[bc-gnso] Last Call: BC Position on New TLD Registry Agreement Amendments DAG v3

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

Last call, folks.   Below is the draft BC position on new TLD Registry
Agreement Amendments.

Ron Andruff and Jon Nevett provided the draft.  I¹ve signaled my agreement,
as did Berry Cobb.

Absent objections by COB tomorrow, we will file as consensus BC comments on
1-Apr-2010. 

--Steve



Business & Commercial Users¹ Constituency (BC)
Position/Comments on Process for Amendments to New gTLD Registry Agreements

The Commercial and Business Users Constituency (BC) welcomes the opportunity
to comment on the New gTLD Program Explanatory Memorandum on the Process for
Amendments to New gTLD Registry Agreements, which was published for public
comment on February 15, 2010 (see
http://icann.org/en/announcements/announcement-4-15feb10-en.htm ).

ICANN seeks comment as to a fair process to amend New TLD registry
agreements.  In DAG v.3, ICANN proposed that it could unilaterally amend
registry agreements even after a majority of the registry operators rejected
such amendments.  The Registries Stakeholder Group (RySG) recently has
proposed a system of good faith negotiations between ICANN and the registry
operators, but that each registry would have a veto on proposed changes to
that registry agreement.
As a matter of policy, the BC believes that businesses should not be subject
to agreements where the other party has the unilateral right to amend such
an agreement.  ICANN¹s proposal in which the ICANN Board could unilaterally
impose a change to registry agreements notwithstanding the objections of a
majority of registry operators, the BC, or any other ICANN organization is
an anathema to ICANN¹s bottom-up policy making roots.

Similarly, the RySG¹s proposal, in which each individual registry has the
ability to veto a proposed change, also is inconsistent with the efficient
functioning and scalability of the New gTLD program.  This issue requires a
³balanced² approach that satisfies both parties.
The BC analyzes the issue based on whether proposed changes are within the
so-called ³picket fence² ­ and subject to Consensus Policy ­ or not.  All
contractual changes should be made in a transparent manner with input from
the community. 

For issues within the picket fence, there is an existing Policy Development
Process that carries the power to change all registry and registrar
agreements.  As described in current and proposed registry contracts, the
picket fence includes most conceivable ways that community and BC members
would need to control registry practices:

> 1.2.1. issues for which uniform or coordinated resolution is reasonably
> necessary to facilitate interoperability, security and/or stability of the
> Internet or DNS;
> 
> 1.2.2. functional and performance specifications for the provision of registry
> services; 
> 
> 1.2.3. Security and stability of the registry database for the TLD;
> 
> 1.2.4. registry policies reasonably necessary to implement Consensus Policies
> relating to registry operations or registrars; or
> 
> 1.2.5. resolution of disputes regarding the registration of domain names (as
> opposed to the use of such domain names).
> 
> 1.3.1. principles for allocation of registered names in the TLD (e.g.,
> first-come/first-served, timely renewal, holding period after expiration);
> 
> 1.3.2. prohibitions on warehousing of or speculation in domain names by
> registries or registrars;
> 
> 1.3.3. reservation of registered names in the TLD that may not be registered
> initially or that may not be renewed due to reasons reasonably related to (i)
> avoidance of confusion among or misleading of users, (ii) intellectual
> property, or (iii) the technical management of the DNS or the Internet (e.g.,
> establishment of reservations of names from registration); and
> 
> 1.3.4. maintenance of and access to accurate and up-to-date information
> concerning domain name registrations; and procedures to avoid disruptions of
> domain name registrations due to suspension or termination of operations by a
> registry operator or a registrar, including procedures for allocation of
> responsibility for serving registered domain names in a TLD affected by such a
> suspension or termination.

> Source: 
> http://icann.org/en/topics/new-gtlds/draft-agreement-specs-clean-04oct09-en.pd
> f 
 
By way of example, a picket fence PDP was how the BC and other community
members put a stop to domain tasting that was occurring by abuse of the
add-grace period.  While many felt that a 2-year PDP and implementation
process took too long, this experience showed that the system works,
generating a policy outcome that became part of all registrar and registry
agreements.

 Therefore, ICANN shouldn¹t have the ability to unilaterally change such
agreements without community consent, and the BC does not see any need for a
separate process for amendment on top of the current PDP process.  The ICANN
community is tasked with making policy; not the ICANN Board or staff.  We
have a process to make changes now.  If that process needs improvement,
let¹s improve it. Giving ICANN the ability to unilaterally amend the
Registry contract is not the answer.
Certain other issues outside the picket fence also should not be subject to
unilateral changes, such as pricing, ICANN fees, and other similar topics
where neither party can unilaterally amend an agreement without consent of
the other party to the contract.

There are some issues outside the picket fence, however, where ICANN and/or
the community should be able to amend registry agreements without the
specific consent of every single registry operator, as long as there is a
consensus of the community.  These issues should include security and
stability issues, enforcement tools, registrant protections, and promoting a
stable marketplace, and should be enforceable against all registry
operators. For example, compliance staff must have the tools to enforce the
registry agreements against potential bad actor registries.  One rogue
registry should not be able to veto changes that the rest of the community
supports. Similar changes to the Registrar Accreditation Agreement were
recently adopted without each registrar being able to veto the changes.

Even with such rogue issues, neither the ICANN staff nor the Board should be
able to amend registry agreements without community involvement and input
from the registry operators.  All changes ­ regardless of the issue -- must
be transparent and exhibit the appropriate level of accountability to the
community. 

ICANN needs to strike a balance in the manner in which registry agreements
are amended.  In the BC¹s view, neither the current ICANN proposal nor the
RySG proposal succeeds in doing so yet.