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

[Marilyn Cade <marilynscade@xxxxxxxxxxx>]

Thanks, Steve, Jon, and Ron, for your work on this position. I largely support 
the perspective in the document. 
However, I would propose a change:  I think that your use of domain name 
tasting as an example is actually not fully factual. I'd propose that you 
simply strike that example. The PDP 06 is a better example, but I don't think 
you should substitute it. Instead, just strike the reference to the specific 
example. [first paragraph under the source: citation]. It would take too much 
time and detail to factually explain this topic. I'd propose just to remove it 
as an example. 
Background to why I am proposing that change:   The BC [and IPC] led a 
significant effort to push forward awareness of kiting, tasting, and parking, 
against considerable opposition from some other constituencies within ICANN.  
The data gathering efforts, which included informational exchanges with the 
ICANN staff and Board, and by some members of the BC with legal and operational 
staff was very challenging.  The PDP process could have floundered due to lack 
of support by some of the constituencies.   Some parties in the business 
community undertook extensive work, outside of ICANN, to deal with aggregious 
tasting/parking/kiting when it involved trademarked names.  These actions 
helped to educate and inform ICANN staff and Board.  Ultimately, it was the 
combination of external and awareness efforts that built willingness to address 
this contentious issue within the ICANN PDP process.  
Overall comment:  In reading this, i would note that the BC needs to be very 
sensitive in our positions, focusing on our role and responsibility as the BC, 
to be business user centric. Business users are affected by these policies 
differently than the supplier/contracted parties are.  
Finally, there is a reference to 'rogue issues', or 'rogue registry'.  A 
registry with very unique characteristics, such as a brands focused registry,  
might find certain requirements impossible to agree to -- e.g. the transfer of 
the registry operations in the event of a decision to close the registry.  This 
would not make them a 'rogue' registry. 
Marilyn Cadespeaking in individual capacity as a BC member

From: icann@xxxxxxxxxxxxxx
To: bc-GNSO@xxxxxxxxx
Subject: RE: [bc-gnso] Last Call:   BC Position on New TLD Registry Agreement 
Amendments DAG v3
Date: Tue, 30 Mar 2010 17:04:29 -0700








Last Call:   BC Position on New TLD Registry Agreement
Amendments DAG v3








Thanks Steve, Jon and Ron.  I support this position.

 



Mike Rodenbaugh

RODENBAUGH LAW

tel/fax:  +1 (415) 738-8087

http://rodenbaugh.com



 





From: owner-bc-gnso@xxxxxxxxx
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco

Sent: Tuesday, March 30, 2010 3:31 PM

To: bc-GNSO@xxxxxxxxx

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





 

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



Ron Andruff and Jon Nevett provided the draft.  I’ve 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 Users’ 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.  ICANN’s 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 ICANN’s bottom-up policy making roots.  



Similarly, the RySG’s 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 “balanced” approach that satisfies both parties.  

The BC analyzes the issue based on whether proposed changes are within the
so-called “picket fence” – 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.pdf






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 shouldn’t 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, let’s 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 BC’s view, neither the current ICANN proposal nor the
RySG proposal succeeds in doing so yet.