[gnso-vi-feb10] J-Team, some comments

["Tim Ruiz" <tim@xxxxxxxxxxx>]

J-Team,

Wanted to get a jump on this since time is short. Working from my
preferred proposal of the three (Jon's), here are some initial comments
regarding the registrar criteria:

Proposal states "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."

My comments: The criteria should be specified as part of the application
process and incorporated into the Registry Agreement with ICANN in the
same way as registration restrictions specified by Community applicants.
Policy is meaningless unless it can be enforced in some way. In their
current form, that is not reasonably possible for 1 and 2 of this
proposal.
 
Proposal states "2.  Registry Operator shall have the ability to set up
criteria (access requirements) for Registrars in the TLD at its sole
discretion; provided that such requirements are reasonably related to
the purpose of the TLD."

My comments: Again, this should not be at its sole discretion. The
criteria should be established as part of the application process and
become part of the Registry Agreement with ICANN. The Registry may apply
to change the criteria with ICANN's approval. Also, it should be
provided further that nothing in the criteria should limit or control
registrars' end-user pricing.


Tim 

 
-------- Original Message --------
Subject: [gnso-vi-feb10] One Proposal Update
From: Jon Nevett <jon@xxxxxxxxxx>
Date: Mon, April 05, 2010 10:45 am
To: Gnso-vi-feb10@xxxxxxxxx

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.