[gnso-dt-wg] Heads-up regarding an RyC suggestion re. DT Motion

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

So as not to blindside everyone on the Council call, to allow discussion
by the DT-WG team prior to the Council meeting and to avoid additional
delays, I want to alert you to a position agreed to by a strong majority
of RyC members in our regular meeting earlier today.  Regarding the
consensus policy motion to be put out for public comment, most of us in
the RyC believe that it would be much better if clause 2 of the motion
was deleted before putting the motion out for public comment.  My
attempt to describe our thinking in that regard follows.
 
First let me cut and paste clause 2 here: " The above restriction on use
of the Add Grace Period shall be considered an "ICANN adopted
specification or polic[y] prohibiting or restricting warehousing of or
speculation in domain names by registrars" in accordance with Section
3.7.9 of the Registrar Accreditation Agreement.  As such, a Registrar
that engages in domain tasting, defined as using the AGP to register
domain names in order to test their profitability, shall be deemed in
material breach of the Registrar Accreditation Agreement."
 
Our concerns include the following:

*       The wording of this clause appears to set a policy prohibiting
domain name warehousing and domain name speculation, which was not the
topic of this PDP, nor were warehousing or speculation specified as
issues to be covered in the Domain Tasting PDP that the Council
initiated.
*       Even if we accept the fact that domain tasting is a subset of
domain warehousing or domain speculation, we believe that warehousing
and speculation involve more than domain tasting.
*       If a policy is to be developed regarding the broader issues of
domain name warehousing and domain name speculation, then a PDP should
be considered in that regard, but it would not be appropriate to set
such a policy without a thorough review of all of the issues associated
with warehousing and speculation including those unrelated to domain
tasting.
*       Clause 2 does not seem to add anything to the motion with regard
to domain tasting; it is our belief that no amendment would be necessary
in either registry agreements or the RAA in order to implement the
policy because both registries and registrars already have terms in
their agreements with ICANN that require us to implement consensus
policies.  Therefore, if the Council sends the policy recommendation to
the Board and the Board approves it as a consensus policy, then
registries and registrars will be required to implement it.  Deleting
clause 2 would not seem to change that scenario at all.
*       Leaving clause 2 in the motion for public comment will likely
distract from the main thrust of the motion by causing people to focus
on the broader issues of warehousing and speculation as well as on
definitions of terms like 'profitability'; moreover, GNSO processes
could be challenged because of the point made in bullet one above.
*       Leaving clause 2 in the motion could complicate the goal of
completing the PDP in a timely manner.

The RyC has never taken a position regarding the broader issues of
domain name warehousing or domain name speculation nor are we advocating
one way or another regarding such a policy, but we do believe that any
such policy should be developed following existing PDP procedures,
making sure that an in-depth examination of all the related issues
happens, not just those related to a subset of those topics related to
domain name tasting.
 
In conclusion, the RyC suggests that clause 2 of the consensus policy
motion be deleted.  The RyC instructed its Council reps to support the
motion to put the consensus policy motion out for public comment and to
request updated constituency impact statements to address the consensus
policy motion, but we strongly recommend that clause 2 be deleted before
the motion is acted on.
 
Chuck Gomes
 
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