Re: [gnso-vi-feb10] Preamble

[Jean Christophe VIGNES <jcvignes@xxxxxxxxxxx>]

I too would like to know more but would also need to be convinced from a
practical standpoint.

The main reason the VI debate is so "hot" right now is because of new gTLDs:
what would we be looking to achieve with regards to existing ones? Even if
it would be possible from a legal standpoint (which remains to be confirmed)
I don't see the point.

So as far as drafting goes, I believe the Charter should only cover new
gTLDs.

On Objective 1, standard is too imprecise since history shows there has been
variation -- as stated on the call I believe "current" would be a better
choice.

As for Objective 2, I agree CO should be mentionned as a separate concept
and reference should be made to "equal access"  as it is a key factor in the
VI debate.

I'm not sure Objective 3 is even practical, to be honest...

Objective 4 is a must.

JC

Le 11/02/10 02:04, « Mike Rodenbaugh » <icann@xxxxxxxxxxxxxx> a écrit :

>
> Avri said:  i do not believe we can make consensus policy on current gTLDS,
> only recommend future actions
>
> I respectfully disagree.  Wasn't this battle fought over PDP '06 --
> Contractual Conditions, and resolved that in fact the Registry Agreements
> mean what they say... Consensus Policy generally can be adopted so long as
> the issue is not excluded within the 'picket fence'?
>
> I think it was.  So I also support Stephane's call for more info and
> analysis from ICANN counsel as to how they came to that (contrary)
> conclusion again now, and how that harmonizes with PDP '06 policy.  We also
> should see their analysis of the relevant RAA language, since the Issues
> Report only addressed the .ORG registry agreement language on this issue.
> That portion of the Issues Report (p. 18-21) seems to ignore the plain
> meaning of the words "without limitation" in the Consensus Policy clause...
>
> "Consensus Policies shall relate to one or more of the following... (4)
> registry policies reasonably necessary to implement Consensus Policies
> relating to registry operations or registrars; ....  Such categories of
> issues referred to in the preceding sentence shall include, without
> limitation: ....
>
> While #4 is somewhat circular and thus poorly drafted, it cannot be
> disregarded.  I interpret it to mean that Consensus Policy may be developed
> as to any issue affecting registry operations, unless excluded by the next
> section of the contract, which lists the nine topics on which Consensus
> Policy cannot touch -- and this issue is not excluded.  This interpretation
> makes sense, not only in light of the English language, but also in light of
> the entire point of Consensus Policy, that it must also have the input and
> advice of the contract parties in order to be approved.
>
> I agree with Avri that there has long been de facto policy in place, as set
> forth in the com/net/org agreements and only recently eviscerated in a few
> of the newer TLDs, via bilateral negotiations between ICANN Staff and those
> registries.  That policy clearly affects registry operations insofar as it
> limits their cross-ownership of registrars.  So even if #4 above is
> circular, this situation is even more clearly within the scope of GNSO
> policy purview, for any gTLDs.
>
> Re new gTLDs, the Business Constituency urges Staff to preserve the status
> quo as set forth in com/net/org agreements, within the new gTLD registry
> agreement, unless and until such time as the policy is changed by Consensus
> Policy.  If Consensus Policy is developed which would loosen those
> restrictions, then we are confident that would be welcomed by the new
> contracting parties at that time.  However, if Staff continues on the
> present course, it will substantially loosen these restrictions for new
> gTLDs on its own volition.  If Consensus Policy later is developed which
> would require more restrictions than the Staff has implemented, then it
> could be extremely difficult and costly to impose them retroactively, if
> even possible.
>
> Staff says we should trust them, and re-evaluate their policy decision in
> two years.  But they do not attempt to explain how this genie could be put
> back in the bottle later, and I do not see how it could realistically be
> done.  So it would be a dangerous precedent, effectively allowing Staff to
> create intractable policy on an important issue like this.
>
> The BC would like these concepts addressed in the Charter, to the extent
> they are not already there.  Specifically:
>
> 1.  We would like this sentence stricken from the Preamble:  As explained in
> the Issues Report, the working group may be restricted in its ability to
> create Consensus Policies under existing registry agreements.
>
> 2.  We suggest that Objective 4 incorporate a call for Staff to maintain
> status quo in the DAG, so the new gTLD program need not be delayed, nor
> subject to controversy over this issue.
>
> 3.  We call for further analysis from ICANN Staff as to their reasoning
> within the Issues Report (p. 18-22) as discussed in this thread, including
> analysis of relevant RAA language.
>
> Thanks,
> Mike
>
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax:  +1 (415) 738-8087
> http://rodenbaugh.com
>
>
> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
> On Behalf Of Avri Doria
> Sent: Wednesday, February 10, 2010 2:13 PM
> To: Gnso-vi-feb10@xxxxxxxxx
> Subject: Re: [gnso-vi-feb10] Preamble
>
>
>
> On 10 Feb 2010, at 19:57, Stéphane Van Gelder wrote:
>
>> Thanks Avri,
>>
>> 2 questions:
>>
>> - Why do you think not making the Feb 18 meeting time would push the
> charter back 3 weeks? We should be able to finish the charter on or around
> the 18th and therefore submit to the Council, maybe for discussion on list.
> As there is a 16-week time limit on this PDP, I'm sure Council would like to
> start looking at the charter asap. Maybe even discuss online approval...
>
> my assumption is that the approval of the charter will wait until Nairobi.
> If I am wrong and it is approved sooner, great.   i thought it could be done
> today and look how wrong I was about that. it will take 4 weeks for the
> charter, though that may extend to six.
>
>
>>
>> - The Issues Report implied that we face restrictions if we attempt to set
> policy for existing gTLDs. If would like to get clear indications from Staff
> on this. As a reminder, the motion states that the PDP "shall evaluate which
> policy recommendations, if any, should be developed on the topic of vertical
> integration between registrars and registries affecting both new gTLDs and
> existing gTLDs, as may be possible under existing contracts and as allowed
> under the ICANN Bylaws". We should therefore not proceed under the given
> assumption that policies should be developed for existing gTLDs. The wording
> is "if any". However, should this be the case, I would like to have some
> instructions from Staff on whether we are able to set policy for existing
> gTLDs through this process or not.
>
> As I said, i do not believe this PDP can make consensus policy foe existing
> gTLDs.  I would think that we would need a very specific motion to do that.
> I do believe this PDP can investigate and make recommendations on whether
> any current practice is not harmonious with the policy/guidelines defined in
> objective 1.  i believe that once we see what those issue are, we can
> determine whether they can be fixed via consensus policy or by asking the
> registrar and Registries to pretty please change their practice to match the
> policy/guidelines.
>
> I think it is only reasonable that when we define policy and guidelines in a
> space where the staff says there is not policy, though I believe there is
> defacto policy, we need to check current practice against that new policy,
> and if there is a discrepancy look at whether and how we can fix it.  I also
> beleive tat is what is mandated in the PDP the council approved.
>
> BTW, I do not believe staff can answer the question of whether
> recommendation A based on the criteria developed in objective 1 regarding
> gTLD XYZ  is in scope for a consensus policy until such time as we have
> resolved the criteria in objective  1 and know what recommendation A and
> gTLD XYZ are.
>
> but I repeat while we may be able to create policy that would be applied to
> new gTLDS, with the board's blessing, i do not believe we can make consensus
> policy on current gTLDS, only recommend future actions.  and we cannot know
> whether the recommendation of objective 3 warrant such a recommended future
> action until we have completed objectives 1 & 3.
>
>
>>
>> The GNSO is overworked enough as it is. I don't think we want to see it
> applying itself on things that aren't useful.
>
> I think this is useful.  and I  believe that it was voted in as a PDP
> (though the future consensus policy actions, if any, weren't).
> the GNSO may be busy, but I for one do believe this is an essential task.
>
> a.
>
>>
>> Stéphane
>>
>> Le 9 févr. 2010 à 23:57, Avri Doria a écrit :
>>
>>>
>>> Hi,
>>>
>>> I wanted to make a few follow-up comments to those I made about consensus
> policy and refer them to the preamble.
>>>
>>>> Preamble:  The working group on vertical integration shall evaluate
> policy recommendations for [new gTLDs only] [new gTLDs and existing gTLDs.
> As explained in the Issues Report, the working group may be restricted in
> its ability to create Consensus Policies under existing registry
> agreements.] [The working group expects to define the range of restrictions
> on vertical separation that are currently in effect, to serve as a baseline
> to evaluate future proposals.]
>>>
>>> I think that the policy/guidelines this group recommends should be
> applicable across gTLD registries, old and new.
>>>
>>> Once approved, I believe they should apply to the new GTLDs in this first
> round.  The policy/guidelines do not necessarily have to be complete for the
> next DAG, but they do need to be completed, community reviewed and board
> voted on before the final guidebook.  While I think we should be done before
> DAGv4 (does anyone know the real schedule on that), if we aren't then the
> DAGv4 should leave a place holder on this topic.
>>>
>>> On the question of their applicability to existing gTLDS, I think the
> issue is more complex.  I do _not_ see this PDP as being able to produce
> consensus policy on that - I think in the case of  consensus policy that
> would change the condition in an existing arrangement,m the PDP question
> would have to be quite specific.  What I think this PDP can do, and should
> do, in relation to the existing arrangements is measure then against the
> policy/guideline produced in this PDP and recommend whether further work on
> consensus policies should be considered by the GNSO and GNSO Council.  In
> doing this the WG should produce a list a very specific areas/questions, if
> any are found, in which a consensus policy PDP would be recommended.
>>>
>>> In deference to
>>>
>>>> {Objective 4:  To perform the PDP activities in a manner that does not
> delay the launch of the New GTLD Program. }
>>>>
>>>
>>> We may want to set two deliverables,
>>> - one the Policy/guideline on all gTLDS and the analysis of the options
> on VI included in DAGv3.   (Obj 1,2)
>>> - and the other the recommendation for consensus policy action, if any,
> for existing gTLDs. (Obj 3)
>>>
>>> The part of me that wants to be optimistic about our ability to get this
> all done in 6 weeks wants to argue against this approach.  But some aspects
> of reality dawned on me today when it became obvious we could not have a
> charter in time for the meeting on 18 Feb.  The extra 3 weeks spent on the
> charter means we probably could not deliver objective 3 in 16 weeks - if
> ever we could have (with  deference to MM having called it impossible from
> day 1).  But in deference to Objective 4, delivering on Objectives 1&2 by
> May 14 might be a start. With Obj 3 a month later.
>>>
>>>
>>> a.
>>>
>>>
>>
>
>
>
>

______________________
Jean-Christophe Vignes

Executive Vice-President & General Counsel
DCL Group
2, rue Léon Laval
L-3372 Leudelange

Tel.:  +352  20 200 123
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Fax.:   +352 20 300 123
Mailto: JCVignes@xxxxxxxxxxx

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