Re: [gnso-vi-feb10] Regarding the Nairobi Board Resolution

[Avri Doria <avri@xxxxxxx>]

Hi,

I do not see what is so unclear about the Board's resolution.  I quote it below 
as I believe we are not paying attention to the words.

> 5. New gTLDs Implementation – Vertical Integration
> 
> Whereas, decisions about industry structure affect many aspects of the public 
> interest – prices, service offerings, sources and uses of data, and more;
> 
> Whereas, ICANN has obtained several studies, and heard from Industry 
> participants about the possible benefits and detriments of choices related to 
> ownership integration or non-integration;\
> 
> Whereas, the market for new gTLDs will be dynamic, and has yet to emerge. In 
> particular, there are concerns about how industry structure could affect 
> consumer data protection;
> 
> Whereas, the GNSO is in an active policy development process on the issue of 
> Vertical Integration, and the Board does not want to create an environment in 
> which it would be difficult to later harmonize the new gTLD marketplace with 
> the GNSO policy result; and
> 
> Whereas, it is important to establish a baseline approach to 
> registry-registrar separation for the new gTLD process to move ahead.
> 
> Resolved (2010.03.12.17), within the context of the new gTLD process, there 
> will be strict separation of entities offering registry services and those 
> acting as registrars. No co-ownership will be allowed.
> 
> Resolved (2010.03.12.18), if a policy becomes available from the GNSO, and 
> approved by the Board prior to the launch of the new gTLD program, that 
> policy will be considered by the Board for adoption as part of the New gTLD 
> Program.


0.  As discussed in during the meeting, there was no single status quo prior to 
this - while some contract had the well quoted 15% (also called arbitrary by 
many), other contracts had other values.  It is impossible to say there was a 
prior status quo is a situation lke this.

1. They wanted to established a base for the future to build on.  Since as many 
of us have acknowledged, the 15% is arbitrary and since I think it has become 
clear that there is no Economic basis for saying 15% co-owenership is a size 
that appropriately fits all, putting that base a 0 is as reasonable a base 
level as any I can think of - does not preclude any future number (or set of 
conditions) we may come up with.

2.  For anything beyond that, there needs to be a policy that was created 
bottom up.  We are working on that and they have clear the path for us to do 
so.  they also did not want to put anything in that could be counter to 
whatever we came up with.  What if they had said - you 15 is lovely number but 
that in the DAG, and then we had come up with a decision that 13 was really the 
best number.  anyone deciding that they had a proposition based on 15 would be 
in trouble.  So the safe assumption is that is none until there is a policy 
discussing how much.

3. They made clear that this only applies to the new gTLD market for those 
offering registry services and those acting as registrars.

4.  It is the norm for the Staff to figure out the implementation and come back 
to the Community and Board to see if they got it right.  Yes, there is always a 
danger that the Staff stray into policy when coming up with implementation, and 
if they do in DAGv4, I will be as quick to jump on that as any.  In many 
senses, it is deriving the implementation of the policy that what it means 
become totally clear.  As it stands, I think it is clear, but I also see how 
any policy can be nibbled at to make it questionable until one sees the 
implementation ad is told that the implementation is consistent with the policy 
intent.   

5. in VIWG we can spend the rest of our time discussing the meaning of 
2010.03.12.17/18 and the transparency basis of the decision or we can focus on 
doing our job.  I think they were clear about the information they used and the 
basis of their decision.

6. People who disagree with me about this decision being clear and transparent 
should take that up in the wider community (e.g. Cheryl's offer of the AOC A&T 
RT option), but to discuss it in this WG would, in my opinion, have a dilatory 
effect.

I recognize the salutary effects of  Board & Staff bating and it would be 
hypocritical for me to condemn it completely as I have on occasion taken sweet 
comfort in the relief it brings.  In this case I think we are better off 
accepting the answer with grace and moving on.

I also recognize that we can make this a cause celebre and ask for further 
corporate remedy up to and including the very successful use of  IRP.  I just 
hope that we do whatever we are going to do to make our personal complaints 
against the Board and Staff in a way that does not affect the work of this 
group.

a.


On 13 May 2010, at 08:23, Michael D. Palage wrote:

> Avri,
> 
> I have no interest in attacking the Board. I think all Jeff and I want is
> the Board to actually clarify what the resolution means, because there is
> some ambiguity in the current wording. I appreciate the Board allowing the
> community trying to resolve this issue, however, there is an obligation
> under the AoC for them to actual explain the basis of their decision.
> Taking unilateral action that changes the status quo with no explanation,
> and recognizing that their actions would have a clear economic impact on
> certain parties is wrong.
> 
> While I appreciate the good intention of the resolution, as the old saying
> goes the road to hell is paved with good intentions.
> 
> Should there be no consensus within this group, parties have a right to know
> how staff is going to interpret the Nairobi resolution, NOW, not after they
> spend a couple of hundred thousand dollars.
> 
> Best regards,
> 
> Michael
> 
> 
> 
> 
> 
> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
> On Behalf Of Avri Doria
> Sent: Thursday, May 13, 2010 1:53 AM
> To: Gnso-vi-feb10@xxxxxxxxx
> Subject: Re: [gnso-vi-feb10] Regarding the Nairobi Board Resolution
> 
> 
> Hi,
> 
> I tend to see this differently.
> 
> The GNSO  initiated a PDP and the Board has cleared the table of
> preconditions and has given us a free path to do what we said we were going
> to do.  We asked for it, they gave it to us.  Now that we are getting down
> to the nitty gritty of actually making compromise, we decide to turn our
> energies toward attacking the board.  This makes no sense to me.
> 
> I would hate to see us waste this opportunity by now beginning to spend our
> energy on deciding what the Board may or may not have intended.  I admit
> Kurt's message could have been written better, but the point is the GNSO
> asked for the chance to define what went into the DAG and we are not getting
> it done.
> 
> a.
> 
> 
> On 13 May 2010, at 02:41, Michael D. Palage wrote:
> 
>> Kurt,
>> 
>> While I personally have no problem with the Nairobi resolution appearing
> in DAG#4, I find ICANN's refusal (Board/Staff) to answer legitimate
> questions put forward in good faith from this group deeply troubling on many
> levels.
>> 
>> First, the ICANN Board in connection with its Nairobi resolution changed
> the status quo, by imposing zero cross ownership. Under Paragraph 4 of the
> Affirmation of Commitments (AoC) "ICANN commits to perform and publish
> analyses of the positive and negative effects of its decisions on the
> public, including any financial impact on the public, and the positive or
> negative impact (if any) on the systemic security, stability and resiliency
> of the DNS."  Additionally, Paragraph 7 imposed upon ICANN a commitment to
> "to provide a thorough and reasoned explanation of decisions taken, the
> rationale thereof and the sources of data and information on which ICANN
> relied."
>> 
>> Now as the ICANN Board is well aware there are a number of commercial
> interests that are potentially negatively impacted as a result of the
> Nairobi resolution.  To date I have seen no data or information upon which
> ICANN relied upon in passing this resolution. If it does exist can ICANN
> please provide me a copy of this data/information. If this data/information
> does  not exist, I would respectfully request that ICANN reconsider its
> refusal to answer the legitimate questions that this Working Group properly
> submitted to them.
>> 
>> I am not trying to be difficult, but I believe that ICANN has certain
> obligations set forth in the AoC and refusing to answer legitimate questions
> in response to a resolution in which they provided no rationale or
> information deeply troubling. Can you please reconfirm that ICANN
> (Board/staff) has no intention of answering the legitimate questions that
> this Working Group initially put forward.
>> 
>> Best regards,
>> 
>> Michael
>> 
>> 
>> 
>> 
>> 
>> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
> On Behalf Of Kurt Pritz
>> Sent: Wednesday, May 12, 2010 2:20 PM
>> To: Gnso-vi-feb10@xxxxxxxxx
>> Subject: [gnso-vi-feb10] Regarding the Nairobi Board Resolution
>> 
>> Members of the Vertical Integration Working Group:
>> This is the first contact I have had directly with you as a group - I want
> to start by thanking you for the interest and hard work put into the
> vertical integration issues. I have attended several of the calls and read
> the mail list. A tremendous amount of thought has been devoted to developing
> a vertical integration model for this new gTLD marketplace.
>> Some time ago, representatives of the group forwarded a set of questions
> to the ICANN Board regarding the Nairobi Board resolution on the vertical
> integration issue. The working group authored the set of specific questions
> to clarify the meaning of the resolution in order to inform the work of the
> group.
>> The Board discussed the questions posed by the group and considered a set
> of possible answers. In the end, the collective Board members' opinions
> indicated that the Board will not provide advice for your group in response
> to the questions.  The Board took note that the task set out for the GNSO -
> and through it, for the working group - was to develop a policy
> recommendation regarding the vertical structure of the name registration
> marketplace, starting with a "blank sheet of paper." The Board comments
> indicated that the resolution was crafted, in part, to give the GNSO the
> widest possible latitude in crafting a structure.
>> The Board also indicated that the next version of the proposed Guidebook
> and the gTLD implementation will be guided by the Nairobi Board resolution,
> unless superseded by a GNSO recommended, Board approved policy.
>> I realize some time has passed since the questions were originally posed
> and am gratified that the working group has continued to prosecute this task
> with all possible vigour. After considering this issue myself, I think the
> sense of the Board on this issue is correct. The policy advice on this issue
> should come from the consensus of the constituent groups, and should not be
> influenced by the input of the ICANN's directors.
>> Again, please accept my thanks for the hard work to date and also my
> willingness to respond to questions or issues on any of the vertical
> integration discussion points.
>> 
>> Sincerely,
>> 
>> 
>> Kurt
>> 
>> Kurt Pritz
>> ICANN
> 
> 
>