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

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

+1

Understanding the Board "default" position may 
also make it clear if we ALL feel that we need to 
come out with a short-term recommendation in 
addition to our long-term PDP outcome.
Alan

At 13/05/2010 09:14 AM, Neuman, Jeff wrote:

> Avri,
>
> In 18 days, icann will post their interpretation 
> of the board's resolution whether we like it or 
> not. Don't we have a right to know what will be 
> in there?  Why must everything be a surprise?
> Also, since you believe the wording is so clear, 
> perhaps you can answer the questions we asked 
> the board.  In fact, why doesn't everone on this 
> list answer the questions we asked the board as 
> a test.  Then in 18 days we can all post those 
> answers and see who, if anyone, got the closest 
> to how staff interprets those words.  I bet the 
> answer we get is no one came close.  Words like 
> "entities providing registry services"?  Who are 
> those entities?  Avri, your definition may be different than mine.....
> The point is the Board should understand the 
> what each word mean in resolutions that they 
> pass.  They have a legal obligation to know that.
> Perhaps you don't want to know because you think 
> it may influence our policy development.  But if 
> the board just intended to punt the issue to the 
> gnso, it could have done so by saying that in 
> the resolution without giving a default 
> position.  That is not what they did.  We have a 
> right to know what that default is whether we use it or not.
>
> Jeffrey J. Neuman, Esq.
> Vice President, Law & Policy
> NeuStar, Inc.
> Jeff.Neuman@xxxxxxxxxxx
>
>
>
> ----- Original Message -----
> From: owner-gnso-vi-feb10@xxxxxxxxx <owner-gnso-vi-feb10@xxxxxxxxx>
> To: Gnso-vi-feb10@xxxxxxxxx <Gnso-vi-feb10@xxxxxxxxx>
> Sent: Thu May 13 04:14:26 2010
> Subject: Re: [gnso-vi-feb10] Regarding the Nairobi Board Resolution
>
>
> 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 offeriings, 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
> >
> >
> >