RE: [gnso-vi-feb10] request -- documenting BRU2 - minority opinion

["Drazek, Keith" <kdrazek@xxxxxxxxxxxx>]

Thanks Kathy. You're correct that the detailed compliance and
enforcement section was part of the majority/consensus position from
that group. It was included in the original summary I sent to the list
while still in Brussels. Thanks for reviewing and correctly adding it
back in.  Regards, Keith

 

From: Kathy Kleiman [mailto:kKleiman@xxxxxxx]
Sent: Tuesday, July 13, 2010 8:32 AM
To: Drazek, Keith; Mike O'Connor; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] request -- documenting BRU2 - minority
opinion

 

Hi All, 

After yesterday's call, I am not sure whether and in what form the
Brussels work will be going forward.  But in the interest of
completeness, I wrote up the minority voice (me) in the Brussels 2
group (BRU2). In particular, we developed a long list of compliance,
detection and monitoring requirements (as part of the majority BRU2, I
had thought. I see it in our notes, but not in the write-up).

 

The minority opinion is attached, and it could be inserted after "6.
Compliance and Enforcement," and before the Questions section.  Tx to
Keith for writing up the main position.

 

Best,

 

Kathy Kleiman

Director of Policy

.ORG The Public Interest Registry

Direct: +1 703 889-5756  Mobile: +1 703 371-6846

 

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From: owner-gnso-vi-feb10@xxxxxxxxx
[mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Drazek, Keith
Sent: Thursday, July 08, 2010 1:55 PM
To: Mike O'Connor; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] request -- documenting the current state of
"Brussels proposals"

 

Mikey, per your request, here's the recap from Brussels Option #2 (BRU2)
and responses to the questions you posed. Other members of the BRU2
sub-group should review and edit as needed. I'm submitting this in my
personal capacity as note-taker for the group, not as an advocate.
Questions/comments/edits welcome. Thanks, Keith

 

1. LIMITS DO NOT APPLY ACROSS TLDS

A registry operator or registry services provider that does not
distribute its own TLD should not be restricted from acting as a
registrar in other TLDs. An existing registrar should not be prohibited
from becoming a new TLD registry just because it sells other TLDs. The
potential harms of registry sharing data with an affiliated reseller or
friendly registrar can be addressed via contract and ICANN compliance
and enforcement mechanisms, provided resources and commitment are
present. The benefit of new entrants, including existing registrars,
outweighs the potential harms from cross-ownership if no
self-distribution is permitted.

 

2. CONTROL/OWNERSHIP

Cross-ownership up to 100% is permitted provided there is no
distribution of own TLD. An existing registrar should be permitted to
become a new TLD registry and own up to 100% provided they don't act as
their own registrar. Separation of functionality and no
self-distribution make restrictions on cross-ownership unnecessary
provided ICANN enforces contracts.

 

3. OWNERSHIP LIMITS

No ownership limit if cross-owned entity doesn't distribute its own TLD.
De minimus limit (5%) if cross-owned entity distributes own TLD.

     

4. EXCEPTIONS

Exceptions should be allowed for single-registrant/single user, orphaned
TLDs, and possibly others TBD. A procedure should be established for
applicants to request exceptions based on business model and to ensure
ability to take TLD to market if no other registrars agree to offer
and/or market the TLD.

 

5. REGISTRY SERVICE PROVIDERS

Registry Service Providers should have the same restrictions as Registry
Operators.

 

6. COMPLIANCE AND ENFORCEMENT

We spent a significant portion of our time discussing compliance, audit,
and enforcement procedures. Our group felt that a "serious" structure
would be required, but would be capable of deterring bad actors with
significant but tiered penalties.

 

Questions:

 

What is the best way to prevent gaming in a cross-owned entity --
percentage ownership caps, restrictions on control, both or something
else?

 

*        BRU2 maintains and strictly enforces functional separation of
registries and registrars and equal access requirements.

*        BRU2 prevents cross-owned entities from selling registrations
in their own TLD, except in SRSU and orphaned TLD cases.

*        BRU2 prohibits a registry from owning or controlling more than
a de minimus share (5%) of a registrar distributing its own TLD.

*        BRU2 allows 100% cross-ownership provided there is no
self-distribution.

*        BRU2 recognizes the need for an effective compliance and
enforcement regime, including severe penalties for violators.

 

Do the benefits of increased competition (registrars becoming registries
or back-end service providers) outweigh the potential risks of gaming
from a cross-owned entity, or vice-versa?

 

*        BRU2 considers the benefits of increased competition,
specifically allowing registrars to become registries, as more valuable
than the potential risks of gaming from a cross-owned entity if that
cross-owned entity was also prohibited from self-distribution.

*        BRU2 recognizes the need for an effective compliance and
enforcement regime, including severe penalties for violators, and that
such a regime would adequately address the risks of gaming and
data-sharing.

 

Common ownership

 

Should a registry be able to own a registrar, and vice versa, provided
it doesn't distribute its own TLD?

 

*        Yes, BRU2 says 100% cross-ownership is allowable if
self-distribution is prohibited..

 

What is an acceptable level of cross-ownership (0 - 100%) if
self-distribution is permitted?

 

*        BRU2 says de minimus (5%) is allowable when self-distribution
is permitted.

 

What is an acceptable level of cross-ownership (0 - 100%) if
self-distribution is prohibited?

 

*        BRU2 says 100% cross-ownership is allowable if
self-distribution is prohibited.

 

Control 

 

Should a registry be able to control a registrar, and vice versa,
provided it doesn't distribute its own TLD?

 

*        BRU2 says yes, 100% cross-ownership and control is allowed with
no self-distribution.

 

Absent an arbitrary restriction on percentage of cross-ownership, what
constitutes control?

 

*        BRU2 did not address the definition of control.

 

What restrictions should be put in place to prevent control?  Do these
vary if self-distribution is prohibited?

 

*        BRU2 did not address restrictions on control.

 

Enforcement and compliance

 

Is ICANN capable of enforcing contract compliance to prevent gaming in a
cross-owned entity?

 

*        BRU2 assumes that ICANN is capable of enforcing contract
compliance, provided the rules and restrictions are clearly defined.

 

Scope

 

Should the scope of ICANN contracts be increased?

 

*        BRU2 identified the need for expanded/enhanced contractual
language to prevent gaming and data-sharing.

 

Specifically, should Registry Service Providers be required to enter
into contracts with ICANN?

 

*        BRU2 said cross-ownership and self-distribution restrictions
should be extended to Registry Service Providers, but did not recommend
new contracts with ICANN for those entities.

 

Should other entities (eg Resellers) also be required to enter into
contracts with ICANN?

 

*        BRU2 did not consider or recommend reseller contracts with
ICANN.

 

Exceptions to cross-ownership and self-distribution restrictions

 

Permitted for Single-Registrant, Single-User (SRSU) TLDs?

 

*        BRU2 allows an exception for SRSU TLDs.

 

Permitted for "orphaned" TLDs that can't get registrar distribution?

 

*        BRU2 allows an exception for orphaned TLDs.

 

Permitted for "community" TLDs?

 

*        BRU did not address a specific exception for "community" TLDs.

 

Should there be numeric caps for any or all of these?

 

*        BRU2 did not address specific numerical caps for exceptions.

 

Interim solution

 

Should the results of this first-phase VI-WG PDP be limited to the first
round of new TLDs only?

 

*        BRU considers the first phase of the VI-WG PDP as applying only
to the first round of new TLDs.

 

 

 

From: owner-gnso-vi-feb10@xxxxxxxxx
[mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Mike O'Connor
Sent: Thursday, July 01, 2010 10:08 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: [gnso-vi-feb10] request -- documenting the current state of
"Brussels proposals"

 

hi all,

 

one of the requests that came out of our call today was for a summary of
each of the "Brussels proposals" that we developed during the Saturday
meeting (and then refined through lots of hallway conversation
thereafter).  as i mentioned on the call, those summaries will have to
come from the groups themselves, as Roberto and i were floating back and
forth between the groups and wouldn't be able to do a good job of
preparing the summaries.

 

could each of the groups document the current state of their views and
post them to the list?  

 

another request -- could the RACK+ folks do the same?  it would be nice
to create another version of Kathy's matrix so that we can set all these
side by side.

 

to aid that process, here's a series of questions that i've lifted from
various places that you all can use to structure your summaries.  it's a
blend of atoms and questions and the goal is to get to principles that
perhaps we can rally around.  note the cool Capitalization so that it
can be used as the basis of a real document.  please try to structure
your summary around these if you can.

 

thanks,

 

mikey

 

- - - - - -

 

Questions:

 

What is the best way to prevent gaming in a cross-owned entity --
percentage ownership caps, restrictions on control, both or something
else?

 

Do the benefits of increased competition (registrars becoming registries
or back-end service providers) outweigh the potential risks of gaming
from a cross-owned entity, or vice-versa?

 

Common ownership

 

        Should a registry be able to own a registrar, and vice versa,
provided it doesn't distribute its own TLD?

         

        What is an acceptable level of cross-ownership (0 - 100%) if
self-distribution is permitted?

         

        What is an acceptable level of cross-ownership (0 - 100%) if
self-distribution is prohibited?

         

Control 

 

        Should a registry be able to control a registrar, and vice
versa, provided it doesn't distribute its own TLD?

         

        Absent an arbitrary restriction on percentage of
cross-ownership, what constitutes control?

         

        What restrictions should be put in place to prevent control?  Do
these vary if self-distribution is prohibited?

         

Enforcement and compliance

 

        Is ICANN capable of enforcing contract compliance to prevent
gaming in a cross-owned entity?

         

        If the answer is "no," what steps would ICANN need to take to
overcome this problem?

         

        If the answer is "no," what steps would ICANN need to take to
demonstrate an ongoing commitment to fulfilling this role?

         

Scope

 

        Should the scope of ICANN contracts be increased?

         

        Specifically, should Registry Service Providers be required to
enter into contracts with ICANN?

         

        Should other entities (eg Resellers) also be required to enter
into contracts with ICANN?

         

Exceptions to cross-ownership and self-distribution restrictions

 

        Permitted for Single-Registrant, Single-User (SRSU) TLDs?

         

        Permitted for "orphaned" TLDs that can't get registrar
distribution?

         

        Permitted for "community" TLDs?

         

        Should there be numeric caps for any or all of these

         

Interim solution

 

        Should the results of this first-phase VI-WG PDP be limited to
the first round of new TLDs only?

         

- - - - - - - - -

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