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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Please see some comments below Mike.

Chuck 

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Mike Rodenbaugh
Sent: Monday, February 25, 2008 12:11 AM
To: gnso-dt-wg@xxxxxxxxx; 'Council GNSO'
Subject: RE: [gnso-dt-wg] Rework of motion


Thanks Liz.

In response to this report four months ago, the Council essentially
voted to handle these terms of reference itself, rather than form a Task
Force to do so.  I believe we did this because a majority felt we had
enough evidence about the effects, judged that the effects justify
measures be taken to impede domain tasting, and had much information
about potential impacts of various resolutions but also would get
Constituency Impact statements about such potential impacts.  We then
got those Impact Statements.

CG: It is possible that some may have reasoned this way although I do
not recall anyone expressly communicating it.  I voted in favor of the
'Council as a Whole' option instead of a task force because the 'Council
as a Whole' option in the Bylaws provides more flexibility in terms of
forming 'open' working groups than the task force model does.  I recall
even qualifying my vote to say that it did not mean that I thought the
Council should do the work themselves but rather that the 'Council of
the Whole' option provided more flexibility.  I definitely did not vote
in support of the 'Council as a Whole' option because I thought that "we
had enough evidence about the effects, judged that the effects justify
measures be taken to impede domain tasting, and had much information
about potential impacts of various resolutions".  

The Council then voted to have an open, volunteer design team to suggest
next steps, and that team unanimously recommended a measure designed to
impede domain tasting -- which the Council should be deliberating, if we
can get past the process roadblock of the Registries. 

CG: As I have said several times, the purpose as I understood it for the
design team was to suggest ways of deliberating?  For example, should we
form a working group?  A legitimate outcome would have been to suggest
not forming a working group because the DT thought that enough info was
already available.  

How did we get here?  Here's a brief history of the ICANN process wrt to
domain tasting, and specifically wrt to the 'excess delete fee'
resolution:

PIR request to SSAC in March 2006,
http://www.pir.org/PDFs/SSAC-ICANN_ORG_Tasting_3-26-06.pdf 

Sept. 2006, PIR proposal to implement 'excess delete fee service'.

Nov. 2006 the ICANN Board:  Resolved, (06.84), the President and the
General Counsel are authorized to enter into an amendment of the .ORG
Registry Agreement to implement the proposed excess deletion fee service

At least five ICANN public meetings and workshops on the domain tasting
issue, links to full transcripts of those meeting are at this page,
http://public.icann.org/issues/domain-name-tasting:

    * 27 June 2006: Domain tasting workshop
    * 6 December 2006: Domain name marketplace.
    * 25 March 2007: How the Marketplace for Expiring Names Has Changed
    * 25 March 2007: Domain name secondary market
    * 24 June 2007: Domain tasting tutorial

June 2007, PIR implements excess deletion fee, tasting immediately and
drastically reduced in .org

June 2007:  In response to ALAC request and GNSO vote, ICANN staff
prepared an issues paper on domain tasting, which discussed the PIR
implementation of the excess delete fee.
http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-1
4jun
07.pdf.  The report also shows the ICANN General Counsel's opinion that
policy development wrt to domain tasting is "within scope of the ICANN
policy process and within scope of the GNSO."  This report also had a
public comment period.

June 2007, GNSO voted to form a working group to examine the facts and
recommend further action, with a report created in October 2007:
http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-f
inal..pdf.  The working group contained reps from all Constituencies and
from other stakeholders.  Their consensus report included discussion of
excess delete fee (including PIR's implementation), suggestion of it as
a potential resolution, and documented the widespread community
discussion about it as a resolution.  This report included much public
input both via an open questionnaire, and also one designed by the
Intellectual Property Constituency for trademark owners.

CG: The Outcomes Report also recommended the following: "As requested by
the GNSO Council, the ad hoc group has drafted the following Terms of
Reference for a potential Policy Development Process, for the GNSO
Council's consideration, should the Council resolve to pursue that
option: 1. Review and assess all the effects of domain tasting
activities that have been identified.  2. Judge whether the overall
effects justify measures to be taken to impede domain tasting. 3. If the
answer to 2 is affirmative, then consider the potential impacts of
various measures on the Constituencies, and recommend measures designed
to impede domain tasting. (5.1 Draft Terms of Reference)"

CG: I know that you believe the terms have all been met but I have yet
to see a reference to where that is documented.   Where can a find a
listing of all the effects of domain tasting and an assessment of those
effects? Where can I find a discussion showing that the overall effects
justity measures to be taken to impeded tasting? Where can I find a
listing of the various measures and their impacts?

October 2007, GNSO voted to move forward with the PDP by requesting
Constituency Impact Statements with respect to the information and
proposed resolutions contained in the Outcomes report, including the
excess delete fee.  GNSO rejected option of forming a Task Force,
deciding instead that the issue was ripe for Council deliberation and
resolution.  BC, NCUC, ALAC and Registrars Constituency each give view
on excess delete fees.  The statements are incorporated in the "Initial
Report"
http://gnso.icann.org/issues/domain-tasting/gnso-initial-report-domain-t
asti
ng-07jan08.pdf, which had a public comment period. 

November 2007, GNSO voted to form a 'design team' to review all the
reports and public comments, and recommend next steps in the PDP.  

January 2008, Design Team of 3 Councilors and ALAC Advisor unanimously
agreed on proposed Council resolution recommending excess delete fee for
all registries with an AGP, which is the same proposal put forth by
Afilias and Neustar for .info and .biz.  The Design Team finds this the
most reasonable and potentially achievable compromise among the various
options.

January 29, 2008, ICANN Board suggests action to address domain tasting:
http://www.icann.org/announcements/announcement-29jan08.htm."; The
Internet Corporation for Assigned Names and Numbers is looking to
effectively end domain tasting with a proposal to start charging the
annual ICANN fee on registrar domain registrations."  It is unclear
whether this will actually become part of the ICANN budget beginning
July, 2008.

February 2008, Registries filibuster substantive Council deliberation by
arguing there has not been enough process to address the proposed
Council resolution.  Registry Constituency representative argues that
any Council resolution could not become Consensus Policy unless the
Registries Constituency agrees to the resolution.


Respectfully submitted,
Mike Rodenbaugh

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Liz Gasster
Sent: Sunday, February 24, 2008 5:47 PM
To: Gomes, Chuck; Rosette, Kristina; Mike Rodenbaugh;
gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


All,

The three draft terms of reference that were suggested in the October
2007 Domain Tasting Outcomes Report that Chuck refers to below are
copied for your reference.  Liz

1. Review and assess all the effects of domain tasting activities that
have been identified.

2. Judge whether the overall effects justify measures to be taken to
impede domain tasting.

3. If the answer to 2 is affirmative, then consider the potential
impacts of various measures on the Constituencies, and recommend
measures designed to impede domain tasting.

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Gomes, Chuck
Sent: Sunday, February 24, 2008 12:57 PM
To: Rosette, Kristina; Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


Thanks for the questions Kristina.  I attempted to answer them as best I
can below with the understanding that what I say is my personal
interpretation because I have not cleared it with the RyC.  I certainly
encourage Jeff as the RyC representative on this WG to confirm or
correct anything I say, and I of course will communicate any differences
of opinion from RyC members if and when I become aware of any.

Chuck

-----Original Message-----
From: Rosette, Kristina [mailto:krosette@xxxxxxx]
Sent: Sunday, February 24, 2008 1:12 PM
To: Gomes, Chuck; Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion

Chuck,

It would be helpful to me (and perhaps others) if you could provide some
clarification of one point made in the RyC constituency statement.

Paragraph 3.1.2 states that "The RyC believes that a one-size-fits-all
approach will not work for all registries and sponsors. The RyC
therefore suggests that consideration of variations of this approach
should be evaluated by individual registries and sponsors.  It should
also be noted that what is successful for one gTLD may not have the same
results in another gTLD."  Paragraph 3.2.1 indicates that this position
has supermajority support within the RYC.

I read this paragraph to mean that the RyC will not support a
"one-size-fits-all approach."  Is that interpretation correct?

CG: Yes, but it may be helpful to qualify what I believe the position
means.  I attempt that below.

If it is, I am having difficulty understanding how it is possible for
the design team (or the Council, for that matter) to develop any policy,
which will inherently be a one-size-fits-all approach", that will have
any support from the RyC.  (I am excluding "policies" that recommend no
action be taken or recommend the status quo, namely, each registry do
its own thing.)  Is it possible?  If so, I would appreciate some
clarification.

CG:  If a policy is proposed that does not take into consideration the
differences among registries and sponsors with regard to the AGP and the
impacts the proposed policy might have on various registries and
sponsors, then it is highly unlikely that the RyC would support the
proposed policy.  In my opinion though, that does not mean that the RyC
would oppose any proposed policy.  What I believe we are saying is that
any such policy needs to adequately deal with any applicable differences
that exist among registries and sponsors.  In other words, the policy
development process needs to attempt to address any applicable
differences that exist among registries and sponsors.  If that is done
in a reasonable manner, then I do not think that the RyC would oppose
any resulting policy recommendations on the basis of the issue of 'one
size fits all'. The fact that this did not happen yet should not be
taken as a criticism of the 'design team', because I do not believe they
were tasked with developing policy but rather, as Avri pointed out, to
suggest next steps forward. But, to the extent that the 'design team'
takes on a broader role that includes proposing a possible policy, then
it is essential that the one-size fits all issue be dealt with.  This to
me would best be handled by an open working group with clear terms of
reference that delineate tasks as those suggested in the Domain Tasting
Outcomes Report.

Many thanks.

K

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Gomes, Chuck
Sent: Saturday, February 23, 2008 8:51 AM
To: Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


A few corrections and clarifications below Mike.

Chuck

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Mike Rodenbaugh
Sent: Friday, February 22, 2008 3:34 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


I would prefer to vote on the proposal ASAP.  Council has already
decided not to have a Task Force, and had commissioned an open WG
already, and has taken Constituency Impact Statements.  This proposal
has been thoroughly vetted through open process.  I see no hope of
coming to a solution that RyC will accept, because their position
appears to be that ICANN can't make policy that binds them, unless they
agree.  And they haven't agreed to any policy development the last 3
years, except for newTLDs which will make them more money and
Inter-Registrar Transfer which will save them money via less disputes.
Seems to me that RyC is again trying to delay policy development for as
long as they can, by throwing up bogus arguments about lack of process.

CG: The open WG was an information gathering WG.  The impact statements
were not based on any policy recommendations developed by a PDP.  What
proposal was "thoroughly vetted"?  Certainly not the proposal in the
motion.

While we won't have a SuperMajority (if indeed we even have a majority),
it will be clear why, and the Board can do as it likes.  And we can move
onto other issues as we will have done our job.  I simply have no
confidence that
3 more months will produce anything different in the situation we have
today.  I have lost patience on this issue because the practice is so
facially wrong and has garnered almost unanimous antipathy from the
non-contracting community, yet Council have spun our wheels endlessly
for about a year now, fruitlessly trying to do anything about it.
Process like this gives ICANN a bad name.

CG: Whether or not you think additional time will produce what you want
is not the issue.  The issue is whether or not we have a legitimate
policy development process.

-Mike Rodenbaugh

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Neuman, Jeff
Sent: Friday, February 22, 2008 12:04 PM
To: Avri Doria; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


Avri,

Is your question to the ICANN GC on whether the ICANN Board can act?  If
that is the question, the answer is yes.  If your question is whether
the ICANN's Board decision is binding on the registries, that is a
totally separate issue.

Irrespective of the answer, whether we call it a new PDP or jus opening
a new WG, I guess I am neutral.  I would just clarify that rather than
having the WG determine a solution, in order to narrow that down, and
speed up the times lines, I would propose that the WG just focus on the
solution presented by the Design Team which I believe is the
NeuStar/Afilias solution (unless people think that would be too narrow).


Design Team -- Does this sound like a way forward?  If so, I could take
the substance of the motion that has been reworked (minus all of the
Whereas clauses) and try to come up with a draft charter and proposed
time-line to send to the group. (To that end, if someone has a form
charter to use as a template, that would help).  If not, I am sure I can
wing it.

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 Avri Doria
Sent: Friday, February 22, 2008 2:50 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: Re: [gnso-dt-wg] Rework of motion


Hi,

Two quick comments:

- The issue of whether this would or would not be a consensus policy is
one for  legal counsel.  I can certainly check with legal counsel to
find out the status of a decision according to 13f.

- We are already in a PDP.  As opposed to trying to begin yet another
PDP, I would would think a suggestion for an open WG to come up with a
solution that could get a supermajority would be a more feasible route.
Assuming others in the DT and the council, agree with you.  If this is
the path the DT suggests, it would be good for the DT to propose the
charter and timings.

a.

On 22 Feb 2008, at 13:45, Neuman, Jeff wrote:

>
> A couple of notes:
>
> 1.  A majority of the Council as opposed to Supermajority is not 
> "deemed to reflect the view of the Council".  See Section 12.
>
> 2.  Yes, the Board can act, but again, that Board decision, in my view

> (and in the view of the other registries) would not be binding on the 
> gTLD Registry Operators because that would not be viewed as "consensus

> of Internet stakeholders".  After all, if a majority is not even 
> deemed to reflect the view of the Council, then how can it represent a

> Consensus of Internet stakeholder.
>
> 3.  The reason I am using the phrase "consensus of Internet 
> stakeholders" is because that is the phrase that is used in the gTLD 
> contracts.  See below which is taken from Section 3.1(b)(iv) of the 
> .com agreement (See
>
http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06
> .
> htm) which states:
>
> "Consensus Policies and the procedures by which they are developed 
> shall be designed to produce, to the extent possible, a consensus of 
> Internet stakeholders, including the operators of gTLDs.  Consensus 
> Policies shall relate to one or more of the following: (1) issues for 
> which uniform or coordinated resolution is reasonably necessary to 
> facilitate interoperability, Security and/or Stability of the Internet

> or DNS;
> (2)
> functional and performance specifications for the provision of 
> Registry Services (as defined in Section 3.1(d)(iii) below); (3) 
> Security and Stability of the registry database for the TLD; (4) 
> registry policies reasonably necessary to implement Consensus Policies

> relating to registry operations or registrars; or (5) resolution of 
> disputes regarding the registration of domain names (as opposed to the

> use of such domain names).  Such categories of issues referred to in 
> the preceding sentence shall include, without limitation:
>
> Particularly important is the phrase "including the operators of 
> gTLDs".
> Now before you try to argue that it is modified by the phrase "to the 
> extent possible", let me state that the following:
>
> 1.  "To the extent possible" does not mean that if the registries are 
> on the losing side of the vote it is not "possible" to achieve gTLD 
> operator support for a proposal on domain tasting.
>
> 2.  The gTLD Registries have indicated on a number of occasions that 
> we do believe a proposal to eliminate tasting (in TLDs where tasting 
> has
> occurred) can garner the registry operators support.  We are committed

> to working with you to achieve that.  We just need to find a solution 
> that takes into consideration the differences of each of the 
> registries.
>
> Now if we are done talking about process, lets get down to business:
>
> 1.  There is a proposed solution on the table; namely I believe the 
> NeuStar/Afilias proposal (which by the way should be officially posted

> for public comment today).
>
> 2.  My recommendation is to take those proposals, get the GNSO Council

> to initiate a PDP, and launch a Task Force (or Working Group) open to 
> the community whose sole purpose and charter is to study the 
> implications of this proposal.  I would gladly help ICANN staff in the

> drafting of that charter.
>
> 3.  We follow the strict timing in the Bylaws on the formation of the 
> Task Force/Working Group, elect a chair, and get constituency 
> statements getting them to focus solely on the proposal.  This should 
> be very easy, quick and painless.
>
> 4.  Have a Task Force report that analyzes the constituency statements

> and public input and modifies the proposal (if necessary).  Put that 
> out for comment and draft the final report (all included in the 
> Bylaws).
>
> If we follow the strict timing in the Bylaws, which I believe we can, 
> we can have this done, wrapped up and to the Board within 90 days and 
> still before the Paris meeting.
>
> This will require some diligent efforts, but let's show that this is 
> possible.
>
>
> 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 Avri Doria
> Sent: Friday, February 22, 2008 12:15 PM
> To: gnso-dt-wg@xxxxxxxxx
> Subject: Re: [gnso-dt-wg] Rework of motion
>
>
>
> On 22 Feb 2008, at 11:41, Rosette, Kristina wrote:
>
>> eff, 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.
>
> Hi,
>
> As I read the by-laws, appended below, the Council does not need to 
> achieve a supermajority in order to forward on a decision (note 11b).
> A non supermajority view, though, is treated differently by the board 
> (13b vs. 13f).
>
> In terms of this DT, the purpose is still to present a way forward for

> the council to discuss.  That can be a motion, a motion plus update of

> constituency statements, or a WG charter.  The motion can be based on 
> the reworked version Alan has presented, or another motion all 
> together, e.g. the elimination of a required AGP as was suggested by 
> many of the comments or some other motion.
>
> I think it is best if the way forward leads to a supermajority 
> position.  If we can't get a motion that would be able to garner 
> supermajority support, then perhaps we need to do more work and a WG 
> charter might be the right way forward.
>
> a.
>
>
> from the by-laws
> -----------------------
>
> 11. Council Report to the Board
>
> The Staff Manager will be present at the final meeting of the Council,

> and will have five (5) calendar days after the meeting to incorporate 
> the views of the Council into a report to be submitted to the Board 
> (the "Board Report"). The Board Report must contain at least the
> following:
>
>     a. A clear statement of any Supermajority Vote recommendation of 
> the Council;
>
>     b. If a Supermajority Vote was not reached, a clear statement of 
> all positions held by Council members. Each statement should clearly 
> indicate (i) the reasons underlying each position and (ii) the
> constituency(ies) that held the position;
>
>     c. An analysis of how the issue would affect each constituency, 
> including any financial impact on the constituency;
>
>     d. An analysis of the period of time that would likely be 
> necessary to implement the policy;
>
>     e. The advice of any outside advisors relied upon, which should be

> accompanied by a detailed statement of the advisor's (i) 
> qualifications and relevant experience; and (ii) potential conflicts 
> of interest;
>
>     f. The Final Report submitted to the Council; and
>
>     g. A copy of the minutes of the Council deliberation on the policy

> issue, including the all opinions expressed during such deliberation, 
> accompanied by a description of who expressed such opinions.
>
> 12. Agreement of the Council
>
> A Supermajority Vote of the Council members will be deemed to reflect 
> the view of the Council, and may be conveyed to the Board as the 
> Council's recommendation. Abstentions shall not be permitted; thus all

> Council members must cast a vote unless they identify a financial 
> interest in the outcome of the policy issue. Notwithstanding the 
> foregoing, as set forth above, all viewpoints expressed by Council 
> members during the PDP must be included in the Board Report.
>
> 13. Board Vote
>
>     a. The Board will meet to discuss the GNSO Council recommendation 
> as soon as feasible after receipt of the Board Report from the Staff 
> Manager.
>
>     b. In the event that the Council reached a Supermajority Vote, the

> Board shall adopt the policy according to the Council Supermajority 
> Vote recommendation unless by a vote of more than sixty- six (66%) 
> percent of the Board determines that such policy is not in the best 
> interests of the ICANN community or ICANN.
>
>     c. In the event that the Board determines not to act in accordance

> with the Council Supermajority Vote recommendation, the Board shall
> (i) articulate the reasons for its determination in a report to the 
> Council (the "Board Statement"); and (ii) submit the Board Statement 
> to the Council.
>
>     d. The Council shall review the Board Statement for discussion 
> with the Board within twenty (20) calendar days after the Council's 
> receipt of the Board Statement. The Board shall determine the method 
> (e.g., by teleconference, e-mail, or otherwise) by which the Council 
> and Board will discuss the Board Statement.
>
>     e. At the conclusion of the Council and Board discussions, the 
> Council shall meet to affirm or modify its recommendation, and 
> communicate that conclusion (the "Supplemental Recommendation") to the

> Board, including an explanation for its current recommendation. In the

> event that the Council is able to reach a Supermajority Vote on the 
> Supplemental Recommendation, the Board shall adopt the recommendation 
> unless more than sixty-six (66%) percent of the Board determines that 
> such policy is not in the interests of the ICANN community or ICANN.
>
>     f. In any case in which the Council is not able to reach 
> Supermajority, a majority vote of the Board will be sufficient to act.
>
>     g. When a final decision on a GNSO Council Recommendation or 
> Supplemental Recommendation is timely, the Board shall take a 
> preliminary vote and, where practicable, will publish a tentative 
> decision that allows for a ten (10) day period of public comment prior

> to a final decision by the Board.
>
>
>