RE: [gnso-dt-wg] Rework of motion

["Rosette, Kristina" <krosette@xxxxxxx>]

Jeff, good question.  I'd appreciate clarification of that, too, to make
sure we're all on the same page.  The transcripts of the GNSO Council
meeting and Thursday wrap-up are far from crystal clear.  As for your
other point, I had understood that the bylaws do not require
supermajority support of Council before Board can vote.  If there's
language elsewhere that controls, I'd appreciate if you would point me
in the right direction so that I'm working from the same baseline.

I'm definitely open to considering other proposals.  Having said that,
the most recent proposal was defintely a compromise for my constituency.
I feel that any further proposals on my part would effectively mean that
I'm negotiating against myself (or the constituency, which would be more
accurate).  That doesn't mean that the IPC wouldn't ultimately support
anything else, but simply that I won't be the person putting it forth.

In terms of Tuesday, one thing that would be helpful to me is if we
could discuss how  it's possible to have a consensus policy that
recognizes differences among registries.  Maybe I'm over thinking this,
but I don't get it.

On another note, NeuStar's willingness to be in front and your
willingness to participate is definitely appreciated.  

-----Original Message-----
From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx] 
Sent: Friday, February 22, 2008 10:51 AM
To: Rosette, Kristina; Alan Greenberg; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion

All,

Kristina, I am thoroughly confused by the dialogue below.  Can someone
explain to me where we are.  Also, you MUST have supermajority support.
The Board CANNOT impose any policy on the registries without true
consensus.  

Guys, lets focus on getting this right rather than just getting it to
the Board.  The ICANN Board is but one party to a contractual
arrangement.  As a lawyer you should know that one party to an agreement
cannot unilaterally impose terms and conditions on another party unless
there is a contractual mechanism to do so.  ICANN's Board can make as
many proclamations and resolutions as it wants.  However, that does not
mean that that motion has any affect on the other party to the contract.

Now, I strongly suggest lets get into a more productive mode.  Revise
the proposal as such and get that proposal (not the concept of fighting
tasting) out to the public for its comments and impact statements.

If I have misunderstood anything in the e-mail exchange below, let me
know.  I am going to read this thoroughly over the weekend and I will be
on the call on the 26th to discuss.

As I told Mike R in person in Dehli, NeuStar wants to see Tasting
abolished as much as anyone else, but if we are going to do this, we
need to do it right and make sure that any solution that does come out
recognizes differences between the registries, has true consensus
support and is not challengeable by any impacted party.  

I am completely sincere in wanting to help get this done.

Thanks.

Jeffrey J. Neuman, Esq. 
Sr. Director, Law, Advanced Services  & 

Business Development 

NeuStar, Inc. 
e-mail: Jeff.Neuman@xxxxxxxxxx 


-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Rosette, Kristina
Sent: Friday, February 22, 2008 9:50 AM
To: Alan Greenberg; gnso-dt-wg@xxxxxxxxx
Subject: [gnso-dt-wg] Rework of motion


Thanks, Alan.

AG:   Now for future suggestion.  We launched the PDP with a
supermajority vote (even though it wasn't needed), and I would really
like to see any result adopted that way as well. It will make it much
harder to the Board to fiddle with or more likely just toss it back to
Council.
KR:  I agree that it would be preferable to have a supermajority.
Having said that, this is - for once - an issue on which I believe we
have a majority even if the Registries and Registrars all vote "no."
Given the global interest in and concern about this issue at  the
community, business and governmental levels, I personally would be
stunned if the Board would reject a policy recommendation that is
intended to stop tasting.  

AG: I believe that the addition, currently in square brackets requiring
reporting of exceptions is going to make it very to pass. The regular
report will already show the number of AGP deletes and net adds. So
exceptions (or non-free adds) will stick out like a sore thumb. Do we
really wasn't to push for report?
KR:  Yes.  I strongly believe that any exception to the application of
consensus policy - and that is what we're talking about, not just
contractual terms - must be transparent and documented.  Registrants are
entitled to know if registrars are seeking exemptions, if registries are
granting them, and for the granted ones - why.  

AG:  Despite the many negative comments, I think that we have done
sufficient consultation. 
KR:  I agree.

AG:  On the other hand, I am not at all sure that we have sufficiently
listened to it. Specifically, the very strong registry statement that
they could not support a one-size-fits-all approach, which is what we
produced.
KR:  Consensus policy is a one-size-fits-all approach. There's no way
around that. Dealing with this issue on a
per-registry-contractual-amendment-basis will not solve the problem
(unless VeriSign steps up and I'm not holding my breath on that one). I
keep reminding myself that we've potentially got 900 new gTLDs -- all of
which will be ripe for tasting - coming down the pike. 

AG:  Specifically, our approach penalizes PIR who have already took
measures against tasting, and would surely do so again if their current
change proved ineffective. 
KR:  Can you elaborate on this point?  How does it penalize them?

AG:  We are also assuming the since 10% was a good fit for NeuStar and
Afilias (by their own admission), the it is a good fit for VeriSign
(perhaps it is, but I don't know).
KR:  I've never wanted 10% but agreed in the spirit of compromise.  I do
not understand how we can have a % in a consensus policy and not have it
apply across the board.

AG:  I like the approach that Mike suggested at the Thursday Council
meeting (which was met with no enthusiasm, perhaps because of the entire
AGP elimination alternative). What if we make this motional apply only
to registries that do not already have "effective" 
mechanisms in place to combat/eliminate domain tasting? This would
exempt PIR, and presumably NeuStar and Afilias. It lets other registries
and particularly VeriSign pick their own tasting poisin, but with the
requirement that it be demonstrably effective? Obviously we would need
to craft the "effective mechanisms" statement carefully. One thing I
like about this idea is that it is addressing tasting, not just the AGP,
which could be effective at prohibiting a registry that want registrars
to taste (using preferential pricing  perhaps) from doing so.
KR:  I am interested in how we can make this work without having
loopholes or too many details.

AG: Lastly on a less substantive issue, I think the motion would be
stronger it had far fewer Whereas's. Perhaps an opinion not shared.
KR:  No strong feelings.  Given the context in which we put this
forward, I thought it appropriate to have the full recitation.  
 

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Alan Greenberg
Sent: Thursday, February 21, 2008 10:23 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: [gnso-dt-wg] Rework of motion

Here is the revised draft. I do not believe that I have changed the
intent of it at all. I did make one change to the 5th Whereas, which I
believe was in error, and I reworded the body of the motion to make it
clear that it only applies to those contracts that include an AGP , to
include the onerous details of the exception, and to remove the
suggested contract wording.

Now for future suggestion.  We launched the PDP with a supermajority
vote (even though it wasn't needed), and I would really like to see any
result adopted that way as well. It will make it much harder to the
Board to fiddle with or more likely just toss it back to Council.

- I believe that the addition, currently in square brackets requiring
reporting of exceptions is going to make it very to pass. The regular
report will already show the number of AGP deletes and net adds. So
exceptions (or non-free adds) will stick out like a sore thumb. Do we
really wasn't to push for report?

- Despite the many negative comments, I think that we have done
sufficient consultation. On the other hand, I am not at all sure that we
have sufficiently listened to it. Specifically, the very strong registry
statement that they could not support a one-size-fits-all approach,
which is what we produced. Specifically, our approach penalizes PIR who
have already took measures against tasting, and would surely do so again
if their current change proved ineffective. 
We are also assuming the since 10% was a good fit for NeuStar and
Afilias (by their own admission), the it is a good fit for VeriSign
(perhaps it is, but I don't know).

- I like the approach that Mike suggested at the Thursday Council
meeting (which was met with no enthusiasm, perhaps because of the entire
AGP elimination alternative). What if we make this motional apply only
to registries that do not already have "effective" 
mechanisms in place to combat/eliminate domain tasting? This would
exempt PIR, and presumably NeuStar and Afilias. It lets other registries
and particularly VeriSign pick their own tasting poisin, but with the
requirement that it be demonstrably effective? Obviously we would need
to craft the "effective mechanisms" statement carefully. One thing I
like about this idea is that it is addressing tasting, not just the AGP,
which could be effective at prohibiting a registry that want registrars
to taste (using preferential pricing
perhaps) from doing so.

- Lastly on a less substantive issue, I think the motion would be
stronger it had far fewer Whereas's. Perhaps an opinion not shared.

OK, I think that I have tossed out enough potentially unpopular ideas
for one e-mail.

Regards, Alan