RE: [gnso-vi-feb10] Final charter proposal

[Milton L Mueller <mueller@xxxxxxx>]

Mike,
I still don't accept the validity of Objective 5, and in fact you've convinced 
me even more that you have an agenda here that has little to do with policy 
development for vertical integration. You do raise some valid concerns about 
information. Then let the PDP gain access "to all inputs that staff has had" 
and the working group can look at that. Let's save the rest for the call, I 
don't have time now for more emails.

________________________________
From: Mike Rodenbaugh [mailto:icann@xxxxxxxxxxxxxx]
Sent: Wednesday, February 17, 2010 11:28 AM
To: Milton L Mueller; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Final charter proposal

I agree with Kristina.  Of course she is correct that no PDP team can make 
policy recommendations without considering the likely range of effects those 
recommendations may have once they are implemented.  Thus the Objective is 
clearly not out of scope.

The Council motion is clear on the timeline, so this is not an 'open-ended 
research and investigation group'.  Further, Objective 6 also addresses 
Milton's suggestion about delay to the new TLD program.

Perhaps it can be reworded to take into account Milton and others' other 
concerns, maybe something like this...:

Objective 5: To determine [DEL:  what, if any, effect] [ADD: the range of 
likely consequences] that the potential changes to the current restrictions 
and/or practices concerning registry-registrar separation and equal access 
contained in the options set out in DAGv3 and considered by ICANN staff will 
have on the retail and wholesale markets for domain names and on consumers of 
domain names.  [ADD:   This information shall inform Staff's current 
implementation plans with respect to new gTLDs.]

Many of us believe that Staff has not told the community all that they know on 
this issue, there has only been 'selective sharing'.  This PDP team should be 
allowed access to all inputs that Staff has had on the issue to date, and draw 
its own conclusions as to the range of consequences.  Also I have strong 
concerns about the legal analysis contained in the Issues Report.  So Stephane 
and I had proposed a specific Objective wrt getting all info from Staff, but it 
seems to have disappeared from the current Charter draft, without any negative 
comments on this list as far as I recall.  Therefore I would like it put back 
in there, unless someone has a valid reason why it is gone.


>From my email of Feb 10:  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...


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.

Sorry I cannot join the call today, but will continue to monitor the list as 
best I can in light of other priorities.

Thanks,
Mike

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com<http://rodenbaugh.com/>

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Milton L Mueller
Sent: Wednesday, February 17, 2010 8:00 AM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Final charter proposal

Kristina:
"Policy development" and "assessments of the effects of policies" are separate 
functions. Typically, the best way to assess policy effects is after the policy 
has been implemented. If you want to do predictive studies, fact-finding or to 
project the effects of various policies, call for an issues report and/or ask 
ICANN to hire yet another economic consultant to do yet another study. Don't 
burden the PDP with it. It is not our function.

This is a basic choice: is this a PDP or an open-ended research and 
investigation group? I think the answer is obvious, but apparently Kristina 
doesn't.

The AoC's call for assessing the results of policies is irrelevant here. ICANN 
can fulfill those obligations by commissioning studies to assess results once 
the actual effects are known.

We have a very simple task wrt to the DAG and cross-ownership. We have to 
determine whether the DAG proposals are consistent or inconsistent with 
existing policy. If they are consistent with current policy, that is the end of 
the story. If they are new policy we need to set the policy and not allow staff 
to negotiate it. We are not authorized to rewrite established policy on a 
retroactive basis and it is not the function of a PDP to conduct research on 
the effects of past policies. We are chartered to look at VI and CO on a 
forward-looking basis.

I have heard many people in the industry complain that certain parties have 
vested interests in delaying the advent of new gTLDs as long as possible. I 
can't think of a better way to do that than to turn this process into an 
open-ended research project on anything and everything that interests someone 
about the economics of registries and registrars. Let's not game the system. 
Objective #5 is clearly out of scope and needs to go.

--MM

________________________________
From: Rosette, Kristina [mailto:krosette@xxxxxxx]
Sent: Wednesday, February 17, 2010 10:31 AM
To: Milton L Mueller; Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Final charter proposal

I disagree that it's beyond the scope.  It is my view that identifying possible 
effects of policies under consideration is an essential component of informed 
policy making.  The AoC calls for this type of assessment, the GAC has, and the 
Council itself has in connection with other PDPs.



________________________________
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Milton L Mueller
Sent: Wednesday, February 17, 2010 10:05 AM
To: Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Final charter proposal
Like several others, I was unable to even access this draft until this morning.

I strongly agree with Jeff E. that Objective 5 needs to be removed. Objective 5 
is not even a policy development objective; it calls for a predictive study of 
"what effect" a particular contract proposed in the DAG would have on "the 
retail and wholesale markets for domain names and on consumers." This is way 
out of scope for a PDP. If some people want this question answered I suggest 
that they hire economic consultants to do it (I would happily put my name into 
consideration to perform such a study but the price tag would be in at least 
the 5-figure range, and the time scale about 4 -6 months).

This is a policy development group, not a research team. We are authorized to 
determine whether the DAG contract violates current policy; we are neither 
authorized nor properly constituted to do scientific studies of what "effect" 
certain structural arrangements might have on consumers and markets.

--MM


________________________________
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Jeff Eckhaus
Sent: Tuesday, February 16, 2010 2:22 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Final charter proposal


Sorry for the late response on this, but I have been travelling and have only 
had a chance to review this draft this morning.



Objective # 5 is one that after careful review seems that either needs 
clarification of the objective or needs to be removed.


Objective 5: To determine what, if any, effect that the potential changes to 
the current restrictions and/or practices concerning registry-registrar 
separation and equal access contained in the options set out in DAGv3 and 
considered by ICANN staff will have on the retail and wholesale markets for 
domain names and on consumers of domain names.



Since the current gTLD contracts have a broad range of provisions that range 
from no CO to full CO, what are the changes we are trying to predict here?  The 
changes from what standard? Are we trying to predict what the effect will be on 
new TLDs? Is that our objective to predict the future or just list out what we 
see as possible outcomes?

We have already seen many predictions on what will happen if there are changes 
to VI/CO/Equal Access and they range from increased competition and lower 
prices to market manipulation and doom and gloom.

I do not think that we will get to consensus on what will happen in the future, 
and I believe that was one of the points in the Staff report, so I am just 
unsure if that is the objective in front of us, that we really believe this WG 
can tackle or is it something else and I am missing the point.



Thanks



Jeff

















-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Stéphane Van Gelder
Sent: Tuesday, February 16, 2010 7:43 AM
To: Kristina Rosette; briancute@xxxxxxxxxxxx
Cc: Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Final charter proposal



Thanks Kristina and Brian for providing those comments.



Kristina:



I have upgraded the proposed charter to reflect what I read as being able to 
reflect consensus within our group.



I found your Objective 2 much clearer than the previous one we had and have 
therefore adapted it nearly word for word, simply removing the last part of the 
sentence which not only seems like making the same point again, but also lists 
the registrars as belonging to the registries. I think it would be a mistake to 
portray things in this way.



I have also integrated your Obj 3, removing the reference to community 
solutions as this seems such a wide-ranging field that almost anything could be 
included and it would make the WG's work very difficult in my opinion. I have 
included Obj 4 and 5 with the same approach.



My personal view is that your additions increase the area the WG will have to 
cover and may make it difficult for the WG to reach all its objectives within 
the given time frame. But as there have not been any adverse reactions to your 
proposals within the agreed-upon time limit, I have included them and I hope in 
a way that is satisfactory to your group. Please let me know if that is not the 
case.



I have opted not to remove the definitions at this stage as I do not believe 
there are clear definitions elsewhere of the topics this charter is addressing. 
Margie, if that is wrong and as Kristina suggests, there are definitions that 
the Board and Staff have been using, please let us know and point us in the 
direction of these definitions so that we may include them in the charter.



Brian:



I have upgraded Obj 1 to reflect your comment.



On the definitions, please provide suggestions for complete alternative text if 
you are not happy with the definitions as listed. Alternatively, following on 
from my point above, if Margie comes back with definitions already used by 
Staff, would you be happy to accept those?



On the reference to consensus policies, I could not find the original text for 
that.



Whilst these final edits are being ironed out, may I already ask all of you to 
take this latest version of the charter back to your groups. I would like to 
set a deadline for final approval at this time next week, say 16 UTC Tuesday 
Feb 23rd. If the group agrees, that might allow the Council to vote on the 
charter on the list, rather than waiting for its next meeting on March 10th, 
and therefore the WG would be given a few well-needed extra days to carry out 
its work.



Thanks,



Stéphane