 34 of the Second Amended Complaint,
NSF respectfully refers the Court to NSI's July 10, 1997 letter to
NSF for an accurate statement of its contents.
35. As to paragraph 35 of the Second Amended Complaint,
NSF respectfully refers the Court to NSF's August 11, 1997 letter
to NSI for an accurate statement of its contents.
36. As to paragraph 36 of the Second Amended Complaint,
NSF respectfully refers the Court to PGMedia's September 4, 1997
letter to NSF, and to NSF's September 12, 1997 letter to PGMedia,
for an accurate statement of their contents.
37. The first three sentences of paragraph 37 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF admits that it has asserted
that it is authorized to restrict addition of new top level domain
names. As to the fourth sentence of paragraph 37, NSF respectfully
refers the Court to NSF's June 25 and August 11, 1997 letters to
9
NSI, and to NSF's September 12, 1997 letter to PGMedia, for an
accurate statement of their contents. The fifth sentence of
paragraph 37 sets forth legal conclusions for which no response is
required, except that NSF denies that its actions have violated the
First Amendment.
38. The allegations contained in paragraphs 38 through
51 of the Second Amended Complaint set forth legal conclusions for
which no response is required.
39. As to paragraph 52 of the Second Amended Complaint,
NSF repeats and realleges paragraphs 1 through 38 above as if
fully set forth herein.
40. The allegations contained in paragraph 53 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF respectfully refers the Court
to NSF's June 25 and August 11, 1997 letters to NSI, and to NSF's
September 12, 1997 letter to PGMedia, for an accurate statement of
their contents.
41. The allegations contained in paragraph 54 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF (1) denies that its actions
have violated the First Amendment; and (2) denies that PGMedia has
been irreparably harmed by NSF's actions.
42. The allegations contained in paragraph 55 of the
Second Amended Complaint set forth legal conclusions for which no
response is required, except that NSF (1) respectfully refers the
Court to NSF's June 25 and August 11, 1997 letters to NSI, and to
10
NSF's September 12, 1997 letter to PGMedia, for an accurate
statement of their contents; (2) respectfully refers the Court to
5 U.S.C. section 702 -and 28 U.S.C. section 2201 for an accurate statement of
their contents; (3) denies that its actions have unconstitutionally
limited speech rights; and (4) denies that PGMedia is entitled to
the declaratory relief it seeks as against NSF.
43. Paragraphs 1 through 5 of pages 35 and 36 of the
Second Amended Complaint set forth the substantive relief sought by
PGMedia, as to which no response is required, except that NSF
denies that PGMedia is entitled to the relief sought as against
NSF.
First Defense
The Second Amended Complaint fails to state a claim upon
which relief may be granted.
Second Defense
PGMedia lacks standing to assert some or all of its claims.
Third Defense
The Court should abstain from considering this matter
(or, in the alternative, this matter should be stayed) pending the
conclusion of ongoing executive, legislative, and international
processes designed to address the domain name system.
Fourth Defense
PGMedia has no right to a jury trial with respect to its
claims against NSF.
11
WHEREFORE, having fully answered, NSF submits PGMedia is
not entitled to the relief prayed for in the Second Amended
Complaint, or to any other relief, and that the Second Amended
Complaint should be dismissed with prejudice, with costs and
disbursements awarded to NSF.
|