Contractual Conditions for New TLD's
ICANN has requested comments concerning its "Policy to Guide Contractual Conditions for New Top Level Domains", including "Using the experience of previous rounds of top level domain name application processes [to].develop policies to guide the contractual criteria." As I have pointed out previously, ICANN can delegate only that decision-making authority which ICANN itself possesses. Any delegation of decision-making authority (such as authority to determine eligibility criteria or set other policy for a TLD) *implicitly* contains all those limitations on ICANN decision-making contained in ICANN's Bylaws (including those related to openness, transparency, procedural fairness, and independent review). But, since TLD operators have consistently failed to respect these limitations on their delegated authority (as detailed in my previous comments, and those of many other community members), and since noncompliance has evaded sanctions or review, "the experience of previous rounds of top level domain name application processes" provides strong evidence of the need (1) to make these rules explicit, (2) for ICANN to exercise better oversight over compliance with these rules, and (3) to establish mechanisms for resolution of complaints of noncompliance. Accordingly, I request that the following *explicit* contractual condition be included in any contract in which ICANN delegates decision-making authority: "In consideration for the delegation by ICANN of authority to act as ICANN's designated agent for the making of certain decisions concerning the TLD, the contractor agrees that any such authority will be exercised in accordance with the provisions of ICANN's Bylaws concerning decision-making by ICANN and its constituent bodies, including but not limited to those provisions concerning openness, transparency, procedures designed to ensure fairness, and independent review." ICANN also requests comments to, "Determine appropriate policies to guide a contractual compliance programme for registry services." It is strange that the only aspect of contractual compliance on which ICANN is soliciting comments is "registry services". Most complaints concerning contractual compliance have concerned openness, transparency, fairness, and -- perhaps more than any other aspect of TLD contracts -- whether TLD's have been operated in the interests of the communities for whose benefit they were (purportedly) proposed and chartered, and in whose interest they were contractually required to be operated. As I have pointed out many times before, ICANN has never evaluated whether these clauses in TLD contracts have been complied with, has never created any procedure for resolution of disputes concerning charter compliance, and has never adopted independent review policies or designated an independent review provider to make possible independent review of these actions. Complaints of noncompliance by TLD operators with their contracts brought before ICANN's Board of Directors at its quarterly meetings -- the only available means for petition for redress of these grievances -- have been completely ignored. I have brought these issues to ICANN's attention, repeatedly and consistently, but no action has been taken by ICANN to evaluate compliance with TLD contracts, to enforce those contracts, or to establish any process to resolve disputes or complaints by affected parties of noncompliance with TLD contracts. Comments to the "New TLD Evaluation Process Forum" (16 January 2002): http://forum.icann.org/newtldevaluationprocess/3C45253900000020.html Comments to the public forum at ICANN's Rio de Janiero meeting (26 March 2003): http://forum.icann.org/riodejaneiro/stld-rfp-comments/general/msg00007.html Comments to the public forum at ICANN's Montréal meeting 26 June 2003): http://forum.icann.org/mtg-cmts/stld-rfp-comments/general/msg00027.html (also in more readable format at <http://hasbrouck.org/icann/montreal.html>) Comments to the public forum on TLD proposals (30 April 2004): http://forum.icann.org/lists/stld-rfp-travel/msg00033.html Comments to the public forum on the "Initial Version of New gTLD Implementation Strategy" (4 October 2004): http://forum.icann.org/lists/gtld-strategy-draft/msg00002.html ICANN's "independent" evaluators of the most recent TLD applications called my comments concerning ICANN's liability and fiduciary responsibility for delegated TLD decision-making to ICANN's attention as "worth noting" (see page 60): http://www.icann.org/tlds/stld-apps-19mar04/PostAppD.pdf I urge ICANN to take due note, as its own evaluators have recommended, of its fiduciary responsibility, and its obligations to act according to its own Bylaws, by making explicit in all TLD charters, and by enforcing, the requirement that any decision authority delegated by ICANN over a TLD (or any other subject) must be exercised in accordance with the procedural and oversight rules in ICANN's Bylaws, including those pertaining to openness, transparency, procedural fairness, and independent review. -------------------- Edward Hasbrouck edward@xxxxxxxxxxxxx http://hasbrouck.org +1-415-824-0214 |