[gnso-vi-feb10] One Proposal Update

[Jon Nevett <jon@xxxxxxxxxx>]

Folks:

Before our call today, I wanted to clarify my proposal to adapt existing sTLD 
contract language on VI/CO for the new round of TLDs.  For ease of comparison, 
I will use some of the "principles" offered by Neustar and Demand and then 
propose actual contract language -- and redline it as a comparison to the 
existing .mobi language.  I would be happy to discuss this framework on our 
call today.  Again, this is a proposal for a framework that provides market 
guidance, but leaves some flexibility in the future for the community.  There 
are details in other proposals that also would need to be incorporated.  

Thanks.

Jon


1.         Registry Operator must use only ICANN-accredited registrars in 
registering domain names, provided that Registry Operator shall have the 
flexibility to determine eligibility criteria for Registrars in its TLD; 
provided further that such criteria shall be applied equally to all 
ICANN-accredited Registrars (Same as existing sTLDs, Nuestar proposal & Demand 
proposal).
 
2.         Registry Operator shall have the ability to set up criteria (access 
requirements) for Registrars in the TLD at it sole discretion; provided that 
such requirements are reasonably related to the purpose of the TLD (Same as 
existing sTLDs, Neustar proposal & Demand proposal).

3.          Registry Operator must not discriminate among the registrars it 
selects based on the eligibility criteria  (Same as sTLDs, Neustar proposal 
(verify) & Demand proposal).

4.         Registry Operator or its Affiliate may serve as an ICANN-Accredited 
Registrar in any top-level domain other than the TLD for which Registry 
Operator or its Affiliate serves as the Registry Operator (Same as Neustar & 
Demand proposals).

5.         Registry may not own or acquire (nor be affiliated with an entity 
owning) more than 15% of an ICANN-accredited registrar authorized to sell the 
specific TLD without ICANN approval (Similar to existing sTLDs -- modified to 
meet #4 and to make reciprocal).

6.          ICANN's ability to approve will be limited in a specification to 
the agreement, and shall be locked in for the first 18-24 months of the 
registries existence (See Neustar or Demand for current proposals on such 
limitations and protections -- Neustar limited to Single Registrant TLDs or 
Community TLDs with less than 30K names registered by that registrar with 
certain market protections; Demand open to all with certain market protections, 
including penalties).

7.          After 18-24 months, the guidelines can change based on a community 
process without going through the formal registry agreement amendment process.  
[For example, after 18-24 months, we might want to add a provision permitting a 
small registry with little traction in the registrar market to own 100% of a 
registrar that sells its TLD.  It would be impossible up front to determine 
which TLDs would meet this criteria, as they all would start small.]

Draft VI/CO Contract Provision:

Restrictions on Acquisition of Ownership or Controlling Interest in Registrar. 
Without ICANN’s written approval, Registry Operator shall not have control of, 
or a greater than fifteen percent ownership interest in an ICANN accredited 
registrar authorized to distribute domain names in the TLD, nor shall it 
acquire, directly or indirectly, nor be a corporate affiliate with an entity 
with control of, or a greater than fifteen percent ownership interest in, any 
ICANN-accredited registrar that is authorized to distribute domain names in 
this TLD, without ICANN's prior approval in writing, which approval shall not 
be unreasonably withheld.  Such approval by ICANN must follow the guidelines in 
Specification X, which is not subject to change and shall remain in place for 
at least 18-24 months from the date the TLD is first distributed.  Thereafter, 
the terms of Specification X are subject to change based on community input and 
a decision from the ICANN Board.

Specification X -- See Neustar/Demand/Other proposals

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

WG Colleagues:

As I stated last week, I agree with Milton's thinking that we should get on 
with it and see if we can reach some kind of resolution and worry less about 
the Board's potential default position.  I also am not concerned about what we 
look to as a "baseline" -- but am more interested in what we look to as a 
solution.  

In the interest of moving this forward, I think that we should take a close 
look at the relevant language in the .mobi, .tel or .asia agreements on these 
points.  I have copied the .mobi language below.  It seems to strike a balance 
between the two sides of the debate that we saw in Seoul.  

Section 7.1(c) of the .mobi agreement keeps the .com, .net, .org, .biz, .info 
prohibition on a Registry Operator having more than 15% ownership of a 
registrar, but says that the registry could seek ICANN approval to purchase 
more than 15%.  This kind of language would permit this WG to come up with 
criteria for ICANN to use when evaluating a request for approval to exceed 15%, 
and gives ICANN and the Registry Operators some flexibility when faced with 
certain cases, including new and innovative business models.   As others have 
mentioned, a hard and fast rule would have unintended consequences.  

This .mobi language would meet the calls of some in the community to keep the 
status quo.  I think that Jeff Neuman mentioned a concern about using sponsored 
TLD language as a model.  The most recent TLDs, however, sponsored or not,  
will more closely resemble the New TLDs than incumbent registries with millions 
of domain names already under management.  

It also would solve the "small registry that has a hard time getting registrars 
to sell its name" issue -- or the community issue that others have raised.  I 
suspect that most folks would not have an issue with a registry that doesn't 
have traction in the marketplace and can't get registrars to sell its names 
starting its own registrar to sell its names.  This language gives some 
latitude for ICANN to approve a waiver for a registry in that position.  Size 
and registrar penetration rates could be factors that ICANN takes into account 
in evaluating a RO's request to start or purchase its own registrar.  
Obviously, there would need to be others.  

It also would address the brand or single registrant TLD issue by giving New 
TLD RO's the same ability that certain current RO's enjoy to select among the 
hundreds of registrars based on objective criteria.  Once selected, the RO 
could not discriminate against the registrars selected.  In other words, a 
broad-based registry would want to select as many registrars as possible, but a 
single registrant TLD would not have to select more than one.  As Avri pointed 
out and as the GNSO already has approved, every registration would need to be 
registered with the benefit of the requirements and obligations in the RAA.  
Also, it would maintain the requirement that RO's cannot discriminate among 
registrars selling its names, but not every registrar need to be able to sell 
every extension.  

I also would suggest some tweaks to the current .mobi language -- limiting the 
15% only to registrars that sell the registry operator's extension vs. any 
registrar.  This was the position espoused by the incumbent registry operators. 
 Therefore, an eNom-affiliate could apply for a name without violating the 
agreement, but it couldn't sell it through its affiliated registrar without 
ICANN approval.  I also would change the concept of "acquire" to some type of 
corporate affiliation as Jeff N. also suggested.  

As far as phasing, if folks like a modified .mobi language, we could agree soon 
on language to insert into the New TLD agreement in DAG 4.  We then could start 
on discussing and debating the criteria that ICANN should consider in 
evaluating waiver requests.  

I am trying to get the ball rolling with a way forward that doesn't hold up New 
TLDs and provides ICANN with some flexibility, but doesn't open the floodgates. 
 It also would give ICANN some latitude, but would give the community the 
ability to shape and restrict ICANN's discretion.  

I am very open to discussing other proposals as well, but let's minimize 
discussing processes and baselines and work towards solutions.  

Thanks.

Jon 
> .mobi Registry Agreement
> Section 7.1   Registry-Registrar Agreement.
> 
> a.  Access to Registry Services. Registry Operator shall make access to 
> Registry Services, including the shared registration system, available to 
> ICANN-accredited registrars. The criteria for the selection of registrars 
> shall be as set forth in Appendix S. Following execution of the 
> Registry-Registrar Agreement between Registry Operator and the 
> ICANN-accredited registrar, and subject to such registrar's compliance with 
> the Registry-Registrar Agreement, Registry Operator shall provide operational 
> access to Registry Services, including the shared registration system for the 
> TLD. Such nondiscriminatory access to such registrars shall include without 
> limitation the following:
>                     i.        All registrars (including any registrar 
> affiliated with Registry Operator) can connect to the shared registration 
> system gateway for the TLD via the Internet by utilizing the same maximum 
> number of IP addresses and SSL certificate authentication;
>                  ii.         Registry Operator has made the current version 
> of the registrar toolkit software accessible to all registrars and has made 
> any updates available to all registrars on the same schedule;
>                iii.        All registrars have the same level of access to 
> customer support personnel via telephone, e-mail and Registry Operator's 
> website;
>                iv.        All registrars have the same level of access to 
> registry resources to resolve registry/registrar or registrar/registrar 
> disputes and technical and/or administrative customer service issues;
>                   v.        All registrars have the same level of access to 
> data generated by Registry Operator to reconcile their registration 
> activities from Registry Operator's Web and ftp servers;
>                vi.        All registrars may perform basic automated 
> registrar account management functions using the same registrar tool made 
> available to all registrars by Registry Operator; and
>              vii.        The shared registration system does not include, for 
> purposes of providing discriminatory access, any algorithms or protocols that 
> differentiate among registrars with respect to functionality, including 
> database access, system priorities and overall performance.
> Such Registry-Registrar Agreement may be revised by Registry Operator from 
> time to time, provided however, that any such revisions must be approved in 
> advance by ICANN.
> 
> b. Registry Operator Shall Not Act as Own Registrar. Registry Operator shall 
> not act as a registrar with respect to a “domain name registration” as that 
> term is defined in Section 7.2(b) below. This shall not preclude Registry 
> Operator from registering names within the TLD to itself through a request 
> made to an ICANN-accredited registrar.
> c.   Restrictions on Acquisition of Ownership or Controlling Interest in 
> Registrar. Registry Operator shall not acquire, directly or indirectly, 
> control of, or a greater than fifteen percent ownership interest in, any 
> ICANN-accredited registrar, without ICANN's prior approval in writing, which 
> approval shall not be unreasonably withheld.
> 
> Appendix S
> Part 5
> 
> Selection of Registrars
> 
> Subject to Registry Operator’s compliance with this Registry Operator TLD 
> Registry Agreement, including all attachments and appendices thereto (the 
> “Agreement”) and any Temporary Specifications or Policies or Consensus 
> Policies as defined in the Agreement, and provided the scope of the Charter 
> is not exceeded:
> 
> Registry Operator will select registrars from among ICANN-Accredited 
> Registrars in a manner that promotes the following characteristics in the 
> group of authorized ICANN-Accredited Registrars:
> 1. Recognition of the specific aspects of the mobile services community to be 
> supported by the sTLD and a willingness to participate in that spirit;
> 2. Thorough understanding of the principles and goals underlying sTLD 
> policies, including without limitation the domain name management policy;
> 3. Demonstrated ability to provide Eligibility and Name-Selection Services 
> (ENS Services) and demonstrated familiarity with the needs of the sTLD 
> Community in the language and region(s) served by the registrar, and 
> established modes for reflecting these needs in the ENS Services processes;
> 4. Dedicated willingness and ability to propagate and enforce sTLD policies 
> in an observant and diligent manner and in accordance with policies and 
> procedures prescribed by Registry Operator;
> 5. Broad geographic distribution and language diversity of registrars;
> 6. Established collaborative contact with one or several associations 
> representing Providers and Representatives (as defined in Part 3 above) in 
> the language and geographical region or sector served by the registrar;
> 7. Dedicated willingness and ability to act together with the mobile 
> communications community in the processing of registration requests.
> 8. Established business relationships with substantial numbers (proportionate 
> to the size of the registrar) of Providers and Representatives in the 
> region(s) served by the registrar;
> 9. Demonstrated willingness and ability to publicize and market the sTLD, to 
> follow all sTLD marketing guidelines, and to develop and use sTLD marketing 
> materials as appropriate, as reflected by a minimum committed marketing 
> budget of an amount proportionate to the size of the registrar;
> 10. Demonstration that sufficient staff resources are available and able to 
> interface with automated and manual elements of the sTLD registry process and 
> a willingness to implement modifications and revisions reasonably deemed by 
> the Registry Operator to be required based on the characteristics and 
> functions of the sTLD;
> 11. The existence of proven systems designed to avoid submission of 
> unqualified or incomplete applications that will burden the ENS system or 
> make it impossible for Registry Operator to fulfill its commitments to ICANN;
> 12. The existence of proven systems to avoid transfer disputes among 
> registrars;
> 13. Demonstrated willingness to share relevant marketing information with the 
> Registry Operator, including, consistent with applicable law, information 
> about current registrants with whom the registrar has relationships who are 
> eligible for registration.
> 14. Willingness to provide reduced fee or free services to Providers and 
> Representatives from developing countries who meet minimum criteria 
> reasonably established by Registry Operator for special assistance; and
> 15. Willingness and ability to post and refresh a minimum deposit against 
> which fees will be drawn.
> This Part 5 of this Appendix S specifies the criteria for Registry Operator’s 
> selection of ICANN Accredited Registrars wishing to enter into a 
> Registry-Registrar Agreement to register domain names in the sTLD. Registry 
> Operator will determine the initial number of ICANN-Accredited Registrars to 
> be selected and, in collaboration wit the sTLD Community, will review and 
> revise its selection of registrars and registrar criteria from time to time 
> as appropriate.