[gnso-vi-feb10] New proposal variant

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

I would like to propose a variant. It could be applied to a proposal 
that allows registry/registrar integration for marketing TLDs other 
than those offered by the registry (such as JN2) or perhaps to allow 
the "Afilias et al" proposal to allow such relationships. The 
proposal provides more specificity to my previous statements that VI 
rules could be relaxed if the registrars involved in the VI 
relationship were bound by explicit contractual conditions.
In essence, it puts disclosure and reporting requirements on the 
registrar and its partners (partners being loosely defined) and 
explicitly commits them to not deal, directly or indirectly, in their 
registry's own TLDs.
Any registrar involved (with >15% ownership or control) must disclose 
the details of:
- Their family of registrars - owned or controlled (same definition) 
by them, or co-owned/controlled.
- All owned/controlled resellers that they deal with, directly or indirectly.

All of these entities will be bound by direct contract with ICANN to 
abide by a set of rules (which among others proscribe dealing with 
the domain(s) offered by the registry arm). The ownership/control 
relationships will be made public. There would be a requirement for 
ongoing reports certifying compliance and strict, severe penalties 
for non-compliance.
Among other things, this would contractually restrict two cases which 
previous proposals have not addressed.
a) Consider the scenario where J owns registry X and registrar Y. X 
and Y are both owned by J but are not otherwise related. As such, the 
registry agreement signed by X can in no way bind Y. This variant now 
binds Y to specific disclosure and reporting terms associated with VI.
b) Registry X and registrar Y have some sort of >15$ ownership or 
control. Y has a controlled reseller R. R also resells for a 
completely unrelated registry P. Under prior rules, R could market 
the X TLDs (routing registrations through P). This variant precludes 
such marketing arrangements.
In summary this proposal variant puts new contractual marketing 
restrictions, disclosure and reporting terms on those registrars who 
want to play in the VI sandbox. It also requires contracts with 
controlled resellers. These are just agreement to restrict marketing, 
disclosure and reporting requirements, and not monetary, so they do 
not form a new class of "contracted party". One could think of this 
as a form of certification of such resellers.
The overall intent is not to eliminate any potential gaming - nothing 
can do that. But it does give ICANN compliance a basis to recognize 
potential infractions and, if found, it gives them tools to achieve compliance.
This proposal variant is being suggested without being fully fleshed 
out, but given the timing, I thought it should go out earlier rather 
than later.
Alan