[bc-gnso] RE: Closed Generic TLDs: a straw poll of BC member views

["Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx>]

Steve,

I have a process request on top of your options below.   As you noted, ICANN's 
public comment period for closed generic strings has a deadline of March 7.
I also understand that the current ICANN Objection period ends on March 13 (6 
days later).  Could we request that the BC consider requesting an extension of 
time of the Objection period to a date after ICANN responds to the comments on 
"closed" generic strings (e.g., 30-60 days thereafter)?

This extension would at least allow the community to make the most informed 
decisions regarding which costly objections to file and perhaps allow for some 
additional guidance from ICANN?

Thanks,

Sarah



Sarah B. Deutsch
Vice President & Deputy General Counsel
Verizon Communications
Phone: 703-351-3044
Fax: 703-351-3670


From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Steve DelBianco
Sent: Sunday, February 17, 2013 11:50 PM
To: bc - GNSO list
Subject: [bc-gnso] Closed Generic TLDs: a straw poll of BC member views

BC Members:

ICANN just opened a public comment period 
(link<http://www.icann.org/en/news/public-comment/closed-generic-05feb13-en.htm>)
 asking whether to classify certain TLD applications as "closed generic", and 
to deter me "circumstances under which a particular TLD operator should be 
permitted to adopt open or closed registration policies."

As written, this comment solicitation steers away from the question of whether 
a registry can own all the domain names in a TLD.  Instead, ICANN is asking 
whether we need new policies regarding who may register a domain, as is 
apparent from this "background" statement under the public comment:

"it should be clarified that the Code of Conduct refers to registry-registrar 
interactions, rather than eligibility for registering names in the TLD. Rather 
than the Code of Conduct, the true issue of concern being expressed appears to 
be that in certain applications, the proposed registration policies are deemed 
inappropriate by some parties."

That points us to the Registry Code of Conduct (attached), which was created 
partly in response to BC concerns about allowing vertical integration of 
registries and registrars.  Here's the section most relevant to this discussion:

1. In connection with the operation of the registry for the TLD, Registry 
Operator will not, and will not allow any parent, subsidiary, Affiliate, 
subcontractor or other related entity, to the extent such party is engaged in 
the provision of Registry Services with respect to the TLD to:

b. register domain names in its own right, except for names registered through 
an ICANN accredited registrar that are reasonably necessary for the management, 
operations and purpose of the TLD

Reasonable people interpret 1b differently.  Does 1b prohibit a registry from 
owning names in its own TLD, except for limited circumstances?   Or does 1b 
allow a registry to own any and all names that suit the purpose of their TLD?

ICANN legal may further clarify its interpretation of 1b, but I believe they 
see 1b as permitting  a "closed generic" TLD to own all its own names.

Whatever the thoughts of ICANN legal, we have an opportunity to comment on what 
should be the interpretation and implications for closed generic TLDs.

As we discussed last Tuesday, the BC may not arrive at a consensus or majority 
view, in which case we could submit just background information.

My goal with this email is to to conduct a "straw" poll of BC members to assess 
convergence around a desired policy outcome that would form the basis of a BC 
Comment on closed generics.

First, I compiled a 3-page history on the BC's support for closed TLDs, 
starting in 2007 with sponsored TLDs and then for dot-brand TLDs starting in 
2009. (See attached)   BC members with long memories may want to improve on 
that history, but its only here for background so let's not get too wrapped-up 
in that.

So, here are the 3 potential outcomes we proposed on the BC call last week.  
Please reply with your views and preferences by 21-Feb-2013 and we'll see 
whether there's enough support to do a BC position on this before ICANN's 
deadline of 7-March.

Outcome #1:  Anything Goes.   The registry Code of Conduct clearly allows a TLD 
operator to have control over who registers domains in their TLD, and the 
operator can own all the domains if they wish.   Under this outcome, a registry 
could own all the domains in their TLD without having to ask ICANN for an 
exemption from the Code of Conduct.

Outcome #2:  Exemption Required. The registry Code of Conduct prohibits a TLD 
operator from registering names in its own TLD, except for names reasonably 
necessary for operating the TLD.   Under this outcome, the 1b "except for" does 
not swallow the rule and thereby allow control of all domains in the TLD.   A 
registry that wants to own all the domains in its TLD can still do so, however, 
if it obtains an exemption from the Code of Conduct, as provided in Para 6 of 
the Code:

6. Registry Operator may request an exemption to this Code of Conduct, and such 
exemption may be granted by ICANN in ICANN's reasonable discretion, if Registry 
Operator demonstrates to ICANN's reasonable satisfaction that (i) all domain 
name registrations in the TLD are registered to, and maintained by, Registry 
Operator for its own exclusive use, (ii) Registry Operator does not sell, 
distribute or transfer control or use of any registrations in the TLD to any 
third party that is not an Affiliate of Registry Operator, and (iii) 
application of this Code of Conduct to the TLD is not necessary to protect the 
public interest.

All that remains is for ICANN to develop & publish the process and criteria 
they will use to determine whether giving an applicant this exemption is "in 
the public interest" as required by para 6.    Presumably, the public interest 
would include considerations of consumer protect, freedom of expression, 
competition, innovation, and relevant pledges made by ICANN in the 2009 
Affirmation of Commitments.


Outcome #3. Only dot-brands may get an exemption.  Only dot-Brands should get 
the Code of Conduct Exemption. That would allow .Hilton, .Apple, .Google to 
pursue the exemption, and they should have no trouble getting it.  But Goodyear 
would not be eligible for an exemption that allow it to own all names in .tires 
TLD, for example.

If this straw poll reveals no significant support for any of the above, the BC 
would not draft a position on this public comment period.  Instead, the BC 
might submit just background information and analysis, and perhaps a Reply 
comment later on.
--
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org
+1.202.420.7482