RE: [gnso-vi-feb10] Question to WG on RAA

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

Let me try to be clearer in my response:

The .com, .net, .org, .biz, .info, .name, .mobi and other TLD agreements 
currently prohibit the registry operator from being a registrar in ANY TLD.  
Not just the TLD it is the registry operator for, but ALL TLDs (including new 
TLDs).  Therefore, Neustar for example, is not only not allowed by contract to 
be a registrar for .BIZ, but is also NOT allowed to be a registrar for .com, 
.net, .org, .web, .nyc, .sport, .eco, .food, .green, etc.....you get the point. 
 However, there is no prohibition on a registrar running a registry.  What this 
means is that Demand Media can be a registry for new TLDs and also a registrar 
for existing and new TLDs (subject to any VI limitations), but because Neustar 
would have legacy terribly written language (that we were forced to accept), 
Neustar would not be able to have the same rights as Demand Media.

Now, there are several questions here and I am using Neustar as an example (but 
I am sure everyone is really only thinking about VeriSign). The first question 
is:

1.  Should Neustar be allowed to be a registrar for all TLDs other than ones in 
which it is the registry operator?  - From what I gather, there is no 
opposition to this.  That being the case, ICANN would have to amend the 
existing .BIZ agreement to allow for this to happen.

2.  Should Neustar be allowed to be a registrar for all TLDs in which it is a 
Registry Services Provider (although not the Registry Operator under contract) 
- This one is still a TBD and needs to be addressed by the group.  In either 
case, however, no amendment to the existing .BIZ Agreement would need to happen.

3. Should Neustar be allowed to be a registrar for any new TLD in which it is 
the Registry Operator, but where exceptions were made to allow VI (i.e., single 
registrant TLD?  The answer here, according to us would have to be YES, if an 
exception is made to allow others to do this, then we should be allowed as 
well.  In that case, ICANN would need to amend the .BIZ Agreement to allow for 
Neustar to be able to be on the level-competitive playing field.

4.  Should Neustar be allowed to be a registrar for .BIZ (or any TLD in which 
it is the Registry Operator) - This is the ultimate question and would need an 
amendment to the existing .BIZ Agreement as well.

Bottom line is that it would be unacceptable to Neustar to allow new TLD 
registries to be able to do things that  Neustar is restricted from doing.  To 
do so would not only violate our existing agreements, but the ICANN bylaws as 
well.  So when Jeff E. talks about 2-way streets, we need to make sure that the 
streets are really 2-ways and not 2-ways for registrars, 1-way for existing 
registries.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Law & Policy

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From: Milton L Mueller [mailto:mueller@xxxxxxx]
Sent: Tuesday, March 30, 2010 3:49 PM
To: Neuman, Jeff; Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Question to WG on RAA

Jeff,
I may be missing something here because I was not on the call Monday, but when 
a registrar community representative offers to approach this as a two-way 
street it's not very productive to attempt immediately to drive a 16-wheel 
tractor-trailer through it with the horn blasting.

We can find mutually acceptable ways to liberalize the situation for both sides 
of this equation, I am sure, but that won't happen if reasonable attitudes and 
concessions on one side are seized in this way.

--MM

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Neuman, Jeff
Sent: Tuesday, March 30, 2010 3:03 PM
To: Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Question to WG on RAA

Jeff, I like your comment about this being a 2-way street, so I am sure you and 
the rest of the group will then support a recommendation out of this group that 
all existing contracts with ALL incumbent registries that contain any 
provisions that are more restrictive be amended to include the less restrictive 
language.  Of course, if the new rules are more restrictive, then the group 
will recommend the converse...that ICANN add the restrictions to the existing 
agreements.....

Best regards,

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Law & Policy
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The information contained in this e-mail message is intended only for the use 
of the recipient(s) named above and may contain confidential and/or privileged 
information. If you are not the intended recipient you have received this 
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From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Jeff Eckhaus
Sent: Tuesday, March 30, 2010 2:52 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Question to WG on RAA


As for the past process, this was not a negotiation with one side having to 
concede points to the other and should not be thought of that way. If it was, 
then the two parties to the negotiation would be able to jointly make a 
decision after they reached a compromise, which we know was never an option.  I 
am not a lawyer, but I would think when you are trying to make your case to a 
3rd party that decides , you plead your case as hard as you can and hope to 
win. This was the status of the world we were living in before the Board 
decision, but now we are in a PDP, so lets work within that world.

Switching topics , I would like to bring up a point for discussion that I think 
is being missed here, is that if there is Vertical Integration , registries 
will now be able own registrars and run a registrar. This is not a one way move 
where only registrars will be able to be a registry. It is a two way street .

In truth, not all registrars are asking for an opening of the marketplace to a 
vertically integrated suppliers where registries will now be able to compete.  
I know this is not a perfect example, but it is similar to  Best Buy, Dixons 
and Amazon stating that they are OK with Apple opening up physical stores and 
an online store.  Not all registrars are happy with this since there will be 
more competition and now you will be able to get a domain from "the source". 
Many customers will find this option more attractive and switch their purchases 
to the VI entity. How many people who purchased their items at resellers, now 
go to the Apple store because they trust buying it there versus Best Buy?


Jeff




From: Michael D. Palage [mailto:michael@xxxxxxxxxx]
Sent: Monday, March 29, 2010 9:15 PM
To: 'Jon Nevett'
Cc: 'Richard Tindal'; Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Question to WG on RAA

Jon,

I think one of the objectives in the Board passing the rather draconian Nairobi 
resolution was to seek those parties (registrars/registries) that have been on 
opposite sides of the argument to find a neutral middle ground with the 
non-contracting parties and ALAC serving as a moral compass on this issue. What 
strikes me odd regarding most of the proposals to date from you and the 
registrars is that they appear to be one sided, i.e. registries must budge with 
little to no concession from the registrars.  If I am wrong please tell me what 
major points you and the other registrars have conceded from your previous 
positions.

I think if the non-contracting house is to support the registrar's right to 
have co-ownership or be vertically integrated with registries, that registrar 
group that has been touting their commitment to consumer rights would agree 
that expanding the PDDRP to include the entire registration authority 
(registrar/registry) is responsible and prudent.

With regard to the IRT discussion, remembers individual experts such as myself 
were permitted to participate in the one whole day session at San Francisco.  
WIPO started off the day with a 90-120 minute presentation and if I recall this 
was raised, and my recollection was there was a concern raised by you. If I am 
mistaken and you never opposed the expansion of PDDRP to registrars, then I 
apologize. However, if you did oppose the expanse of the PDDRP I think this 
group would find an explanation of that opposition insightful.

While the expanse of the RAA liability was a positive step in the right 
direction in connection with group registrars, I think that same group 
liability concept needs to be expanded to the whole registration authority 
operation based on the same logic it was previously expanded.

Best regards,

Michael



From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On 
Behalf Of Jon Nevett
Sent: Monday, March 29, 2010 11:13 PM
To: Michael D. Palage
Cc: 'Richard Tindal'; 'Jeff Eckhaus'; Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Question to WG on RAA

Mike:

First, Richard's question was what are the provisions in the current RAA that 
you would have concerns with applying to an integrated registry-registrar.  I 
don't think he asked what changes to the RAA would you want to see.

Second, I'm not sure what you heard about the internal IRT discussions, but you 
must have forgotten that the IRT actually recommended that the Post Delegation 
Dispute Resolution Procedure should take into account misconduct by affiliated 
registrars with regard to PDDRP sanctions.  This is consistent with the recent 
change to the RAA -- approved by the registrars -- regarding group liability.  
Under the new RAA, a registrar now may be sanctioned based on the acts of an 
affiliated registrar.

Thanks.

Jon


On Mar 29, 2010, at 9:22 PM, Michael D. Palage wrote:

Richard,

There would need to be an additional provision incorporated into the RAA for 
those registrars that had a co-owned / vertical integrated registry. The scope 
of the Post Delegation Dispute Resolution Procedure would  need to apply to 
both the Registry and the Registrar, parent/child/subsidiary.

As I am sure J Scott and others in the IPC would want to prevent a registrar 
affiliate or a sister company engaged in affirmative acts found infringing the 
right of others  to avoid accountability merely because they funneled such 
activity through a registrar not subject to the PDDRP. In fact I believe WIPO 
in the comments have also talked about expanding the scope of the PDDRP beyond 
registries.

I know Jeff Neuman originally raised this in the IRT, but I believe there was 
push back from the Registrars.

Would you not agree Richard, Jeff E, and Jon that seems like a reasonable 
safeguard registrars would want to make?

Best regards,

Michael


From: owner-gnso-vi-feb10@xxxxxxxxx<mailto:owner-gnso-vi-feb10@xxxxxxxxx> 
[mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Richard Tindal
Sent: Monday, March 29, 2010 8:19 PM
To: Jeff Eckhaus
Cc: Gnso-vi-feb10@xxxxxxxxx<mailto:Gnso-vi-feb10@xxxxxxxxx>
Subject: Re: [gnso-vi-feb10] Question to WG on RAA

I agree with jeff e.     Would be very helpful to know what provisions of the 
current raa are unacceptble (or unattractive) to any potential, combined 
registry--registrar.    Let's get these details on the table so we can start 
fixing things

Rt

Sent from my iPhone

On Mar 29, 2010, at 6:19 PM, Jeff Eckhaus 
<eckhaus@xxxxxxxxxxxxxxx<mailto:eckhaus@xxxxxxxxxxxxxxx>> wrote:
Michael - as you stated, these are provisions in the draft Registry agreement, 
not the RAA (Registrar Accreditation Agreement) which had been the topic of my 
email.

As for the WG  there has not been a major response to my initial question of 
what are the concerns with either signing the RAA or having a Registry 
agreement that incorporates the RAA? In earlier emails people were against it 
and was an option multiple times in the survey that was distributed, so there 
must be a reason people are against signing it.

I was hoping we could start the dialogue on the list on this issue or others as 
we wait  for the proposals to roll in.


Jeff



From: Michael D. Palage [mailto:michael@xxxxxxxxxx]
Sent: Monday, March 29, 2010 10:35 AM
To: Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx<mailto:Gnso-vi-feb10@xxxxxxxxx>
Subject: RE: [gnso-vi-feb10] Question to WG on RAA

Jeff,

I have a hard time reconciling your and Jon's interpretation of ICANN 
contractual regime.  How about we ask ICANN's general counsel to interpret the 
following contractual provisions in the draft registry agreement.

2.9 Use of Registrars. Registry Operator must use only ICANN accredited 
registrars in registering domain names.

2.6 Reserved Names  ...... If Registry Operator is the registrant for any 
domain names in the
Registry TLD (other than the Second-Level Reservations for Registry Operations 
from Specification 5),
such registrations must be through an ICANN accredited registrar.......

Best regards,

Michael




From: owner-gnso-vi-feb10@xxxxxxxxx<mailto:owner-gnso-vi-feb10@xxxxxxxxx> 
[mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Jeff Eckhaus
Sent: Monday, March 29, 2010 12:45 PM
To: Gnso-vi-feb10@xxxxxxxxx<mailto:Gnso-vi-feb10@xxxxxxxxx>
Subject: [gnso-vi-feb10] Question to WG on RAA

I would like to ask a question to the people in this Working Group on the issue 
of having a Registry sign the RAA. What is the section of the RAA that people 
are so virulently opposed to? I believe this is an issue that may be getting 
muddled so would like to bring it out in the open.

The RAA does not mandate that the use of Registrars in every business model. 
That provision is in the Registry agreement. The provision in the RAA is below 
that explains this issue:

2.4 Use of ICANN Accredited Registrars. In order to promote competition in the 
registration of domain names, and in recognition of the value that 
ICANN-accredited registrars bring to the Internet community, ICANN has 
ordinarily required gTLD registries under contract with ICANN to use 
ICANN-accredited registrars, and ICANN will during the course of this agreement 
abide by any ICANN adopted specifications or policies requiring the use of 
ICANN-accredited registrars by gTLD registries.



*         The RAA  mandates that the Registrar must abide by Domain dispute 
resolutions. Is this the item in the RAA that some are opposed to?

*         The requirement to escrow data?

*         The RAA has a schedule of fees to be paid by the Registrar. Is it the 
fees?

*         Registrar Training requirements?

*         Having to delete a domain within 45 days of registrar or registrant 
terminating a registration agreement ?

*         The requirement to maintain insurance with a limit of at least 
$500,000 ?


I am hoping we can discuss this issue on the list and maybe figure out what are 
the concerns with either signing the RAA or having a Registry agreement that 
incorporates the RAA?

For those who have never read the RAA, here is a link to the latest version 
http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm



Thanks

Jeff